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Washington Supreme Court Unanimously Finds Reversible Error, But Upholds Prisoner’s Conviction and Death Sentence

Posted: April 13, 2018

A fractured Washington Supreme Court unanimously found that a death-row prisoner’s constitutional rights had been violated under circumstances that had always before required overturning a conviction and granting a new trial, but nevertheless voted to uphold his conviction and death sentence. In five opinions spanning 254 pages published on April 12, 2018, the nine justices agreed that Conner Schierman’s (pictured) rights to be present and to a public trial were violated during the jury selection process in his case when the court discussed potential challenges for cause related to six prospective jurors in the judge’s chambers outside the presence of the defendant and the public without making a record of the proceedings. Under long-established Washington law, such constitutional violations had long been considered “structural error” requiring that a new trial automatically be granted. In the lead opinion in the case, Justice Sheryl Gordon McCloud wrote that the 10-minute proceeding could not have had any effect on the trial and did not undermine public confidence in the justice system. In a concurring opinion, Justice Mary Yu, joined in by three other justices, wrote: “A majority of this court agrees that justice demands we affirm Schierman’s convictions, but every member of the court unanimously agrees that our precedent precludes us from doing so. In this direct conflict between justice and precedent, justice must prevail.” Four justices dissented from the majority’s decision to change exisiting law to uphold Schierman’s convictions. Two other justices, and one of the guilt-stage dissenters, also believed that Schierman’s death sentence had been unconstitutionally imposed, for a total of six justices who had determined that the constitutional violations in the case required that Schierman be granted a new trial or that his death sentence be overturned. But rather than ruling that a death sentence cannot be imposed for an unconstitutionally obtained conviction, three of the guilt-stage dissenters—Justices Debra Stephens, Charles Johnson, and Susan Owens—joined with the remaining justices to uphold Schierman’s death sentence by a vote of 6-3. Schierman was convicted and sentenced to death in King County in 2010 for stabbing to death four members of Leonid Milkin’s family while the National Guardsman was deployed to Iraq. He is the last person to have been sentenced to death in King County, which includes the city of Seattle. King County Prosecuting Attorney Dan Satterberg has advocated abolishing Washington’s capital-punishment statute, writing that “the death penalty law in our state is broken and cannot be fixed. It no longer serves the interests of public safety, criminal justice, or the needs of victims.” He testified before a state senate committee, “If you look at it carefully and take away the politics and the emotion, by any measure this doesn’t work. Our criminal justice system would be stronger without the death penalty.” Satterberg said Leonid Milkin “is supportive of the death penalty in this matter and we continue to pursue it, as it continues to be the law of the state.” The bi-partisan abolition bill, which has the support of Governor Jay Inslee and the state’s last two attorneys general, passed the state senate and a house committee in the 2018 legislative session that ended in March, but never received a vote before the full house. Governor Inslee imposed a moratorium on executions in Washington in February 2014.

 

Amnesty International Report: Death Penalty Use Down Worldwide in 2017

Posted: April 12, 2018

Use of the death penalty declined worldwide in 2017, according to the Amnesty International’s annual global report on capital punishment. The human rights organization recorded 2,591 death sentences imposed in 53 countries in 2017, down 17% from the 3,117 death sentences it recorded from 55 countries in 2016. Executions also fell, with 23 nations carrying out a recorded 993 executions, off 4% from the the 1,032 executions recorded in 2016 and 39% below the 1,634 executions reported in 2015. Two more countries—Guinea and Mongolia—abolished capital punishment, increasing the number of abolitionist nations to 106, and Guatemala outlawed executions for “ordinary crimes” such as murder, bringing to 142 the number of nations Amnesty reports as having “abolished the death penalty in law or practice.” As in previous years, Amnesty’s execution total does not include the estimated thousands of executions carried out in China or executions in North Korea and Vietnam, all of which treat information on the death penalty as a state secret. Four countries—Iran, Saudi Arabia, Iraq, and Pakistan—which collectively accounted for 87% of the confirmed executions in the rest of the world in 2016, accounted for 84% of the world’s confirmed executions in 2017. The United States dropped to 8th in documented executions (23) in 2017 and ranked 11th in death sentences imposed. For the 9th consecutive year, it was the only country in the Americas to carry out executions. Among human rights violations, Amnesty reported that 15 countries imposed death sentences or executed people for drug-trade related offenses, with China, Iran, Saudi Arabia, and Singapore executing prisoners for involvement in the drug trade. The secrecy practices in Malaysia and Vietnam prevented Amnesty from determining whether similar human rights violations had occurred in those countries. “Despite strides towards abolishing this abhorrent punishment, there are still a few leaders who would resort to the death penalty as a ‘quick-fix’ rather than tackling problems at their roots with humane, effective and evidence-based policies,” said Amnesty’s Secretary General Salil Shetty. “The draconian anti-drug measures widely used in the Middle East and Asia-Pacific have totally failed to address the issue.” Amnesty also cited Iran for violating the human rights proscription against applying the death penalty to prisoners charged with offenses committed when they were younger than age 18. Iran executed five juvenile offenders in 2017, and has at least 80 others remaining on death row. Amnesty said Japan, the Maldives, Pakistan, Singapore, and the United States violated the international prohibition on executing prisoners with mental or intellectual disabilities or keeping such prisoners under sentence of death. Amnesty reported that at least 21,919 people were known to be on death rows around the world at the end of 2017.  

 

New Mexico Supreme Court Hears Argument on Whether State May Execute Last Two Men on Its Death Row

Posted: April 11, 2018

Nine years after New Mexico prospectively abolished capital punishment, lawyers for the state’s two remaining death-row prisoners argued to the New Mexico Supreme Court that the death penalty was unconstitutionally disproportionate punishment as applied to Timothy Allen (pictured, left) and Robert Fry (pictured, right), and that they should not be executed. The lengthy oral argument on April 10 turned on how the court should go about determining whether a death sentence is arbitrary and disproportionate. State prosecutors urged the court to follow a 1983 decision that would limit the court’s review to cases involving the same aggravating factors that were present in the prisoners’ crimes. “[T]he ultimate question,” said Assistant Attorney General Victoria Wilson, “is: ‘Was this sentence imposed arbitrarily?’” On the other hand, the prisoners’ lawyers argued that executing the men would be disproportionate punishment and unconstitutionally arbitrary when compared to all the cases in which New Mexico could have imposed the death penalty. Between 1979 and 2009, when New Mexico authorized capital punishment, prosecutors sought the death penalty more than 200 times. The sentence was imposed in only 15 cases, leading to a single execution in 2001, when Terry Clark waived his appeals. During the argument, Justice Charles Daniels questioned whether New Mexico had applied the death penalty in an “evenhanded” manner. “In the first 47 years of our existence as a state, we executed 27 people with fairly regular frequency,” Daniels said. “In the next 57 years, we executed one—at a time when there were horrible murders and over 200 where the death penalty was sought.” Given that history, he asked, “[c]an we really look in the mirror and say we’ve walked the talk and imposed the death penalty consistently in New Mexico?” Allen, who suffers from schizophrenia and auditory hallucinations, was sentenced to death in connection with the kidnapping, attempted rape, and murder of a 17-year-old girl in 1994. His lawyer had never tried a capital case, conducted no mental health investigation, and presented no witnesses in the penalty phase of Allen’s trial. Fry was sentenced to death for stabbing and bludgeoning a mother of five to death in 2000. Fry’s lawyer, Kathleen McGarry, argued: “What we’re looking at are cases that are far worse than Mr. Fry’s case and yet those persons are not going to be … sentenced to death. How does that make Mr. Fry’s death sentence be the poster child of what we’re going to do here in New Mexico?” 

 

After 22 Years, District Attorney’s Office to Examine Possible Innocence of Philadelphia Death-Row Prisoner

Posted: April 10, 2018

Twenty-two years after Walter Ogrod (pictured) was sentenced to death for a murder he insists he did not commit, a new Philadelphia District Attorney’s administration has dropped the office’s long-time opposition to Ogrod’s request for DNA testing and has referred the case for review by a revitalized Conviction Integrity Unit. As that review proceeds, an hour-long documentary on the case—aired April 8 as part of CNN’s Headline News Network series Death Row Stories—presents what Philadelphia Daily News columnist Will Bunch describes as “compelling evidence that the snitch testimony that the Philadelphia District Attorney’s Office used to convict Ogrod was fabricated” and that the confession the intellectually impaired man gave to Philadelphia police was coerced. Ogrod was sentenced to death in 1996 for the high-profile 1988 murder of 4-year-old Barbara Jean Horn, whose body was found discarded in a television box on a Northeast Philadelphia street. No physical evidence linked Ogrod to the murder, but four years after the murder, police questioned the 25-year-old truck driver—variously described as “slow,” possibly autistic, and lacking “common sense”—for 14 hours, telling him he was repressing memories of the murder. In the documentary, a friend of Ogrod’s recounts that Ogrod signed a confession after police told him that if he didn’t, he would have to wait for a lawyer in a holding area with other prisoners and “you know what they do to child molesters down there.” Author Tom Lowenstein, who investigated the case and wrote the 2017 book The Trials of Walter Ogrod, says in the documentary that the 16-page confession, hand written by the detective, “is a flowing monologue of thought and process and description that Walter Ogrod is not capable of…. He could not have given the confession.” Ogrod was tried twice for the murder. In 1993, the jury in his first trial appeared to have acquitted him, filling out “not guilty” on the verdict sheet. But as the verdict was being read, one juror said he had changed his mind, resulting in a mistrial. Following the mistrial, Ogrod was celled with John Hall, a notorious (and later discredited) jailhouse informant nicknamed “The Monsignor” for his proclivity in producing confessions. Hall’s widow, Phyllis Hall, explains in the documentary that Hall introduced Ogrod to another prisoner, Jay Wolchansky, and worked with police and prosecutors to feed Wolchansky information to implicate Ogrod in the murder. Wolchansky then testified against Ogrod in his second trial, claiming that Ogrod had confessed. Phyllis Hall says her husband “would get some of the truth and he would sit in his cell and make up stories—and he was darned good at it.” For years, Philadelphia's district attorneys—first Lynne Abraham, who oversaw Ogrod’s prosecution, and later her successor, Seth Williams—fought requests from Ogrod’s lawyers to test DNA evidence that might prove his innocence. While campaigning for District Attorney in 2017, Krasner told Bunch “it is clear that for decades the practice and policy of the District Attorney’s Office has been to win convictions at any cost, too often at the cost of justice itself.” When he took office in January 2018, Krasner rankled many entrenched prosecutors by emphasizing a reform agenda that included a willingness to take a look at questionably obtained past convictions. Krasner has not spoken about the specifics of the Ogrod case, but told Bunch, “Four-year-old Barbara Jean Horn was murdered. If the wrong person went to death row for it—and I specify that I am saying if—then the person who did murder her walked free.”

 

Black Prisoner on Georgia’s Death Row, Sentenced by Racist Juror, Denied Federal Court Appellate Review

Posted: April 9, 2018

Less than three months after the U.S. Supreme Court directed a federal appeals court to reconsider whether Georgia death-row prisoner Keith Tharpe (pictured) is entitled to federal-court review of his claim that he was unconstitutionally sentenced to death because he is Black, the U.S. Court of Appeals for the Eleventh Circuit has declined to review Tharpe’s appeal, saying he had never presented the issue to the state courts. Citing “principles of comity and federalism,” the court denied Tharpe’s application for a certificate of appealability—a federal court prerequisite for a habeas petitioner to appeal—on the grounds that the Georgia state courts “have yet to examine” Tharpe’s juror-misconduct claim. Tharpe was sentenced to death by a Georgia jury that included a racist White juror who called him a “ni***er,” and questioned “if black people even have souls.” The juror, Barney Gattie, signed an affidavit saying that there were “two types of black people: 1. Black folks and 2. Ni**ers.” Tharpe, Gattie said, “wasn’t in the ‘good’ black folks category [and] should get the electric chair for what he did.” Gattie’s affidavit also said “[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks,” but denied that race influenced his own vote. When Tharpe first presented the claim to the state and lower federal courts, it was denied based on a state-court rule prohibiting courts from considering evidence questioning why jurors reached their verdict. However, after Tharpe’s claim was rejected, the U.S. Supreme Court decided a case in 2017, Pena-Rodriguez v. Colorado, that made clear a state rule cannot insulate a juror’s overt expressions of racial bias from judicial review. While Tharpe faced imminent execution in September 2017, he asked the state and federal courts to review the issue again in light of Pena-Rodriguez. The Georgia Supreme Court and the Eleventh Circuit both denied his request. Three hours after his execution was scheduled to start, the U.S. Supreme Court issued a stay of execution based upon his federal appeal. On January 8, 2018, the Court granted Tharpe’s petition for certiorari and vacated the judgment of the Eleventh Circuit. The Court said the fact that Gattie had never retracted his “remarkable affidavit” strongly suggested that “Tharpe’s race affected Gattie’s vote for a death verdict.” Tharpe is expected to ask the Supreme Court to review the circuit court’s latest ruling. On April 2, he filed a separate petition asking the Court to review the Georgia state court’s denial of the issue.

 

NEW RESOURCE: American Bar Association Launches New Capital Clemency Website

Posted: April 6, 2018

In response to what it calls “a critical and unmet need for education and training of both lawyers representing capital prisoners and decision makers who review petitions for clemency,” the American Bar Association (ABA) has created a new web resource devoted to the clemency process. The Capital Clemency Resource Initiative (CCRI) Clearinghouse—a joint project of the ABA Death Penalty Representation Project and Death Penalty Due Process Project—provides tools and resources for clemency decision makers, capital defense attorneys, and others interested in the clemency process. Misty Thomas, chief counsel for the Death Penalty Due Process Project, said that in every state death-penalty system the project studied, “there were insignificant resources for and attention paid to clemency, leaving it … too hollow to be comfortable for our profession.” The ABA does not take a position for or against capital punishment, but the systemic defects it found led the organization to call for a moratorium on its use. “[I]f we’re going to have the death penalty,” Thomas said, “every single stage should be robust and meaningful,” including clemency. As part of improving the clemency process, the Death Penalty Representation Project  prepared a manual for clemency lawyers, Representing Death-Sentenced Prisoners in Clemency: A Guide for Practitioners, that complements the other resources on the CCRI website. But Laura Schaefer, staff attorney for the representation project and the author of the manual, said the project has a broader educational purpose as well. “One part of what we are trying to do is increase public understanding of the clemency process in capital cases … and how it’s supposed to catch wrongful sentences,” she said. Since 1976, clemency in the form of pardons or humanitarian commutations of sentence has been granted to 287 death-row prisoners in the United States. Illinois's mass commutation of 167 death-row prisoners in January 2003 accounts for more than half of that total. Two death-row prisoners—Thomas Whitaker in Texas and William Montgomery in Ohio—have been granted clemency so far in 2018. 

 

NEW PODCAST—Racial Discrimination in Death-Penalty Jury Selection: A Conversation with Steve Bright

Posted: April 5, 2018

Race discrimination exists at every stage of the death-penalty process, says veteran death-penalty and civil-rights lawyer Stephen B. Bright (pictured), but “the most pervasive discrimination that is going on is in jury selection.” In a new Discussions With DPIC podcast, Bright—the former President of the Southern Center for Human Rights who has argued jury discrimination cases three times in the U.S. Supreme Court—calls the “rampant” racial discrimination in jury selection “a matter of grave urgency.” In an interview with DPIC’s Anne Holsinger, Bright speaks about the most recent of those cases, Foster v. Chatman, a Rome, Georgia case in which the Court granted Timothy Foster a new trial as a result of intentional discrimination by prosecutors. New evidence, Bright says, now shows that prosecutors in Columbus, Georgia systematically struck African-American jurors in at least seven other capital cases, including three in which defendants have already been executed. Bright explains how jury-selection notes were critical in proving that prosecutors had unconstitutionally targeted African-American jurors in Foster’s case because of their race. Those notes, he says, allowed defense attorneys to “pull back the cloak of secrecy” that usually shrouds decisions on jury strikes. Jury-selection notes recently uncovered from the files of Columbus prosecutors—including the same prosecutor found to have discriminated against Foster—showed the systemic and long-standing nature of this unconstitutional practice. In 1986, in Batson v. Kentucky, the Supreme Court declared the intentional striking of any juror on the basis of race to be unconstitutional. “Thirty years after [Batson] was decided,” Bright says, “it’s pretty clear that it has failed completely to prevent race discrimination in jury selection.” Batson “doesn’t really have any teeth,” he says, because it permits prosecutors to evade clear inferences of discrimination by providing race-neutral pretextual explanations for striking jurors of color that the trial courts routinely accept. To address the problem, Bright proposes a new legal standard for finding discrimination, moving away from ;a subjective assessment of whether the prosecutor intentionally discriminated to an objective assessment of whether “a reasonable person knowing all of the facts” would think the jurors had been stricken on the basis of race. Increasing the representation of people of color on juries would result in “much more faith in the courts and the integrity of the courts,” Bright says, because trials with all-white juries, judges, prosecutors, and defense attorneys erode the community’s confidence in the legal system. “People do not think that ... those trials are legitimate, because a big portion of the community has been completely excluded from participating in the judicial process.”

 

Utah Prosecutor Drops Death Penalty in Prison Killing After Corrections Officials Withheld Evidence

Posted: April 4, 2018

A Utah judge has excoriated the Utah Department of Corrections for practices he called “sneaky” and “deceitful” and a state prosecutor has dropped the death penalty after learning that state prison officials had withheld nearly 1,600 pages of prison records from a defendant facing capital charges in a prison killing. Despite a court order to produce all prison records, the department had failed to disclose medical and mental health records detailing psychiatric medication Steven Douglas Crutcher (pictured, right) had been receiving in the months before he killed his prison cellmate. On March 28, 2018, following disclosure of the records, Sanpete County Attorney Kevin Daniels (pictured, left) withdrew the state’s notice to seek the death penalty and Judge Wallace Lee sentenced Crutcher to life. Preparing for an April 9 capital sentencing hearing, the defense learned in mid-February that the department had withheld medical and mental health records that Crutcher’s lawyer, Edward Brass, said “went to the heart” of the defense’s case. Brass alerted Daniels to the prison’s violation of the court order and Daniels, saying he was “irate” about the prison's misconduct, withdrew the death penalty from the case. “I hold myself to the highest ethical standard,” he said, “and any withholding of information is an affront to justice. The whole concept of justice is that you put all the evidence, all the cards on the table, and if you go where the evidence leads you, it’s a just result.” “This could have been a disaster,” Brass told reporters. “If it wasn’t for the integrity of the county attorney, it would have been a disaster.” Judge Lee said he was “beyond angry” over the department’s behavior. “This was totally wrong and makes me doubt the credibility of everything I hear about the Department of Corrections,” he said. In a statement, the department blamed its failure to produce the records on a “misinterpretation” of Judge Lee’s October order, but defense lawyers said medical doctors at the prison had been so difficult to work with that one doctor even refused to tell them what medical school he had attended. The judge questioned how the department could have misunderstood an order that had directed it to produce Crutcher’s “entire file,” including all mental health records. “That is something I would expect from Russia or North Korea, not a society like we have under the Constitution,” Lee said. “It’s got to stop. I’ve worried that if it’s happened in this case, it’s happening in other cases out there.” A prison spokesperson told the media that the department has retrained its clinical services records staff on responding to court orders and records requests and has started reviewing other cases to determine whether court orders had been responded to appropriately. Utah Association of Criminal Defense Lawyers executive director Stewart Gollan said the department also has been uncooperative in releasing prisoners’ medical records in civil rights cases.

 

NEW RESOURCES: University of Virginia Interactive Database Maps the Modern Death Penalty

Posted: April 3, 2018

 The University of Virginia School of Law has created a new interactive web resource (click on map) that allows researchers and the public to visually explore death-sentencing practices in the United States from 1991 through 2017. The interactive map provides county-level data on death sentences imposed across the United States, drawing from a new database created by University of Virginia Law Professor Brandon Garrett (pictured) for his recent book, End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice. The interactive map, which is a web supplement to the book, permits users to view where and how many death sentences were imposed in the U.S. each year, and to contrast and compare sentencing patterns over time in states, counties, and the U.S. as a whole. Using a slider to view chronological shifts in sentencing patterns, the map illustrates how death sentences have declined nationwide and become increasingly isolated to a few outlier counties. “This is the first resource to map out modern death sentencing in the United States,” Garrett said. “The mapping vividly shows how geographically isolated death sentencing has become.” The data forms the backbone of End of Its Rope, in which Garrett analyzes the dramatic decline in the use of the death penalty over the last 25 years. The publicly available database contains information on more than 5,000 death sentences, allowing researchers and lawyers to analyze patterns and trends. “Several researchers, in addition to those of us at UVA, have already made use of the data, and we hope that more do so in the future,” Garrett said. Garrett worked with a UVA Law librarian, law students, and undergraduates to compile the data from government records, court rulings, and other sources.

 

Study Analyzes Causes of “Astonishing Plunge” in Death Sentences in the United States

Posted: April 2, 2018

Multiple factors—from declining murder rates to the abandonment of capital punishment by many rural counties and substantially reduced usage in outlier counties that had aggressively imposed it in the past—have collectively led to an “astonishing plunge” in death sentences over the last twenty years, according to a new study, Lethal Rejection, published in the 2017/2018 Albany Law Review. Using data on death-eligible cases from 1994, 2004, and 2014, Drake University law professor David McCord and Niagara University criminal justice professor Talia Roitberg Harmon examined a range of factors to determine what caused the more than 75% reduction in death sentences in the U.S. between 1994 and 2014. (Click image to enlarge.) The authors found that just over half the decline could be attributed to a reduction in the number of potentially death-eligible murders, as a result of a combination of lower murder rates, Supreme Court decisions making murders committed by intellectually disabled offenders and offenders aged 17 or younger ineligible for the death penalty, and the abolition of the death penalty by six states. The rest of the decline, they said, was attributable to subjective decisions by prosecutors and sentencers, a factor they called “changing perceptions of death-worthiness.” Murders in the 37 states that authorized the death penalty in 1994 fell from 19,250 that year to 12,440 in 2014—a 35.4% decline. However, death sentences dropped by more than double that rate, from 310 to 73—a 76.5% decline. McCord and Harmon also attempted to identify factors that contributed to prosecutors’ and sentencers’ perceptions of death worthiness, which accounted for nearly half of the death-sentencing decline. The addition of life without parole as a sentencing option did not, they said, have a significant impact in lowering death sentences, except in Texas. Rather, they found that death sentences were being sought and imposed at lower rates in less aggravated murder cases, in cases with multiple perpetrators, and against defendants under age 21. They also found two types of significant geographical effects: death-sentencing dropped significantly in low-population counties across the country and in five of the nation’s highest volume death-sentencing counties (Harris, TX; Cook, IL; Pima, AZ; Philadelphia, PA; and Miami-Dade, FL). While the researchers did not report how many fewer death sentences were imposed in these counties in 2014, they described the decline as having an “outsized” effect on the national total. They conclude, “The decline in death sentencing in the United States from 1994 has been relatively rapid, quite steep, and is continuing—from the endpoint of our dataset, death sentences declined from 73 in 2014 to 49 in 2015; and in 2016 only 31 death sentences were imposed. The American death penalty seems like an ever-crankier version of the Cheshire Cat: it is grudgingly disappearing, leaving behind only its frown.”

 

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