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Texas Execution Stayed to Permit Challenge Alleging Prosecution Misled Jury on Cause of Death

The Texas Court of Criminal Appeals on May 12 granted a stay of Tilon Carter's May 16 execution to consider his claim that he was convicted based on "false or misleading testimony by the State Medical Examiner" concerning the cause of the victim's death. Carter (pictured) was convicted and sentenced to death based upon testimony by a local medical examiner that the 89-year-old victim, James Tomlin, had died of suffocation. His lawyers say that new scientific evidence that was unavailable at the time of trial contradicts that testimony and supports Carter's claim that he did not intentionally kill Tomlin. According to a filing by Carter's attorney, Carter was denied due process because Nizam Peerwani, the Tarrant County Medical Examiner, presented misleading testimony implying that Tomlin was intentionally smothered, though his cause of death was listed as "smothering with positional asphyxia," which could have been unintentional. In addition, three other experts who have reviewed the evidence offered opinions contradicting the finding that Tomlin was smothered. Raoul Schonemann, Carter's attorney, wrote in a court filing, “While the experts disagreed on the ultimate cause—whether Mr. Tomlin’s death was caused by positional asphyxiation or a cardiac event—they unanimously agreed that the evidence does not show that Mr. Tomlin’s death was the result of intentional smothering." Carter would not be eligible for a death sentence if he did not intentionally kill the victim. Schonemann also alleged that Carter's trial counsel provided ineffective assistance by failing to seek evidence on whether Tomlin's death was intentional.

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Florida Supreme Court Orders Exoneration of Ralph Daniel Wright, Jr.

The Florida Supreme Court has directed that Ralph Daniel Wright, Jr. (pictured) be acquitted of the murder charges for which he was sentenced to death in 2014, making him the 159th person exonerated from death row in the United States since 1973. On May 11, 2017, the court unanimously vacated Wright's convictions for the murders of his ex-girlfriend and their son, ruling that the "purely circumstantial" evidence against him was insufficient to convict. A majority of the court joined a concurring opinion by Justice Charles Canady holding that "no rational trier of fact could have found ... beyond a reasonable doubt" that Wright was the killer. Prosecutors accused Wright of murdering Paula O'Conner—a white woman with whom he had an affair—and their 15-month-old son Alijah supposedly to "avoid a child support obligation and ... maintain a 'bachelor lifestyle.'" The court noted that "none of the evidence presented at trial directly tied Wright to the murders" and that the victim's young-adult daughter, who had a volatile relationship with the victim, also had a financial motive, having received more than $500,000 in life insurance benefits as a result of her mother's and half-brother's deaths. Much of the state's case relied on the presence of a black military glove in the home of the murder victims. While Wright, a member of the Air Force, had access to that type of glove, "the State could not prove that Wright ever wore the glove, that he left it on Paula’s couch, that it came from MacDill [the base where Wright was stationed], or that it was even used in the murders." DNA tests by the Florida Department of Law Enforcement reported the results as inconclusive, but independent analysis by the DNA Diagnostic Center and Bode, the private labs hired by the defense and prosecution, respectively, excluded Wright as a contributor of the DNA found on the glove. The DNA analysis did not test for the presence of the victim's daughter, whom police did not investigate. Wright was convicted of the murders, and the trial court sentenced him to death after a bare 7-5 majority of the jury voted to recommend the death penalty. The Florida Supreme Court later declared death sentences based upon non-unanimous jury recommendations to be unconstitutional. Wright is the 27th person to be exonerated from death row in Florida. Nineteen of the 21 exoneration cases from Florida in which the jury vote is known have involved a non-unanimous jury recommendation of a death sentence or a judicial override of a jury recommendation of life.

Newly Released Documents Show Dylann Roof Feared Being Labeled Mentally Ill More Than He Feared Death Sentence

Newly unsealed psychiatric evaluations and court transcripts in the case of Dylann Roof (pictured)—sentenced to death for the racially motivated killing of nine black churchgoers in Charleston, South Carolina—raise additional questions as to whether Roof was competent to waive representation in his death penalty proceedings and to forego presenting mental health evidence in his defense. The documents confirm that Roof represented himself in jury selection and in the penalty stage of his federal capital trial out of anxiety that his defense attorneys would present evidence that he was mentally ill. In his journals, Roof wrote, “I want state that I am morally opposed to psychology,” which he called "a Jewish invention [that] does nothing but invent diseases and tell people they have problems when they dont [sic].” The newly released documents show that Roof became irate when he realized his lawyers wanted to present a mental health defense that involved introducing evidence that he suffered from delusions, a crippling anxiety disorder, depression, and autism.  The unsealed transcripts reveal that defense counsel, David Bruck, told the court that Roof “firmly believes that there will be a white nationalist takeover of the United States within roughly six, seven, eight years, and when that happens, he will be pardoned. He also believes it probable, although not certain, that he will be given a high position, such as the governorship of South Carolina.” At a pretrial hearing, Roof told U.S. District Judge Richard Gergel, "If they say I have autism, it's like they are trying to discredit me. It discredits the reason why I did the crime." He also told the judge he believed being labeled autistic would be worse than receiving a death sentence, "Because once you've got that label, there is no point in living anyway." Dr. James Ballenger, a clinical psychiatrist who evaluated Roof, wrote, "The only thing that is important to him is to protect his reputation." Bruck argued to the court that Roof was not competent to represent himself, saying, "If he is incapable of cooperating with counsel, if the decisions that he is making are affected by delusions, by fixed false beliefs, if they are the product of mental illness … the mere fact that he has figured out how to sabotage his defense doesn't mean that he's competent. It is an illustration of why it is so terrible to try an incompetent defendant." Roof was ultimately found competent to stand trial and represent himself. He was convicted and sentenced to death on January 10, 2017.

New Statistical Brief from the Bureau of Justice Statistics Documents U.S. Death Penalty Decline

The nation's death rows are shrinking more rapidly than new defendants are being sentenced to death, according to a new Bureau of Justice Statistics (BJS) statistical brief, "Capital Punishment, 2014–2015." The statistical brief, which analyzes information on those under sentence of death in the United States as of December 31, 2014 and December 31, 2015, documents a continuing decline in executions, new death sentences, and death row populations across the U.S. 2015 marked the fifteenth consecutive annual decrease in the number of prisoners under sentence of death in the U.S. According to BJS, 69 prisoners were admitted to state or federal death rows in 2014 and 49 were admitted in 2015. (DPIC uses a slightly different counting method that reported 73 death sentences imposed in 2014.) The data also indicates that the decline in the size of death row is attributable to factors other than execution. According to BJS, 75 prisoners were removed from death row in 2014 by means other than execution, such as exoneration, the reversal of a conviction or death sentence, commutation, or death by other causes, as compared with 35 who were executed. In 2015, 82 prisoners were taken off death row by means other than execution, while 28 death-row prisoners were executed. Over the two-year period covered by the data, 39 more prisoners were removed from death row by means other than execution than were admitted as a result of new death sentences. The gap between removals from death row and new admissions is expected to widen even further in 2016 and 2017 as a result of record-low death-sentencing rates and prisoners being removed from death row due to death-penalty statutes having been declared unconstitutional in Florida, Delaware, and Connecticut. BJS reports that 2,881 prisoners remained under sentence of death in 33 states and the federal system at the end of 2015. (Click image to enlarge.)

White Texas Judge Reprimanded for Facebook Comment Suggesting "A Tree And A Rope" For Black Murder Suspect

The Texas State Commission on Judicial Conduct has issued a formal reprimand to a sitting Burnet County judge who posted on Facebook a photo of a black murder suspect accused of killing a police officer with the comment, "Time for a tree and a rope." Judge James Oakley (pictured), who is white, denied that the comment about Otis Tyrone McKane was a race-based reference to lynching. "My comment was intended to reflect my personal feelings that this senseless murder of a police officer should qualify for the death penalty. In my mind, the race/gender of the admitted cop killer was not relevant," he told the commission. That is not how observers of the post saw it: 18 people filed written complaints to the Commission about Oakley's comment. The reprimand said, “Multiple Complainants also questioned Judge Oakley’s suitability for judicial office, and expressed doubts that he could perform his duties impartially." Oakley will be required to attend a 30-hour training for new judges and receive 4 hours of racial sensitivity training with a mentor, but will not be removed from office or excluded from presiding over any class of cases. In its reprimand, the Commission wrote, “During the appearance, Judge Oakley made certain statements that indicated to the Commission that he could benefit from racial sensitivity training with a mentoring judge." The incident was reminiscent of an incident in March in which a white Seminole County, Florida court employee posted a comment on Facebook that black State Attorney Aramis Ayala "should be tarred and feathered if not hung from a tree," for announcing that she would not seek the death penalty. After an investigation into the circumstances surrounding that posting, the clerk resigned his position.

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After Remand from U.S. Supreme Court, Georgia Federal Court Vacates Brain-Damaged Prisoner's Death Sentence

The U.S. District Court for the Northern District of Georgia has overturned the death sentence imposed on Lawrence Jefferson, saying that his trial counsel had been ineffective for failing to investigate and present available mitigating evidence in his case, including evidence related to "a head injury he sustained as a child when an automobile rolled over his head." The court also found that the state courts had denied Jefferson a "full and fair" hearing on the issue, in violation of due process, when, without notice to Jefferson's lawyer, it invited the Assistant Attorney General to submit an order dismissing Jefferson's petition for relief, then signed the order submitted verbatim, complete with factual misstatements and erroneous legal citations. The potential brain damage to Jefferson was so obvious that the U.S. Supreme Court noted in a 2010 opinion sending the case back for further consideration that "[t]he accident left [Jefferson's] skull swollen and misshapen and his forehead visibly scarred." Before trial, a psychologist had recommended that defense counsel obtain a neuropsychological evaluation of Jefferson, but no evaluation was performed. An examination conducted during Jefferson's appeals process found significant evidence of brain damage, including an enlarged head indicative of brain swelling from the accident, asymmetrical reflexes, and discrepancies in verbal and visual-spatial test scores. A neuropsychologist concluded that these findings indicated right hemisphere and frontal lobe damage to the brain. A neurologist testified, "the most common thing with a closed head injury, traumatic injury of this sort, is problems with judgments, executive planning, and impulse control, the ability to foresee the consequences of your action in the future, as opposed to right now." Jefferson's jury never heard this mitigating evidence. According to the court, "The mental health evidence would have provided the jury an explanation for Petitioner’s past behavior and his testimony regarding his past behavior." The practice of courts signing opinions and orders written by prosecutors verbatim is not uncommon. In 2016, the Supreme Court denied a petition filed by counsel for Alabama death-row prisoner Doyle Lee Hamm seeking review of his case, in which the state court adopted word-for-word an 89-page order written by the state attorney general's office and the federal court said it was bound by the state court "findings." That order rejected Hamm's claim that his lawyer was ineffective, ruling that evidence the jury had never heard concerning Hamm's childhood diagnosis of borderline mental retardation, school records reflecting Hamm's intellectual deficits, and evidence of seizures, head injuries, and drug and alcohol abuse was "cumulative." 

Death-Row Exoneree, Law Professor, Attorney Voice Opposition to Alabama's "Fair Justice Act"

Soon after passing legislation to make death penalty trials fairer by preventing judges from overriding jury recommendations of life sentences, the Alabama legislature is taking steps to enact a bill that critics say would make capital appeals far less fair. The bill, denominated the "Fair Justice Act," would constrict the amount of time death-row prisoners have to file appeals, impose deadlines for judges to rule on appeals, and require prisoners to pursue their direct appeal and post-conviction appeal simultaneously. Critics of SB 187/HB 260, which has passed the Senate and been approved by the House Judiciary Committee, include Harvard Law School Professor Ronald Sullivan Jr., Alabama death-row exoneree Anthony Ray Hinton, and Birmingham attorney Lisa Borden, who say the proposal is neither fair nor just. They argue that the bill would reduce the quality of appellate representation, insulate trial errors from appellate review, and increase the risk of executing innocent people. Sullivan called the bill "deceitfully named" and wrote it would "undermine much of the progress" made when Alabama recently became the last state in the U.S. to end judicial override. Hinton, who spent 30 years on Alabama's death row before being exonerated, said, "If proposed changes to Alabama's postconviction procedures under consideration by the state legislature had been enacted, I would have been executed despite my innocence." Hinton explains that he spent 14 years looking for volunteer lawyers who could help him prove his innocence, saying, "Because the so called "Fair Justice Act" now pending before the state legislature puts time restrictions on how long death row prisoners have to prove their innocence or a wrongful conviction, this legislation increases the risk of executing innocent people and makes our system even less fair." Borden raises concerns that the poor quality of trial-level representation will spill over into the proposed shortened appeals process. "The average trial of a capital case with appointed counsel takes just a few days, given appointed counsel's frequent lack of preparation and failure to challenge the State's case. ...The attorneys and experts who will try to uncover and correct the injustices done to poor defendants must not be forced to rush through the process too." She suggests, "If Alabama wants to save taxpayers millions of dollars, and provide certainty and finality for the peace of mind of the victim's families, it could do so by abolishing the death penalty, or by limiting its use to only the most egregious cases and providing real, effective representation for those charged with capital crimes."

Supreme Court Tells Alabama to Reconsider the Factors It Has Used to Determine Intellectual Disability

The U.S. Supreme Court has vacated the Alabama state courts' rejection of a prisoner's claim that he is ineligible for the death penalty because of intellectual disability, and directed the state to reconsider his claim in light of the Court's recent decision in Moore v. Texas requiring states to employ scientifically accepted standards in determining whether a death-row prisoner is intellectually disabled. On May 1, 2017, the U.S. Supreme Court agreed to review the case of Taurus Carroll, and vacated the Alabama Court of Criminal Appeals' decision in his case after Carroll's lawyer argued that the March 28 decision in Moore established that Alabama had unconstitutionally deviated from accepted methods of determining intellectual disability. In 2002, the Supreme Court ruled in Atkins v. Virginia that defendants who are found to have intellectual disability—then known as mental retardation—cannot be executed. The ruling left states with discretion in establishing procedures for determining which defendants have intellectual disability. In Moore, however, the Court reiterated that this discretion is not “unfettered” and that a state's intellectually disability determination must be “informed by the medical community’s diagnostic framework.” The Court struck down Texas' use of an unscientific set of lay stereotypes, known as the “Briseño factors," that Texas had used to determine whether Moore had deficits in adaptive functioning characteristic of intellectual disability. The Court said that, "[i]n concluding that Moore did not suffer significant adaptive deficits, the [Texas courts] overemphasized Moore’s perceived adaptive strengths," but "the medical community focuses the adaptive-functioning inquiry on adaptive deficits." In Carroll's case, the Alabama courts had considered Mr. Carroll’s supposed adaptive strengths—that he had passed a GED exam and successfully held down a job in the prison kitchen—as proof that he was not intellectually disabled. Carroll's attorney argued that, “As in Moore, the consideration below of Mr. Carroll’s adaptive functioning ‘deviate[s] from prevailing clinical standards, by ‘overemphasiz[ing] Mr. [Carroll]’s perceived adaptive strengths.” He also argued that Alabama had unconstitutionally employed a strict IQ cutoff score, while at the same time inflating Carroll's IQ score by refusing to apply scientifically established factors that adjust for limitations in IQ testing. With the Supreme Court's ruling in Carroll's case, the Alabama Court of Criminal Appeals must now determine how Moore affects Alabama's methods of determining intellectual disability. John Palombi, a lawyer with the Federal Defenders for the Middle District of Alabama, said he was "pleased" with the Court's decision. “This will require Alabama courts to follow scientific principles when making the life or death decision of whether someone charged with capital murder is intellectually disabled,” he said.

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