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

Posted: July 20, 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 17, 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. 

 

Florida Death-Row Population Drops to 12-Year Low As Jury Unanimity Ruling Takes Effect

Posted: July 13, 2017

The number of prisoners on Florida's death row is now lower than it was on June 30, 2005, as the pace of death sentencing slows and courts reverse the unconstitutional non-unanimous death sentences by which numerous capital defendants had been condemned. Applying the U.S. Supreme Court's 2014 ruling in Hurst v. Florida and subsequent Florida Supreme Court decisions in Hurst v. State and Perry v. State, state courts declared unconstitutional Florida's practice of permitting trial judges to impose death sentences after sentencing juries had not reached a unanimous agreement that death was the appropriate punishment. As a result, death sentences have been vacated in nearly 100 cases, and additional cases are working their way through Florida's court system. So far this year, 15 people have been removed from Florida's death row, and a 16th died after having his death sentence vacated under Hurst, while being transfered to a court hearing. The declining population on death row is not being replaced with new death sentences; the state's last death sentence was handed down in June 2016 and more than 3/4ths of death sentences imposed in the previous five years had involved non-unanimous jury votes for death. As a result, the number of prisoners housed on Florida's death row has fallen from 383 at the beginning of 2017, to 367—slightly lower than the 369 people who were on death row in 2005. Even more prisoners are expected to be removed from death row, as many of those whose death sentences have been invalidated are resentenced to life. (The Department of Corrections death-row roster only removes a prisoner from its list if the prisoner dies, receives clemency, is exonerated, or is resentenced to something other than death.) A DPIC review of Florida capital cases indicates that, through July 13, Florida courts have issued decisions involving Hurst in at least 119 cases. Those decisions have resulted in the vacation of 99 death sentences. To date, the counties most affected by the Hurst rulings have been: Duval (15 sentences); Orange (9 sentences); and Broward (9 sentences). In Duval County, 14 of the 15 death sentences reviewed (93.33%) have been vacated; in Orange County, all 9 death sentences reviewed have been vacated; and in Broward county, 7 of the 9 death sentences reviewed (77.78%) have been vacated. DPIC, in conjunction with researcher and professor Michael Radelet, has also identified at least 149 prisoners who are expected to obtain relief under the Florida court's current interpretation of Hurst, and is tracking what happens to those cases on resentencing. Former Florida Supreme Court Chief Justice Gerald Kogan said the resentencing hearings will present difficulties for the state's legal system: “That’s not an easy thing to go back and dig up all of this evidence and especially to dig up all the witnesses,” for a new sentencing hearing. “We have been very, very negligent in the state of Florida in handling these types of cases,” he said.

 

Federal Appeals Court Grants Texas Prisoner's Request for Evaluation of Competency to Be Executed

Posted: July 12, 2017

The U.S. Court of Appeals for the Fifth Circuit has reversed a ruling by a Texas federal district court that had denied Scott Panetti (pictured), a severely mentally ill death-row prisoner, the appointment of counsel and funding for a mental health expert and investigator to evaluate his competency to be executed. In a 2-1 ruling issued July 11, 2017, the Fifth Circuit, noting that "a decade has now passed since the last determination of whether this concededly mentally ill petitioner is competent to be executed," ordered Panetti's case returned to the lower federal court to appoint counsel, provide funds for an evaluation, and grant counsel sufficient time to prepare a petition on Panetti's competence. Under the U.S. Supreme Court's 1986 ruling in Ford v. Wainwright, prisoners who become mentally incompetent—that is, so mentally ill or cognitively impaired that they are "unaware of the punishment they're about to suffer and why they are to suffer it"—cannot be executed. Panetti has twice been granted stays of execution related to his mental health and competency to be executed. In 2007, the U.S. Supreme Court ruled that the Texas federal courts had misapplied the Ford standard when they ignored the effect of Panetti's paranoid schizophrenic delusions on whether he had a rational understanding of his pending execution. The Court wrote: "Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose." On remand, the lower courts denied Panetti's challenge to his competency without providing him a lawyer and a mental health evaluation to develop his claim. In a statement, Panetti's lawyers said, "We are grateful that the court found that Mr. Panetti’s nearly four decades of documented schizophrenia and severe mental illness provided a sufficient showing to obtain experts and resources to pursue the claim that he is currently incompetent for execution.... Mr. Panetti has not been evaluated by any mental health experts since 2007 and his severe mental illness has only worsened while in prison. We are confident that when the lower court is presented with all the evidence, it will find that Mr. Panetti, a schizophrenic man who insisted on representing himself at trial and attempted to subpoena the Pope, John F. Kennedy, and Jesus Christ, is not now competent for execution."

 

Journal of Psychiatrist Who Presided Over 14 Texas Executions Reveals Mental Toll That May Have Contributed to Suicide

Posted: July 11, 2017

As a psychiatrist in the Wayne Unit of Texas' Huntsville prison from 1960 to 1963, Dr. Lee Hartman presided over 14 electric-chair executions. When his grandson, Ben Hartman, a journalist, began investigating Dr. Hartman's life, he discovered journals that chronicle those executions and the psychological toll they took, possibly contributing to Dr. Hartman's suicide in 1964. Dr. Hartman's journals contain basic data on the men who were executed, including their names, race, a summary of the crime, and notes on the execution itself. More profoundly, though, they capture Dr. Hartman's reactions to his experiences and how they shaped his views on the death penalty, leaving him—in his grandson's words—"a determined opponent of capital punishment." In 1962, Dr. Hartman wrote, "The death penalty is irreparable." After the highly-publicized execution of Howard Stickney, a 24-year old who professed his innocence, Dr. Hartman wrote, "Very shook up and angry over whole cruel mess." He had been with Stickney on his scheduled November 10, 1961 execution date as they neared the door to the execution chamber. The journal reports that the phone rang at 12:32 a.m. with news that a judge had granted a 10-day stay of execution. This was "[a]pparently a complete surprise to Stickney," the journal entry says, "who broke down, prayed and wept.” In May of 1962, still professing his innocence, Stickney exhibited "[d]ignity and grace, shook hands with several guards while waiting, didn’t want to take coat off.” The journal reports: "At 12:24, warden returned–no stay, Stickney quietly sat in chair." Three separate jolts of electric current were sent through his body, "1st shock at 12:25–dead at 12:30.” Elsewhere in the journal, Dr. Hartman wrote 19 pages on arguments for and against capital punishment, clearly setting out his views. “The death penalty has a brutalizing and sadistic influence on the community that deliberately kills a member of its group,” he wrote, permitting the public “to vicariously indulge in vicious and inhumane fantasies under socially-acceptable guises.” He wrote: "The death penalty is not applied impartially. There is such surfeit of these cases that to mention them would be redundant. The poor defendant is obviously at a disadvantage and frequently receives the extreme penalty while the wealthier accused escapes a prison term. There is well known discrimination on racial or class lines." Dr. Hartman struggled with depression for many years, spending several months in a mental hospital after working in the prison. In 1964, he committed suicide by taking an overdose of pentobarbital, a drug now used to execute prisoners in Texas.

 

Independent Pathologist Says Autopsy Reveals Problems With Virginia's Execution of Ricky Gray

Posted: July 10, 2017

Something went wrong during the execution of Ricky Gray (pictured), who was put to death in Virginia on January 18, 2017, according to an independent expert who reviewed the official autopsy report of Gray's death. Dr. Mark Edgar, associate director of bone and soft tissue pathology at the Emory University School of Medicine, reviewed the official autopsy report, which Gray's family obtained from the Virginia medical examiner's office. Dr. Edgar says Gray suffered an acute pulmonary edema during the execution, with liquid in his upper airways and blood entering his lungs while he was still breathing. “The anatomic changes described in Ricky Gray’s lungs are more often seen in the aftermath of a sarin gas attack than in a routine hospital autopsy." Edgar said. "This is of concern especially given the fact that midazolam is not an anesthetic, but a sedative often used for medical procedures requiring conscious sedation and the issue that the compounded drugs used in this case may have lacked potency or been impure.” Virginia's lethal-injection protocol consists of three drugs: midazolam, a sedative intended to render the prisoner unconscious, followed by a paralytic intended to stop the prisoner's breathing, followed by potassium chloride, which stops the prisoner's heart. The use of midazolam in executions is controversial because it is not an anesthetic, it is used in medical settings only for lower levels of sedation rather than to produce full unconsciousness, and its use has been linked to numerous problematic executions. In Virginia, both the midazolam and the potassium chloride are produced by compounding pharmacies whose identities are secret under state law. “This way of dying is intolerable. You can’t control your breathing—it is terrible,” Edgar said. “When it is this severe, you can experience panic and terror and, if the individual was in any way aware of what was happening to them, it would be unbearable.” After Edgar's report was released on July 6, lawyers for William Morva—whose execution was scheduled in Virginia that night—asked Governor Terry McAuliffe for a temporary reprieve. “We believed a reprieve was appropriate to allow time for further investigation to ensure that the Commonwealth carries out future executions—including Mr. Morva’s—in a manner that avoids unnecessary pain and suffering,” explained Rob Lee, one of Morva's attorneys. McAuliffe denied the reprieve, and witnesses reported that Morva made a loud noise after the midazolam was administered and had several sharp contractions of his abdomen. The same three-drug protocol used in Virginia has been proposed for use in Ohio, but is being challenged in court by death-row prisoners. 

 

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