Highlighting Growing Problem, California Attorney General Says Death Row Prisoner Too Mentally Ill to Execute

Saying that he has a permanent condition that makes him too mentally ill to execute, the office of California Attorney General Kamala Harris (pictured) recently asked the California Supreme Court to remove Ronnie McPeters from California's death row and resentence him to life without parole. The action is rare because McPeters is not facing an imminent execution date, but Chief Deputy Attorney General Nathan Barankin said his office now considers some death row prisoners so "grievously incompetent" that they will never be able to be executed. The office says that such prisoners should be declared incompetent to be executed and removed from death row. McPeters has been on death row for 30 years, and is one of nine California death row prisoners whom federal judges have found incompetent to assist their attorneys in habeas corpus appeals. His mental condition has further deteriorated while on death row, where he has received inconsistent mental health care: some prison doctors have involuntarily medicated him for schizophrenia, while another had him involuntarily retrained for five days before asserting that McPeters was faking his illness. According to prison records, McPeters has at various times spread his feces on himself and the walls, hoarded it for safekeeping, soaked himself in urine, and carried on conversations with a wife and children who do not exist, and is "tormented by the inner voices of the relatives" of the woman he murdered. He was first declared incompetent in 2007 by U.S. District Judge Lawrence O'Neill, who at a status conference six years later said, "We don’t have one scintilla of evidence ... that he is anything but incompetent." McPeters' case highlights a growing problem in California and across the nation. A Los Angeles Times investigation found 20 inmates, including McPeters, who had been diagnosed with schizophrenia, psychosis, or paranoia, and California recently became the first state to open a death row psychiatric ward, which was full to capacity within a year. 

Texas Inmate Dies Days Before Appeals Court Hearing On His Innocence Claim

On April 24, just days before a Texas federal appeals courts was to hear his case, Max Soffar — who spent 35 years on death row constantly maintaining his innocence — died of liver cancer at the age of 60. No physical evidence linked Soffar to the crime for which he was sentenced to death, and Soffar — a seventh-grade drop-out with brain damage from fetal alcohol syndrome — said that he confessed to police only after hours of coercive questioning. In a 2014 interview, Soffar said, "Everything in those statements that I made does not match the crime scene. It’s all made up off the top of my head." After Soffar's first conviction was overturned in 2006, he tried to present evidence at his retrial that the murder had been committed by another man who was later convicted of similar murders in Tennessee. The trial court excluded the evidence, a witness to whom that man had allegedly confessed did not testify after prosecutors threatened to try him for murder, and Soffar was again convicted and sentenced to death. Soffar then petitioned Governor Rick Perry for clemency in 2014, receiving support from former FBI director William Sessions and former Texas Governor Mark White. The U.S. Court of Appeals for the Fifth Circuit recently granted Soffar permission to appeal the U.S. District Court's 2014 denial of a writ of habeas corpus. His hearing in that appeal was scheduled for April 27. Andrew Horne, an attorney for Soffar, said "[h]is confession was demonstrably false. There was evidence another man committed the crime." Horne added, "Max was very excited about the Fifth Circuit ruling, very optimistic.... I’m glad he’s not suffering anymore, but I’m frustrated that he didn’t get his rights vindicated. He protested his innocence to the last.”

Recent Executions May Have Denied Key Evidence to Defendants in Pending Innocence Cases

According to a report by Raw Story, two recent executions may have irreparably impaired efforts by several prisoners to prove their innocence, preventing them from presenting testimony from potential alternate suspects. Rodney Lincoln was convicted of the 1982 murder of JoAnn Tate and assaulting her two young daughters and was sentenced to two life terms. The primary evidence against him was the testimony of Melissa Davis, Tate's eight-year-old daughter who survived the attack. Years later, Davis saw a picture of serial killer Tommy Lynn Sells and identified him as her mother's killer. She now believes Lincoln is innocent. Sells, who confessed to several other killings while in prison, cannot be questioned about the Tate case because he was executed in 2014. A similar situation has arisen in Oklahoma, where Malcolm Scott and De'Marchoe Carpenter have been imprisoned for more than two decades for a drive-by shooting in which Karen Summers was killed. Police arrested a third man, Michael Lee Wilson, who was in possession of the gun and car used in the shooting. Wilson pleaded guilty to being an accessory after the fact and was given a five-year sentence in exchange for his testimony against Scott and Carpenter. Three months after he was released, he robbed a gas station and killed the store clerk, for which he received a death sentence. Two days before his execution, Wilson gave a videotaped statement to an attorney from the Oklahoma Innocence Project saying that Scott and Carpenter had nothing to do with Summers' murder. Prosecutors argue that Wilson's statement is an attempt to help fellow gang members, but his execution blocks any possibility of further questioning. 

Texas Capital Juror Regrets Vote to Sentence Defendant to Death

In an interview with The Marshall ProjectTexas death penalty juror Sven Berger says he would not have voted to sentence capital defendant Paul Storey to death in 2008 had he known about Storey's “borderline intellectual functioning,” history of depression, and other evidence that Storey's lawyer failed to present at trial. Berger and 11 other Texas jurors unanimously voted to sentence Storey to death, but Berger says that at the time of jury deliberations he did not believe Storey would pose a continuing danger to society if incarcerated - a fact that is a prerequisite to imposing the death penalty in Texas. Berger says "I just didn't get the feeling he was dangerous.... But the other jurors seemed anxious to deliver the death penalty" and in the highly stressful circumstances of death penalty deliberations, Berger went along with the other jurors. In the interview, Berger shared his experience saying, "If I could have done anything, it would have been to deadlock the jury, but I didn’t have the personal strength to do it ... at the time, I was really uncomfortable speaking out." He said that, after the verdict, "I felt guilty about what happened. And sad. And a little helpless. ... Eventually I started saying, 'I don’t think I made the right call.'" Two years later, Berger was contacted by a lawyer working on Storey's appeal who showed him a psychologist's report explaining Storey's background and mental health issues. Berger wrote in an affidavit that had he heard this evidence, "I would not have voted for the death penalty."

Texas Prepares to Execute Richard Masterson While Autopsy Data Suggests Death Was Not Murder At All

As Texas readies itself to execute Richard Masterson (pictured), his lawyers have filed new pleadings questioning whether any murder occurred at all and are seeking a stay of execution based on what they say is "evidence of State fraud, misconduct, and his actual innocence." Masterson's filings challenge the forensic testimony presented by the prosecution in the case, the accuracy of instructions given to jurors, and the constitutionality of Texas' lethal injection secrecy law. Masterson is scheduled to be executed on January 20 for the death of Darrin Honeycutt, which medical examiner, Paul Shrode, testified had been caused by strangulation. His attorneys argue in a new federal court filing that prosecutors concealed evidence that their expert witness and attending medical examiner was unqualified to perform Mr. Honeycutt’s autopsy, botched the autopsy, falsified his credentials, and gave false testimony in this case and other capital murder trials. Two pathologists who examined autopsy data say that the Shrode was unqualified and incorrectly ruled Honeycutt's death a homicide, when it was most likely caused by a heart attack. In 2010, Ohio Governor Ted Strickland commuted the death sentence of Richard Nields based upon concerns about Dr. Shrode's assertion that the victim in that case had been strangled. Shrode was subsequently fired as chief medical examiner in El Paso County, Texas, after discrepancies were found in his resume and revelations were made about his unsupported testimony in the Ohio case.  

Death Row Exoneree Anthony Graves Seeks to Right the "Injustice of the Justice System"

Death row exoneree Anthony Graves (pictured, right, with Sen. Richard Durbin after testifying before the U.S. Senate Subcommittee on the Constitution, Civil Rights and Human Rights in 2012) has experienced what he calls the "injustice of the justice system" and is working to make the system better. Graves was exonerated from death row in Texas in 2010, 16 years after being wrongfully convicted in a multiple murder case. Using some of the $1.5 in compensation that he was awarded for his wrongful imprisonment, Graves created the Anthony Graves Foundation with a mission "to promote fairness and effect reform in the criminal justice system." Now, he is advocating for broad criminal justice reforms to redress not only problems with the death penalty, but with questionable forensic evidence, racially disparate sentencing, the imprisonment of people with mental illness or drug addictions, and laws that unnecessarily require jail time or carry harsh mandatory minimum sentences. In an interview with Voice of America, Graves said, referring to the Texas criminal justice system: "You tried to murder me and I want to stay in your face every day to remind you that we need to do better." He described his advocacy, saying, "I use my story to educate people, but more importantly, keep it on people’s minds about the injustice that is going on in our criminal justice system." 

Texas to Execute Lester Bower After 30 Years on Death Row, Despite Errors and Doubts as to Guilt

UPDATE: Bower was executed as scheduled. EARLIER: Lester Bower is scheduled to be executed in Texas on June 3, after spending more than 30 years on death row. Judges have denied relief on several issues raised by Bower, including a claim that prosecutors had withheld evidence from the defense supporting Bower's consistent assertion that he is innocent. Bower was convicted of the 1983 murder of four men in Grayson County, Texas. He says he met with one of the men to purchase an ultralight aircraft, which the others helped him disassemble and load into his truck. The evidence against him was circumstantial: calls made to the man selling the aircraft and Bower's possession of the same type of ammunition used in the killings, which prosecutors had told the jury was extremely rare. After Bower's conviction, his lawyers obtained records from the FBI and prosecutors indicating that the ammunition was not as rare as prosecutors had said, and of an undisclosed tip that the murders may have been connected to drug trafficking. Later, a woman came forward saying that her boyfriend and his friends had committed the murders after a drug deal went wrong. The wife of one of the other men corroborated her story. In a recent filing, Bower's attorneys said, "This is a case in which there is a significant lingering doubt regarding guilt or innocence." Three Supreme Court justices have said that Bower should have a new sentencing hearing, as a result of what they called a "glaring" constitutional error that impaired the jury's consideration of mitigating evidence.

LETHAL INJECTION: Texas Switches to New Drug as Next Execution Approaches

The Texas Department of Criminal Justice (TDCJ) announced on March 16 that it will switch to pentobarbital as part of its three-drug lethal injection protocol for the upcoming execution of Cleve Foster on April 5.  The short notice has drawn concerns from Foster's defense attorneys and lethal injection experts. Maurie Levin, a professor at the University of Texas who represents Foster, said, “Prison officials are not medical professionals. They cannot be trusted to change a medical procedure in the dark of night without public scrutiny, especially when there is such a minimal track record on the use of pentobarbital in lethal injections."  Prof. Deborah Denno of Fordham Law School, one of the nation’s leading experts on the lethal injection, said that the “Texas decision was not about making executions more humane but was meant to make the process more feasible.”  She also pointed to the fact that the problems with the earlier methods of lethal injection arose because one state blindly followed another, without careful review: "This lemming-effect has created a decades-long pattern of lethal injection botches in which department of corrections try to remain one step ahead of lawsuits."