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Indiana Defendant Files Broad Challenge Seeking to Strike Down State's Death Penalty

Posted: November 1, 2018

Lawyers for Marcus Dansby (pictured), a defendant facing capital murder charges in Allen County, Indiana, have filed a motion asking the trial judge to declare Indiana's death penalty unconstitutional and to bar prosecutors from seeking death in his case. In pleadings submitted to the court on October 30, 2018 in support of Dansby's Motion to Declare Indiana's Capital Sentencing Statute Unconstitutional, lawyers Michelle Kraus and Robert Gevers allege that systemic defects in the administration of capital punishment from the pre-trial stage through state and federal review violate due process, the right to a jury trial, and state and federal constitutional prohibitions against cruel and unusual punishment. In a separate motion, he seeks to bar the use of the death penalty in his case based on his age at the time of the offense.

Relying on Indiana murder and execution data over a 26-year period between 1990 and 2015, Dansby's motion argues that the state's death penalty "is imposed arbitrarily and capriciously, with an inappropriately high risk of discrimination and mistake." Kraus and Gevers allege that, even with prosecutors seeking death sentences in only one out of every 129 homicides from 2006 thru 2015 and executions occurring in only one out of every 535 homicides during the 26-year study period, the state's prosecutors are not "engaging in a careful winnowing process to identify the 'worst of the worst' offenders and offenses for capital charging" and "the worst murderers and worst murders do not result in death sentences." Instead, the motion argues, "geography, quality of defense representation and race" disproportionately determine who is sentenced to death. Kraus told The (Fort Wayne) Journal Gazette that the filings were a necessary part of her client's defense, adding, "Across the nation, I think we're seeing more and more the death penalty is falling out of favor." Two state supreme courts have recently declared death penalty statutes unconstitutional: Delaware in 2016 and Washington in October 2018, and a Kentucky trial court found the death penalty unconstitutional for offenders younger than age 21 in 2017.

 

Attorneys Challenge Tennessee's “Utterly Barbaric” Planned Use of Electric Chair

Posted: October 31, 2018

As Edmund Zagorski faces a November 1, 2018 execution in Tennessee, the courts have required him to choose between death by lethal injection and electrocution. His lawyers argue that both methods, as well as the forced choice between the two, are unconstitutional. In a lawsuit filed in federal district court on October 26, 2018 and appealed to the U.S. Court of Appeals for the Sixth Circuit on October 30, Zagorski’s attorney, Kelley Henry, wrote of electrocution, “while better than lethal injection, such a death is still utterly barbaric,” alleging that it violates the Eighth Amendment ban on cruel and unusual punishment. The lawsuit claims that Tennessee’s electric chair is “incompetently designed,” and that Zagorski will suffer as electrocution “burns Mr. Zagorski’s skin from his skull, boils his blood and fails to promptly stop his heart and brain function.” Describing Tennessee’s three-drug midazolam-based execution as one in which “the prisoner [will feel] as if he is ‘drowning, suffocating, and being burned alive from the inside out’ during a process that could last as long as 18 minutes,” Henry argues that the state “has coerced Mr. Zagorski — with the threat of extreme chemical torture via a barbaric three-drug lethal injection protocol — to choose to die a painful and gruesome death in the electric chair.”

Henry also argues that Tennessee has unconstitutionally forced Zagorski to choose between execution by lethal injection with midazolam and death by electrocution, while employing state secrecy laws to prevent him from obtaining information necessary to prove that a less painful one-drug lethal injection with pentobaritol was available. Quoting Justice Sonya Sotomayor’s dissent from the Supreme Court’s October 11 refusal to hear Zagorski’s prior lethal-injection challenge, Zagorski argued “‘[w]hen the prisoners tasked with asking the State to kill them another way are denied by the State information crucial to establishing the availability of that other means of killing, a grotesque requirement has become Kafkaesque as well.’”

Zagorski’s execution was originally scheduled for October 11, but Governor Bill Haslam issued a temporary reprieve to give prison officials time to prepare for an execution by electric chair. On October 29, U.S. District Judge Aleta Trauger rejected Zagorski’s challenge to the electric chair, but issued a temporary restraining order preventing the execution from going forward unless the state provides his lawyers with access to a telephone to contact the court if something goes wrong during the execution. On October 31, Zagorski filed a motion for stay of execution in the federal appeals court and both sides filed briefs on the constitutionality of Tennessee’s electrocution protocol. It is expected that whichever side loses in the appeals court will seek review by the U.S. Supreme Court. 

A February 2015 poll conducted by YouGuv found that Americans, by a 21 percentage-point margin (54% vs. 33%), consider the electric chair cruel and unusual punishment. The states that used the electric chair moved to lethal injection in the wake of several gruesomely botched electrocutions, decisions by the Georgia and Nebraska Supreme Courts declaring electric-chair executions unconstitutional, and a 2009 U.S. Supreme Court decision agreeing to hear a challenge to the constitutionality of Florida’s use of the electric chair. That challenge was later rendered moot when Florida abandoned executions by electrocution. Tennessee last carried out an execution in its electric chair in 2007.

 

Florida Supreme Court Upholds Death Sentence Imposed in Violation of State and Federal Constitutions

Posted: October 30, 2018

The Florida Supreme Court has upheld the death sentence imposed on William Roger Davis, III (pictured), even though Davis's death sentence violates both the Florida and federal constitutions. In a decision issued on October 25, 2018, the court refused to redress the unconstitutionality of the death sentence—imposed by a trial court judge after a bare 7-5 majority of jurors had recommended death—ruling that during post-conviction proceedings before the trial court, Davis had waived review of all claims relating to his conviction and death sentence. The appeals court held that this waiver barred Davis from renewing his challenge to the unconstitutional sentencing process on appeal.  

Davis was convicted and sentenced to death in Seminole County (Tallahassee) for an October 2009 murder, kidnapping, and sexual battery. After hearing Davis accept responsibility for the crime and testify about his mental state when it occurred, five jurors recommended that he be spared the death penalty. However, at the time of trial, Florida was one of only three states that permitted judges to impose a death sentence based upon a less than unanimous jury vote for death, and its death-penalty statute directed the trial court to make its own independent findings of fact, independently weigh aggravating and mitigating circumstances, and impose a sentence of life without parole or death. The Florida Supreme Court upheld Davis's death sentence, and in January 2016, one year after his conviction became final, the United States Supreme Court struck down Florida's sentencing procedures. In Hurst v. Florida, the court ruled that reserving the ultimate fact-finding on aggravating circumstances for the trial judge violated Florida capital defendants' Sixth Amendment right to trial by jury. In October 2018, the Florida Supreme Court ruled in Hurst v. State that this Sixth Amendment violation was prejudicial to a capital defendant whenever the jury had not unanimously recommended a death verdict, and it further held in Perry v. State that the Florida constitution required a unanimous jury vote for death before a judge could consider imposing the death penalty. 

In his state post-conviction proceedings, Davis's lawyers challenged the constitutionality of his non-unanimous death sentence. However, while the case was pending, Davis sought to withdraw his petition. In a letter to the judge, Davis wrote that he did not want a life sentence and did not want to subject either his family or the victim's family to a new sentencing hearing. The court found him competent to waive his rights, and—notwithstanding the invalidity of the proceedings resulting in his death sentence—dismissed all of Davis's guilt- and penalty-stage claims. The Davis case is the latest case in which so-called "volunteers"—capital defendants or death-row prisoners who have been deemed competent to waive their appeals—have been permitted to seek execution in the face of unreliable or unconstitutional death sentences. Volunteers comprise ten percent of all prisoners executed in the United States since the 1970s. On October 29, 2018, Rodney Berget—a former Special Olympics participant—became the 148th volunteer to be executed, despite evidence of intellectual disability that led national experts to conclude that he was ineligible for the death penalty.

 

Amid Questions of Competency, South Dakota to Execute Special-Olympics Defendant Who Gave Up Appeals

Posted: October 29, 2018

The South Dakota Supreme Court has denied motions that sought to delay the October 29, 2018 execution of Rodney Berget (pictured). As the state prepared to execute Berget, the former public defender who represented him at trial took action to fight a prospective legal guardian’s efforts to keep the former Special Olympics participant from being put to death. On Friday, October 26, Juliet Yackel, a Chicago-based lawyer who had been retained in Berget’s state post-conviction proceedings as a mitigation investigator, filed a pleading called a petition for writ of prohibition that asked the South Dakota Supreme Court to halt Berget’s execution and to appoint her as his legal guardian “because he has an intellectual disability and [is] otherwise incompetent, rendering him ineligible to be executed.” Berget waived a jury trial and pled guilty to murder for his involvement in the death of a prison guard, and is currently attempting to waive his appeals. At the close of the trial, he told the sentencing judge, “I believe I deserve the death penalty for what I’ve done.” Yackel’s petition describes Berget as “intellectually disabled and suicidal.” The motion alleges Berget “is not able to protect his own interests and the attorneys assigned to do so have refused” to do so. On Saturday, October 27, Berget’s trial lawyer, Jeff Larson—whom the court removed from the case after he attempted to continue to represent Berget in appeal proceedings meant to raise issues of his possible ineffective assistance at trial—filed an affidavit from Berget opposing Yackel’s motion and reasserting the reasons why Berget says he wants to drop all appeals. On October 29, the South Dakota high court denied the petition.

In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that individuals with intellectual disability—then known as mental retardation—may not be executed. Yackel’s petition includes a litany of evidence she says  “clearly demonstrates” Berget’s ineligibility for the death penalty: IQ tests administered during Berget’s childhood in which he scored under 70, public welfare records in which a psychologist noted that “the boy appears ... to be suffering from borderline mental retardation,” Berget’s assignment to special education classes and participation in Special Olympics, and a diagnosis of intellectual disability by several leading national mental health experts. The petition and an accompanying affidavit also set forth evidence that Berget has a “lengthy history of self-harm and suicidality.” “This is one of the clearest-cut cases of intellectual disability that I’ve ever worked on,” Yackel told Liliana Segura, an investigative reporter for The Intercept. “There is no question here. This is not a close call.” 

With Larson describing his client as “very intelligent and quite competent,” Berget pled guilty and waived his right to a jury trial. After Larson was fired from the public defender’s office, he continued to represent Berget pro bono, and did not retain a mitigation investigator to research Berget’s background, upbringing, and mental health history. He presented what Segura describes as “an astonishingly weak defense.” After the court removed Larson from the case, Berget was represented by Eric Schulte, a civil lawyer with no capital case experience, who also failed to present evidence of Berget’s participation in Special Olympics. The trial court rejected the intellectual disability claim raised  by Schulte, relying on testimony from a prosecution psychologist who had employed scientifically unsupported methods for assessing intellectual disability that were similar to those the U.S. Supreme Court struck down in Moore v. Texas in 2017. According to Yackel’s petition, acting on “the advice of his personal spiritual advisor, [Schulte] disregarded the clear need for appellate review and refused to file a Notice of Appeal,” effectively waiving Berget’s right to appeal. Dr. Stephen Greenspan, one of the leading national experts on intellectual disability, called the trial court’s ruling “egregious” and the case “one of the most outrageous” he had seen. 

 

Split Jury Spares Iraq-War Vet in High Profile Virginia Capital Case

Posted: October 26, 2018

A Virginia jury has spared the life of Iraq war veteran Ronald Hamilton (pictured, right, with his father) in the 2016 killings of his wife and a rookie police officer. The jury split 6-6 on whether to impose the death penalty for Hamilton's murder of his wife, Crystal Hamilton, but unanimously agreed to impose a life sentence for the death of Officer Ashley Guindon, who was killed while she responded to Crystal Hamilton's 911 call. Under Virginia law, the court must impose a life sentence if any of the jurors vote for life. At the sentencing phase of the trial, Hamilton's lawyers presented evidence of his possible posttraumatic stress disorder from two tours of duty in Iraq, emphasized his development into a model soldier who, as an Army sergeant, saved a colleague's life while they were under mortar fire, and presented testimony from his father, Ronald W. Hamilton, and other family members. During his testimony, the elder Ronald Hamilton—a retired police officer whose career included service at the White House and who served as the second-in-command of the Charleston, South Carolina police force—expressed his sympathy to the family of Officer Guindon and to the two other officers who were wounded. "I see the prosecutor’s side and defense side, and I can sit on either side. I feel the pain. I understand the duty," Hamilton testified. "If anyone in this courtroom had their relative sitting where my son was, they’d be asking for mercy," he said. As is often the case in capital trials of war veterans, the prosecution had attempted to convert Hamilton's military service into an aggravating factor, repeatedly referring to him as "depraved" and "dangerous." Prosecutor Richard Conway told the jury that soldiers "deserve respect and deserve protection, but they don't get a pass for capital murder," while his co-counsel, Matthew Lowery urged the jury to "[p]ut him in the grave because that's what he deserves."

No Virginia jury has imposed a death sentence since 2011 and Hamilton had offered to plead guilty in exchange for a sentence of life without parole. However, Prince William County Commonwealth's Attorney Paul Ebert – known for his frequent use of the death penalty – rejected the offer. The county is responsible for more executions since 1976 than any other county in the Commonwealth and is among the 2% of counties that account for a majority of all executions in the United States in that period.

 

NEW PODCAST: The Death Penalty and Human Dignity; Lessons From the Anti-Slavery Movement

Posted: October 25, 2018

“[T]he issue of race and the death penalty is not unique to the death penalty, it’s part of the broader problem with the criminal justice system,” says Bharat Malkani (pictured), author of the 2018 book Slavery and the Death Penalty: A Study in Abolition, in a new Discussions With DPIC podcast. In the October 2018 DPIC podcast, Malkani—a senior lecturer in the School of Law and Politics at Cardiff University in the United Kingdom—speaks with DPIC’s executive director Robert Dunham and Ngozi Ndulue, DPIC’s Director of Research and Special Projects. They discuss the historical links between slavery, lynching, Jim Crow, and the death penalty and the lessons modern opponents of capital punishment can learn from the strategies employed by slavery abolitionists.

Malkani explores the parallels between the institutional approaches of conservative and moderate anti-slavery activists and the arguments of modern conservatives and contrasts them with the broad morality-based arguments of radical slavery abolitionists, who, he says “fought not just for the abolition of slavery, but for the recognition of the dignity of black people and the equal dignity of black people, alongside whites.” The conservative and moderate opponents of slavery, he said, “focused on slavery as a standalone social issue,” rather than as “a symptom of a much broader problem with the social order. ... And we know in hindsight that one of the problems with [those] anti-slavery voices was that it entrenched the problems of racial subjugation.”

Malkani recognizes that pragmatic arguments based upon innocence, the costs of capital punishment, and systemic failures in the way capital punishment is administered have a role to play in efforts to end the death penalty, but argues that “in the longer term, the morality-based arguments, based on a recognition of dignity, will have a greater social impact.” History teaches “that we cannot think of the death penalty as separate [from] America’s history of slavery and racial violence,” he says. Death-penalty abolitionists, he says, must keep “the bigger, longer-term picture” in mind. “The issue here is not just the problems with the death penalty in practice, but the underlying values that lend support for the death penalty. ... If we do not tackle the values that underpin the problem and question the values that underpin the death penalty, then we’re just going to entrench the problems that lead to the death penalty.”

 

Study: Racial Disparities in Death Penalty Begin with Investigations and Arrests

Posted: October 24, 2018

A study of more than three decades of homicide arrests suggests that racial disparities in arrests and policing practices introduce an additional layer of bias in the application of the death penalty in the United States. While earlier research has documented that the race of victims affects prosecutors' decisions to seek the death penalty, and juries' and judges' decisions to impose death sentences, a new study by Professors Jeffrey Fagan of Columbia University (pictured, left) and Amanda Geller of New York University (pictured, right) has found that those disparities appear even earlier in the process, at the arrest stage. "[H]omicides with white victims are significantly more likely to be 'cleared' by the arrest of a suspect than are homicides with minority victims," the authors write. Since death-penalty prosecutions must begin with an arrest in a capital-eligible murder, these clearance rates create a disproportionately larger pipeline of white-victim cases. Fagan and Geller examined every homicide recorded in the FBI's Supplementary Homicide Reports from 1976 to 2009, uncovering county-level patterns in the "clearance rate" (the rate at which cases are closed by the arrest of a suspect). Counties with higher proportions of minority residents had lower clearance rates than counties with whiter populations, but the authors say that county characteristics alone do not completely account for the disparities. Rather, they say that broader policing practices also play a role. "Inequalities in policing, such as the underpolicing of the most serious crimes in the most disadvantaged communities, coupled with overpolicing of the least serious offenses in those same places, seem to extend to the initial stages of the production of death sentences and executions," they write. They attribute the lower clearance rates of black-victim cases in part to distrust of police in communities of color, resulting in less willingness to cooperate in investigations. "Perceived injustices can disincentivize citizens from cooperating with the police," they explain, "including both 'petty indignities' and egregious acts of police violence." Thus, discriminatory policing practices contribute to disparate clearance rates, which in turn contribute to the discriminatory application of capital punishment.

 

Following Washington Death Penalty Abolition, Op-eds Encourage Other States to Follow Suit

Posted: October 23, 2018

Following the Washington Supreme Court's October 11, 2018 decision declaring the state's death penalty unconstitutional, news outlets have questioned what comes next. Op-ed writers in North Carolina, Texas, and California have responded, urging their states to reconsider their capital punishment laws. The Washington court cited racial bias, "arbitrary decision-making, random imposition of the death penalty, unreliability, geographic rarity, and excessive delays" as reasons why it struck down the death penalty. In a guest column in the Sacramento Bee, University of California Berkeley School of Law Dean Erwin Chemerinsky wrote, "California’s death penalty suffers the same flaws and likewise should be struck down." Similarly, Kristin Collins, Associate Director of Public Information at the Center for Death Penalty Litigation, wrote in a commentary for the North Carolina blog, The Progressive Pulse, "[i]f those are reasons to outlaw the death penalty, then it is surely time for the North Carolina death penalty to go." Writing in the Austin American-Statesman, University of Texas sociology professor William R. Kelly observed: "In light of the ever-present potential for error and bias, the absence of a deterrent effect and the extraordinary cost to prosecute, appeal and execute someone, we are left with the basic question: Is the death penalty worth it? It’s a question more states ought to ask."

Collins and Chemerinsky pointed to systemic problems in their respective states that they say provide reasons to repeal the death penalty or declare their capital punishment statutes unconstitutional. Collins said a September 2018 study by the Center for Death Penalty Litigation revealed that "most of the people on N.C. death row are only there because they had the bad luck to be tried under outdated laws, before there were basic legal protections to ensure fairness at their trials." "Had they been tried under modern laws," she wrote, "most wouldn’t be on death row today." Chemerinsky highlighted the lengthy delays in California's death-penalty system and the large body of evidence showing that the state's death penalty is discriminatorily applied. Quoting federal Judge Cormac Carney's summary of the state of California's death row, he wrote: "Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death." These types of problems "and the fact that the death penalty is extraordinarily expensive and does not do much to deter violent crime," Professor Kelly wrote, "may help propel other states to abolish it."

 

Gallup Poll—Fewer than Half of Americans, a New Low, Believe Death Penalty is Applied Fairly

Posted: October 22, 2018

Fewer than half of Americans now believe the death penalty is fairly applied in the United States, according to the 2018 annual Gallup crime poll of U.S. adults, conducted October 1-10. The 49% of Americans who said they believed the death penalty was "applied fairly" was the lowest Gallup has ever recorded since it first included the question in its crime poll in 2000. The percentage of U.S. adults who said they believe the death penalty is unfairly applied rose to 45%, the highest since Gallup began asking the question, and the four-percentage-point difference between the two responses was the smallest in the history of Gallup's polling.

The poll also found that, even as the number of new death sentences are near historic lows, the percentage of Americans saying that the death penalty is imposed too often continued to rise and the percentage saying it is not imposed enough continued to decline. 57% of U.S. adults said the death penalty was imposed either "too often" (29%) or "about the right amount" (28%). In 2010, just 18% said the death penalty was imposed too often. While a plurality of 37% said the death penalty was not imposed enough, that figure was down 16% from the 53% level who in 2005 said it was not imposed enough. Gallup analyst Justin McCarthy wrote that "as executions in the U.S. have decreased along with the generally sinking crime rate, Americans have become more likely to say capital punishment is unfairly applied and that it is imposed too frequently." 

Gallup measured overall support for capital punishment at 56%, which McCarthy described as "similar to last year's 55%." 2017, he said, "marked the lowest level of support for the practice since 1972." He said "support for capital punishment ... has been trending downward since peaking at 80% in the mid-1990s during a high point in the violent crime rate." The poll measured opposition to the death penalty at 41%, the same as last year's 45-year high. A national Pew Reseach Center poll released in June 2018 reported support for the death penalty at 54% and opposition at 39%. A 2017 study reported that murders in the 37 states that authorized the death penalty in 1994 declined by 35.4% between then and 2014, but that death sentences declined by 76.5%—more than double that rate—over the same time frame. 

 

Texas Court Stays Execution of Mentally Ill Prisoner with Schizophrenia

Posted: October 19, 2018

The Texas Court of Criminal Appeals on October 19, 2018 stayed the execution of Kwame Rockwell (pictured), a severely mentally ill death-row prisoner suffering from schizophrenia, who had been scheduled to die on October 24. The court found that Rockwell had raised “substantial doubt that he is not competent to be executed” and reversed a ruling by the Tarrant County District Court that had rejected Rockwell’s competency claim without an evidentiary hearing and without providing funds for him to obtain a competency evaluation. The appeals court ordered the trial court to appoint “at least two mental-health experts” to evaluate Rockwell’s competency. On October 16, Rockwell’s lawyers had appealed the Tarrant County order arguing that the trial court had abused its discretion in rejecting his competency claim The appeal argued that Rockwell “does not understand he is to be executed,” “has no understanding that he was convicted of capital murder and sentenced to death,” and “does not comprehend that he has been incarcerated on death row since 2012 or even that he is presently incarcerated in a Texas prison.”

The U.S. Supreme Court ruled in Ford v. Wainwright (1986) that the Eighth Amendment prohibits the execution of prisoners who have become “insane”—which the Court defined as being “unaware of the punishment they are about to suffer and why they are to suffer it.” In 2007, in the Texas case of Panetti v. Quarterman, the Court explained that a prisoner whose delusions prevent him from having a “rational understanding” of these circumstances is incompetent to be executed. A neuropsychologist who examined Rockwell in July reported that Rockwell said he saw snakes and demons that were inside of him, appeared to be hearing voices, and, in response to a question about his name, said “my name is God.” The doctor’s affidavit said Rockwell “does not understand or appreciate where he is, the nature of his charges, why he is in prison, or the nature of his punishment.” Rockwell’s lawyers also presented the court with evidence of his significant family history of psychotic illness, including twelve family members across three generations of his family with mental illness diagnoses, and Rockwell’s own mental illness in childhood and as an adult. Citing prison records, the appeal states: “Rockwell has consistently experienced intense hallucinations and auditory delusions, despite spending the majority of his sentence on four or more antipsychotic medications concurrently. He is haunted by snakes and demons. No medications have been able to eliminate his hallucinations or delusions.”

The U.S. Supreme Court has never categorically excluded people with serious mental illness from being sentenced to death or executed. A 2014 poll found that Americans by a two-to-one margin oppose executing people with mental illness. Several states have recently considered, but not adopted, legislation to bar the death penalty for people with severe mental illnesses. Rockwell’s trial lawyer did not present to the jury mitigating evidence of Rockwell’s schizophrenia or his family’s history of psychotic mental illness. Nonetheless, the Texas state and federal courts denied Rockwell’s claim that he had been provided ineffective representation at sentencing. In an opinion piece for Pacific Standard written before the Texas Court of Appeals granted the stay, David M. Perry compared the courts’ treatment of Rockwell’s case with the recent stay of execution granted to fellow Texas prisoner Juan Segundo. Segundo was granted a stay so the Tarrant County court could reconsider his claim of intellectual disability after the Supreme Court had ruled that the standard Texas had previously applied unconstitutionally risked that some people with intellectual disability would still be executed. “America still doesn't have clear protections for people with severe mental illness,” Perry explains. “These two cases in Texas remind us of the unfortunate diagnostic limitations that protect only some people with disabilities from the death penalty.”

 

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