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Oklahoma Prisoners Argue State's Application of the Death Penalty Is Racially Biased, Unconstitutional

Posted: July 27, 2017

Newly available evidence shows that Oklahoma's death penalty unconstitutionally discriminates on the basis of race, according to petitions filed by lawyers seeking to overturn the death sentences imposed on two African-American defendants, Julius Darius Jones (pictured) and Tremane Wood. Jones—a high school athlete and honor student who did not fit the description of the shooter and who has continuously maintained his innocence—and Wood were convicted and sentenced to death for killing white male victims in separate cases. Both men's claims are based on data from a study of race and the death penalty that was released as part of the April 2017 report of the Oklahoma Death Penalty Review Commission showing that, for the period 1990-2012, Oklahoma defendants convicted of killing white victims were more than twice as likely to be sentenced to death as those convicted of killing victims of color. For cases like Jones's and Wood's that involved only white male victims, defendants were nearly three times more likely to be sentenced to death. The study also showed that defendants of color were nearly three times more likely to be sentenced to death if convicted of killing a white victim than a victim of color and nearly twice as likely as a white defendant to be condemned for killing a white victim. Jones's petition argues that his death sentence violates the state and federal constitutions because he "faced a greater risk of execution by the mere happenstance that the victim who he was accused and convicted of killing was white.” Both Jones and Wood were capitally charged in Oklahoma County, one of the 2% of American counties responsible for more than half of all prisoners on the nation's death rows. 54 men and women were sent to death row during the 21-year administration of District Attorney “Cowboy” Bob Macy, who retired in 2001. The judge who presided over Wood's trial has made openly racist remarks, saying in 2011 that Mexicans are “nothing but filthy animals.”  Jones was sentenced to death by a nearly all-white jury, following what his current lawyers describe as “pervasive and highly racialized pre-trial media coverage” and “racialized remarks made by prosecutors and at least one juror” during his trial. Jones has also filed a motion with the Oklahoma County court seeking DNA testing on a red bandana that an eyewitness said the shooter was wearing over his face at the time of the murder. His lawyers say the bandana may contain DNA evidence that would identify the shooter and exonerate Jones.

 

Ohio Executes Ronald Phillips, Resumes Executions After 3½-Year Pause

Posted: July 26, 2017

After a hiatus of 3½ years, Ohio resumed executions on July 26, putting Ronald Phillips (pictured, photo credit: Forgiveness Foundation) to death with a three-drug combination of the sedative midazolam, the paralytic drug rocuronium bromide, and the heart-stopping drug potassium chloride. Phillips was pronounced dead at 10:43 a.m. It was the state's first execution since the botched execution of Dennis McGuire on January 16, 2014, and the 15th in the U.S. in 2017. Phillips' execution is the first of four executions that Ohio has scheduled for this year and of 27 scheduled through 2020. Ohio's resumptions of executions is expected to contribute to a small increase in executions in the U.S. this year, although the annual total is likely to remain among the lowest in the last quarter century. Phillips was executed despite the efforts of a diverse range of groups, including former attorney generals, justice reform advocates, exonerees, faith leaders, and editorial writiers, urging Governor John Kasich not to resume executions before Ohio addressed serious systemic flaws in its death penalty process that had been identified by a statewide death penalty task force. Phillips had sought a stay of execution until an ongoing challenge to Ohio's lethal-injection process is finally resolved, and his application drew support from fifteen pharmacology professors who filed a brief calling midazolam "unsuitable" and its as an execution drug "profoundly troubling." Justices Sotomayor and Ginsburg dissented from the denial of the stay, saying the court's action constituted a “failure to step in when significant issues of life and death are present.” Ohio officials said the execution proceeded without incident. Allen L. Bohnert, one of the lawyers who represents prisoners in the ongoing lethal-injection litigation, released a statement saying: "While Ohio will try to characterize today’s execution as 'problem-free,' do not be fooled." By choosing to inject the paralytic drug "extremely quickly," he said, Ohio "hid[ ] the real facts behind an artificial chemical curtain, . . . masking the problems with midazolam seen in multiple other executions." He urged the state to "heed the warnings of numerous pharmacists, pharmacologists, and anesthesiologists . . . and immediately halt any further use of midazolam and the paralytic drug in lethal injection executions." Ohio has executed 53 prisoners since the turn of the century—the most of any northern state and more than the combined total of every other northern state east of the Mississippi. Ohio ranked with Texas and Oklahoma as the only states to have executed at least one prisoner each year from 2001 to 2014.

 

In Lawsuit Settlement, Arizona to End Automatic Solitary Confinement for Death-Row Prisoners

Posted: July 25, 2017

Arizona will soon end its policy of automatically and indefinitely incarcerating death-row prisoners in solitary confinement, joining a growing number of states to ease draconian conditions on their state death rows. Arizona's action is part of a settlement of a federal lawsuit filed against the Department of Corrections (DOC) by death-row prisoner Scott Nordstrom (pictured), which argued that the state's death-row conditions were unconstitutionally harsh. Nordstrom's attorney, Sam Kooistra, said that the change in housing does not mean "softer treament" for condemned prisoners, but rather that they "get treated more like non-death sentence inmates do" by being afforded an individualized housing assessment based upon their conduct in prison and the risk they pose to others. 70% of the approximately 2,900 prisoners on death row in the U.S. are automatically held alone in their cells for more than 20 hours per day, with nearly two-thirds held in solitary confinement more than 22 hours per day, according to a survey of state corrections officials by The Marshall Project. Other states such as California, Colorado, Louisiana, Nevada, North Carolina, Tennessee, and Virginia—prompted by court challenges over death-row conditions—have already begun to allow death-sentenced prisoners more time out of their cells and, in some cases, to eat meals and exercise with other inmates, have contact visits with family members, and hold prison jobs. In February, a federal appeals court declared unconstitutional Pennsylvania's long-standing practice of automatically keeping prisoners whose death sentences had been overturned in solitary confinement—sometimes for years—until they had completed retrial or resentencing proceedings and received a lesser sentence. Nine condemned prisoners in Florida have also filed suit on behalf of the more than 350 prisoners currently held on the state's death row, which asks the court to prohibit prisoners from being held in solitary confinement for indefinite duration and without a case-specific justification. Currently, Florida holds death-sentenced prisoners in solitary confinement up to 23 hours every day. Three prisoners on Louisiana's death row have filed filed a federal class action lawsuit charging that their isolation at the Louisiana State Penitentiary at Angola amounts to a “severe denial of human fundamental needs.” Although prison officials have begun allowing death-sentenced prisoners four hours out of their cell per day, as well as some educational programming and activities with other prisoners, Betsy Ginsberg—one of the Angola prisoners’ lawyers—said the class-action lawsuit will continue to ensure that the recent changes are “constitutionally adequate, properly implemented, and permanent.” These developments in death-row conditions come in the midst of a national rethinking of the use of solitary confinement, which has come under fire as unnecessarily, psychologically debilitating, cruel, and expensive. 

 

Pennsylvania Prosecutors Give Up Death Penalty in Murder of 4 to Learn Location of Missing Victim

Posted: July 24, 2017

Bucks County, Pennsylvania prosecutors have agreed not to seek the death penalty for defendant Cosmo DiNardo (pictured), in exchange for his confession to a quadruple murder, information implicating an accomplice, and information permitting authorities to recover the body of one of the victims. The deal was made quickly—just one week after the beginning of the investigation into the disappearance of the four young men and the discovery of three of the bodies—to end the uncertainty faced by the victims' families. Pennsylvania defense attorney Marc Bookman said, “The defense is giving the prosecutor something compelling. He said he would direct them to where the bodies are. You’ve got four grieving families who desperately want closure, however sad that closure might be. And he’s asking for something in exchange.” All of the victims' families supported the deal, according to Mark Potash, whose son, Mark Sturgis, was killed. “Without the confession, we would have wound up leaving a boy missing. It took about half a second for all of us to agree,” he said. Former Philadelphia District Attorney Lynne Abraham—who a 2016 report by Harvard's Fair Punishment Project described as one of America's "deadliest prosecutors"—said that avoiding a death penalty trial and appeals would save, “hundreds of thousands, if not millions” of dollars. The deal, which won praise from both defense lawyers and prosecutors, highlights an on-going concern about systemic arbitrariness in the way the death penalty is administered: highly culpable murderers who have information leading to the discovery of additional victims or solving other murders may be able to avoid a death sentence, in spite of the seriousness of the crime, while less culpable defendants are sentenced to death for less serious murders. Earlier this year, Todd Kohlhepp avoided a death sentence by pleading guilty to seven murders in South Carolina, providing information that helped solve four cases. "Green River" killer Gary Ridgway made a similar deal in Washington in 2003, pleading guilty to 48 murders and helping investigators find the remains of numerous missing victims.

 

Texas Prisoner Seeks Stay of Execution; Was Represented by Disbarred Lawyer and Lawyer Who Relied on Wikipedia

Posted: July 21, 2017

Lawyers for Texas death-row prisoner TaiChin Preyor (pictured), whose prior federal habeas lawyer relied on research from Wikipedia and the guidance of a disbarred lawyer, have filed motions in state and federal courts seeking to stay his scheduled July 27 execution. His pleadings allege that he was represented by a succession of inept counsel, including a penalty-phase lawyer who failed to interview key witness or seek critical mental health testing; a post-conviction lawyer who met him for the first and only time on the day of his state habeas evidentiary hearing; and federal habeas counsel consisting of a disbarred lawyer and a real estate lawyer who defaulted a significant constitutional claim of prior counsel's ineffectiveness. Preyor was convicted and sentenced to death in 2005. The prosecutor told his sentencing jury that Preyor came from a “wonderful family” full of “outstanding people.” The new pleadings, however, set forth facts recently discovered when new counsel was provided funding to invewtigate his case: that Preyor endured a "harrowing" childhood "marred by severe physical and sexual abuse," and that he "turned to alcohol and drugs at a young age to cope with this unrelenting abuse." Preyor repeatedly witnessed his mother being beaten by numerous boyfriends and was threatened with a knife by one of them when the boy attempted to intervene. While still in elementary school, he was repeatedly sodomized and digitally penetrated by a close family member. While a teenager, he broke his ankles jumping off a 4th floor balcony to escape his mother, who was chasing him with a knife. The recent court filings seeking to re-open his federal habeas proceedings say this information was never presented to the federal court because his federal habeas counsel — a probate and estate planning lawyer with no death penalty experience — was "woefully unqualified" and "relied on Wikipedia, of all things, to learn the complex ins and outs of Texas capital-punishment." That lawyer, Brandy Estelle, so clearly lacked the necessary qualifications that the Fifth Circuit refused to appoint her and a judicial clerk reviewing death-penalty cases contacted the Texas bar to seek replacement counsel. Further, the motions allege, Estelle was actually a front who did no more than sign the documents filed in court; Phillip Jefferson, a disbarred lawyer who had misrepresented himself as a lawyer to Preyor's family actually drafted the pleadings. According to Preyor's current counsel, Jefferson and Estelle collected money from the family for their services, while Estelle also submitted invoices for payment to the federal courts. The motions ask the state and federal courts to stay Preyor's execution while this "fraud upon the court," the ineffectiveness of prior counsel, and the newly discovered evidence can be reviewed and assessed by the courts. Preyor has also asked the Texas Board of Pardons and Paroles to commute his sentence, or alternatively, grant him a reprieve so that the legal issues in his case can be reviewed. Five Texas prisoners have received stays of execution so far in 2017, from either the state or federal courts. Texas has carried out four executions in 2017.

 

Diverse Coalition Urges Ohio Governor to Halt Resumption of Executions

Posted: July 20, 2017

The Chairman of a state task force to reform Ohio's death penalty and two former state Attorney Generals have joined a diverse coalition of public officials, death-row exonerees, family members of murder victims, former corrections officials, and religious leaders urging Ohio Governor John Kasich to halt the state's planned resumption of executions. Citing legislative inaction on critical reforms, the high risk of error, and botched executions, the groups held a press conference (pictured) on July 29 detailing their opposition to Ohio's planned execution of 27 prisoners between July 2017 and September 2020, and delivered to the governor petitions with over 27,000 signatures asking that executions not resume. Ohio has not carried out an execution since it botched the execution of Dennis McGuire in January 2014, but is scheduled to execute Ronald Phillips on July 25. In April 2014, a Joint Task Force to Review the Administration of Ohio’s Death Penalty created by the Ohio Supreme Court issued a detailed report highly critical of the state's death penalty, and recommended 56 reforms to prevent wrongful convictions and unfair and arbitrary death sentences. In a written statement read at the press conference, the Task Force's chairman, now retired Judge James Brogan, called Ohio's planned resumption of executions "very troubling," saying that "[t]hose charged with ensuring our capital punishment system is fair and accurate have failed to act." Ohio "should not resume executions without addressing" the Task Force's reforms, Brogan said. Former Ohio Attorney Generals, Democrat Jim Petro and Republican Lee Fisher also urged Governor Kasich to extend the current freeze on Ohio executions. In a July 20 guest column in the Cleveland Plain Dealer, they wrote, "we strongly believe that Ohio should not execute again until important safeguards are in place." They said the 3½-year break since Ohio's last execution "should have been used to improve the Ohio death penalty system. Instead, not a single substantive reform has been put in place to prevent wrongful convictions and improve fairness in Ohio's capital punishment system." Kwame Ajamu one of the 9 Ohio death-row exonerees — also spoke at the press conference, stressing the risk of killing an innocent prisoner if executions resume. Family members of murder victims, corrections officials, and faith leaders, also spoke out against resuming executions and submitted letters to the Governor. “We are not asking the state to turn its back on people who commit serious crimes," said Pastor Carl Ruby with the Central Christian Church. "We are in favor of hard-life sentences for people who commit despicable crimes, but the death penalty eliminates the possibility [of correcting mistakes if] we got it wrong." 

 

New Generation of Prosecutors May Signal Shift in Death Penalty Policies

Posted: July 19, 2017

A new generation of prosecutors, elected across the country on a platform of criminal justice reform, are taking a different approach to criminal justice policies than their predecessors, including a reduction in the use of capital punishment. A Christian Science Monitor profile of these prosecutors—focusing on Mark Gonzalez (pictured), the Nueces County, Texas, district attorney—says "[f]rom Texas to Florida to Illinois, many of these young prosecutors are eschewing the death penalty, talking rehabilitation as much as punishment, and often refusing to charge people for minor offenses." Their reform measures not only create greater opportunities for rehabilitation of offenders, but also reduce costs for the county and state governments. Stanford Law Professor David Alan Sklansky said, “It does seem to be a new and significant phenomenon. It’s rare to see so many races where the district attorney is challenged, where they lose, and where they lost to candidates calling not for harsher approaches, but for more balanced and thoughtful, more restrained, more progressive approaches to punishment.” In 2016, several new prosecutors who ran on reform platforms in major death-penalty counties defeated entrenched incumbents: Kim Ogg in Harris County, Texas; Andrew Warren in Hillsborough County, Florida; and Charles Henderson in Jefferson County, Alabama all pledged to reduce the use of capital punishment. Caddo Parish, Louisiana's District Attorney James Stewart, elected in 2015, has backed away from that parish's aggressive use of the death penalty while Denver District Attorney Beth McCann and Orlando State Attorney Aramis Ayala, both elected in 2016, have said they would not pursue the death penalty. In May 2017, Larry Krasner, a death-penalty opponent, won the Democratic nomination for Philadelphia District Attorney, making him the favorite to win the general election in November. Kim Ogg described the reasons for her support of criminal-justice reform, saying, “In the last decade the American people have literally lost faith in the fairness of our justice system. If they think we’re rigging the system, or trying to force outcomes, then they’re not going to participate, and to me that is a huge threat to our democracy.” Gonzalez says he has not decided how he will approach the death penalty, and in the meantime is still filing death penalty cases. But, he says, “We’re trying to change things. ... The culture is changing.”

 

Lawyers Say Utah Is Underfunding Death-Penalty Appellate Defense

Posted: July 18, 2017

Utah is not providing sufficient funding to competently represent death-row prisoners during their appeals, according to a motion filed on behalf of Douglas Lovell, the man most recently sentenced to death in the state. Because of that, Lovell's lawyer Samuel Newton says, Lovell's death sentence should be vacated and he should be resentenced to life in prison. Newton bases his claim on a 2008 Utah Supreme Court opinion, Archuleta v. Galetka, in which the court warned that "low levels of public funding for capital cases" and "significantly diminishing numbers of qualified counsel able and willing to represent capital defendants" might force the court to overturn death sentences if it "impedes prompt, constitutionally sound resolution" of a capital case. Newton argues that a billing cap imposed by Weber County officials and threats and meddling by county officials are compromising his ability to zealously represent Lovell. Lovell has been granted an evidentiary hearing on his post-conviction claims — including whether The Church of Jesus Christ of Latter-day Saints interfered with the trial by limiting the testimony available from bishops who had worked with Lovell at the prison — and Newton estimates that the hundreds of hours required to investigate and prepare for the hearing would cost about $37,000. However, Weber County officials sent Newton an email accusing him of overbilling the county and meeting with his client too frequently, and threatening that, as a result, they may have to find other attorneys for future appeals. The county has capped his payment for the hearing at $15,000. "That's the bind," Newton said. "Do I represent my client zealously like I'm constitutionally required to do? Or do I tread lightly so I don't lose my livelihood?" Newton said that the financial strain of handling another death-penalty case has caused stress-related heart problems that led him to request to be removed from that case. Newton's motion is not the first time attorneys have expressed concerns about Utah's capital defense funding. In 2007, the Utah Association of Criminal Defense Lawyers filed an amicus brief in the case of Ralph Menzies. Affidavits submitted by well-known defense lawyers in connection with that brief reported that the final payments they received for handling death-penalty appeals had amounted to compensation at levels of $17 and $19 per hour — about one-tenth their normal billing rates. Defense attorney Richard Mauro said the pay rates make it almost impossible for private attorneys to take on capital appeals: "If you are doing the work the way it's supposed to be done — and trying to keep the lights on and run the copy machine — it's really not a feasible thing to do."

 

Report Finds High Levels of Misconduct in Four Top Death Sentencing Counties

Posted: July 17, 2017

Four counties that rank among the most aggressive users of capital punishment in the United States have prolonged patterns of prosecutorial misconduct, according to a new report by the Harvard-based Fair Punishment Project. The report, "The Recidivists: Four Prosecutors Who Repeatedly Violate the Constitution," examined state appellate court decisions in California, Louisiana, Missouri, and Tennessee from 2010-2015, and found that prosecutors in Orange County, CAOrleans Parish, LASt. Louis City, MO; and Shelby County, TN—all of which currently face allegations of significant misconduct—ranked among the most prolific perpetrators of misconduct in their respective states. Orange and Shelby counties ranked 7th and 13th among the 2% of counties responsible for a majority of death-row prisoners in the U.S. as of January 2013, each having more individuals on their death rows than 99.5% of all counties in the country. In the midst of a scandal on an illegal, multi-decade practice of placing informants next to targeted prisoners to attempt to extract confessions from them, Orange County imposed more death sentences from 2010-2015 than all but five other U.S. counties. St. Louis City ranked 10th in executions from 1976-2012, and Orleans Parish has long been known for its prosecutors' failures to disclose exculpatory evidence to capital defendants, including three cases that have been the subjects of decisions by the U.S. Supreme Court. The statewide misconduct rankings produced by the Fair Punishment Project show that these counties are outliers not only in their heavy use of the death penalty, but also in their patterns of prosecutorial misconduct. Among the types of misconduct found by appellate courts were withholding exculpatory evidence, improper arguments at trial, and hiding deals and favorable treatment offered to informants in exchange for their testimony. In one case from St. Louis, prosecutors: suppressed evidence in the death-penalty trial of Reginald Clemons that would have supported Clemons' claim that he confessed only after having been beaten by police; never disclosed the existence of a rape kit that could have identified the perpetrator; and presented testimony in a co-defendant's trial that another person had committed acts attributed to Clemons at his trial. Longtime prosecutor Nels Moss, Jr. also advised police officers to omit certain observations that were initially included in their reports. Clemons was convicted and sentenced to death, but was awarded a new trial—scheduled for 2018—because of this misconduct.

 

Pioneers in Efforts to Defend Death-Penalty Cases, End Capital Punishment Remembered in New Book, Obituary

Posted: July 14, 2017

The legacies of Scharlette Holdman (pictured) and Marie Deans—two women who changed the landscape of capital punishment in the United States—are memorialized in a recent story in the Marshall Project and a new book scheduled for release in August. Maurice Chammah's article, We Saw Monsters. She Saw Humans, marks the July 12, 2017 passing of mitigation pioneer Scharlette Holdman and tells the story of her forty-year fight on behalf of capital defendants and death-row prisoners. The forthcoming book by Todd Peppers and Margaret Anderson, A Courageous Fool, tells the story of a similarly pioneering woman, Marie Deans, who long worked to save defendants and prisoners facing the death penalty and whose efforts to give voice to family members, like herself, whose relatives had been murdered, led to the creation of Murder Victims' Families for Reconciliation. Holdman used her background in anthropology to develop the practice of death-penalty mitigation—conducting a multi-generational social history investigation to tell the story of a client's life in a way that would humanize him or her to a jury or a judge. “What she saw is that killers are not just born,” said lawyer George Kendall, who represents death-row prisoners. “They have had unbelievably abused and neglectful lives, and that history is relevant. You become your client’s biographer, you speak to the 60 most important people in that person’s life—friend and foe.” She approached this difficult work with creativity and humor. In one case, she attempted to discredit a psychiatrist's testimony that a severely impaired defendant was competent to be executed because he had beaten the doctor at tic-tac-toe, by locating a tic-tac-toe playing chicken to present in court. The judge “felt that bringing the chicken into the courtroom to play tic-tac-toe would degrade the dignity of the court,” Holdman later told This American Life. “I thought that the dignity of the court was degraded by executing a mentally retarded, mentally ill person.” In 2011, she described mitigation investigations, saying, “As we in local communities began to look for mitigation, we saw it as presenting the narrative of someone’s life, and we became acutely aware that it was a very specialized, complex undertaking. That narrative is not there for the asking. It requires not just knowledge and skill but experience in how you search for, identify, locate, recognize, and preserve the information.” Her work was profiled in the book Among the Lowest of the Dead, an account of Florida's reinstatement of the death penalty. A Courageous Fool describes the work of mitigation expert and anti-death penalty activist Marie Deans to defend death-sentenced prisoners, to free the wrongfully convicted—including Virginia death-row exoneree Earl Washington—and to try to end the death penalty. Virginia Senator Mark Warner called A Courageous Fool, "A powerful story of a Virginia heroine." Deans passed away in 2011. 

 

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