Nevada

Nevada

Nevada Prisoner Whose Case Confirmed Unconstitutionality of Mandatory Death Sentences Dies 

Raymond Wallace Shuman (pictured), whose case led to a 1987 U.S. Supreme Court decision affirming the unconstitutionality of mandatory death sentences, has died in a Nevada prison at age 83. Shuman, one of the longest-incarcerated prisoners in Nevada history, was serving a life sentence for a 1958 murder when he was convicted of killing a fellow prisoner in 1973. At that time, Nevada law mandated the death penalty for life-sentenced prisoners convicted of another first-degree murder. Then, in 1976, the U.S. Supreme Court issued a series of decisions upholding the constitutionality of capital punishment, but overturning mandatory death-penalty statutes in North Carolina and Louisiana. The 1976 cases established an individualized-sentencing requirement pursuant to which no one could be sentenced to death without first having the opportunity to present reasons to spare his or her life. Shortly thereafter, Nevada repealed its mandatory death sentencing law. Shuman, who was the first prisoner to face execution in Nevada after the 1976 rulings, challenged the constitutionality of his sentence as violating the Eighth and Fourteenth Amendments. The Nevada Supreme Court upheld Shuman's death sentence. Shuman's lawyers then presented the issue to the Nevada federal courts, which declared the state's mandatory capital-punishment statute unconstitutional. The prosecution appealed, arguing that the Supreme Court's 1976 decisions had left open the question of whether the death penalty could be mandated in certain extremely narrow classes of cases such as prison killings by life-sentenced prisoners. The U.S. Supreme Court agreed to review the case and, in a 6-3 ruling in Sumner v. Shuman, issued on June 22, 1987, the Court declared the statute unconstitutional. In his opinion for the Court, Justice Harry Blackmun wrote: "Although a sentencing authority may decide that a sanction less than death is not appropriate in a particular case, the fundamental respect for humanity underlying the Eighth Amendment requires that the defendant be able to present any relevant mitigating evidence that could justify a lesser sentence." That evidence included the nature of the defendant's prior conviction—Blackmun noted that Shuman had not been the triggerman in the 1958 murder—the defendant's background, life history, upbringing, and mental health, and any mitigating aspect of the circumstances of the offense. Shuman died around 2:25 p.m. on February 4 at the Carson Tahoe Regional Medical Center in Carson City, according to the Nevada Department of Corrections. 

Clark County, Nevada Losing Capital Convictions Because of Prosecutors' Race Discrimination in Jury Selection

The racially discriminatory jury selection practices of the Clark County, Nevada, District Attorney's office are now causing it to lose convictions in capital cases. In a December 18 article, the prosecutorial watchdog, The Open File, details repeated violations by Clark County death-penalty prosecutors of the constitutional proscription against striking prospective jurors from service on the basis of race. Four times in the past four years, the Nevada Supreme Court has ordered new trials in Clark County cases because prosecutors violated the U.S. Supreme Court's 1986 decision in Batson v. Kentucky  by discriminatorily excluding jurors of color, including in three cases in which the death penalty had been imposed. The Open Files writes that “prosecutors in the Clark County District Attorney’s office either do not know, ignore, or gamble on Batson, unsuccessfully hoping the courts will not hold them accountable to it.” In June 2014, the Nevada Supreme Court reversed the conviction and death sentence of Charles Conner, after prosecutors used six of their nine peremptory strikes against jurors of color, claiming that the jurors were “weak” on the death penalty. The court ruled that this purportedly race-neutral justification was pretextual, noting that one of the black jurors to whom prosecutors claimed the justification applied was an Air Force Reserve officer and full-time correctional officer, who had previously served in the Navy and as a police officer. The court found that the prosecutors' explanations for striking this juror were "belied by the record" and that manufacturing "[a] race-neutral explanation that is belied by the record is evidence of purposeful discrimination.” In March 2016, the court granted African-American death-row prisoner Jason McCarty a new trial after Clark County prosecutors excluded two of three eligible black jurors, pretextually attempting to justifying the strikes on the grounds that one worked in a strip club and the other had a brother with a criminal record. However, prosecuters had run detailed employment background checks on only two of the 36 potential jurors, suggesting to the court that prosecutors had not been genuinely concerned about the excluded juror's employment. The prosecutors also disparately questioned jurors whose family members had criminal histories, asking the black juror whom they struck 15 follow-up questions, while asking a similarly-situated white juror a single follow-up question. In granting McCarty a new trial, the court observed: “Discriminatory jury selection is particularly concerning in capital cases where each juror has the power to decide whether the defendant is deserving of the ultimate penalty, death.” In October 2017, the court also granted a new trial to third death-row prisoner, Julius Bradford, after the trial court had permitted the prosecution to strike one Hispanic and one African-American juror without providing the defense an opportunity to contest the race-based nature of the strikes.

DPIC Year End Report: New Death Sentences Demonstrate Increasing Geographic Isolation

Nearly one-third (31%) of the 39 new death sentences imposed in the United States in 2017 came from just three counties, Riverside, California; Clark, Nevada; and Maricopa, Arizona, according to statistics compiled for DPIC's annual year end report. In a press release accompanying the annual report, DPIC said that the year's sentences reflect "the increasing geographic isolation and arbitrary nature of the death penalty." Riverside imposed five death sentences in 2017, Clark four, and Maricopa three, and no other county imposed as many as two. The other 3,140 counties and parishes in the country imposed 27 new death sentences, fewer than the record low total of death sentences imposed in the country last year. These three counties were featured in a 2016 report by Harvard University's Fair Punishment Project of the most prolific death sentencing counties in the country. That report found that the death penalty high-use counties tended to share "a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion," among other criminal justice issues. In a recent article about DPIC's year end report published in the Desert Sun, Dunham said, "You don’t see counties that overproduce death penalties and are model citizens in the administration of justice as a whole." Current Riverside County District Attorney Mike Hestrin told the paper that he “strenuously” objected to that characterization, which he called "a bunch of nonsense." Riverside County Public Defender Steven Harmon said that while the county has historically overused the death penalty, Hestrin, who took office in 2015, "has taken a far more measured approach to deciding in which cases he should seek the death penalty.” The Desert Sun reported in 2016 "an astronomical rise in wiretaps" in Riverside county that was "so vast it once accounted for nearly a fifth of all U.S. wiretaps," including triple the number issued by any other state or federal jurisdiction in 2014. Riverside police ranked 9th in the nation in killings of civilians. 76% of those sentenced to death in Riverside between 2010 and 2015 were defendants of color, and during that time frame it imposed death sentences at a rate that was 9 times greater per homicide than the rest of the state. All six defendants sentenced to death in Riverside in 2016 or 2017 were black or Latino. Riverside has imposed more death sentences than any other county in the country over the last five years, and 2017 was the second time in the last three years that it sentenced more people to death than any other county. Its five death sentences constituted 45% of the death sentences imposed in California this year, and more than were imposed by any other state. Four other southern California counties (Los Angeles, Kern, Orange, and San Bernardino) are also among the ten most prolific death sentencers in the past five years, and the region has been dubbed "the buckle of a new death belt." Riverside County alone has imposed 8.5% of all new death sentences in the country since 2013, and the five-county "death belt" has imposed 21.8%. By contrast, Harris County, Texas, which has executed more people than any other county, produced no executions or death sentences this year. Only 15% of all counties in the U.S. have ever imposed a death sentence that resulted in an execution. (Click image to enlarge.)

Nevada Says Fentanyl Was Easy to Obtain, But Execution Protocol Draws Criticism from Doctors, Legal Experts

As U.S. pharmaceutical companies have strengthened distribution controls on their medicines to prevent their use in executions, states have been changing their execution protocols in search of new or more readily available drugs. That search has led Nebraska and Nevada to build their execution protocols around fentanyl—the drug known for its role in the current opioid crisis in America—and the paralytic cisatracurium, which have never been used in executions before. According to a report in the Washington Post, Nevada's former chief medical officer, Dr. John DiMuro, quickly chose a never-before-used combination of drugs for the state's execution protocol based upon “the few drugs available to the prison system.” In an e-mail to the Post, the Nevada corrections department said the drug was easy to obtain. “We simply ordered it through our pharmaceutical distributor, just like every other medication we purchase, and it was delivered,” wrote corrections spokeperson Brooke Keast. “Nothing out of the ordinary at all.” In April, drug distributor McKesson Medical-Surgical sued Arkansas after learning that the state was using one of the medicines it obtained from the distributor as an execution drug, alleging the state had deliberately misled McKesson to believe that the purchase was for legitimate medical purposes. That lawsuit is still pending in the Arkansas courts. Dr. DiMuro said he created the untried execution protocol “based it on procedures common in open-heart surgery.” However, the protocol has spawned a new round of criticism from doctors and lethal-injection experts. Mark Heath, a professor of anesthesiology at Columbia University, told the Post that if the fentanyl or the sedative Valium—which Nevada would also administer before the paralytic—“don’t work as planned, or if they are administered incorrectly,” then the prisoner would be awake and conscious during the execution. “It would be an agonizing way to die, but the people witnessing wouldn’t know anything had gone wrong because you wouldn’t be able to move” because of the paralytic drug, he said. Emory University Professor of Anesthesiology Joel Zivot said the protocol is the latest in a series of attempts by states to “obtain certain drugs, try them out on prisoners, and see if and how they die.” The states, he said, have “no medical or scientific basis” for selecting the execution drugs. Fordham University law professor Deborah Denno, a leading scholar on methods of execution, criticized the states for continuing to adopt experimental drug protocols. The reason for the change in protocols, she said, is “not really for the prisoner. It’s for the people who have to watch it happen. We don’t want to feel squeamish or uncomfortable. We don’t want executions to look like what they really are: killing someone.”  On November 27, a Nevada state trial court issued an inunction barring the state from using a paralytic in conjunction with fentanyl in the execution of Scott Dozier.  The state has appealed the order. 

Nevada Pardons Man Imprisoned 21 Years as a Result of Wrongful Capital Murder Prosecution

Nevada has pardoned Fred Steese (pictured), who spent 21 years in prison after Las Vegas prosecutors wrongly sought the death penalty against him while witholding evidence that he was not even in the state at the time the murder occurred. In what news reports described as "a clear rebuke to the Las Vegas prosecutors," the Nevada Board of Pardons Commissioners voted 8-1 on November 8 to grant Steese a full pardon. “I’m a new man now,” Steese said. “It’s lifted a black cloud over me.” The seven justices of the Nevada Supreme Court and Governor Brian Sandoval voted in favor of clearing Steese's name; only Adam Laxalt, the state's attorney general and a current candidate for governor, voted against the pardon. Steese was charged with capital murder in the high-profile 1992 killing of Las Vegas circus performer, Gerard Soules. He was prosecuted by Bill Kephart and Doug Herndon, who both went on to become district judges in Las Vegas. Steese was in Idaho at the time of Soules's death, but signed a false confession after a five-hour interrogation and 35 hours without sleep. At trial he presented numerous alibi witness who testified that he was in Idaho at the time. Kephart—who also committed misconduct in several other capital trials before being elected as a judge in 2014—argued to the jury (with no supporting evidence) that the witnesses had seen Steese's brother in Idaho and that Steese had manufactured the alibi. After Steese was convicted in 1995, prosecutors withdrew the death penalty and Sreese was sentenced to two life sentences. He spent two decades in prison before federal public defenders proved that his brother, estranged since childhood, couldn’t have helped with Steese’s alibi. The federal defenders' investigation also unearthed phone records in the prosecution’s files that proved Steese was in Idaho at the time of the murder. In 2012, a Nevada Eighth Judicial District Court judge issued an Order of Actual Innocence, declaring that Steese didn’t kill anyone. But the Clark County District Attorney’s Office refused to admit it had convicted an innocent man. In 2013, Assistant District Attorney Pamela Weckerly told Steese she’d agree to release him from prison only if he entered an Alford plea, in which, while maintaining his innocence, he admitted there was sufficient evidence on which he could be convicted. After gaining his freedom, Steese—still with a murer conviction on his record— struggled to find employment and experienced periods of homelessness before finding work as a cross-country trucker. At the pardon hearing, Steese’s pro-bono attorney lawyer, Lisa Rasmussen, said that from the time of his interrogation through the time of his release from prison, his constitutional rights had been “violated in a huge way.” Rasmussen condemned the prosecutorial misconduct in the case as “an embarrassment and a black mark on Clark County and the state of Nevada." After Steese himself testified, the board heard from Kathy Nasrey, the sister of Gerard Soules, who demanded that Kephart, Herndon, and others be held accountable for knowingly convicting an innocent man while her brother’s killer remained on the loose. “Now that it was clear that certain lawyers and detectives helped convict an innocent man,” she said, “will they be held accountable for taking away 20 years of his life?”

Nebraska Proposes Untried Lethal-Injection Combination as Nevada Court Halts Execution With Similar Drugs

As Nebraska announced its intention to use a never-before-tried four-drug execution combination featuring the opiod pain medication fentanyl and the paralytic drug cisatracurium, a Nevada judge issued a stay of execution that put off the nation's first attempted execution using those drugs. On November 9, the Nebraska Department of Correctional Services provided notice to death-row prisoner Jose Sandoval that it intends to execute him using a combination of the drugs diazepam (Valium), fentanyl citrate, cisatracurium besylate, and potassium chloride. Later that day, Clark County (Las Vegas) District Judge Jennifer Togliatti granted a request by lawyers for the Nevada Department of Corrections to stay the scheduled November 14 execution of Scott Dozier to permit them to appeal her order directing the state to remove cisatracurium from its also untried execution protocol of diazepam, fentanyl, and the paralytic. Dozier, who has waived his appeals and asked to be executed, is only contesting the state's method of execution. The judge issued her order after considering medical evidence that the cisatracurium could cause Dozier to experience "air hunger" and suffocate to death, while masking signs that he was conscious and suffering during the execution. Doctors testified that a paralytic drug would be unnecessary if the other two drugs, fentanyl and diazepam, were administered properly. In staying the execution to permit Nevada to appeal to the state supreme court, Judge Togliatti said: "They're going to have to be the court to make that determination that we as a state are OK with a paralytic." Nebraska law requires the state to give a prison notice of the drugs to be used in the execution at least sixty days in advance of issuing a death warrant. The state attorney general's office has indicated it will ask the Nebraska Supreme Court to issue a warrant after that time has passed. State Senator Ernie Chambers, one of the leaders of the Nebraska legislature's repeal of the state's death-penalty statute and its override of Governor Pete Ricketts's veto of the measure, criticized the notice as politically motivated and called the timing of its issuance "suspicious." The notice was issued almost a year to the day after the voters brought back the death-penalty law in a voter iniative bankrolled by Rickett, and as the governor gears up for a re-election campaign in 2018. Sandoval is currently unrepresented. The Nebraska Commission on Public Advocacy, which typically represents death-row prisoners, cannot represent Sandoval because it represented other defendants in the case. But the commission's executive director, Jeffery Pickens, said Sandoval "has to be given some sort of opportunity to challenge [the drug protocol]."

Arkansas, Nevada Obtain New Supplies of Drugs, Plan to Carry Out Two Questionable Executions

The states of Arkansas and Nevada have announced that they have obtained new supplies of execution drugs that will permit them to carry out two executions in what critics have called questionable circumstances. On August 4, Arkansas obtained a supply of midazolam—the controversial drug used in botched executions in at least four states—paying $250 in cash to an undisclosed supplier for 40 vials of the drug. Then, on August 17, Attorney General Leslie Rutledge asked Governor Asa Hutchinson to set an execution date for Jack Greene (pictured), described by his lawyers as “a severely mentally ill man [with] well-documented brain damage.” Also on August 17, Nevada—which does not currently have an execution protocol in place—announced that it had obtained drugs to execute Scott Dozier, using a three-drug formula that no state has ever tried before. Dozier—who has waived his appeal rights and volunteered to be executed—is scheduled to die on November 14. In a press statement, Greene’s lawyer, John C. Williams, said “[c]apital punishment should not be used on vulnerable people like the severely mentally ill.” Greene, he said, is mentally incompetent and suffers from delusions that “his spinal cord has been removed and his central nervous system has been destroyed.” Responding to this delusion, Williams said, Greene “constantly twist[s] his body and stuff[s] his ear and nose with toilet paper to cope with the pain,” often causing himself to bleed. A spokesperson for Hutchinson—who authorized Arkansas’s unprecedented attempt to execute eight prisoners over an eleven-day span in April—has indicated that the governor will set an execution date for Greene. To execute Dozier, Nevada has indicated that it will use an untried combination of diazepam (Valium), fentanyl (an opiod), and cisatracurium (a paralytic). The state has not yet announced how the drugs will be administered. All but one of the prisoners executed in Nevada since 1977 were found to have waived their appeals; Dozier would be the state's 12th death-row prisoner to volunteer to be executed. Nevada recently spent nearly $900,000 on building a new execution chamber.  

Nevada Death-Row Prisoner Released on Plea Deal After Medical Evidence Suggests No Crime Occurred

Ha'im Al Matin Sharif (pictured), formerly known as Charles Robins, has been released from Nevada's death row, nearly 30 years after he was convicted of killing his girlfriend's 11-month-old daughter, after medical evidence revealed that the baby died from infantile scurvy, rather than from physical abuse. Prosecutors agreed to amend the charges against Sharif and release him on time served after a prosecution doctor confirmed that Brittany Smith actually died of Barlow's disease, a form of scurvy affecting infants. The child's autopsy showed broken bones and hemorrhages, a local medical examiner listed the cause of death as blunt force trauma, and Las Vegas police accused Sharif of torturing her. “I was confused as to the nature of the injuries they described, because I had done nothing,” Sharif said. The child's mother initially told police that Sharif was not abusive, but then testified against him. She later recanted her testimony and told Sharif's appellate attorney that police had coerced her into providing false testimony implicating Sharif by threatening to take her other children away. During Sharif's appeals, medical experts who reviewed the baby's X-rays to rule out disease as the cause of death said the injuries were likely caused by scurvy. The Nevada Supreme Court ordered that the case be sent back to the trial court, writing, "We are satisfied that Robins has presented specific factual allegations that, if true, would show that it is more likely than not that no reasonable juror would have convicted him of first-degree murder and child abuse beyond a reasonable doubt or found the single aggravating circumstance used to make him death eligible." Prosecutors agreed to a deal in which Sharif would plead guilty to second-degree murder and be sentenced to time served. Although Sharif continues to maintain his innocence, he agreed to the reduction in charges to obtain his immediate release. Sharif's case is the latest in a growing number of cases in which men and women have been wrongly sentenced to death based upon erroneous forensic testimony that they had murdered a child, when the children had actually died from natural or accidental causes. Rodricus Crawford was exonerated in Louisiana in 2017 on evidence that his one-year-old son died of pneumonia and sepsis, not suffocation. Sabrina Butler was just 17 years old when her infant son died. She spent five years on death row in Mississippi before she was acquitted at a retrial, where she presented evidence that her child died of a hereditary kidney condition. Others have been condemned for the deaths of their children in cases that junk-science testimony misattributed to arson:  Texas executed Cameron Todd Willingham in 2004 based on faulty fire testimony; in 2006, after more than 15 years on Pennsylvania's death row, Dennis Counterman agreed to enter a no-contest plea to third-degree murder and was released. 

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