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Federal Appeals Court Removes Military Judge From Case For Comments Prejudging 9/11 Detainee's Guilt

A federal appeals court in Washington has ordered the recusal of a military judge from hearing an appeal in the Guantánamo military commission death penalty trial of five defendants accused of direct responsibility for the 9/11 attacks. A unanimous three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled on August 8 that Judge Scott L. Silliman of the United States Court of Military Commission Review (CMCR) was disqualified from participating in appeals in the case because of prior public comments he had made prejudging the guilt of accused 9/11 conspirator Khalid Sheikh Mohammad. Lawyers for Mohammad had petitioned the court to have Silliman removed from the case, citing more than a dozen instances in which, they said, Silliman had made comments exhibiting a constitutionally intolerable risk of bias. Before becoming a judge, Silliman gave an interview to The World Today in 2010 about the case of Guantánamo Bay detainee Ahmed Khalfan Ghailani. During that interview, he said: “We’ve got the major conspirators in the 9/11 attacks still at Guantánamo Bay—Khalid Sheikh Mohammed and four others.” Later in the same interview, Silliman compared Ghailani's culpability to that of Mohammed, calling them "two totally different types of cases” and saying “the magnitude of what they did is very different.” The judges wrote that “the Court can hardly perceive how calling Petitioner one of the ‘major conspirators in the 9/11 attacks’ and referring to what he 'did’ is anything other than the expression of an opinion concerning his responsibility for those attacks.” Such statements, they wrote, required Silliman to disqualify himself from the case. Because “Judge Silliman failed to do so," the court wrote, Mohammad had provided "clear and indisputable” grounds for his removal. Mohammad's petition also cited remarks made by Silliman in a 2008 interview with the Los Angeles Times, where he said that “we’re going to have a military commission for those the United States believes, and most of the world acknowledges, to be ring leaders of the 9/11 attacks.” The petition also said that Silliman was quoted in another media interview in 2011 discussing how and where Mohammad “will be” executed. The ruling vacates a June 29 order by the CMCR that had reinstated two charges against the defendants that the trial judge had dismissed. The CMCR will now have to re-hear the government's appeal of that issue before a new panel. University of Texas Law Professor Steve Vladeck, who represents several Guantánamo detainees in petitions seeking U.S. Supreme Court review of their cases, called the decision “yet another stinging rebuke" of the CMCR by the Court of Appeals. He said the decision in Mohammad's case puts off resolution of another question raised concerning the CMCR, “whether active-duty military officers (including the other two judges on the CMCR panel that originally heard the government’s appeal) may lawfully serve as judges on the CMCR."

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.

Innocents Lost: Remembering The Wrongfully Condemned Who Died in 2015

Three death-row exonerees, including two who became symbols of the risks of wrongful capital convictions, died in 2015. David Keaton (pictured, far left), the first man exonerated from death row in the modern era of the death penalty, died on July 3 at the age of 63. A teenaged Keaton was sentenced to death in Florida in 1971 for the murder of an off-duty police officer. His conviction was based upon a coerced confession and erroneous eyewitness testimony. Keaton was exonerated in 1973 when new evidence revealed the actual perpetrator. Glenn Ford (pictured, left), who was exonerated in 2014 after spending nearly 30 years on Louisiana's death row, died of lung cancer on June 29 at age 65. Ford was tried before an all-white jury, represented by appointed counsel who had never handled a criminal case. He was convicted despite the absence of any evidence linking him to the murder weapon, when prosecutors failed to disclose that confidential informants had identified two other men as the murderers. They ultimately admitted that "credible evidence" showed that "Ford was neither present at, nor a participant in," the murder. Death-row exoneree Andrew Golden, who spent 26 months on Florida's death row from 1991 to 1994, died in May. Golden had been wrongly convicted of murdering his wife although police investigators and the medical examiner had testified that the evidence did not suggest foul play. At least four other death-row prisoners who may have been wrongfully condemned - Lester BowerBrian Keith TerrellDonnis Musgrove, and Ronald Puksar - were executed or died on death row before judicial review of their cases were complete.

North Carolina Court Reverses Racial Justice Act Ruling, Orders New Hearings

The North Carolina Supreme Court has reversed the historic rulings of a Cumberland County, N.C. trial court that had overturned the death sentences of four North Carolina death-row prisoners under the state's Racial Justice Act. Ruling entirely on procedural grounds, the state's high court expressed no opinion on the lower court's fact findings that North Carolina prosecutors had engaged in a decades-long practice of intentional race discrimination in jury selection in capital cases. In April 2012, Superior Court Judge Gregory Weeks overturned the death sentence imposed on Marcus Robinson (pictured, left),holding that “race was a materially, practically and statistically significant factor in the decision to exercise peremptory challenges during jury selection by prosecutors” at the time of Robinson’s trial. After a second hearing in the cases of Quintel Augustine, Christina Walters, and Tilmon Golphin, the court again found that “a wealth of evidence show[ed] the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina.” After the lower court overturned these death sentences and imposed sentences of life without parole, the North Carolina legislature repealed the Racial Justice Act law. In its ruling, the North Carolina Supreme Court said that the trial court should have given prosecutors more time to prepare for the evidentiary hearing at which the prisoners presented a comprehensive statistical analysis of North Carolina's exercise of discretionary strikes in capital prosecutions over a 20-year period. Writing that "fundamental fairness" required that the state be given "an adequate opportunity to prepare for this unusual and complex proceeding," the court invited both sides to present additional statistical evidence at a new hearing. In the second case, the court also said the three prisoners' Racial Justice Act claims should have been heard separately. Executions have been stayed indefinitely in North Carolina pending resolution of the Racial Justice Act litigation and will remain on hold.

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BOOKS: "Examining Wrongful Convictions"

A new book, Examining Wrongful Convictions: Stepping Back, Moving Forward, explores the causes and related issues behind the many wrongful convictions in the U.S. Compiled and edited by four criminal justice professors from the State University of New York, the text draws from U.S. and international sources. Prof. Dan Simon of the University of Southern California said, ''This book offers the most comprehensive and insightful treatment of wrongful convictions to date," noting that it delves into topics such as the wars on drugs and crime, the culture of punitiveness, and racial animus, as they relate to mistakes in the justice system. The editors note that, "[The] essential premise of this book is that much of value can be learned by 'stepping back' from the traditional focus on the direct or immediate causes and consequences of wrongful convictions," with the hope of moving forward by "probing for the root causes of miscarriages of justice."

Texas Court Orders New Trial Because of Withheld Evidence

The Texas Court of Criminal Appeals, the state's highest criminal court, vacated the conviction and death sentence of Alfred Brown, who has been on death row for murder since 2005. Brown has maintained his innocence and has said that a landline phone call he made from his girlfriend's apartment the morning of the murder would prove it. At his trial, Brown's attorneys presented no evidence of his alibi, and his girlfriend changed her testimony after she was threatened with prosecution. In 2013, a homicide detective found a box of records in his garage containing phone records that indicated Brown made a call exactly when he claimed. The file was never shared with Brown's defense team at his original trial. District Attorney Devon Anderson said, "As a result of this review, our office agreed that Mr. Brown should receive relief in his case so that justice could be served. Following our office's agreement that relief should be granted, today the Court of Criminal Appeals sent Mr. Brown's case back to the trial court for a new trial." Anderson said she will now review the case to determine whether to retry Brown or drop the charges.

NEW VOICES: Another Conservative Leader Challenges the Death Penalty

In an op-ed in the Knoxville News-Sentinel, Tennessean Drew Johnson evoked conservatives' intentions to "protect innocent life, promote financial responsibility and support government programs that really work" in criticizing the death penalty. Johnson, a Senior Fellow at Taxpayers Protection Alliance and founder of the Beacon Center of Tennessee, cited the many exonerations from death row as another reason to challenge capital punishment: "Life is too precious to rely on mistake-prone processes like the death penalty." He noted that the Tennessee Comptroller's Office's found capital trials to be 48% more expensive than life-without-parole trials. Finally, relying on the conservative value of limited government, he concluded, "My view of limited government is not giving the state the power to kill American citizens. There is nothing limited about that authority....It's time that conservative Tennesseans begin to look at the death penalty to consider whether it's consistent with our view of the role of government and decide if retribution and revenge is worth sacrificing our principles, freedoms and liberties." Read the full op-ed below.

NEW VOICES: Police Chiefs Join Innocence Project for Criminal Investigation Reforms

In a new report released on December 3, the International Association of Chiefs of Police (IACP) called for police departments to adopt new guidelines to reduce the number of wrongful convictions. The chiefs' recommendations include reforms of lineup procedures, videotaping of witness interviews, and formalizing the review of innocence claims. The IACP worked with the Justice Department and the Innocence Project to identify ways to reduce potential sources of error and bias. Walter A. McNiel, police chief of Quincy, Florida, and past president of IACP, said, "At the end of the day, the goal is to reduce the number of persons who are wrongfully convicted. What we are trying to say in this report is, it’s worth it for all of us, particularly law enforcement, to continue to evaluate, slow down, and get the right person." The recommendations take into account research that has found eyewitness error in the majority of cases later overturned by DNA evidence. (Eyewitness error is also a leading cause of wrongful convictions in death penalty cases.)

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