What's New

Federal Court Rules to Protect the Interest of Incompetent North Carolina Death-Row Exoneree

A federal judge has voided a contract that had provided Orlando-based attorney Patrick Megaro hundreds of thousands of dollars of compensation at the expense of Henry McCollum (pictured left, with his brother Leon Brown), an intellectually disabled former death-row prisoner who was exonerated in 2014 after DNA testing by the North Carolina Innocence Inquiry Commission showed that he had not committed the brutal rape and murder of a young girl for which he had been wrongly convicted and condemned. McCollum and Brown—who both have IQs measured in the 50s and 60s—had been convicted in 1983 based on coerced false confessions that the brothers (aged 19 and 15 at the time) provided to interrogating officers. At the time of his exoneration, McCollum had spent 30 years on death row and was the state's longest serving death-row prisoner. Megaro became McCollum's and Brown's lawyer in March 2015, after two women who claimed to be advocating on behalf of the brothers persuaded them to fire the lawyers who had been representing them in their efforts to obtain compensation and to hire Megaro's firm. McCollum was awarded $750,000 in compensation from North Carolina in October 2015, at least half of which appears to have been paid to Megaro. Within seven months, McCollum was out of money and taking out high-interest loans that had been arranged and approved by Megaro. Megaro also negotiated a proposed settlement of the brothers' wrongful prosecution lawsuit in which he was to receive $400,000 of a $1 million payment to the brothers. Defense lawyer Ken Rose, who represented McCollum for 20 years and helped win McCollum's release from prison, provided testimony that two mental experts had previously found that McCollum was "not competent to provide a confession" and that McCollum remained "vulnerable to manipulation and control by others." After hearing additional evidence from experts and other witnesses, U.S. District Court Judge Terrence Boyle determined that, as a result of his intellectual disability, McCollum lacked knowledge and understanding of financial issues, "remains easily manipulated," and was "unable to make important decisions about his person and property." As a result, the court voided the contract between McCollum and Megano, including the fee arrangements. Raymond Tarlton, whom Judge Boyle appointed to serve as McCollum's guardian ad litem, said the decision "made clear that the same disabilities that led to Henry McCollum giving a false confession in 1983 made him vulnerable to be manipulated and controlled after release.” The court also has appointed a guardian to protect the interests of Leon Brown. Judge Boyle ordered further briefing pending receipt of the guardian's report to assist in determining the status of the contract between Megaro and Brown.

False or Flawed Forensic Evidence Raises Questions About Two Texas Capital Convictions

Two recent appellate decisions by the Texas courts have thrust into the national spotlight the continuing controversy over the use of false or flawed forensic testimony to secure convictions in death penalty cases. On October 18, the Texas Court of Criminal Appeals ordered a Travis County (Austin) trial court to conduct a hearing to consider evidence that the Austin police crime lab had botched its analysis of DNA evidence and presented scientifically false DNA testimony leading to the conviction and death sentencing of Areli Escobar in 2011. The same day, the court reversed an order of a Harris County (Houston) trial court that had granted Arthur Brown a new trial after the lower court had found that prosecutors had presented false ballistics testimony in securing Brown's conviction and death sentence in 1993. In his petition for relief, Escobar argued that he was entitled to a “comprehensive, independent review” of the scientific evidence presented in his case because his capital conviction “rests on forensic evidence developed by incompetent scientists using bad science.” The Austin crime lab has come under fire during the past few years as a result of improper procedures and poor quality control—problems that ultimately resulted in the closure of the lab and dismissal of almost all its employees. The court of appeals directed the trial court to examine Escobar's claims that the lab staffed his case with poorly trained analysts, cross-contaminated samples, practiced questionable analytical methods, and provided false and misleading DNA testimony that tainted his prosecution for the sexual assault and murder of a neighbor. The appeals court also ruled that Escobar was entitled to review of a claim that prosecutors had presented misleading forensic testimony about his proximity to the murder scene based on false or misleading cell-tower location information. The same day that it granted Escobar further review of his claims, the appeals court overturned the decision of a Houston trial court that had granted Brown a new trial based on the prosecution's presentation of false or misleading ballistic expert testimony at his trial. In securing his conviction and death sentence for four drug-related murders that he and two accomplices allegedly committed in southwest Houston, prosecutors relied on the testimony of a firearms expert who said "absolutely" that the bullets recovered from the victims matched two guns that were linked to Brown. Brown's execution had been stayed in October 2013 to allow for additonal review of that evidence. After reviewing the new ballistic evidence, the trial court determined that the state presented forensic testimony that was "plainly wrong and false" with respect to one of the guns and that was "plainly false" with respect to the other gun. However, the appeals court ruled that, even if the forensic evidence was false, it did not entitle Brown to a new trial because the jury could have still convicted him under Texas's law of the parties, a broad rule that makes a defendant criminally liable for the actions of his accomplices. Judge Elsa Alcala dissented, rejecting the majority's conclusion that guilt was a foregone conclusion and noting that "other evidence of guilt was exceedingly weak when examined without the support of the erroneous firearms evidence." She noted that the testimony from the two witnesses at the crime scene had credibility issues, and Brown's sister recanted her testimony that Brown had told her he shot and killed six people, saying she had been coerced into testifying falsely. Given these facts, Judge Alcala concluded that knowledge that the forensic testimony painting Brown as the shooter was false and unreliable may have affected the jury's determination of guilt or the sentence it imposed in the case. 

DPIC Analysis: Execution Trends Continue to Decline in 2017

The long-term decline in executions in the United States will continue in 2017, according to an analysis of execution data by the Death Penalty Information Center. Although the number of executions in the United States in 2017 will surpass the 20 executions carried out last year—which had been a 25-year low—the data reflects that long-term, mid-term, and short-term execution trends in the United States will continue to decline. DPIC’s analysis shows that, even if all the executions currently scheduled to take place through the end of 2017 are carried out, the average number of executions in the United States over the past 3, 5, and 10 years will drop by 8.4%, 9.1%, and 3.6%, respectively. The number of executions in the United States has fallen in 14 of the last 19 years, from a high of 98 in 1999 to last year's generational low. After reaching a 14-year low in 2008, executions increased by 15 in 2009 before declining or remaining steady the next seven years. Alabama's execution of Torrey McNabb on October 19 was the 21st execution in the United States in 2017, with seven more executions scheduled this year. If all are carried out, the number of executions over the last three years will still fall by seven, with an average of 25.3 executions per year; there will be a decrease of 15 executions over the past five years, with the average number of executions over that period falling to 30.4 per year; and there will be a decrease of 14 executions over the past decade, with the average number of executions per year falling to 37.1. According to an analysis by The Marshall Project, the increase in the number of executions in 2017 "does not suggest that executions are likely to become more common." Instead, it reports, "executions are likely to keep declining for one big reason: juries are handing out fewer death sentences." USA Today reports that the executions today are the remnants of "largely decades-old death sentences being carried out." Those executions, the paper reports, "have illustrated the problems [death-penalty] opponents highlight in their quest to end capital punishment," including unredressed claims of innocence and requests for forensic testing, lack of transparency in carrying out executions, and race-of-victim disparities—"nearly all the murder victims [in the execution cases] were white." Rob Smith, executive director of the Fair Punishment Project, said that the people being executed today were sentenced years ago "by juries who would never return that death sentence today and prosecutors who would never seek that death sentence today.” He said the historic decline in new death sentences, from more than 300 per year in the mid-1990s to fewer than 50 per year, will result in fewer executions going forward. Heather Beaudoin, national organizer for death-penalty abolitionist group, Equal Justice USA, said she is "not discourage[d]" by this year's execution numbers. What "we're seeing [is] the last grasps of trying to hold on to the death penalty in this country," she said. Ben Cohen, a lawyer with the Capital Appeals Project in New Orleans, said today's executions largely involve cases tried "twenty years ago [during] the height of the death sentencing era." The "long-term trend," he told USA Today, "remains clearly aimed at replacing death sentences and executions with life without parole."

Witnesses—Alabama Prisoner Still Moving 20 Minutes Into Execution With Controversial Drug

Alabama executed Torrey McNabb (pictured) on October 19, amid questions of state interference in the judicial process, resulting in another apparent failure by the drug midazolam to render a prisoner insensate during an execution. Alabama prison officials defended the execution—which took 35 minutes—as conforming with state protocol, most of which has been withheld from the public. Montgomery Advertiser execution witness Brian Lyman reported that at 9:17 p.m., twenty minutes into the execution and after two consciousness checks, "McNabb raised his right arm and rolled his head in a grimace" and then fell "back on the gurney." Associated Press reported that his “family members and attorneys who witnessed the execution expressed repeated concerns to each other that he was still conscious during the lethal injection.” Alabama Department of Corrections Commissioner Jeff Dunn dismissed McNabb's responses as "[i]nvoluntary movement," which he said were not unusual. "I’m confident he was more than unconscious at that point," he said. McNabb had been challenging the state's execution protocol in court for more than a year at the time Alabama issued a warrant for his execution. He had won an appeal permitting his case against the state's use of midazolam to move forward to trial, and the Alabama federal courts had issued an injunction stopping the execution so that judicial review of the state's execution process could take place. However, on October 19, the U.S. Supreme Court, over the dissents of Justices Breyer and Sotomayor, lifted the injunction, vacating the stay and permitting the execution to proceed. Two-and-a-half hours after the execution was scheduled to begin, the Supreme Court denied another last-minute stay application, without dissent, and the execution proceeded. The execution capped a dramatic 48 hours during which Texas courts halted two other executions that had been scheduled for October. On October 18, the Texas Court of Criminal Appeals had stayed Clinton Young's October 26 execution to permit an evidentiary hearing on his challenge that newly discovered gunshot residue evidence showed that the state's lead witness was the actual killer in his case, and a Texas trial court had stayed the execution of Anthony Shore to investigate allegations that he may have colluded with another death-row prisoner to falsely confess to the murder for which that prisoner had been condemned. McNabb's execution was Alabama's third and the 21st in the United States in 2017.

Supreme Court Directs Florida to Reconsider Intellectual Disability Decision in Death Penalty Case

The United States Supreme Court has ordered the Florida Supreme Court to reconsider a decision that had denied a death-row prisoner's claim that he was ineligible for the death penalty because he has Intellectual Disability. On October 16, the Court reversed and remanded the case of Tavares Wright (pictured, left), directing the Florida courts to reconsider his intellectual-disability claim in light of the constitutional standard the Court set forth in its March 2017 decision in Moore v. Texas. The decision in Wright v. Florida was the sixth time the Court has vacated a state or federal court's rejection of an intellectual-disability claim and remanded the case for reconsideration under Moore—and the third time it has done so in less than a month. Earlier in October, the Court vacated two decisions by the U.S. Court of Appeals for the 5th Circuit and remanded the cases of Texas death-row prisoners Obie Weathers and Steven Long for reconsideration in light of Moore, and on October 18, the Texas Court of Criminal Appeals cited Moore  as grounds for reconsidering its own prior rejection of intellectual-disability claims raised by Carnell Petetan, Jr. (pictured, right). Moore was expected to have broad impact in Texas, where—the Court unanimously agreed—the state courts had unconstitutionally adopted an unscientific set of lay stereotypes to determine whether a defendant facing the death penalty had impairments in functioning that qualified him or her as intellectually disabled. Five members of the Court also stressed in the majority opinion in Moore that the state had improperly rejected claims of intellectual disability by emphasizing a capital defendant's perceived adaptive strengths, instead of "focus[ing] the adaptive-functioning inquiry on adaptive deficits," as required by accepted medical practice. Lawyers in Harris County (Houston)—which has executed more prisoners than any other county—anticipate that more than a dozen prisoners sentenced to death in that county may be entitled to reconsideration of their death sentences under Moore, and one prisoner, Robert James Campbell, has already been resentenced to life. However, the Supreme Court's recent rulings indicate that its pronouncement in Moore that a state's determination of Intellectual Disability must be "informed by the medical community’s diagnostic framework" is not limited to Texas. In May, the Court vacated a decision of the Alabama Court of Criminal Appeals in the case of Taurus Carroll after his lawyer invoked Moore to argue that Alabama had unconstitutionally deviated from accepted methods of determining intellectual disability. In the Florida case, Wright's lawyers argued that the state supreme court's decision in his case was inconsistent with a line of Supreme Court cases on intellectual disability—Atkins v. Virginia (2002), which declared execution of those with intellectual disability to be unconstitutional; Hall v. Florida (2014), which struck down Florida's approach to measuring the role of IQ in determining intellectual disability; and Moore. Although its order did not set forth the reasons for its decision, the Supreme Court agreed and directed the Florida courts to reconsider the issue.

Death-Penalty Prosecutions Create Million-Dollar Budget Burden for South Dakota County

County Commissioners in Pennington CountySouth Dakota have approved budget increases of a half-million dollars each for the county's courts and its public defender office for 2018, largely as a result of two high-profile death-penalty prosecutions. Taxpayers will shoulder most of the financial burden resulting from the capital prosecutions of Rapid City defendants Jonathon Klinetobe and Richard Hirth, charged with murder, kidnapping, and conspiracy in the disappearance and death of Klinetobe’s ex-girlfriend, Jessica Rehfeld, in 2015. A third man involved in the alleged plot avoided the death penalty by agreeing to plead guilty and cooperate with the prosecution. In preparation for their trials, the public defender’s office in Pennington County, the state's second most populous, requested a $567,000 increase over and above its current $2.4 million budget. The county courthouse, which pays court-appointed attorneys, requested an increase of $530,000 above its already $1.4 million budget. The county prosecutor's office will also receive a $135,000 increase to its $5.1 million budget. The County Commissioners approved the increases on September 26. Eric Whitcher, director of the Pennington County Public Defender’s Office, said death-penalty cases are “exceedingly expensive” and taxpayers can “reasonably expect” to pay between $500,000 to $1 million in trial-related costs. His June 13 letter to the county auditor’s office stressed that additional funding was essential to cover "substantial expenditures" for expert evaluations, travel expenses, and witness fees. The public defender's office, which represents Klinetobe, is prohibited from representing both defendants, requiring the appointment of private counsel for Hirth. The court has appointed two private lawyers in his case, and Klinetobe is represented by one private lawyer, in addition to two lawyers from the public defender’s office. About $200,000 of the new funding granted to the public defender’s office has been earmarked for Klinetobe’s defense alone. Holli Hennies, county commission office manager, said in June that budget increases would largely be funded from property tax collections. 

Pope Francis Says Death Penalty "Abases Human Dignity," is "Contrary to the Gospel"

Signaling a strengthening of the Catholic Church's official opposition to capital punishment, Pope Francis (pictured) marked the 25th anniversary of the Catholic Church's promulgation of amendments to its Catechism by declaring the death penalty "contrary to the Gospel" and "an inhumane measure that, regardless of how it is carried out, abases human dignity.” During Vatican ceremonies on October 11 commemorating the 1992 amendments, Pope Francis said that the death penalty is "inadmissible" under any circumstances and that the subject needed “a more adequate and coherent treatment” than it currently receives. The Catechism—the instructive text for Catholics around the world—currently permits "recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor," but given modern crime prevention and incarceration practices, its says "the cases in which the execution of the offender is an absolute necessity 'are very rare, if not practically nonexistent.'" Pope Francis called capital punishment "an attack on the inviolability and the dignity of the person" and said that the approach to the issue by the Holy See has in the past been "more legalistic than Christian." The pontiff said that Church doctrine is a "dynamic" process that "develops [and] grows" over time, and it is therefore necessary to reaffirm in the Catechism "that no matter how serious the crime that has been committed, the death penalty is inadmissible because it is an attack on the inviolability and the dignity of the person." In October 2014, Pope Francis referred to the present Catechism in calling for the abolition of the death penalty, saying "It is impossible to imagine that states today cannot make use of another means than capital punishment to defend peoples' lives from an unjust aggressor." He repeated that call during an historic address before a joint session of the United States Congress in September 2015, and urged Catholic leaders around the world to take action to halt all executions during the Church's "Holy Year of Mercy" in 2016. Archbishop Emeritus Joseph Fiorenza—a former president of the U.S. Conference of Catholic Bishops—said the pope's remarks have “put to rest” any doubt as to whether the death penalty is permitted under Catholic doctrine. “This is Pope Francis’ magisterial teaching on this issue and as the faithful we have the responsibility to accept what the pope says,” said Fiorenza. Dianne Rust-Tierney, the executive director of the National Coalition to Abolish the Death Penalty, said that the pope’s “moral clarity and leadership” are promising to proponents of abolition. “We’ve got to show people that there is a better way, that this is a fundamentally immoral practice,” she said. The pope’s revision “closes the loophole” that the Catechism had left open in the minds of some, according to Karen Clifton, executive director of the Catholic Mobilizing Network. “[H]e makes it very clear,” said Clifton, that Catholics “need to meet people where they are and move them toward mercy and away from vengeance.” 

Categories: 

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.

Pages