For the second time in less than six months, the Texas Court of Criminal Appeals (TCCA) has upheld a death sentence that the trial court, lawyers for the prosecution and defense, and mental health experts all agree should not be carried out. On November 21, 2018, in an unpublished and unsigned opinion that misspelled death-row prisoner Jeffery Wood's name, the court rejected a recommendation by the Kerr County District Court to overturn Wood’s death sentence and grant him a new sentencing trial. The trial court had found that Wood’s death sentence was the unconstitutional by-product of “false or misleading testimony” and “false scientific evidence” by Dr. James Grigson, a discredited psychiatrist who had been expelled from state and national professional associations for his unethical practices in predicting a defendant’s future dangerousness.
Grigson, whose testimony for the prosecution in more than 100 death penalty cases earned him the nickname “Dr. Death,” had been expelled by the American Psychiatric Association and the Texas Society of Psychiatric Physicians for providing scientifically invalid guarantees that defendants he had never personally examined would commit future acts of violence if spared the death penalty. Grigson never personally examined Wood, and the jury was not told that Grigson’s practice violated professional ethical norms and had led to his expulsion from the psychiatric associations. Nonetheless, over the dissent of two judges, the TCCA ruled that Grigson’s testimony did not materially affect the jury’s decision to sentence Wood to death.
Wood’s case received national attention before his August 24, 2016 execution date was stayed, because he was convicted under Texas’ law of parties despite his minimal involvement in the crime. Wood was the getaway driver in a gas station robbery. His co-defendant, Daniel Reneau, shot and killed the store clerk while Wood was sitting outside in the car. “I’m not aware of another case in which a person has been executed with as minimal participation and culpability as Jeff,” said Jared Tyler, Wood's attorney. “It’s a national first in that regard if the state does actually execute him.” In response to the Texas Court of Criminal Appeals’ decision to reject Wood’s appeal, Tyler said, "The decision to let stand a death sentence based on false expert testimony can only erode public confidence in Texas's criminal justice system. This is particularly so given that all the parties agree that Mr. Wood's death sentence is disproportionate."
Wood’s case is also unique because of statements made by the prosecutor who tried his case. Kerr County District Attorney Lucy Wilke asked the Texas Board of Pardons and Paroles to grant clemency for Wood, saying that his death sentence was disproportionate and that she was unaware of Dr. Grigson’s expulsion from psychiatric associations at the time of Wood’s trial. "Had I known about Dr. Grigson’s issues with said organizations, I would not have used him as the State’s expert witness in this case on the issue of future dangerousness,” Wilke wrote in a letter to the board. She later indicated that she would not seek to resentence Wood to death if his death sentence were overturned. Conservative and evangelical leaders and the editorial boards of major national and Texas newspapers also supported Wood’s plea for clemency in 2016.
On November 21, 2018, Kentucky marked 10 years since its last execution, becoming the eleventh current death-penalty state that has not carried out an execution in more than a decade. Another 20 states have legislatively or judicially abolished their death-penalty laws, bringing the number of states that do not actively use the death penalty to 31. On the day before Kentucky reached its 10-year milestone, a lawsuit filed in federal court highlighted some of the greatest dangers of capital punishment in the Commonwealth. On November 20, Nickie Miller—a military veteran and cancer patient who spent two years in jail facing a possible death sentence before murder charges against him were dropped in 2017—filed a lawsuit against Montgomery County, Kentucky and local and state law enforcement officials alleging that they had conspired to frame him for murder.
Miller’s complaint names six people involved in his investigation and prosecution as defendants: Montgomery County Sheriff Fred Shortridge, Assistant Commonwealth Attorney Keith Craycraft, Detectives Ralph Charles Jr. and Mark Collier, county jailer Eric Jones, and Kentucky State Police Polygraph Examiner John Fyffe. The complaint alleges that the defendants fabricated and destroyed evidence, testified falsely, and coerced a woman into falsely implicating Miller by threatening to take her children unless she provided the statement they wanted. It specifically claims that Fyffe and the sheriff’s officers “conspired to take [Miller’s] liberty by knowingly initiating false charges based on evidence that the Defendants fabricated.” According to the complaint, the alleged misconduct “had a profound impact” on Miller’s health, denying him “proper medical treatment [for his cancer], including chemotherapy, while incarcerated.” “The defendants succeeded in manipulating the justice system for several years, including falsely accusing Mr. Miller of capital murder and seeking the death penalty against a clearly innocent man,” defense investigator Joshua Powell said. “Mr. Miller has suffered tremendous damage, mental suffering, cancer recurrence and loss of a normal life, all caused by the defendants’ misconduct.”
Kentucky has imposed 97 death sentences since reinstating the death penalty in 1975. More than half (49) of those convictions or sentences have been overturned, including the conviction of Larry Osborne, who was exonerated in 2002. Two of the three men executed in Kentucky waived some or all of their appeals, “essentially committing legal suicide,” said Damon Preston, a Public Advocate at the Kentucky Department of Public Advocacy. Preston also said that Kentucky’s death penalty system deprives families of closure: “It’s hard to see how the family would get resolution when the cases go on for so long. But the reason cases go on for so long is because the death penalty in Kentucky doesn’t work. If a defendant is sentenced to life without parole, that defendant gets an appeal to the Kentucky Supreme Court and then the case is essentially over.” Executions in Kentucky have been under a judicial hold since 2010, as a result of challenges to the lethal-injection protocol. The Attorney General’s Office is scheduled to file its brief in the lethal-injection case on November 30, but additional hearings and briefing are expected before the court issues a ruling in the case.
The Tennessee Supreme Court has set execution dates for six men on the state's death row, scheduling their executions for between May 16, 2019 and April 9, 2020. This mass execution schedule, issued on November 16, 2018, comes in the wake of the controversial executions of Billy Ray Irick and Edmund Zagorski earlier this year and as the state prepares to execute David Earl Miller on December 6. If all seven scheduled executions take place, Tennessee will have conducted more executions in a two-year period than it had in the rest of the 45-year modern era of the death penalty.
Prior to Irick's August 9, 2018 execution, Tennessee had carried out only six executions since bringing back the death penalty in February 1974, all of them between 2000 and 2009. Tennessee's execution method and the state supreme court's handling of lethal-injection litigation has come under criticism, as a newly constituted conservative court majority permitted prison officials to refuse to provide evidence of their claimed efforts to obtain an alternative execution drug, expedited its consideration of death-row state prisoners' challenge to the state three-drug lethal-injection protocol to facilitate Zagorski’s execution, and refused to consider medical evidence concerning Irick’s reportedly torturous execution.
Irick was executed over scathing dissents from U.S. Supreme Court Justice Sonia Sotomayor, who called it “barbarism,” and Tennessee Supreme Court Justice Sharon Lee, who criticized the state's “rush to execute” and said that the state’s evasion of questions concerning the availability of pentobarbital as an alternative to execution with the state’s three-drug formula had rendered the trial court proceedings in the case “meaningless.” Lee later blasted the “rocket docket” created by the court’s removal of the prisoners’ lethal-injection challenge from an intermediate appeals court so the high court could decide the case before Zagorski's scheduled execution. “Given the gravity of the issues presented in this appeal, the voluminous record to be reviewed, and the legal analysis to be made, the [court’s] super-expedited schedule is wholly inadequate,” she wrote.
Autopsy reports from Irick’s execution became available after the court established its expedited schedule. Edmund Zagorski’s defense lawyers then provided the court with an affidavit from a prominent medical expert who concluded that Irick had not been properly anesthetized, leaving him “aware and sensate during his execution.” Irick “would have experienced the feeling of choking, drowning in his own fluids, suffocating, being buried alive, and the burning sensation caused by the injection of the potassium chloride,” the doctor wrote. After hearing argument, the court refused to consider that medical evidence and upheld the execution protocol. Zagorski then opted to be executed by electrocution. His attorney said of the decision, “[Tennessee] 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.” The day before the new execution dates were announced, a federal judge denied a stay request from David Earl Miller, who had sought execution by firing squad as an alternative to the three-drug lethal injection.
The Death Penalty Information Center has released a major new report, Behind the Curtain: Secrecy and the Death Penalty in the United States, examining the scope and consequences of secrecy in the application of the death penalty in the United States. The report, released on November 20, 2018, tells the story of the expansion of execution secrecy and the questionable practices that states have attempted to keep from public view. It details how, in their efforts to obtain execution drugs, states have used secrecy laws to conceal evidence that they have broken state and federal laws, deliberately induced contract breaches, lied to or misled legitimate drug suppliers, contracted with shady international suppliers and questionable domestic pharmacies, and swapped drugs with each other without proper storage and transport controls. As a result, an increasing number of executions have been botched: in 2017, more than 60% of executions carried out with midazolam produced eyewitness accounts of the execution going amiss. The report also describes how secrecy laws have undermined the reliability and legitimacy of court proceedings in which prisoners have challenged state execution practices as violating the Constitution’s ban on cruel or unusual punishments. “State officials have suppressed information that could prove prisoners’ claims while simultaneously arguing those claims should be rejected because they are unproven,” the report explains. “Over and over again, states have violated the law in the name of carrying out the law,” DPIC Executive Director Robert Dunham said. “And when the public has uncovered information the states have tried to conceal, it has exposed an ever-expanding scope of misconduct and incompetence. ‘Trust me, I’m the Government,’ is not an acceptable justification for execution secrecy.”
On November 13, 2018, the U.S. Supreme Court declined to review seven death-penalty cases in which Florida courts had upheld death sentences imposed with unconstitutional sentencing procedures. The Court’s decision not to hear the seven Florida cases prompted opinions from three justices that highlight the deep substantive and procedural divide in the Court’s approach to capital cases.
In 2016, the Supreme Court ruled in Hurst v. Florida that Florida’s sentencing scheme violated the Sixth Amendment right to trial by jury because the judge, rather than the jury, was given the authority to find all facts that could subject the defendant to a possible death sentence. The Florida Supreme Court subsequently limited enforcement of that decision to cases in which juries did not reach a unanimous sentencing recommendation and prisoners whose initial appeals were decided after the U.S. Supreme Court decided a related case, Ring v. Arizona, in June 2002. The Florida courts have upheld every death sentence in which a jury unanimously recommended the death penalty, saying that any violations of Hurst in those cases were “harmless.” The U.S. Supreme Court has now refused to review 84 Florida cases in which death sentences were imposed under procedures that violated Hurst.
In Reynolds v. Florida, Justices Stephen Breyer, Clarence Thomas, and Sonia Sotomayor clashed about the denial of review to prisoners who challenged the Florida Supreme Court practice of finding Hurst error harmless. In a “statement respecting the denial of certiorari,” Justice Breyer highlighted issues present in the 84 Florida cases that underscore the Court’s need to review the constitutionality of capital punishment as a whole: “unconscionably long delays that capital defendants must endure as they await execution,” the question of whether Hurst should be applied to all Florida cases, and “whether the Eighth Amendment requires a jury rather than a judge to make the ultimate decision to sentence a defendant to death.” Ultimately, he concluded, “[r]ather than attempting to address the flaws in piecemeal fashion, … it would be wiser to reconsider the root cause of the problem — the constitutionality of the death penalty itself.” Justice Thomas sharply disagreed. In an opinion concurring with the denial of certiorari, he focused heavily on the gruesome circumstances of the murders for which the prisoners had been sentenced to die and said that the delays in the system are “a reason to carry out the death penalty sooner, not to decline to impose it.”
Justice Sotomayor dissented from the denial of certiorari. Voicing her concerns about the fairness of the sentencing process, she wrote, “it is this Court’s duty to ensure that all defendants, even those who have committed the most heinous crimes, receive a sentence that is the result of a fair process.” Contrary to the Court’s requirement that death-penalty juries “view their task as the serious one of determining whether a specific human being should die at the hands of the State,” Sotomayor wrote, the jurors in the Florida cases “were repeatedly instructed that their role was merely advisory.” The Florida Supreme Court's treatment of those advisory recommendations as legally binding, she wrote, "raises substantial Eighth Amendment concerns."
During his election campaign, Philadelphia District Attorney Larry Krasner described the economic wastefulness of city prosecutors' pursuit of the death penalty as "lighting money on fire." A DPIC analysis of the outcomes of the more than 200 death sentences imposed in the city since 1978 (click image to enlarge) and the last seven years of capital prosecution outcomes provides strong support for Krasner's claim. Data tracking the final dispositions of cases in which Pennsylvania prosecutors had provided notice of intent to seek the death penalty showed that between 2011 and 2017, 98.7% of the 225 cases in which Philadelphia prosecutors had sought the death penalty ended with a non-capital outcome. Similarly, 99.5% of the 201 death sentences imposed in the city—mostly in the 1980s and 1990s—have not resulted in an execution. Two thirds of the convictions or death sentences have already been reversed in the courts and 115 of the former death-row prisoners have since been resentenced either to life sentences (101) or a term of years (11) or been exonerated (3). The single execution was of a severely mentally ill man whom courts initially found incompetent to waive his rights, but was later permitted to be executed.
DPIC Executive Director Robert Dunham announced the results of the DPIC analysis at the National Constitution Center in Philadelphia at a news conference conducted by the death-row exonerees' organization Witness to Innocence. Dunham said that the data showed Philadelphia's pursuit of the death penalty has been "a colossally inefficient" waste of judicial resources and "a colossal waste of money."
Death sentences imposed in Philadelphia peaked in the first term of District Attorney Ronald Castille's administration in 1986-1989, when an average of 11.25 death sentences per year were imposed. 99 more death sentences were imposed in the decade of the 1990s. By 2001, 135 prisoners were on Philadelphia's death row, and the 113 African Americans on its death row were more than in any other county in the United States. Since then, death sentencing rates have plummetted, falling to 1.5 per year in 2006-2009, the final term of District Attorney Lynn Abraham's administration, and to fewer than one a year this decade, during the administration of Seth Williams. But even as the number of death sentences fell, the proportion of defendants of color sentenced to death in Philadelphia increased. In the past two decades, 82.6% of the defendants sentenced to death in Philadelphia have been African American. Of the 46 defendants sentenced to death in Philadelphia since 1997, 44 (95.7%) have been defendants of color.
Krasner's campaign pledge not to use the death penalty, Dunham said, was a "natural conclusion" of the steep decline in death penalty usage in the city.
On Fifteenth Anniversary of Witness to Innocence, Prominent Exonerees Seek Abolition of the Death PenaltyPosted: November 15, 2018
As Witness to Innocence (WTI), an organization of U.S. death-row exonerees and their families, prepared to mark its 15th anniversary on November 15, 2018, two of the country’s most prominent exonerees—WTI’s acting director, Kirk Bloodsworth (pictured, left), and its board chair, Kwame Ajamu (pictured, right)—called for an end to the death penalty in the United States. In an op-ed in the Philadelphia Inquirer, the two exonerees told the stories of their wrongful convictions and death sentences and highlighted the problem of wrongful capital convictions across the U.S.
After having spent eight years in prison in Maryland, Bloodsworth became the first capitally-convicted person in the world to be exonerated by DNA evidence. Prosecutors had withheld exculpatory evidence in his case and police had used unreliable interrogation techniques and a commercial “identi-kit” in getting two young boys to misidentify Bloodsworth as the person who raped and murdered a young girl. Kwame Ajamu spent 28 years in prison in Ohio, including three on death row, because police coerced a 13-year-old boy to falsely identify him, his brother, and one of their friends. It took 39 years before he was finally exonerated.
Ajamu’s and Bloodsworth’s op-ed also draws attention to the stories of the other 162 wrongfully convicted and death-sentenced men and women who have been exonerated in the U.S. since 1973. "Based on the empirical data and our own life experiences, we believe it is time to end capital punishment across the U.S.," they write. "Some people support capital punishment in theory, but in practice, it is too broken to be fixed. We need to get the death penalty right every time, and we don't. If it can happen to us, it can happen to anyone."
In connection with the anniversary, WTI also live-streamed a news conference themed From Death Row to Life, Liberty, & the Pursuit of Justice. The event featured more than twenty death-row exonerees, Philadelphia District Attorney Larry Krasner, Innocence Project co-founder Barry Scheck, death-penalty activist Sister Helen Prejean, DPIC Executive Director Robert Dunham, and others. In conjunction with the anniversary. WTI also announced the launching of a new project, Accuracy & Justice Workshops, which are intended to bring exonerees and criminal justice professionals together to work on reducing wrongful convictions. As part of that project, WTI will be conducting a series of training workshops with prosecutors from the Philadelphia District Attorney’s office in December.
“Often Forgotten” in the Wake of Exonerations, Wrongful Convictions Harm Murder Victims’ Families, TooPosted: November 14, 2018
In a feature article in Politico, Lara Bazelon, an associate professor at the University of San Francisco School of Law and author of the new book, Rectify: The Power of Restorative Justice After Wrongful Conviction, describes an exoneration as “an earthquake [that] leaves upheaval and ruin in its wake.” Exonerees, she writes, “suffer horribly—both physically and mentally—in prison” and are revictimized following their release, “leav[ing] prison with no ready access to services or a support system that can help them re-acclimate to society.” But wrongful convictions that lead to exonerations have other, “often forgotten” victims, too: the family members of the crime victim. Victims’ family members, Bazelon writes, are “forced to relive the worst experience of their lives with the knowledge that the actual perpetrator was never caught, or caught far too late, after victimizing more people.”
Bazelon’s article highlights the experience of these family members, telling the story of Christy Sheppard (pictured), whose cousin, Debbie Lee Carter, was murdered in Oklahoma when Christy was eight years old. Ron Williamson and Dennis Fritz were convicted of the murder; Williamson was sentenced to death and Fritz to life without parole. Eleven years later, when Williamson and Fritz were exonerated, it shook Sheppard and her family. The tremors from that wrongful conviction transformed the family’s perception of the criminal justice system and turned Sheppard into an advocate for criminal justice reform. In 2013, Sheppard participated in a panel discussion at the annual conference of the Innocence Project. There, she appeared with Jennifer Thompson, a rape survivor who had misidentified her rapist, then later co-authored a book with the man who had been wrongfully convicted of her attack. Sheppard said that Thompson voiced the same sense of “re-victimization and not being included” that she and her family had felt. After the conference, Sheppard came to view the experiences of exonerees and crime victims as “completely different but also the same. ...We have all been lied to, mistreated, and not counted.”
Sheppard later wrote an op-ed about the innocence claims of another Oklahoma death-row prisoner, Richard Glossip. “[The victim] and his family deserve justice,” she wrote, “but justice won’t be served if Glossip is put to death and we find out too late that he is innocent of this crime.” She was one of eleven members of the Oklahoma Death Penalty Review Commission, and the only member who was neither a lawyer nor a politician. As a member of the commission, she sought to challenge the idea that the death penalty was the only way for her family to be given justice. She has since spoken about her experiences on local and national media, testified before the Ohio Senate in support of a bill to ban the execution of people with mental illness, and campaigned for death penalty repeal in Nebraska. “I know these cases are not about the truth,” Sheppard told Bazelon. “It is politics; it is a game where people are moved around and played. It is not fair and it is not balanced.”
United Nations human rights officials have urged the government of the United States to halt the imminent execution of a Mexican national who was tried and sentenced to death in Texas in violation of U.S. treaty obligations. Texas is scheduled to execute Roberto Moreno Ramos (pictured) on November 14, in an action an international human rights court has said would violate the Vienna Convention on Consular Relations. Agnes Callamard, the U.N. Human Rights Council’s Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, and Seong-Phil Hong, the Chair-Rapporteur of the Council’s Working Group on Arbitrary Detention, cautioned that “[a]ny death sentence carried out in contravention of a Government’s international obligations amounts to an arbitrary execution.” The human rights experts called for Ramos's death sentence “to be annulled and for [him] to be re-tried in compliance with due process and international fair trial standards.”
The International Court of Justice ruled in 2004 that the United States had breached its treaty obligations under the Vienna Convention on Consular Relations by allowing states to impose death sentences on fifty-two foreign nationals—including Ramos—without permitting them to notify their governments and obtain consular assistance in preparation for trial. Under the Vienna Convention, individuals arrested outside their home country must be notified of their right to request legal assistance from their consulate. Ramos, a Mexican citizen, was not notified of this right and, his current lawyers allege, received “abysmal” legal representation as a result. Although Ramos requested a lawyer, no one was appointed to defend him until three months after his arrest. During the punishment phase of his trial, his appointed counsel did not cross-examine prosecution witnesses, presented no mitigating evidence, and did not even ask the jury to reject a death sentence. Ramos’s appellate lawyers argue that a competent attorney could have presented mitigating evidence of Ramos’s abusive childhood, brain dysfunction, bipolar disorder, and low IQ and that, if he had received the legal assistance that the Mexican government offers in capital cases, the outcome of his case would have been different. In their statement, the U.N. experts said that international human rights standards prohibit applying the death penalty to individuals like Ramos with serious mental health and intellectual impairments. Executing him, they said, would violate those international human rights norms.
In 2005, President George W. Bush declared that “the United States will discharge its international obligations under the decision of the International Court of Justice” and issued an executive order directing the state courts to review the cases. They did not. In Medellin v. Texas, a case brought by another of the prisoners whose Vienna Convention rights Texas had violated, the U.S. Supreme Court ruled that the President lacks constitutional authority to direct states courts to comply with a ruling from the International Court of Justice. It also ruled that the treaty was not binding on U.S. states absent legislation from Congress requiring state compliance. Medellin was subsequently executed. In November 2017, Texas also executed Mexican national Ruben Ramírez Cárdenas in violation of U.S. treaty obligations. If Ramos is executed, he will be the 21st person executed in the U.S. in 2018, and the 11th in Texas.
As Americans become increasingly aware of the role of combat trauma in the development of Post-Traumatic Stress Disorder (PTSD) and other mental health disorders, the shift in public perceptions towards veterans suffering from these disorders has played out in the courts in recent death penalty cases. In 2018, at least four military veterans facing death sentences have instead been sentenced to life in prison, and another two veterans won relief in their death-penalty cases. One military veteran has been executed so far this year.
In January, retired Marine Corps Lieutenant General John Castellaw (pictured) wrote in support of exempting mentally ill veterans from capital punishment, saying, "we can do better at recognizing the invisible wounds that some of our veterans still carry while ensuring they get the treatment that they deserve and that we owe them for their sacrifice. ...[W]e can do better by staying tough on crime but becoming smarter on sentencing those whose actions are impacted by severe mental illness." Prosecutors and juries in Indiana, Florida, Colorado, and Virginia have considered the military service and service-related disorders of murder defendants and determined that life sentences were more appropriate than the death penalty. In the Virginia trial of Iraq war veteran Ronald Hamilton, his attorneys presented evidence that he had been a model soldier who had saved the life of a fellow serviceman, but faced PTSD-related disorders and a deteriorating family life when he returned home. At Glen Law Galloway's trial in Colorado, Denver public defender Daniel King presented four days of testimony about Galloway’s character and background, including how the former Army veteran “snapped” following the collapse of his relationship with his girlfriend. King argued, “Mr. Galloway is not just the worst thing that he’s done. He’s committed many acts of kindness, friendship, service, love and duty.” In May, prosecutors withdrew the death penalty in exchange for guilty pleas in two unrelated cases involving military veterans Darren Vann in Indiana and Esteban Santiago in Florida. Santiago faced federal charges for a mass shooting, but prosecutors agreed to a plea deal because Santiago, an Iraq war veteran, suffers from schizophrenia and auditory hallucinations, had unsuccessfully sought treatment and assistance from the Veterans Administration, and had been committed to a mental hospital because of the seriousness of his mental illness.
Two death-sentenced prisoners were granted relief this year as a result of failures by their defense counsel to investigate and present mitigating evidence related to their military service and their service-related mental health disorders. Andrew Witt, an air force veteran who had been on U.S. military death row, received a life sentence after a court found his attorneys ineffective for failing to present mitigating evidence that he had suffered a traumatic brain injury. Robert Fisher's death sentence was reversed by a Pennsylvania federal court in part because his lawyer did not investigate or present evidence related to his service in Vietnam. Fisher was a Purple Heart recipient who struggled with brain damage, drug abuse, and mental health problems after his service.
On July 18, Ohio executed Robert Van Hook, an honorably discharged veteran who was suffering from long-term effects of physical and sexual abuse as a child and untreated mental health issues at the time of the offense. Van Hook had been unable to obtain care for his mental health and addiction issues from veterans service agencies after his discharge.
A 2015 report by the Death Penalty Information Center, Battle Scars: Military Veterans and the Death Penalty, estimated that approximately 300 veterans are on death row across the United States, many suffering from mental illness caused or exacerbated by their military service.