The U.S. Supreme Court heard argument in Madison v. Alabama on October 2, 2018 on whether an Alabama death-row prisoner who has vascular dementia, brain damage, cognitive deficits, and memory loss from two near-fatal strokes is competent to be executed. During oral argument, Bryan Stevenson (pictured), the executive director of the Equal Justice Initiative, told the justices that, as a result of severe and progressively worsening dementia, Vernon Madison lacks a rational understanding of why Alabama intends to put him to death and is therefore incompetent to be executed. A majority of the justices appeared sympathetic to Madison's position, including Chief Justice John Roberts who is now regarded as the swing vote in death-penalty cases. The issues before the Court narrowed significantly as a result of concessions made by both sides at the argument. Madison's pleadings had argued that the Court's decisions in 1986 in Ford v. Wainwright and 2007 in Panetti v. Quarterman on competency to be executed applied beyond the limited circumstances of insanity and delusional mental illness at issue in those cases. "For purposes of retribution, there is no moral or constitutional distinction between a person who cannot 'recogni[ze] … the severity of the offence as a result of delusions and a person who is unable to do so as a result of dementia, cognitive decline, and memory deficits," his lawyers wrote. Alabama Deputy Attorney General Thomas Govan conceded that incompetency caused by severe dementia could also qualify. Stevenson, on the other hand, conceded in response to questioning by Justices Samuel Alito and Elena Kagan that merely having no memory of committing the offense does not make a prisoner incompetent to be executed. Rather, Stevenson said, the memory loss must be the product of a medical or physical condition that also affects the prisoner's understanding of why he or she is to be executed. Stevenson said Madison's severe vascular dementia has left him with no memory of having killed a police officer who responded to a domestic disturbance in 1985. An MRI has shown that Madison has suffered substantial brain damage, and psychological testing has documented significant cognitive decline accompanied by IQ-loss that now places him in the borderline range of intellectual functioning. Madison's dementia has also left him disoriented as to date and time and without the ability to rationally comprehend his legal situation. He is legally blind, Stevenson said, has slurred speech, cannot recite the alphabet past the letter G or retain basic information, cannot walk without assistance, and continually soils himself because he does not know how to use the toilet in his five-by-eight cell. Madison's physical disabilities, Stevenson said, provide evidence illustrating the extent to which Madison's vascular dementia has affected all aspects of his life. Stevenson argued that Alabama's courts improperly rejected Madison's evidence of incompetency, focusing only on whether his impairments were caused by insanity, psychosis, or delusions. Govan asserted in response that by reciting the correct legal standard from Ford and Panetti and making reference to the testimony concerning Madison's impairments, Alabama had in fact considered that evidence. He further disputed whether Madison is incompetent at all, stating that Alabama would find him competent to stand trial in his current condition. Stevenson closed the argument by telling the Court that the "awesome power" to execute a person who no longer poses an immediate threat must "be utilized fairly, reliably, and humanely." The Court, Stevenson said, reviews facts and circumstances "through the window of the Constitution ..... But the Eighth Amendment isn't just a window. It's a mirror." Our norms and values "are implicated when we do things to really fragile, really vulnerable people," Stevenson said. "And what we've argued is that dementia in this case renders Mr. Madison frail, bewildered, vulnerable in a way that cannot be reconciled with executing him because of his incompetency."
North Carolina Bar Files Ethics Complaint Against Lawyer Accused of Fleecing Intellectually Disabled Death-Row ExonereesPosted: October 2, 2018
Florida lawyer Patrick Megaro is facing an official complaint by the North Carolina State Bar for allegedly defrauding death-row exonerees Henry McCollum (pictured, right) and Leon Brown (pictured, left), and taking a third of the compensation granted to the two men. Half-brothers McCollum and Brown were exonerated in 2014 after spending 30 years in prison, some on death row, for the rape and murder of an 11-year-old girl. Both men are intellectually disabled, a factor that made them more vulnerable to wrongful conviction, and, the Bar complaint says, vulnerable to exploitation by Megaro. After McCollum and Brown were exonerated and formally pardoned by Governor Pat McCrory, they sought compensation from North Carolina for their wrongful convictions and incarceration. 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 compensation action and to hire Megaro's firm instead. The brothers received compensation awards of $750,000, but Megaro—who the complaint says did virtually no work on their exonerations or compensation cases—took $250,000 in fees from each man. Within seven months, McCollum was out of money and taking out high-interest loans that Megaro arranged and approved. 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. The complaint alleges that Megaro committed 16 ethical violations, including lying to judges, double-billing his clients, and engaging in fraud by signing for loans with a 42% interest rate. It also alleges that he violated his duty to act competently when he failed to determine the police department's insurance policy limits before agreeing to settle the brothers' wrongful prosecution case. McCollum expressed his disappointment with Megaro, saying, "He took money that he should have never took. I could have that money right now." According to the Marshall Project, "Wednesday’s complaint begins a legal process similar to a civil lawsuit that will likely culminate in a public trial of the charges, with three members of the state’s Disciplinary Hearing Commission sitting as judge and jury." Megaro—whose law partner derided the disciplinary action as "a political prosecution"—could face disbarment if he is found guilty.
Finding that the Nevada Department of Corrections acted in “bad faith” to obtain the drug midazolam through “subterfuge,” a Las Vegas trial court has issued a preliminary injunction barring the state from using its supply of that drug in carrying out any execution. The 43-page ruling issued by Judge Elizabeth Gonzalez (pictured) on September 28, 2018 effectively freezes efforts by Nevada prosecutors to execute Scott Dozier, who has waived his appeals and asked to be put to death. Judge Gonzalez found that Nevada prison officials knew when they purchased supplies of each of the drugs in the state's three-drug lethal-injection protocol from drug distributor Cardinal Health that the manufacturers of all three drugs prohibited the use of their medicines in executions. However, Judge Gonzalez limited the injunction to the midazolam produced by the generic-drug manufacturer Alvogen Inc., finding that the company’s distribution contract with Cardinal Health specifically barred sales of the sedative for use in lethal injections. While Gonzalez said she was “disturbed by the conduct of the State” in its purchase of the paralytic drug cisatracurium and its “illegitimate acquisition” of the opiate fentanyl, she said the absence of evidence that drug manufacturers Sandoz Inc. and Hikma Pharmaceuticals USA Inc. had sales controls in place with Cardinal Health at the time Nevada purchased supplies of those drugs was sufficient to deny them injunctive relief. The court issued its order after week-long hearing on a lawsuit filed by Alvogen just before Dozier’s scheduled July 11, 2018 execution. Alvogen’s suit alleged that Nevada had obtained its supply of midazolam “by subterfuge” and that Nevada had “intentionally defrauded Alvogen’s distributor” by concealing its intention to use the drugs to execute Dozier and by “implicitly ma[king] the false representation that they had legitimate therapeutic rationale” for buying the drug. Gonzalez’s order notes that even before beginning to distribute midazolam, “Alvogen put in place controls to prevent the direct sale [of the drug] to any department of corrections, or any sale that Alvogen believed could be diverted to be used in an execution.” The judge determined that both Nevada’s prison director, James Dzurenda, and its prison pharmacy director, Linda Fox, knew when they bought Alvogen’s drugs that the company “objected to their use in lethal injection and that they had controls in place to prevent sales for such use... Indeed,” Judge Gonzalez wrote, “when purchasing the Alvogen Midazolam Product, Fox’s response to Alvogen’s objections was ‘Oh shit.’ She then asked if Mr. Dzurenda if he would like her to order more [midazolam] because she was ‘certain once it’s in the press that we got it [she] will be cut off.’” Knowing “that it was not allowed to acquire this product for use in capital punishment,” Judge Gonzalez wrote, the Nevada Department of Corrections “was not a good faith purchaser” of Alvogen’s midazolam. The court also found that Nevada's use of the medicines in executions “will irreparably harm the three companies’ reputations,’ ... result[ing] in lost sales, lost licensing opportunities, weakened employee recruitment, divestitures by investors, increased financing costs, lost opportunities to enter the market for generic drugs, and lost opportunities to develop new branded drugs.” The case is the first time a court has conducted a hearing into state misconduct in acquiring execution drugs. In 2017, drug distributor McKesson Medical-Surgical sued Arkansas and multiple drug companies alleged misconduct by the state in obtaining its execution drugs. Although the Arkansas Supreme Court permitted that lawsuit to move forward, the drugs expired and the parties agreed to dismiss the action before the court could take evidence in the case.
A federal judge in Vermont has accepted a plea deal between Donald Fell and federal prosecutors, permanently removing Fell from death row and ending a case that had raised serious questions about the constitutionality of the federal death penalty. Under the terms of the deal, approved by U.S. District Court Judge Geoffrey Crawford on September 28, 2018, Fell will serve a sentence of life without parole for the interstate kidnapping and murder of Teresca King in 2000. Fell and his co-defendant, Robert Lee, abducted King in Rutland, Vermont, and drove her to New York state, where she was killed. Fell was convicted and sentenced to death in federal court in 2005, a sentence he could not have received if he had been tried in state court because Vermont does not have the death penalty. Fell's conviction was overturned and he was granted a new trial in July 2014 as a result of juror misconduct. Federal prosecutors also charged Lee with capital murder, but Lee committed suicide in prison in 2001 before either defendant's case went to trial. In November 2015, Fell's lawyers filed a comprehensive constitutional challenge to the federal death penalty, arguing based on significant racial and geographic inequities in its administration that it was unreliable, arbitrary, and discriminatorily applied. After a two-week-long evidentiary hearing, Judge Crawford found that the federal death penalty "operates in an arbitrary manner in which chance and bias play leading roles" and "falls short of the [constitutional] standard . . . for identifying defendants who meet objective criteria for imposition of the death penalty." He nonetheless allowed the death penalty to remain in the case, writing that as a federal trial judge, he lacked "authority to rewrite the law so as to overrule the majority position at the Supreme Court." Fell's lawyers later unsuccessfully argued based on a March 2018 U.S. Supreme Court decision striking down a federal sports betting law that the federal death penalty violated the 10th Amendment by conscripting state officials to carry out executions. However, Judge Crawford did grant a defense motion to bar prosecutors from presenting various statements made by Lee by prior to his death attempting to shift blame to Fell for King's murder. In July 2018, the U.S. Court of Appeals for the Second Circuit agreed with Crawford, calling Lee's statements "unreliable." The ruling left prosecutors without key evidence to prove the extent of Fell's alleged involvement in the killing, reducing the chances that a jury would return a death sentence in the case. Fell is the 10th prisoner to be permanently removed from the federal death row after having overturned an unconstitutional conviction or death sentence. Sixty-two prisoners are currently on federal death row.
Ethics Board Files Charges Against Arkansas Supreme Court Justices for Treatment of Anti-Death-Penalty JudgePosted: September 27, 2018
An Arkansas ethics board has filed disciplinary charges against six members of the Arkansas Supreme Court alleging that they violated the canons of judicial ethics in removing a trial judge from all death-penalty cases as a result of the judge's participation in an anti-death-penalty vigil. On September 20, 2018, the Arkansas Judicial Discipline and Disability Commission announced that it had filed formal disciplinary charges against state Supreme Court Chief Justice John Dan Kemp and Justices Robin Wynne, Courtney Goodson, Jo Hart, Karen Baker, and Rhonda Wood, after an investigatory panel of the commission found probable cause that the Justices had "acted arbitrarily and capriciously" in removing Pulaski County Circuit Judge Wendell Griffen from drug distributor McKesson Medical-Surgical, Inc.'s case against Arkansas for alleged misconduct in obtaining execution drugs and from all pending cases involving the death penalty or the state's execution protocol. The panel found that the justices had given Judge Griffen no meaningful opportunity to respond to a motion filed by the state attorney general's office that sought to remove him from the McKesson lawsuit. Prosecutors had complained that Griffen, who is also a Baptist minister, had committed misconduct by strapping himself to a mock gurney in front of the Governor's mansion as part of an April 14, 2017 Good Friday anti-death-penalty vigil and protest. After the close of business that day, the attorney general's office notified the state supreme court—but not Judge Griffen—that it intended to seek his disqualification from presiding over the McKesson case. On Saturday, April 15, the court set a 3:00 p.m. deadline that day to respond to the attorney general's petition, but failed to notify Judge Griffen of its order. That same evening, the supreme court clerk's office sent an email to Griffen's chambers finally notifying him of the proceedings and giving him until 9:00 a.m. Monday, April 17 to respond. However, the panel wrote: "It cannot be reasonably assumed that Judge Griffen would receive the email at his chambers address on a weekend" and that he "could not have reasonably been expected to have effectuated a meaningful response to the state's petition to remove him from the McKesson case." Even more seriously, the panel found that Griffen "was never given notice of, and the opportunity to be heard on, the Supreme Court's ultimate action—[his removal] from all death penalty and execution protocol cases pending and in the future." None of the parties to the McKesson litigation "had even raised or argued the issue of Judge Griffen's blanket disqualification," the panel said, only disqualification from the McKesson case. Nonetheless, the panel wrote, the justices went beyond the requested remedy and "acted sua sponte to remove judicial duties from Judge Griffen which he would otherwise have been legally obligated to discharge regarding other death penalty and execution protocol cases." The panel concluded, "where disciplinary action is taken against another judge without sufficient notice to that judge and goes beyond the relief requested by any party, we believe that such arbitrary and capricious conduct could form the basis for disciplinary action by the Commission of the judge or judges ordering the action taken against another judge." The ethics panel did not find probable cause to believe that the justices had any improper communications with the attorney general's office in removing Griffen from the death-penalty cases and dismissed those allegations against the justices.
Texas has scheduled executions on consecutive nights of two prisoners who have long asserted their innocence. Troy Clark (pictured, left), who is scheduled to be executed on September 26, 2018, was convicted and sentenced to death based on the changing statements of a former girlfriend who could have faced the death penalty under the Texas law of parties but was tried as an accomplice and sentenced to 20 years in prison. Daniel Acker (pictured, right), scheduled to be executed September 27, was convicted and sentenced to death based upon since recanted forensic testimony that he had strangled his girlfriend. Clark was convicted of the 1998 kidnapping and murder of Christina Muse in Tyler Texas, and prosecutors have also accused him two other methamphetamine-related murders. He has no legal challenges pending and his clemency petition was turned down by the Texas Board of Pardons and Paroles on September 24. Clark alleges that he was set up by his girlfriend, who initially told police that another murder victim was responsible for Muse’s death and then later gave police a statement saying she had killed Muse out of jealousy and that Clark was not involved. Clark also argued in an unsuccessful habeas corpus petition that his court-appointed counsel at trial and in the post-conviction process failed to investigate and present mitigating evidence—including mental health evidence related to fetal alcohol syndrome—that he says could have persuaded the jury to spare his life. Acker, who also maintains his innocence, was convicted of strangling his girlfriend, Marquetta George, and dumping her body. He does not deny involvement in her death, but alleges that she jumped out of his moving car during an argument and died accidentally, likely having been struck and killed by a passing car. Acker's attorneys have filed appeals saying that his trial was tainted by the court's exclusion of evidence, and the inclusion of “false,” “misleading,” and erroneous forensic testimony. The prosecution changed its explanation for George’s death after a state medical examiner admitted in a 2011 evidentiary hearing that she had not been strangled. Instead, the prosecution argued for the first time that Acker pushed George from the truck. “He didn’t have the physical ability to strangle her while he was driving,” Acker’s attorney said, and had no motive to kill George. The Texas pardons board has also denied Acker’s application for clemency. On September 21, he filed a petition for review and a motion to stay his execution in the U.S. Supreme Court, arguing that due process is violated when “a State has repudiated a false theory of criminal liability on which it based a death sentence, but intends to carry out that sentence based on a new theory of liability” that was never presented to the jury. Texas has already executed eight people in 2018.
The FBI Uniform Crime Report for 2017, released by the U.S. Department of Justice, reports that murder rates stabilized across the United States in 2017, decreasing marginally compared to adjusted homicide figures from 2016 but remaining above the record lows recorded earlier in the decade. The initial FBI crime figures for 2017 report 17,284 murders across the United States in 2017, compared to 17,413 in 2016, dropping the nationwide murder rate from 5.4 murders per 100,000 people to 5.3. The homicide numbers are virtually identical to the initial FBI homicide figures included in the 2016 FBI Uniform Crime Report, which initially reported 17,250 murders and a murder rate of 5.3 murders per 100,000 people in 2016. Once again, states with the death penalty tended to have higher murder rates than states without the death penalty, with Louisiana and Missouri topping the list at 12.4 and 9.8 murders per 100,000 population, respectively. Seven of the nine states with the highest murder rates (and sixteen of the twenty highest) are death-penalty states, while five of the eight states with the lowest murder rates (and nine of the lowest fifteen) do not have the death penalty. New Hampshire, which has the death penalty, and North Dakota and Maine, which do not, had the lowest murder rates at 1.0, 1.3, and 1.7 murders per 100,000 population, respectively. The data also supports the idea that abolishing the death penalty does not make states more dangerous. Delaware, which ended the death penalty in 2016, saw a 7.8% decrease in its murder rate from 2016 to 2017. As in past years, regional data showed that more executions do not mean lower murder rates. The South, which has performed far more executions than any other region, continued to have the highest murder rate (6.4 per 100,000 people), while the Northeast, which has carried out only four executions since 1976, had the lowest (3.5). FBI data shows that murder rates have fallen dramatically since the 1980s and 1990s, contributing to the nationwide decline in capital punishment. The current murder rate is 45.9% below 1991's murder rate of 9.8 per 100,000 people. However, the decline in new death sentences has been even greater, with the 39 death sentences imposed in 2017 87.5% below the 315 death sentences imposed in 1994 and 1996.
Questionable Ruling Grants Jeffrey Havard New Sentencing but Not New Trial in Controversial “Shaken Baby” CasePosted: September 24, 2018
Sixteen years after a notorious and now-discredited forensic witness told a Mississippi jury that Jeffrey Havard had sexually abused and shaken his girlfriend's six-month-old daughter to death, Havard's death sentence—but not his conviction—has been overturned. On September 14, 2018, Adams County Circuit Judge Forrest Johnson ruled that state pathologist Steven Hayne's recantation of his diagnosis that infant Chloe Britt had been a victim of Shaken Baby Syndrome was "not sufficient to undermine this court's confidence in the conviction," but that "there is a cautious disturbance in confidence of the sentence of death, even if slight." Havard's co-counsel, Graham Carner, told the Mississippi Clarion Ledger, "With all due respect, we think the court got it wrong. We are disappointed, but we are not done." Washington Post columnist Radley Balko criticized Johnson's five-page ruling—which repeatedly misspells the expert's name as "Haynes"—as "gutless" and "sloppy." Balko, whose book The Cadaver King and the Country Dentist: A True Story of Injustice in the American South exposed rampant irregularities in forensic testimony in Mississippi murder cases, said, “It doesn’t seem like too much to ask that the judge correctly spell the name of the state’s expert whose testimony is the entire reason that the hearing took place.” During a 2002 trial that rocketed from jury selection to a death sentence in just two days, the state—supported by Hayne's testimony—argued that Havard had anally and orally raped the infant and shaken her sufficiently to cause injuries that would later kill her. The defense presented a single witness who provided all of three pages of testimony, failing to challenge the forensic testimony in the case. Defense counsel also failed to explain to the jury that, as Balko writes, Havard supposedly "anally raped the infant, orally raped her, shook her violently enough cause injuries that would later — but not immediately — kill her, then bathed and cleaned her" so thoroughly that "none of Havard’s hair, skin cells or semen was found on or inside the girl," "dressed her, and tucked her into bed as if nothing had happened" — all in the time it took Chloe's mother to go the store "to buy some burrito supplies." Since the trial, Hayne has recanted his testimony that Chloe was sexually assaulted and says he was wrong to attribute the child’s head injuries to SBS (Shaken Baby Syndrome). Hayne had testified under oath that he regularly performed 1,500 or more autopsies each year, nearly five times the maximum number recommended by the National Association of Medical Examiners. He had never been certified in forensic pathology by the American Board of Pathology and failed the certification exam in 1980. Three other reputable experts who reviewed Hayne’s autopsy report found no evidence of abuse on the infant. In 2008, he was barred from doing autopsies for Mississippi prosecutors and the U.S. Court of Appeals for the Sixth Circuit called his work declared "discredited." At least ten men and women have been exonerated from death rows across the United States after having been wrongly convicted for killing a child. In the cases of Rodricus Crawford and Sabrina Butler, the medical evidence also showed that no crime had occurred, but the defendants were convicted based on false forensic testimony. In April 2018, Vicente Benavides was exonerated from California’s death row after the prosecution presented false forensic testimony claiming that a toddler in his care had been sexually assaulted.
Women face “widespread discriminatory practices in the capital prosecution and detention” in death-penalty countries around the world, according to a new report by the Cornell Center on the Death Penalty Worldwide and the World Coalition Against the Death Penalty. The report, Judged for More Than Her Crime: A Global Overview of Women Facing the Death Penalty—released at the United Nations in Geneva, Switzerland on September 18, 2018—examines the use of capital punishment against women worldwide, including the crimes for which women are sentenced to death and the conditions of imprisonment they face on death row. At least 500 women are on death rows around the world, and the report estimates that more than 100 women have been executed in the last decade. The cases in which women are sentenced to death, the report states, are “emblematic of systemic failings in the application of capital punishment,” with death sentences often imposed on women who are illiterate, mentally ill, intellectually disabled, or members of marginalized ethnic groups. The report finds that women’s histories of gender-based violence are frequently ignored by attorneys and judges in those countries that retain the death penalty. In a statement accompanying release of the report, the Cornell Center wrote, “[f]emale survivors of domestic abuse are particularly vulnerable to unfair sentencing practices.” While the report notes that gender bias can operate in favor of more lenient sentencing for some women, that same gender bias results in harsher treatment of women who are seen as violating gender expectations. “[W]omen facing the death penalty have been cast as the ‘femme fatale,’ the ‘child murderer,’ or the ‘witch,’” the report says. In the foreword to the report, Agnes Callamard, the UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, writes that “[c]riminal justice processes, largely designed by and for men, frequently are not only blind to the causes and consequences of gender-based violence, they may actively reinforce gender-based discrimination.” The report, she says, “reveals that courts judge women not just for their alleged offenses, but also for what are perceived to be their moral failings as women: as ‘disloyal’ wives, ‘uncaring’ mothers, ‘ungrateful’ daughters. Nowhere are transgressions of the social norms of gender behavior punished more severely than in a capital trial.” The report also documents how women are uniquely affected by the harsh conditions on death rows around the world. In some countries, they must care for their infants or young children while shackled by the hands and feet. Female prisoners in Thailand and Myanmar have reportedly given birth alone in prison. Menstruating women are given little or no access to sanitary pads or other necessary products. Sandra Babcock, Faculty Director of the Cornell Center on the Death Penalty Worldwide, said: “Hundreds of women have been unjustly sentenced to death around the world, yet their cases have been neglected by activists, scholars, and the international community. We hope that this report will draw attention to their plight and inspire courts and policymakers to modify their sentencing practices.”
For the first time in more than a quarter century, fewer than 2,500 prisoners across the United States now face active death sentences. According to the latest Death Row USA national census by the NAACP Legal Defense Fund (LDF), released in early September 2018, 2,743 people were on death rows in 32 states and the U.S. federal and military death rows on April 1, 2018. That total includes 249 people who were previously sentenced to death but face the possibility of a capital resentencing after a new trial or new sentencing hearing and prisoners whose capital convictions or death sentences have been reversed, but whose reversals are still subject to appeal by the state. 2,494 other prisoners face active death sentences. The Spring 2018 death-row census reflects that death row has declined by 100 from the 2,843 reported on death row as of April 1, 2017, and by 17% over the course of the last decade. The overall decline in the number of people on death rows across the country is greater than the number of executions in that period, meaning that more former death-row prisoners have been resentenced to life or less after overturning their death sentences, died from non-execution causes, or been exonerated than have been added to the row with new death sentences. California (740), Florida (354), and Texas (235) remain the nation’s largest death rows. Of the jurisdictions with at least 10 people on death row, those with the highest percentage of racial minorities are Texas, Louisiana, and Nebraska, each at 73%. The last time LDF recorded fewer than 2,500 prisoners facing active death sentences in the United States was in January 1993, when the Winter 1992 Death Row USA reported that 2,483 of the 2,676 men and women then on death row had active death sentences.