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U.S. Supreme Court Reverses Kentucky Court in Intellectual Disability Case

The U.S. Supreme Court has reversed a Kentucky state court ruling that would have permitted the Commonwealth to execute death-row prisoner Larry Lamont White (pictured) without an evidentiary hearing on his claim that he is intellectually disabled. In a one-paragraph order issued on January 15, 2019, the Court granted White’s petition for review, vacated the Kentucky Supreme Court’s denial of his death-penalty appeal, and directed the state court to reconsider White’s eligibility for capital punishment in light of the standard for determining intellectual disability set forth in the justices’ 2017 decision in Moore v. Texas. Justices Alito, Thomas, and Gorsuch dissented.

White’s trial lawyers argued that he was ineligible for the death penalty because of intellectual disability, providing evidence from IQ testing conducted in 1971 when he was 12 years old. The trial court summarily denied relief and the Kentucky Supreme Court affirmed, based on a Kentucky statute that required a capitally-charged defendant to score 70 or below on an IQ test to be considered intellectually disabled. The court said White could not be considered intellectually disabled because his IQ score was 76. The court also relied upon White’s filing of motions without the assistance of counsel to conclude “that there is ample evidence of [White]'s mental acumen.” However, ten months after White’s appeal, the state court ruled that Kentucky’s statutory IQ cutoff violated Moore and the Eighth Amendment, holding that “any rule of law that states that a criminal defendant automatically cannot be ruled intellectually disabled and precluded from execution simply because he or she has an IQ of 71 or above, even after adjustment for statistical error, is unconstitutional.”

Justice Alito dissented, citing a previous dissent by the late Justice Antonin Scalia that the Supreme Court’s summary reversals for reconsideration should be reserved for cases in which an intervening factor is present. Here, Alito argued, the Court should not have intervened because the Moore decision “was handed down almost five months before the Supreme Court of Kentucky reached a decision in [White’s] case.” White’s lawyer, Kathleen Schmidt, praised the majority’s ruling, saying “[n]early 20 years ago, the Supreme Court struck down the death penalty for the intellectually disabled, in part out of concern that intellectually disabled defendants are more likely to be wrongfully convicted and sentenced to death for crimes they did not commit. We have similar concerns in this case, and we are grateful that the Supreme Court has remanded the case to ensure that all issues in the case are fully and properly litigated.”

With Backing of New Governor, Florida Clemency Board Posthumously Pardons the “Groveland Four”

On January 11, 2019, the Florida Clemency Board unanimously granted posthumous pardons to the “Groveland Four,” four young African-American men falsely accused of raping a young white woman in Lake County, Florida in 1949. During the racist hysteria following the accusation, white mobs burned down black residences, a massive white posse lynched a black suspect, all-white juries condemned two innocent men to death and an innocent teen to a life sentence, and a racist sheriff murdered one of the men and attempted to kill another. Gov. Ron DeSantis, convening the board for the first time since his election, urged it to grant clemency, calling the notorious case a “miscarriage of justice.” The state legislature issued a formal apology to the family members of the men in 2017, but former Gov. Rick Scott had taken no action on a pardon.

The four black men – Charles Greenlee, Ernest Thomas, Walter Irvin and Samuel Shepherd – were accused of the 1949 rape of a 17-year-old white woman, Norma Padgett. Thomas escaped from custody but was hunted down and murdered by an angry mob. He was reportedly shot 400 times. White mobs burned and shot at the homes of black families, many of whom fled and never returned. Greenlee, Irvin, and Shepherd were beaten until they falsely confessed to the crime. All-white juries convicted them, sentencing World War II veterans Irvin and Shepherd (pictured, right) to death and Greenlee (pictured, left), who was only 16 years old, to life in prison. The NAACP took up the men’s case, and they were represented by Thurgood Marshall, among others. In 1951, the U.S. Supreme Court unanimously overturned Irvin and Shepherd’s convictions. Shortly after the reversal, Lake County Sheriff Willis V. McCall shot the two handcuffed men while he was driving them to a court appearance, and posed for a photo in front of their prone bodies. McCall claimed that he had acted in self-defense. Shepherd died. Irvin, who survived by playing dead until others arrived at the scene, was retried and once again sentenced to death by an all-white jury. He received a last-minute reprieve when the prosecutor expressed doubt as to his guilt and his sentence was commuted to life in prison. Greenlee and Irvin were both eventually paroled, but Irvin died just one year after his release. Greenlee died in 2012.

Carol Greenlee, Charles Greenlee’s daughter, testified in favor of the pardons. In an interview, she said, “I wanted two things to happen. I wanted the world to know the truth, and I wanted my daddy’s name cleared.” Governor DeSantis said, “I don’t know that there’s any way you can look at this case and think that [the] ideals of justice were satisfied. Indeed, they were perverted, time and time again.” In addition to the pardon and the legislature’s apology, the Groveland Four also received an apology from the Orlando Sentinel, which inflamed passions with its racist coverage of the case in 1949. In particular, the newspaper apologized for running a political cartoon as the grand jury convened, showing four empty electric chairs with the title “No Compromise!” A Sentinel editorial published the day before the pardons said, “We’re sorry for the Orlando Sentinel’s role in this injustice. We’re sorry that the newspaper at the time did between little and nothing to seek the truth. We’re sorry that our coverage of the event and its aftermath lent credibility to the cover-up and the official, racist narrative.”

Texas Prisoner Seeks Stay of Execution on Claims of Junk Science, Arbitrary Sentencing

[UPDATE: The Texas Court of Criminal Appeals issued a stay of execution to Blaine Milam on January 14, 2019] As Texas prepares to execute Blaine Milam (pictured) on January 15, 2019, Milam’s lawyers say his conviction and sentence rest on discredited bite-mark testimony and have asked for the execution to be halted. Milam filed a habeas corpus petition in the Texas Court of Criminal Appeals on January 10 challenging his conviction and sentence, along with a motion to stay his execution. While the contents of those pleadings do not appear on the public docket and have not been released to the media, his lawyers issued a statement saying that “[Texas] obtained Blaine Milam’s conviction and death sentence for capital murder based on now discredited bite mark junk science” and that “Mr. Milam’s conviction is unreliable, and his death sentence is arbitrary.”

Milam – who prior court pleadings have argued is intellectually disabled – and his mentally ill girlfriend, Jessica Carson, were convicted of killing Carson’s 13-month-old daughter, Amora, during an alleged exorcism in 2008. Both defendants were 18 years old at the time. Milam’s current lawyer, Jennae Swiergula, the Post-Conviction Director of the Texas Defender Service, said in the statement that Carson “had been experiencing a psychotic illness involving delusions that her child was possessed by a demon.” Carson, whom Milam says actually killed the baby, received a sentence of life without parole, while Milam was sentenced to death. Milam was convicted under Texas’s controversial “law of parties,” which allows defendants to be convicted and sentenced to death based upon the actions and intent of others if the defendant played even a small role in a crime that resulted in someone’s death. Swiergula said the state did not have “any meaningful evidence that Mr. Milam played any role in causing” Amora’s death, and the jury did not hear evidence of Carson’s psychotic illness. “Even under the law of parties,” she said, “the State’s evidence that Mr. Milam ‘aided’ in the offense rested on junk science.” Bite-mark evidence has long been the subject of controversy, and the National Academy of Sciences and the President’s Council of Advisors on Science and Technology have criticized it as lacking scientific validity. In 2016, the Texas Forensic Science Commission called for a moratorium on its use in court. 

Previous appeals for Milam have raised questions about his degree of culpability for the crime. His appeal before the U.S. Court of Appeals for the Fifth Circuit argued that he was under the influence of methamphetamine at the time of the crime, and therefore could not form an “intent to commit a crime.” The same appeal also presented evidence that he is intellectually disabled, rendering him ineligible for execution. The appeals court declined to hear both claims.

The Texas Court of Criminal Appeals has granted seven stays of execution since 2016 to permit review of claims that defendants were convicted or sentenced to death based on false or misleading forensic evidence or testimony. If the execution is not stayed, Milam will be the first person executed in the United States in 2019.

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Chaos Continues in Guantánamo Death-Penalty Trial, As Another Military Judge Quits

The already chaotic Guantánamo death-penalty trial of Abd al Rahim al Nashiri, accused of orchestrating the October 2000 attack on the U.S. Navy destroyer USS Cole, hit another snag as the most recent judge assigned to preside over the controversial proceedings will be leaving the military and quitting the case. In a January 4, 2019 appellate pleading recently obtained by the McClatchy News Service, prosecutors advised the U.S. Court of Appeals for the District of Columbia Circuit that Air Force Colonel Shelley Schools (pictured), assigned in August 2018 as the third judge to preside over the USS Cole military tribunal, one month later accepted an offer to become an immigration court judge and “intends to retire from the military in the near future.” Schools’s retirement leaves the Guantánamo tribunal yet again without a judge to handle pretrial proceedings.

Schools was assigned the case after former judge and Air Force Colonel Vance Spath also retired from the military to become a civilian immigration judge. Spath’s retirement followed months of frustration over developments in Nashiri’s case. In October 2017, Nashiri’s entire civilian legal team resigned from the case, alleging that the government had illegally eavesdropped on their legal meetings, leaving Nashiri to be represented by a single military lawyer, Lieutenant Alaric Piette, who was five years out of law school and had never tried a murder case. In November 2017, Spath found Brigadier General John Baker, the Chief Defense Counsel for the Military Commissions Defense Organization, guilty of criminal contempt for allowing the resignations and sentenced him to 21 days of confinement. However, Harvey Rishikof, who at that time served as the Convening Authority of all of the Guantánamo tribunals, released Baker from confinement, and a federal court later overturned Baker’s contempt conviction. Then, during a January 2018 pretrial hearing, Spath criticized Piette for seeking a continuance in the case until expert death-penalty co-counsel could be appointed, telling him to “engage in self help” by attending special training to become “more comfortable handling capital matters.” Media reports described an exasperated Spath as having delivered “a 30-minute monologue” venting his frustration over having his orders ignored, alleged inaction by Pentagon officials to help him return civilian counsel to the case, and uncertainty over his authority raised by Baker’s actions. In February 2018, Spath indefinitely suspended Nashiri’s trial because of the lack of counsel.

It is unlikely that Schools will preside over any developments in the USS Cole case before she joins the immigration court in the summer of 2019. The case is currently on appeal in federal court, where Nashiri’s lawyers are seeking to vacate the rulings made by Spath during a three-year period in which he secretly pursued appointment of the civilian immigration judge job at the Department of Justice (DOJ), while presiding over Nashiri’s military tribunal case, which was being handled by DOJ prosecutors.

The USS Cole case has been plagued by other controversies, as well. Nashiri’s lawyers previously challenged the constitutionality of his detention in military custody because the CIA admittedly subjected him to 14 years of "physical, psychological and sexual torture." They also unsuccessfully argued that he should be tried in civilian, rather than military, court.

Supreme Court Lets Death Sentence Stand for Prisoner Whose Attorney Presented No Mitigating Evidence

Over a sharp dissent by three justices, the United States Supreme Court has let stand the death sentence imposed on a Georgia prisoner who was suffering from dementia, brain damage, and borderline intellectual functioning, but whose trial lawyer failed to present any mitigating evidence. On January 7, 2019, the Supreme Court denied the petition for writ of certiorari filed on behalf of death-row prisoner Donnie Cleveland Lance seeking the Court’s review of the Georgia Supreme Court's denial of relief in his case. Justice Sonia Sotomayor – joined by Justices Ruth Bader Ginsburg and Elena Kagan – dissented, writing that “the Court’s refusal to intervene permits an egregious breakdown of basic procedural safeguards to go unremedied.”

Lance was sentenced to death by a Georgia court for the 1997 murder of his ex-wife and her boyfriend. Lance’s trial lawyer – a solo practitioner who was convinced he could persuade the jury of Lance’s innocence – asked the trial court to appoint a second lawyer to handle any potential penalty phase. The court denied that request and also denied a defense motion for funds to retain expert witnesses to challenge the range of experts hired by the prosecution in the case. After the court denied his motions, Lance’s lawyer conducted no penalty-phase investigation and did nothing to prepare for the penalty phase. Following Lance’s conviction, counsel made no penalty-phase opening statement, called no witnesses, and presented no mitigating evidence. In his cursory closing argument, counsel asked the jury to think of Lance’s family and to not seek vengeance. 

New counsel represented Lance in his state post-conviction proceedings and presented extensive evidence of Lance’s serious cognitive impairments. Four mental health experts agreed that Lance had brain damage in his frontal lobe, that his IQ was on the borderline for intellectual disability, and that he suffered from clinical dementia. While the three defense experts agreed that Lance’s brain damage significantly impaired his ability to control his impulses and conform his conduct to the law, the state’s expert disagreed about the extent of his impairment. The trial court overturned Lance’s death sentence, ruling that counsel had provided ineffective representation. However, the Georgia Supreme Court reversed, holding that while counsel’s performance was deficient, the presentation of mitigating evidence would have been futile given the facts of the murder. On federal habeas corpus review, the Georgia federal courts ruled that the Georgia Supreme Court had not unreasonably applied Supreme Court precedent when it upheld Lance’s death sentence.

The three-justice dissent from the U.S. Supreme Court’s decision not to intervene argued that the Georgia Supreme Court decision was “an objectively unreasonable application” of U.S. Supreme Court precedent and had “mischaracterized or omitted key facts and improperly weighed the evidence.” The evidence of Lance’s “‘serious’ and ‘significant’” mental impairments, Justice Sotomayor wrote, “reasonably could have affected at least one juror’s assessment of whether Lance deserved to die for his crimes, and Lance should have been given a chance to make the case for his life.” Instead, she said, “Lance may well be executed without any adequately informed jury having decided his fate.”

Scott Dozier, Who Unsuccessfully Tried to Force Nevada to Execute Him, Dead of Apparent Suicide

Nevada death-row prisoner Scott Dozier (pictured), who unsuccessfully tried to force the state to execute him, was found dead in his prison cell on January 5, 2019 of an apparent suicide. News reports indicated that Dozier had hanged himself. Dozier had told the court and several reporters that he would rather die than spend life in prison and had attempted to speed up his execution by dropping his appeals. However, his prior suicide attempt raised questions about his mental state and his competency to waive appeals.

Dozier’s case gained national attention when Nevada proposed to execute him with an untested fentanyl-based drug combination after it was unable to replace its expired supplies of the drugs authorized under its prior execution protocol. He would have been the first person ever executed using fentanyl. Though steadfast in seeking execution, Dozier initially allowed federal public defenders to challenge the constitutionality of the new drug protocol. That challenge resulted in two stays of execution in 2017, after the trial judge found that the use of the paralytic drug cisatracurium in combination with diazepam (Valium) and fentanyl could cause Dozier to experience “air hunger” and suffocate to death, while masking signs that he was conscious and suffering during the execution. The court authorized the execution if Nevada dropped the paralytic drug, but Nevada appealed, prompting Dozier to write to the state judge who had halted his execution that “I’ve been very clear about my desire to be executed ... even if suffering is inevitable.” Court filings in a prior lawsuit challenging Dozier’s isolation in prison revealed that he had previously attempted suicide after having been denied recreation time, communication with his family, and consultation with his legal counsel. The state argued at that time that Dozier’s isolation was necessary to protect him from self-harm.

The Nevada Supreme Court later vacated the lower court’s stay order on procedural grounds, clearing the way for a second death warrant, which was issued in June 2018. Eight days before the July 11, 2018 execution, Nevada changed its drug formula again, and drug manufacturer Alvogen filed suit against the state for allegedly obtaining a supply of its sedative, midazolam, “by subterfuge” to circumvent the company’s restrictions against sales of its products for use in executions. A Clark County District Judge halted Dozier’s execution, agreeing with Alvogen that Nevada had misrepresented its intended use of the drugs and purchased them in “bad faith” through subterfuge. The court barred the state from using the drugs obtained from Alvogen in any execution. At the time of Dozier’s death, state prosecutors had not yet decided whether to appeal that order. Nevada prison officials had recently placed Dozier in solitary confinement, purportedly for self-protection.

NEW VOICES: Retiring Georgia Bureau of Investigation Director Predicts End of Death Penalty

As he prepared for retirement, the long-time director of the Georgia Bureau of Investigation (GBI) said he does not support the death penalty and believes the punishment is on its way out in Georgia and across the country. In a television interview on his final day of work as GBI director, Vernon Keenan (pictured) told WXIA-TV, Atlanta’s NBC television affiliate, that he has “never believed in the death penalty” and “[t]he day will come when we won’t have the death penalty in Georgia and in the United States.”

Keenan, a 45-year veteran of law enforcement who has run the state criminal justice agency for the past sixteen years, called the death penalty outdated and ineffective in advancing public safety. Keenan said, “I don’t believe the death penalty deters anyone. The people that commit crime, they don’t believe they’re going to get caught. The death penalty is just a way society gets retribution from the criminal.” He told WXIA that he believes declining public support for capital punishment will ultimately lead elected officials to reconsider whether the death penalty should remain part of the state’s criminal code.

Keenan’s belief that the death penalty is not a deterrent reflects the widely held beliefs of many senior criminal justice personnel. A 2008 study found that 88% of the nation’s leading criminologists believe the death penalty is not an effective deterrent to crime and that three-quarters of them believed that debates over the death penalty “distract legislatures from real crime solutions.” A 2008 poll of 500 police chiefs in the United States, commissioned by DPIC, found that police chiefs rank the death penalty lowest among crime fighting options as “most important for reducing violent crime.” The chiefs believed that increasing the number of police officers, reducing drug abuse, and creating a better economy were all more important in reducing crime. More than two-thirds (69%) said that “[p]oliticians support the death penalty as a symbolic way to show they are tough on crime.” “I believe life in prison without parole is punishment enough,” Keenan said. “Probably worse than death.”

Georgia was one of only eight states to carry out executions in 2018. No Georgia jury has recommended a new death sentence since 2014.

Study: International Data Shows Declining Murder Rates After Abolition of Death Penalty

Nations that abolish the death penalty then tend to see their murder rates decline, according to a December 2018 report by the Abdorrahman Boroumand Center, a Washington, DC-based organization that promotes human rights and democracy in Iran. The report examined murder rates in 11 countries that have abolished capital punishment, finding that ten of those countries experienced a decline in murder rates in the decade following abolition. Countries were included if they met the following criteria: they had formally abolished the death penalty at least ten years ago, at least one death sentence had been imposed or carried out in the decade prior to abolition, and murder rate data was available from the World Trade Organization. The countries that met the study’s criteria were Azerbaijan, Bulgaria, Poland, Serbia, Estonia, Latvia, Ukraine, South Africa, Kyrgyzstan, Georgia, and Albania. (Click image to enlarge.)

The researchers compared murder rates in the ten years after abolition of the death penalty to the baseline rate in the year of abolition. Six of the abolitionist countries experienced murder rates below the baseline all ten years following abolition. Four countries had either one or two years in which murder rates were higher than in the year of abolition, but saw murders fall below the baseline within five years and experienced overall downward trends. Only one country in the study, Georgia, saw murder rates trend upwards in the decade following abolition. One decade after abolition, the murder rates in these countries declined by an average of six murders per 100,000 population. The authors conclude, “Death penalty advocates’ fears that the state relinquishing the ultimate punishment will embolden potential criminals, or at least weaken deterrence, prove to be unfounded in light of this evidence.”

The data is consistent with state-level data in the United States, which has repeatedly shown lower murder rates in states that do not have the death penalty than in states that do and that the presence or absence of the death penalty does not appear to affect murder trends. A 2017 DPIC analysis found that abolishing the death penalty had no measurable effect on murder rates in general or the rate at which police officers are killed, contradicting popular arguments that the death penalty is necessary for public safety and to protect law enforcement officials.

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