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USS Cole Lawyers Resign From Guantánamo Death-Penalty Defense, Say Government Spied on Client Communications

The U.S. Supreme Court has denied review of a petition filed by lawyers on behalf of Abd al Rahim al Nashiri—accused of orchestrating al-Qaida’s October 12, 2000 suicide bombing of the USS Cole warship off the coast of Yemen—challenging the legality of his death penalty trial before a Guantánamo Bay military commission. But in what has been described as "a stunning setback" to what would have been the first death-penalty trial held before the special military tribunals established in the wake of the 9/11 attacks, the entire civilian legal team has resigned from the case amid allegations that the government was illicitly listening in on their legal meetings. The Miami Herald reported on October 13, just three days before the Supreme Court decision, that the Chief Defense Counsel for the Military Commissions Defense Organization, Brigadier General John Baker (pictured) had “found good cause” to permit Nashiri's defense team to withdraw from the case as a result of ethical concerns created by alleged government spying on privileged attorney-client meetings. In June 2017, Gen. Baker advised war court defense attorneys that he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo, saying that he was “not confident that the prohibition on improper monitoring of attorney-client meetings” at the detention center was being followed. Attorney Rick Kammen, who has defended Nashiri since 2008, alleges in the Supreme Court petition that his team discovered classified information contradicting government assurances that the facilities in which they met with Nashiri were not being improperly surveiled. In the past, the spying has included, among other things, "microphones hidden in smoke detectors." Because the information relating to the violation of the right to counsel is classified, the defense lawyers have been ordered by the judge in the case, Air Force Colonel Vance Spath, not to share the information with the public or their client. Although Brig. Gen. Baker has released Kammen from representing Nashiri, the case cannot proceed until another experienced death-penalty defender is brought onboard. Two other civilian defense attorneys who are Pentagon employees—Rosa Eliades and Mary Spears—also quit the case with permission from Baker but remain on his staff. The only member of Nashiri's defense team who remains on the case is Lieutenant Alaric Piette—a former Navy SEAL who has never tried a murder case. “I am certainly not qualified as learned [death-penalty] counsel,” Lt. Piette told the Miami Herald, which he says Nashiri “is entitled to and should have ... since the government is trying to kill him.” Kammen says the defense team is "angry about being placed in an ethically untenable position, disappointed in not being able to see the case through, and devastated to leave Mr. Nashiri, whom we genuinely like and who deserves a real chance for justice.” The pretrial proceedings at the Guantánamo Bay that were scheduled to begin on October 30th are expected to be delayed for months, until learned death-penalty counsel who has received Top Secret security clearance to review the evidence in the case is appointed.

Former Arkansas Death-Row Prisoner Rickey Dale Newman Exonerated After Nearly 17 Years in Prison

An Arkansas trial judge has dismissed all charges against former death-row prisoner, Rickey Dale Newman (pictured), setting him free on October 11 after having spent nearly 17 years in custody following the February 2001 murder of a transient woman in a "hobo park" on the outskirts of Van Buren, Arkansas. Newman became the 160th person since 1973 to be exonerated after having having been wrongly convicted and sentenced to death. Newman, a former Marine with major depression, chronic posttraumatic stress disorder from childhood abuse, and an IQ in the intellectually disabled range, was seriously mentally ill and homeless at the time he was charged with murdering Marie Cholette. He was convicted and sentenced to death in June 2002 after a one-day trial in which the court permitted him to represent himself. No physical evidence linked Newman to the murder, but at trial a prosecution expert falsely testified that hair found on Newman's clothing came from the victim. Newman also told the jury he had committed the murder and asked them to impose the death penalty. He subsequently sought to waive his appeals and be executed. The Arkansas Supreme Court initially held that Newman had been mentally competent and granted his request to drop his appeals. However, four days before his scheduled execution on July 26, 2005, Newman permitted federal public defenders, including his current counsel, Julie Brain, to seek a stay of execution. DNA evidence on the blanket on which the victim was found excluded Newman, and the federal defenders obtained DNA testing of the hair evidence that disproved the prosecution's trial testimony. They also discovered that prosecutors had withheld from the defense evidence from the murder scene that contradicted what Newman had described in his confession. A federal court hearing disclosed that the state mental health doctor had made significant errors in administering and scoring tests he had relied upon for his testimony that Newman had been competent to stand trial. The Arkansas Supreme Court subsequently ordered new hearings on Newman's competency and on the evidence the prosecution had withheld from the defense. After those hearings, it wrote that "the record overwhelmingly illustrates that Newman’s cognitive deficits and mental illnesses interfered with his ability to effectively and rationally assist counsel" and overturned Newman's conviction. In September, it issued another ruling barring the use of Newman's incompetent confessions in any retrial. On October 2, Brain submitted a letter to the court saying that “Mr. Newman has now been incarcerated for over 16 years for a murder that he did not commit” and that the Arkansas Supreme Court had found that the invalid statements he had given while mentally incompetent were "the only meaningful evidence against him." In response, special prosecutor Ron Fields submitted letter to the court asking that charges be dismissed. Fields wrote that, without the confessions, prosecutors lacked sufficient evidence to obtain a conviction and "it would be a waste of tax payers money to retry [Newman]."

Missouri Judge Sentences Defendant to Death After 11 Jurors Had Voted for Life Sentence

A St. Charles County trial judge has sentenced a Missouri man to death two months after 11 of the 12 jurors in his case had voted to spare his life. On October 6, Judge Kelly Wayne Parker disregarded the near-unanimous vote of the jury on August 13 and imposed the death penalty upon former Dent County deputy sheriff and state correctional officer Marvin Rice (pictured) for murdering his ex-girlfriend, Annette Durham, during a custody dispute over their son. The judge also sentenced Rice to life for killing Durham's boyfriend, Steven Strotkamp, formally imposing the sentence unanimously agreed to by jurors when they convicted him of second-degree murder for that killing. No state in the United States authorizes a judge to override a jury's recommendation of a life sentence and the three states that had permitted the practice have ended it in the past two years. In April 2017, Alabama repealed the portion of its death-penalty statute that permitted judicial override of a jury's life recommendation. In March 2016, the Florida legislature repealed the judicial override provisions of its death-penalty statute. Shortly thereafter, in August 2016, the Delaware Supreme Court invalidated its death penalty statute, including its judicial override provisions. The Court ruled that judicial imposition of a death sentence after any juror voted for life violated the Sixth Amendment. Then in October 2016, the Florida Supreme Court held that judicial death sentences following a non-unanimous jury vote for death violated both the Sixth Amendment and the Florida constitution. Missouri law authorizes judicial sentencing in a capital case when the jury is "unable to decide or agree upon the punishment." In those circumstances, it declares that there is a hung jury, and the judge becomes the trier responsible for finding and weighing aggravating and mitigating evidence and pronouncing sentence. However, granting independent factfinding powers to a capital sentencing judge is itself constitutionally problematic: in January 2016, the U.S. Supreme Court ruled in Hurst v. Florida that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." At trial, Rice's lawyer, Charles Hoskins told jurors that Rice had "snapped" when Durham told him "You’re never seeing [your son] again, and neither is your family.” Mental-health evidence that Rice had a pituitary tumor at the time of the murder and was taking 17 medications that affected his impulse control and made him paranoid convinced all but one juror to vote in favor of a life sentence. Prosecutors argued that jurors had already found one aggravating factor that made Rice eligible for the death penalty, and had not unanimously decided that mitigating evidence outweighed that aggravating circumstance. No jury has sentenced anyone to death in Missouri since 2013. 

U.N. Secretary-General, European Union Ambassador Call for Abolition of “Barbaric” Death Penalty

In separate statements issued in connection with the 15th World and European Day against the Death Penalty on October 10, United Nations Secretary-General António Guterres and European Union U.S. Ambassador David O’Sullivan have called upon all nations to halt scheduled executions and abolish the death penalty. In his first ever statement on capital punishment since becoming Secretary-General on January 1, 2017, Guterres described capital punishment as a “barbaric practice” that, he said, “has no place in the 21st century.” He said the death penalty does little to deter crimes or serve victims and asked those countries that still have the death penalty to “[p]lease stop the executions.” In an article published on the internet site Medium, Ambassador O’Sullivan—echoing the language of an October 9 Joint Declaration by the EU High Representative for Foreign Affairs and Security Policy and the Secretary General of the Council of Europe—wrote that the death penalty “is inhuman and degrading, does not have a proven deterrent effect, and allows judicial errors to become fatal.” He said the EU “care[s] about the plight of American death row inmates” because “[a]s Europeans we believe fundamentally that the death penalty is incompatible with human dignity.” Guterres’s remarks came at a U.N. event on Transparency and the Death Penalty. “Some governments conceal executions and enforce an elaborate system of secrecy to hide who is on death row, and why,” the Secretary-General said. The lack of transparency, he said, shows disrespect for human rights norms and damages the fair administration of justice. A resolution adopted by the U.N. Committee on Human Rights September 29 also emphasized that a “lack of transparency in the use of the death penalty has direct consequences for the human rights of the persons sentenced to death,” and called upon countries “that have not yet abolished the death penalty to make available relevant information,” including “information on any scheduled execution.” Execution secrecy has been an ongoing issue in recent executions across the United States, and an Oklahoma grand jury found that “paranoia” on the part of prison officials about keeping execution information secret had “caused administrators to blatantly violate their own policies.”

Texas Set to Execute Robert Pruett for Prison Murder Despite Corruption and Lack of Physical Evidence

Though no physical evidence links him to the crime, Texas is set to execute Robert Pruett (pictured) on October 12 for the 1999 stabbing death of a state correctional officer who was at the center of a prison corruption investigation. Results of a DNA test of the murder weapon in 2015 found DNA that matched neither Pruett nor the victim, Officer Daniel Nagle. According to Pruett’s pending clemency petition, Officer Nagle was working to identify corrupt correctional officers who had been helping prison gangs launder drug money, and his name was discovered on a secret note from an inmate saying that a prison gang wanted him dead. The unidentified DNA, Pruett’s lawyers suggest, may belong “to the person [who] killed Nagle” and that Pruett was framed for the murder. Earlier on the day he was killed, Officer Nagle had given Pruett a disciplinary write-up for eating a sandwich in an unauthorized area. A bloody shank and a torn-up copy of the disciplinary report were found next to the officer’s body. The prosecution's case turned on dubious testimony from prison informants and the testimony of a forensic analyst that linked the tape wrapped around the handle of the shank used to kill Nagle to the prison craft shop in which Pruett’s cellmate worked. The forensic testimony has since been debunked and, according to the clemency petition, a state investigator’s notes disclosed that a key prison witness—Harold Mitchell—had been promised a transfer to a prison close to his family’s home in Virginia if he testified against Pruett and threatened with being charged with Nagle’s murder if he did not. This is the sixth time Pruett has faced an execution warrant. In April 2015, he received a stay of execution to permit DNA testing and the Texas Court of Criminal Appeals granted a stay in August 2016 so the state courts could have more time to review Pruett's new claims relating to the DNA evidence. However, in April 2017, the Texas appeals court ruled that the DNA test results would not have changed the outcome of his trial. The U.S Supreme Court declined to review Pruett’s case on October 2, permitting the execution to proceed. Texas Gov. Greg Abbott, who has presided over 25 executions since taking office in January 2015, has yet to commute any death sentence.

Prosecutors Seeking Death Sentences for Aging Defendants Despite Taxpayer Cost, Likelihood of Dying Before Execution

Two cases in which prosecutors have elected to pursue the death penalty against aging or infirm defendants who will almost certainly never be executed have raised questions about the costs and benefits of capital charges and the arbitrary exercise of prosecutorial discretion. Federal prosecutors in Missouri are seeking the death penalty against 61-year-old Ulysses Jones Jr., a man with terminal renal disease, for the 2006 killing of another prisoner at a federal prison hospital. At the same time, Philadelphia's judicially-appointed interim district attorney, filling the unexpired term of a district attorney convicted of public corruption charges, is pursuing the death penalty against 64-year-old Robert Lark in the retrial of a 1979 murder. Lark won a new trial in 2014, seven years after Philadelphia prosecutors appealed a lower federal court ruling that they had unconstitutionally struck African Americans from serving as jurors in Lark's case because of their race. Jones is currently facing a capital sentencing hearing in the United States District Court for the Western District of Missouri after having been convicted on October 4 of murdering 38-year-old Timothy Baker with a makeshift knife in January 2006 at the U.S. Medical Center for Federal Prisoners in Springfield, Missouri. Jones has been receiving dialysis for the last 30 years, and the medical center, known as Fed Med, houses the nation’s largest dialysis center. Two other prisoners, Wesley Paul Coonce Jr. and Charles Michael Hall, are on federal death row for another murder at Fed Med. Jones's lawyer, Thomas Carver, argues that the capital trial is senseless, both because Jones is already serving a life sentence for two unrelated robberies and murders, and because, if he is sentenced to death, he will likely die before his appeals process is complete, and almost certainly before an execution would be scheduled. "We're talking millions of dollars here," Carver said. Carver believes Jones—whom the defense says has significant intellectual and cognitive impairments—was not indicted until 2010 "because the government was hoping he would die.” In Lark's case, Interim Philadelphia District Attorney Kelley Hodge has decided to seek the death penalty even though Lark's appeals in his case, if he were sentenced to death, would not be completed before Lark was in his late-70s or his 80s, far beyond his expected survival on death row. Marc Bookman, a longtime Philadelphia public defender who now serves as Director of the Atlantic Center for Capital Representation, called the decision to seek death, made "by a prosecutor chosen by Philadelphia judges rather than one chosen by the community[,] ... a needless step backward" for Philadelphia. Quoting Lawrence Krasner—who overwhelmingly won the Democratic nomination for Philadelphia district attorney after campaigning on a promise not to seek the death penalty and is heavily favored in the November general election—Bookman says, “We have to stop lighting money on fire.” Krasner has said that the death penalty “has cost Pennsylvania taxpayers over $1 billion, yet no one on Pennsylvania’s death row has been put to death involuntarily since 1962,” and his Republican opponent, Beth Grossman has publicly "wonder[ed] whether [the death penalty] is at this point even economically feasible.” In February 2015, Pennsylvania Gov. Tom Wolf declared a moratorium on executions, noting that Pennsylvania’s failing death-penalty system forced “the families and loved ones of victims to relive their tragedies” with each reversed death sentence. The only certainty in the current system, he said, “is that the process will be drawn out, expensive, and painful for all involved.”

US Votes Against UN Resolution Condemning Death Penalty for Religious Speech, Sexual Orientation

The United States has voted against an historic resolution passed by the United Nations Human Rights Council condemning the criminalization of and use of the death penalty for apostasy, blasphemy, adultery, and consensual same-sex relations and calling on nations in which the death penalty is legal to ensure that it is not imposed “arbitrarily or in a discriminatory manner.” The resolution also called for an end to the discriminatory use of the death penalty "against persons belonging to racial and ethnic minorities ... and its use against individuals with mental or intellectual disabilities,” those under age 18, and pregnant women. In Geneva, Switzerland, the Human Rights Council on September 29 adopted the resolution by a vote of 27-13, with the U.S. joining Botswana, Burundi, Egypt, Ethiopia, Bangladesh, China, India, Iraq, Japan, Qatar, Saudi Arabia, and the United Arab Emirates in opposition. No other Western democracy opposed the resolution. Renato Sabbadini, Executive Director of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), called the resolution's passage a “monumental moment” signifying recognition by the international community that certain “horrific laws” must end. “It is unconscionable to think that there are hundreds of millions of people living in States where somebody may be executed simply because of whom they love,” he said in a statement.  Ty Cobb, director of Human Rights Campaign Global, the global branch of the U.S.'s largest LGBT rights organization, condemned the U.S. vote against the resolution as "beyond disgraceful." In a statement, he said U.S. representatives had "failed the LGBTQ community by not standing up against the barbaric use of the death penalty to punish individuals in same-sex relationships.” A State Department spokesperson responded to criticism of the U.S.'s vote saying “The United States unequivocally condemns the application of the death penalty for homosexuality, blasphemy, adultery and apostasy." Heather Nauert said that the U.S. was "disappointed" to vote against the resolution, but did so, “[a]s in years past, ... because of broader concerns with the resolution’s approach to condemning the death penalty in all circumstances.” In 2014, the Obama administration abstained from voting on a death penalty resolution, issuing a statement urging “all governments that employ the death penalty to do so in conformity with their international human rights obligations.” The United States ranked seventh in the world in confirmed executions in 2016, according to Amnesty International, behind China, Iran, Saudi Arabia, Iraq, Pakistan, and Egypt.

Duane Buck, Whose Death Sentence Was Tainted by Racial Bias, Is Resentenced to Life

Duane Buck (pictured), the Texas death-row prisoner whose controversial racially tainted death sentence was reversed by the U.S Supreme Court in February, has been resentenced to life in prison. In a plea deal entered in a Harris County (Houston) courtroom on October 3, Buck, who is 54, pled guilty to two new counts of attempted murder that each carried terms of 60 years in prison to be served concurrently with two life sentences imposed on his capital murder charges. In a news release, District Attorney Kim Ogg said, "[a]fter reviewing the evidence and the law, I have concluded that, twenty-two years after his conviction, a Harris County jury would likely not return another death penalty conviction in a case that has forever been tainted by the indelible specter of race. Accordingly, in consideration for Buck pleading guilty to two additional counts of attempted murder we have chosen not to pursue the death penalty." After 20 years on death row and numerous appeals in which he was denied relief by the state and federal courts, the U.S. Supreme Court ruled in February that Buck's capital sentencing hearing had been unconstitutionally poisoned by the testimony of a psychologist—presented by his own lawyer—that Buck was more likely to commit future acts of violence because he is black. Saying that the "law punishes people for what they do, not who they are," Chief Justice John Roberts said that the "particularly noxious" stereotyping of Buck as dangerous because he is a black man was toxic testimony that was "deadly" even "in small doses." "No competent defense attorney," Roberts wrote, "would introduce such evidence about his own client.” Because Texas did not provide life without parole as an alternative to the death penalty at the time of Buck's trial in 1995, Ogg insisted on the two additional charges for attempted murder to foreclose the possibility of release when Buck became eligible for parole from the life sentences in 2035. She said the plea deal "can close a chapter in the history of our courts, in that they will never again hear that race is relevant to criminal justice or to the determination of whether a man will live or die. Race is not and never has been evidence."

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