Execution May Go Forward Despite Childhood Abuse Described as 'Sadistic Terror'

On August 12, Virginia Governor Bob McDonnell said he would not commute the death sentence of Jerry Terrell Jackson, despite the emergence of evidence that Jackson was subjected to extreme physical and psychological abuse, evidence not heard by his trial jury. Jackson is scheduled to be executed on August 18 for the murder of 88-year-old Ruth Phillips. Federal District Court Judge Leonie Brinkema held a two-day hearing in 2008 where Jackson's siblings first testified about the level of childhood abuse inflicted on Jackson and other family members.  She concluded that his sentencing hearing was a travesty of justice: "The picture painted of Jackson by his own counsel all but invited a death verdict," and that his trial counsel was "constitutionally ineffective." She described the abuse as a "continuous, sadistic course of conduct that terrorized and dehumanized Jackson throughout his childhood."  However, the U.S. Court of Appeals for the Fourth Circuit reversed the decision last April, deferring to the Virginia Supreme Court, which upheld Jackson's sentence.  A petition asserting ineffectiveness of counsel is pending before the U.S. Supreme Court.  If the petition is denied, Jackson will be the first person executed in Virginia since Teresa Lewis in September 2010.

UPCOMING EXECUTION: Virginia Jurors Never Heard Critical Evidence of Childhood Abuse

va_clipLawyers for Jerry Terrell Jackson, who is currently facing execution in Virginia on August 18, recently petitioned the U.S. Supreme Court to spare Jackson's life, arguing that the jury in his 2003 trial did not receive sufficient evidence of the abuse he suffered as a child because his trial lawyers were inadequate.

Charges Dropped Against Sailor Convicted of Capital Murder and Rape

On August 4 in Virginia, Norfolk Circuit Court Judge Charles Poston accepted the state's request to dismiss charges against Derek Tice, one of four men known collectively as the Norfolk Four (pictured; Tice is at the lower left), who were originally convicted of a rape and murder following a suspect series of confessions.  All four were sentenced to prison.  Appeals by attorneys for the Norfolk Four alleged that Robert Glenn Ford, the police detective in the case, obtained false confessions from the men, partly by using the threat of the death penalty. A fifth man, Omar Ballard, later confessed to committing the crime alone, and his DNA matched evidence from the crime scene, while the DNA from the four sailors was not a match. Former Governor Tim Kaine granted commutations to three of  the four who remained in prison in 2009.  However, the men remained on probation and were required to register as sex offenders in their communities. Derek Tice is the first to fully clear his name. Officer Ford was later convicted of multiple counts of extortion and lying to federal agents in another matter.  Ballard is serving multiple life sentences.

POSSIBLE INNOCENCE: Federal Judge Overturns Capital Murder Conviction in Virginia, Citing Prosecutorial Misconduct

On July 12, U.S. District Court Judge Raymond A. Jackson overturned the murder conviction and death sentence of Justin Wolfe (pictured), who allegedly orchestrated the slaying of his marijuana supplier, Daniel Petrole Jr., in Virginia over a decade ago. Judge Jackson ruled that prosecutors in Wolfe's case withheld or ignored crucial evidence that could have helped Wolfe's defense. The Court held that Prince William County Commonwealth's Attorney Paul Ebert and his assistant Richard Conway allowed the use of false testimony from the admitted shooter that linked Wolfe to the slaying, failed to disclose evidence that others might have wanted to kill Petrole, and orchestrated the testimony of key witnesses. The key state witness against Wolfe later recanted his testimony. Judge Jackson wrote, "Ebert and Conway’s actions served to deprive Wolfe of any substantive defense in a case where his life would rest on the jury’s verdict. The Court finds these actions not only unconstitutional in regards to due process, but abhorrent to the judicial process.” The Court also found that Wolfe's Sixth Amendment right to an impartial jury was violated by the improper exclusion of a potential juror.

Update on Lethal Injection Issue

In a clear national trend, seven states (Alabama, Arizona, Mississippi, Ohio, Oklahoma, Texas, and South Carolina) have used pentobarbital instead of sodium thiopental in their executions in 2011. The most recent such execution was that of Donald Beaty in Arizona on May 25, following a temporary stay as the state made a sudden switch to the new drug.  Ohio is the only one of the seven states to use pentobarbital as the sole drug in its lethal-injection process.  At least five states (Alabama, Georgia, Kentucky, Tennessee, and South Carolina) that acquired sodium thiopental through an overseas source have had the drug seized by the U.S. Drug Enforcement Administration.  In addition, Arizona was instructed by the DEA not to use its foreign sodium thiopental just prior to the May 25 execution. Arkansas and California also have supplies of sodium thiopental originally obtained from a supplier in Great Britain.  In Nebraska, questions about its supply of sodium thiopental--obtained from a company in India--has postponed the execution of Carey Dean Moore.  South Dakota's sodium thiopental was also reportedly obtained from India.  Other states like Georgia, Louisiana, and Virginia have indicated they intend to switch to pentobarbital in future executions.

Sole Provider of New Drug for U.S. Executions Faces Ethical Dilemma

Lundbeck Inc., a Danish pharmaceutical company that is the sole manufacturer of pentobarbital for sale in the U.S., is facing an ethical dilemma regarding the use of its drug in executions. Pentobarbital is increasingly being used in the U.S. in place of sodium thiopental for lethal injections.  Pentobarbital was most recently used in executions in Texas, South Carolina, and Mississippi. Andrew Schroll, a spokesman for Lundbeck, said that the company has prided itself on making products that improve people’s lives. Denmark and the entire European Union, as well as Lundbeck, are officially opposed to the death penalty and disagree with how this product is being used. Schroll said, “This is a misuse of our product. We are in an ethical dilemma where we are opposed to the use of our medication for capital punishment while at the same time we want to make sure that patients who benefit from our medication get access to it." Lundbeck has sent letters to prisons in 11 states demanding that they stop using pentobarbital in their lethal injection protocols. No prison has responded, and even more states are intending to use the drug, including Virginia, which recently announced their switch.

IN MEMORIAM: Marie Deans, A Life of Commitment to Justice and Founder of Murder Victims' Families for Reconciliation

On April 15, 2011, Marie McFadden Deans died in Charlottesville, Virginia. For three decades, Deans sought justice for death row inmates who had no other recourse and who had been poorly represented.  Professor Todd Peppers of Roanoke College wrote in an op-ed about her life that she brought "basic conditions of decency to the men who inhabited Virginia’s death row,... refin[ed] the use of mitigation evidence in death penalty trials, [and] struggl[ed] to exonerate factually innocent men." Deans's commitment to repealing the death penalty was sparked after the murder of her mother-in-law, Penny Deans, by an escaped convict. Marie founded Murder Victims’ Families for Reconciliation, an organization, designed to give those who opposed the death penalty “a safe place from which they could speak out.”  She  was a self-taught mitigation expert, and, largely because of her efforts, only two of the 200 men that she helped defend during their sentencing hearings were ultimately given the death penalty. Perhaps her greatest triumph was the exoneration of Virginia death row inmate Earl Washington, Jr., a man with intellectual disabilities, whose false confession was the product of police coercion and manipulation. Washington was awarded almost $2 million dollars in damages "for the imprisonment that resulted from the fabrication of evidence against him and would become one of the compelling stories cited in the steady rise of death row exonerations across the country."

U.S. Supreme Court Orders Reconsideration of “Vindictive Prosecution” in Virginia Capital Case

The U.S. Supreme Court has ordered the Virginia Supreme Court to address a claim brought by former death-row prisoner Justin Wolfe (pictured) that prosecutors had engaged in unconstitutional vindictive prosecution against him after federal courts had found that his conviction and death sentence had been obtained through egregious prosecutorial misconduct. The Virginia Supreme Court had ruled that Wolfe’s guilty plea to the enhanced charges brought against him after his first conviction was overturned barred him from challenging the prosecutors’ conduct. In a two-sentence order on January 7, 2019, the Supreme Court granted Wolfe’s petition to review his case, summarily reversed the state court decision, and directed the Virginia Supreme Court to consider Wolfe’s vindictive prosecution claim.

Wolfe was convicted and sentenced to death in 2002 on charges that he had hired Owen Barber to kill Daniel Petrole, Jr. His conviction was overturned in 2011 when U.S. District Court Judge Raymond A. Jackson found that the prosecution had intentionally withheld exculpatory evidence, threatened a witness with the death penalty if he did not testify against Wolfe, and presented false testimony to the jury. Judge Jackson described the prosecutorial and police misconduct in the case as “abhorrent to the judicial process.” Barber, the admitted triggerman and the state’s key witness against Wolfe, had recanted his testimony in 2005. He said, “The prosecution and my own defense attorney placed me in a position in which I felt that I had to choose between falsely testifying against Justin or dying.” Prosecutors had in their possession, but withheld from the defense, a police report documenting that a detective had suggested to Barber that he implicate Wolfe in the murder or face execution, as well as information that Barber had confessed to his roommate that he had acted alone in committing the murder. The prosecution attempted to justify its conduct by saying it had withheld the evidence to avoid providing Wolfe with information that could be used “to fabricate a defense.”

In 2012, Judge Jackson ordered Virginia to release Wolfe and barred a retrial, saying that a prosecution visit to Barber in 2012 in which it again threatened him with the death penalty if he did not cooperate showed "the same subtle but unmistakable coercion" as earlier efforts to induce his testimony. Six months later, the U.S. Court of Appeals for the Fourth Circuit reversed the District Court’s ruling and allowed the state to retry Wolfe. Prosecutors not only sought to retry Wolfe, but added six new charges. Rather than face the possibility of another death sentence, Wolfe agreed to a plea deal. He pled guilty and was sentenced to 83 years in prison, with 42 years suspended. He attempted to appeal the validity of the plea “in light of the Commonwealth’s vindictive prosecution,” but the Virginia Supreme Court on February 5, 2018 refused his petition for appeal. He sought review in the U.S. Supreme Court, arguing that his appeal should be allowed under its 2018 decision in Class v. United States, which held that “‘a plea of guilty to a charge does not waive a claim that—judged on its face—the charge is one which the State may not constitutionally prosecute.’” The Supreme Court reversed the Virginia Supreme Court’s ruling and sent the case back for further consideration in light of Class.