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Supreme Court To Review Lethal-Injection Case of Condemned Prisoner with Rare Congenital Disease

Posted: April 30, 2018

The U.S. Supreme Court has granted review in the case of Missouri death-row prisoner Russell Bucklew, who has argued that the severe form of a rare congenital disorder from which he suffers makes it unconstitutionally cruel for him to be executed by lethal injection. Bucklew has an extreme form of cavernous hemangioma, a malformation of his blood vessels that causes blood-filled tumors to grow in his head, neck, and throat. The tumors, he has argued, are likely to rupture during the lethal-injection process, resulting in an excruciatingly painful execution during which he would choke on his own blood. Bucklew proposed as an alternative that the state execute him using nitrogen gas. Missouri has twice set execution dates for Bucklew while he has been challenging its execution method—once in May 2014 and again in March 2018. In both instances, the Supreme Court intervened, issuing stays of execution that permitted further court proceedings in his case. The first stay permitted the U.S. Court of Appeals for the Eighth Circuit to hear and decide Bucklew's appeal from a Missouri federal district court ruling that had dismissed his lethal-injection challenge without an evidentiary hearing. After considering the appeal, the Eighth Circuit reversed the district court decision and ruled that Bucklew was entitled to move forward with his lawsuit. In an attempt to develop facts relating to how risky his execution would be, Bucklew filed a series of discovery requests—each opposed by Missouri prosecutors—seeking information about the qualifications of the execution team members. The court denied each of Bucklew's requests. The district court accepted Bucklew's argument that lethal injection carried a substantial risk that he would choke and be unable to breathe for up to four minutes before dying. Nonethless, in June 2017, it again dismissed his case, again without holding a trial, saying that Bucklew had not shown that nitrogen gas would significantly reduce his suffering during the execution. Bucklew appealed, but while the appeal was pending, the state obtained a second execution date, this time for March 20, 2018. On March 6, a split appeals court panel voted 2-1 to affirm the lower court. Hours before the execution was to be carried out, the Supreme Court issued a second stay of execution to give itself more time to decide whether to hear Bucklew's case. On April 30, the Court accepted the case for review. In addition to the questions Bucklew had raised, the Court ordered the parties to address whether Bucklew had met his burden under the Court's 2015 lethal-injection decision in Glossip v. Gross "to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State's method of execution." The Glossip decision requires a prisoner who challenges the constitutionality of a method of execution to show not only that the state's method of execution will create a substantial risk of severe pain, but also that a feasible and readily available alternative exists that significantly reduces that risk. This is the first time that the Supreme Court has granted review in a case involving lethal-injection procedures since it decided Glossip.

 

New Hampshire Legislature Passes Death-Penalty Repeal Bill, But More Votes Needed to Override Threatened Veto

Posted: April 30, 2018

The New Hampshire state legislature has voted to repeal the state’s death penalty, but proponents of the bill currently lack the votes necessary to overcome a threatened gubernatorial veto. On April 26, the New Hampshire House of Representatives voted 223-116 to pass Senate Bill 593, with 145 Democrats, 77 Republicans, and one Libertarian supporting repeal. The state senate previously approved the measure 14-10 on March 15, with support from eight Democrats and six Republicans. “What you’ve seen this year is an expression of bipartisan support for repeal,” said State Rep. Renny Cushing, a co-sponsor of the bill and a leading anti-death penalty advocate. “New Hampshire is ready to abolish the death penalty.” Governor Chris Sununu, a Republican, has said he will veto the bill. In a statement issued in February and repeated after the vote, Sununu said he “stand[s] with crime victims, members of the law enforcement community, and advocates for justice in opposing a repeal of the death penalty.” Characterizing “strengthen[ing] laws for crime victims and their families” as a “top priority” of his administration, Sununu said repeal “sends us in exactly the wrong direction ... There is no doubt that the most heinous crimes warrant the death penalty.” Rep. Richard O’Leary, a former deputy police chief in Manchester, said he voted for the bill because “I don’t believe we have the right under any circumstances, except immediate self-defense, to take a life. Once the criminal has been subdued, arrested, segregated from society and rendered defenseless, I cannot see where the state has any compelling interest in executing him. It’s simply wrong,” he said. Cushing, who has lost both his father and his brother-in-law to murder in unrelated incidents, said the bill’s supporters ‘‘are very close” to getting the votes necessary to override the anticipated veto. ‘‘New Hampshire values civil liberties, it values human rights,” Cushing said. “New Hampshire can live without the death penalty.” New Hampshire has come close to abolishing capital punishment several times. Both houses of the legislature voted to repeal the death penalty in 2000, but Governor Jeanne Shaheen, a Democrat, vetoed the bill. The state House also passed a repeal bill in 2014, which Gov. Maggie Hassan said she would sign. But the bill failed on a tie vote of 12-12 in the state senate.

 

From Slavery to the Death Penalty: New Museum and Memorial for Peace and Justice Open in Montgomery, Alabama

Posted: April 27, 2018

On April 26, 2018, the Equal Justice Initiative (EJI) opened the Memorial for Peace and Justice and its accompanying Legacy Museum, which tell the stories of the more than 4,000 men, women, and children killed by racial terror lynchings in the century following the Civil War, and trace the connections between slavery, segregation, capital punishment, and mass incarceration. The opening drew thousands of visitors from across the country, theatrical headliners, and a host of civil rights legends—including Congressman John Lewis and the surviving plaintiffs and lawyer who brought the lawsuit that ended segregated seating on public buses. The memorial and museum arose out of the criminal defense work of the Equal Justice Initiative and its founder, Bryan Stevenson, first representing indigent prisoners on Alabama’s death row and later expanding to fight juvenile life sentences and other manifestations of mass incarceration. Stevenson said, “It really springs from that experience of representing people in courts and beginning to see the limits of how committed our courts are to eradicating discrimination and bias. I want to get to the point where we experience something more like freedom. … I don’t think we are going to get there until we create a new consciousness about our history.” EJI’s research on lynchings, including the 2015 report, Lynching in America: Confronting the Legacy of Racial Terror, shows a clear link between lynchings and the death penalty. Counties and regions that today carry out the most executions are the same places in which lynchings were most likely to take place, and the ongoing racial bias in the application of the death penalty reflects the legacy of racial terror lynchings. “[I] believe that capital punishment is the stepchild of lynching,” Stevenson said. “It was disproportionately used against people of color; it still continues to be shaped primarily by race.” As America’s global allies pressured the country to end lynchings after World War II, Stevens said, “lynchings moved inside. We still executed mostly black people after proceedings that were unreliable and unfair. We promised ‘swift justice,’ which was intended to be the same thing as lynching without the spectacle, without the optic, without the mob.” Stevenson said he was motivated to create the memorial and museum because a discussion of the past is necessary to create a more just and equal society. “We haven’t created spaces in this country that tell the history of racial inequality, of slavery, of lynching, of segregation that motivate people to say, ‘Never again,’” he said.

 

DPIC Study Shows 97% of Prisoners Who Overturn Pennsylvania Death Sentences Are Not Resentenced to Death

Posted: April 26, 2018

In Pennsylvania, death-row prisoners whose convictions or death sentences are overturned in state or federal post-conviction appeals are almost never resentenced to death, a new Death Penalty Information Center study has revealed. Since Pennsylvania adopted its current death-penalty statute in September 1978, post-conviction courts have reversed prisoners' capital convictions or death sentences in 170 cases. Defendants have faced capital retrials or resentencings in 137 of those cases, and 133 times—in more than 97% of the cases—they received non-capital dispositions ranging from life without parole to exoneration. Only four prisoners whose death sentences were reversed in post-conviction proceedings remain on death row. Philadelphia cases accounted for more than half of the post-conviction reversals (86 cases) and 54% of the non-capital case dispositions (72 cases). DPIC reviewed all of the cases in which Pennsylvania death-row prisoners have won post-conviction relief. Contrary to the often-expressed perception that most death-penalty reversals occur in federal courts, state courts reversed twice as many Pennsylvania capital convictions or death sentences as did their federal counterparts. Pennsylvania death-row prisoners obtained state post-conviction relief from their convictions or death sentences—and, in some instances, both—in 116 cases. State courts granted 18 post-conviction petitioners new trials and vacated 108 death sentences. Of the vacated sentences, the state courts granted 91 new sentencing hearings, and declared prisoners constitutionally ineligible for the death penalty in 17 cases. Life sentences were imposed in fifteen cases as a result of a prisoner's intellectual disability and in two cases because the prisoner had been younger than age 18 at the time of the offense. Federal courts granted Pennsylvania capital habeas corpus petitioners relief from their convictions and/or death sentences in 58 cases, awarding new trials in 24 cases and new sentencing hearings in 44. Three death-row prisoners who were granted penalty-phase relief in state court later overturned their convictions in federal court. One prisoner who was granted a new penalty-phase trial by the federal courts also overturned his conviction after the case was remanded back to the state courts. The DPIC study found that 86% of the reversed death-penalty cases  concluded with a non-capital resentencing to life without parole. Those included 89 cases resulting from sentencing pleas or prosecutorial decisions to drop the death penalty, 12 capital sentencing retrials that resulted in life sentences, and the 17 cases in which defendants were declared constitutionally ineligible to face the death penalty. Two formerly death-sentenced prisoners—Nicholas Yarris and Harold Wilson—were exonerated, and a third, Frederick Thomas, died on death row while Philadelphia prosecutors appealed a trial judges' ruling that new evidence presented in the post-conviction proceedings established that no jury would have convicted him. Thirteen prisoners—including several widely considered to be innocent—pled guilty or no contest to lesser murder charges and were sentenced to time served or to terms of years. Six have completed their sentences and two others have been released on parole. The DPIC study found that the odds were 33.25 to 1 against a prisoner who won post-conviction relief remaining on death row. Six defendants were resentenced to death, but two of those death sentences were later overturned and the defendant resentenced to life without parole. The remaining four death sentences are still on appeal. Calling Pennsylvania's death-penalty system "riddled with flaws, ...error prone, expensive, and anything but infallible," Govenor Tom Wolf in February 2015 imposed a moratorium on executions in the Commonwealth. The state has not carried out an execution since 1999.

 

Powerful New Documentaries Explore Death-Penalty Issues

Posted: April 25, 2018

Three powerful new documentaries that explore the modern death penalty in the United States are set to premiere this April. Oscar-winning actress Viola Davis and Julius Tennon are executive producers of The Last Defense, a new documentary series premiering for the first time at the 2018 Tribeca Film Festival on April 27. The seven-episode documentary series exposes flaws in the U.S. justice system through the personal narratives of death row prisoners Darlie Routier and Julius Jones, both whom maintain their innocence, and premieres June 12 on ABC. On April 30, PBS will air the television premiere of Jamie Meltzer's documentary True Conviction, which follows the detective agency started by Christopher Scott, the late Johnnie Lindsey, and Steven Phill—three wrongly convicted Dallas men who were exonerated after spending a combined 60 years in prison—as they work to attempt to free death-sentenced Max Soffar and other wrongly convicted prisoners. Barry Scheck and Peter Neufeld, co-founders and co-directors of the Innocence Project have hailed the film as "unprecedented" in its approach, "focusing on the experiences of a group of exonerees who are themselves learning to investigate" and "highlight[ing] the challenges and roadblocks of investigating and proving another man’s innocence." The film premiered at the 2017 Tribeca Film Festival and was awarded a Special Jury Mention in the Best Documentary Category. On April 11, the American University School of Communications premiered excerpts of another documentary film, In the Executioner's Shadow, produced by AU professors Maggie Burnette Stogner and Richard Stack. That documentary weaves the intersecting stories of Vicki and Syl Scheiber, whose daughter was murdered, Boston Marathon bombing survivor Karen Brassard, and former Virginia state executioner Jerry Givens, who had carried out 62 executions, as they grapple with moral and personal issues arising from their involvement in capital punishment. In a panel discussion moderated by the producers, Diann Rust-Tierney, Executive Director of the National Coalition to Abolish the Death Penalty, joined the film's protagonists in discussing those issues. Stack is a former public defender and author of two books on the death penalty Dead Wrong: Violence, Vengeance, and the Victims of Capital Punishment and Grave Injustice: Unearthing Wrongful Executions. He said he hopes the film will spark dialogue on the complex subject. "We've discovered through our various interviews that one side talks past the other. It's a mutual predicament. And we're trying to get people to talk to each other," Stack said. Following a screening of the first hour of the Julius Jones case in The Last Defense, the producers will lead a panel discussion with death-penalty lawyer Dale Baich.

 

In Georgia Death-Penalty Case, Supreme Court Rebuffs Effort to Further Limit Habeas Corpus Review

Posted: April 24, 2018

In a decision most significant for what it declined to do, the U.S. Supreme Court has rebuffed efforts by state prosecutors to further limit the scope of federal habeas corpus review of state criminal cases. In a 6-3 vote with Justice Breyer writing for the majority, the U.S. Supreme Court ruled in favor of Georgia death-row prisoner Marion Wilson (pictured), saying that he was entitled to federal-court review of the reasons why the Georgia state courts had rejected his claim that he had been provided ineffective penalty-phase representation. Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, dissented. The Court reversed a decision of the U.S. Court of Appeals for the Eleventh Circuit that had denied Wilson's ineffective assistance claim based upon speculation as to why the state appeals court—which had issued only a one-sentence decision—had earlier denied the claim, rather than considering the reasons the trial court had actually done so. The technical legal issue in the case was how a federal court should handle a habeas corpus case filed by a state prisoner when the state appellate court, without explanation, summarily affirmed a reasoned lower-court ruling against the prisoner. Wilson had been sentenced to death in Baldwin County, Georgia in 1997. In his state post-conviction proceedings, he alleged that he had been denied the effective assistance of counsel in his penalty-phase proceedings when his lawyer failed to investigate and present available mitigating evidence that could have spared his life. The state post-conviction court conducted an evidentiary hearing, after which it denied relief, issuing a written order that explained the court's reasoning. Wilson then asked the Georgia Supreme Court for permission to appeal the order but the court summarily turned him down saying only that "it be hereby denied." Wilson next filed a habeas corpus petition asking the federal courts to review his ineffective assistance of counsel claim, arguing that, under the federal habeas statute, he was entitled to relief because the state court had unreasonably determined the facts and unreasonably applied the law when it rejected his claim. The federal district court agreed that Wilson had been ineffectively represented, but ruled against him nonetheless, deferring to the state court's conclusion that his trial counsel's failures had not been prejudicial. In an opinion that would have created a nearly insurmountable bar for a habeas petitioner to meet, the Eleventh Circuit held that federal courts should "not 'look through' a summary decision on the merits to review the reasoning of the lower state court," but should limit their review to whether any possible rationale could support the state appeals court judgment. The Supreme Court disagreed. Rather than adopting "an approach ... that would require a federal habeas court to imagine what might have been the state court’s supportive reasoning," Justice Breyer said that the habeas court should "look through" an unexplained state court decision on the merits and "presume that the unexplained decision adopted the same reasoning" as that employed by the lower court. That presumption, he wrote, may be rebutted if the state is able to show that the unexplained decision most likely rested on other grounds. The Court returned Wilson's case to the Eleventh Circuit with instructions to review his ineffectiveness claim under the correct standard. The ruling is the second time this Term the Court has sided with death-row prisoners on procedural issues affecting access to federal review of their cases. In March, the Court issued a ruling preserving indigent death-row prisoners' access to investigative funds "reasonably necessary" to develop their habeas corpus claims, overturning a ruling by the Fifth Circuit that had required habeas petitioners to meet a harsher standard.

 

South Dakota Takes Death Penalty Off Table At Victim’s Family’s Request

Posted: April 23, 2018

At the urging of the victim’s family, Rapid City, South Dakota prosecutors have withdrawn their request for the death penalty against two murder defendants in the only capital trials pending in the state. On April 16, Pennington County State’s Attorney Mark Vargo withdrew the state’s notice of intent to seek the death penalty against Jonathon Klinetobein—charged with arranging the May 2015 murder-for-hire of his ex-girlfriend, Jessica Rehfeld—after her father, Michael Rehfeld told the court the family no longer wanted the death penalty to be imposed. On April 19, prosecutors also withdrew their notice of intent against a second defendant, Richard Hirth, the accused killer. A third defendant pleaded guilty to the murder in January in exchange for receiving a life sentence. Mr. Rehfeld said that he had been “consumed with anger” at the time the capital charges were initially sought and that he had “fully supported” that decision. However, he said, with time, he had reconsidered his position. Mr. Rehfeld said the lengthy appeal process following the imposition of a death sentence in the case would keep his daughter’s killers in the news, permitting “the guilty to become famous,” as a prolonged traumatic courtroom saga that relegated his daughter to a sidelight prevented the family from healing. He also said that the family would be unable to recover his daughter’s personal belongings—including a cellphone with the last pictures taken of her—as long as the case remained on appeal. Klinetobein and Hirth now face life without parole if convicted. Victims’ family members, concerned that the capital trial and appeals process interferes with or delays healing, are increasingly requesting that prosecutors not pursue the death penalty. A University of Minnesota study found that just 2.5% of victims family members reported achieving closure as a result of capital punishment, while 20.1% said the execution did not help them heal. Another study, published in the Marquette Law Review, found that family members in homicide proceedings in which the death penalty was unavailable or had not been imposed were physically, psychologically, and emotionally more healthy and expressed greater satisfaction with the legal system than family members in death-penalty cases. Pennington County Commission Chairman Lloyd LaCroix said the decision to withdraw the death penalty would save the county money, although he was uncertain how much. In September 2017, the commissioners granted requests by the county courts and the public defender’s office for half-million-dollar increases to their 2018 budgets. The director of the public defender’s office had previously estimated that taxpayers could "reasonably expect" to pay between $500,000 and $1 million in prosecution and defense costs for the cases. Rapid City last imposed a death sentence in 1993. Charles Rhines' appeals in that case reached the U.S. Supreme Court before being sent back for additional appeals that are still in progress.

 

Aging of Death Row Raises Humanitarian and Practical Concerns, As Alabama Executes 83-Year Old Prisoner

Posted: April 20, 2018

Death row is aging and increasingly infirm and, as a series of recent death warrants suggest, that phenomenon is raising legal, practical, and humanitarian concerns. One year after executing 75-year-old Thomas ArthurAlabama on April 19 executed 83-year-old Walter Moody (pictured, left), the oldest person and only octogenarian put to death in the United States since executions resumed in 1977. Attempts to execute prisoners debilitated by physical and cognitive impairments exacerbated by aging have proven problematic and inhumane. After canceling his previously scheduled cancer surgery to issue a death warrant, Alabama failed for 2 1/2 hours to set an intravenous line to execute gravely ill 61-year-old Doyle Hamm on February 22. His lawyer moved to bar the state from trying a second time, describing the failed attempt as "torture." Ohio tried and failed to execute terminally ill 69-year-old Alva Campbell (pictured, center) in November 2017. He then died of his terminal illness on March 3. And in late January 2018, the U.S. Supreme Court halted Alabama's scheduled execution of 67-year-old Vernon Madison (pictured, right), who is legally blind, incontinent, and unable to walk independently, and suffers from vascular dementia caused by strokes that have left him with no memory of the offense for which he was sentenced to death. The Court on February 26 agreed to review his claim that his illness leaves him mentally incompetent to be executed. A Washington Post review of Department of Justice data reported that the percentage of death-row prisoners aged sixty or older has more than doubled this century, up from 5.8 percent of U.S. death rows in 2007 to 12.2 percent in 2013. The aging of the row has also affected executions. An Associated Press review of the Death Penalty Information Center execution database found that the median age of an executed prisoner in the U.S. rose from 34 to 46 between 1983 and 2017. A DPIC analysis of U.S. execution data found that only two of the 933 prisoners executed in the United States between 1977 and 2004 were aged 65 or older. That total was matched in a single 35-day period this year between March 15 and April 19, when Georgia executed 67-year-old Carlton Gary and Alabama executed Mr. Moody. In 23 years of executions between 1977 and the close of the 20th century, ten prisoners aged 60 or older were executed. Thirty-six have already been executed this decade, 13 since 2015 alone. The aging of death row raises humanitarian issues, separate and apart from the risk of botched executions. Speaking to Associated Press, DPIC Executive Director Robert Dunham noted that, while many of the prisoners facing execution have been convicted of terrible crimes, the public is "torn between wanting to punish [them] severely and the belief it is beneath us as a nation to kill a frail person who is already dying. It’s a challenge to our morality and our sense of humanity,” Dunham said. The attempts to execute the infirm also have attracted international attention and approbation. When Alabama sought to execute Madison, David O'Sullivan, the European Union's Ambassador to the United States, wrote "an urgent humanitarian appeal" to Alabama Governor Kay Ivey not to execute him. The Ambassador's letter reminded Alabama that "[t]he execution of persons suffering from any mental illness or having an intellectual disability is in contradiction to the minimum standards of human rights, as set forth in several international human rights instruments." When Ohio sought to execute Campbell, his lawyer, assistant federal defender David Stebbins, predicted that the execution could become a “spectacle” if prison staff were unable to find a suitable vein. “All of this in an attempt to execute an old and frail man who is no longer a threat to anyone,” Stebbins said. In a statement that applies to more and more prisoners facing death warrants, Madison’s lawyer, Bryan Stevenson of the Equal Justice Initiative, summed up the issue: “Killing a fragile man suffering from dementia," he said, "is unnecessary and cruel.”

 

Professor John Bessler Traces Italian Philosopher's Abolitionist Legacy in New Book and Article

Posted: April 19, 2018

In 1764, Italian philosopher Cesare Beccaria wrote the treatise, Dei delitti e delle pene, which author John Bessler (pictured) says spawned global movements for fair and proportional punishment and against practices such as torture and the death penalty. Beccaria’s book was a best-seller that swept across Europe and, translated into English in 1767 as An Essay on Crimes and Punishments, into the American colonies, shaping the beliefs of America’s founding fathers, and influencing leaders, revolutionaries, and law reformers. In two recent publications, Bessler—a law professor and author of numerous books on the death penalty—traces the lasting influence of the 18th-century Italian nobleman and describes how Beccaria’s advocacy of equal treatment under the law and his powerful opposition to torture and the death penalty remains relevant today and has inspired an international movement that, he says, now “involv[es] scores of highly respected anti-death penalty activists and organizations.” Bessler’s latest book, The Celebrated Marquis, takes its title from a compliment given to Beccaria by the delegates of the Continental Congress. In it, Bessler describes how Beccaria’s ideals have taken root in the U.S. and shaped progressive criminal justice reforms across a span of 250 years. His article, The Abolitionist Movement Comes of Age, published in the winter 2018 issue of the Montana Law Review, chronicles Beccaria’s historical impact on efforts to abolish the death penalty across the globe. “There was a time when death sentences and executions were almost universally embraced throughout the world and when the punishment of death was the mandatory punishment for a wide array of felonies,” Bessler writes. “That has largely changed, with those changes in law and practice taking place in many nations.” The death-penalty debate, he writes, has transformed over the centuries “from one that originally focused on absolute power, the divine right of kings, and the asserted right of monarchs to take human life with impunity, to one focused on whether it violates basic or fundamental human rights for the state to kill individual offenders.” Comparing it to the anti-slavery movement in the 19th century, Bessler says “today’s global anti-death penalty movement ... has finally come into its own on the international stage.” Looking forward, he says, one can see a day in the not too distant future in which there is a peremptory international norm against executions and the death penalty itself joins torture as a prohibited international practice.

 

Vicente Benavides, Sentenced to Death by False Forensics, to Be Freed After 26 Years on Death Row

Posted: April 18, 2018

Mexican national Vicente Figueroa Benavides (pictured), wrongly convicted and sentenced to death in Kern County, California for supposedly raping, sodomizing, and murdering his girlfriend’s 21-month-old daughter, will soon be freed after nearly 26 years on death row. He will be the 162nd person and fifth foreign national exonerated from a U.S. death row since 1973. In a media advisory on April 17, 2018, Kern District Attorney Lisa Green announced on April 17, 2018 that her office would be dropping all charges against Benavides, one month after the California Supreme Court vacated the former farmworker’s convictions for sexually assaulting and murdering Consuelo Verdugo, which the court called a product of “extensive,” “pervasive,” “impactful,” and “false” forensic testimony. The girl, the court said, had never been sexually assaulted and may actually have died from being hit by a car. At trial, the prosecution presented testimony from forensic pathologist Dr. James Diblin, who told the jury that Consuelo had died from “blunt force penetrating injury of the anus” and claimed that many of her internal injuries were the result of rape. He further testified that arm injuries, other internal trauma, dilated pupils, and compression rib fractures she had sustained had been “caused by tight squeezing during a sexual assault.” During post-conviction proceedings, Benavides’s lawyers presented evidence from Dr. Astrid Heger, one of the country’s leading experts on child abuse, debunking Diblin’s false testimony. Dr. Heger described Diblin’s assertion that Consuelo’s injuries had been the product of sexual assault as “so unlikely to the point of being absurd. … No such mechanism of injury has ever been reported in any literature of child abuse or child assault.” Rather, she said, the internal injuries Consuelo sustained were commonly seen in victims of automobile accidents. Hospital records and witness statements obtained by Benavides’s appeal lawyers also undermined Diblin’s false testimony. Records showed that the examining physicians from Consuelo’s initial hospitalization had not seen any signs of bleeding when she was brought to the emergency room, and a nurse who helped treat Consuelo reported that neither she nor any of her colleagues had seen evidence of anal or vaginal trauma when the child arrived. Indeed, the court said, the medical records showed that the injuries to Consuelo’s genitalia and anus that Diblin had claimed were evidence of sexual assault were actually “attribut[able] to medical intervention,” including repeated failed efforts to insert a catheter and the improper use of an adult-sized catheter on the small child. Associate Justice Carol Corrigan—a former prosecutor—described the forensic testimony that Benavides had brutally raped and anally sodomized Consuelo as “among the most hair-raising false evidence that I’ve encountered in all the time that I’ve been looking at criminal cases.” On appeal, prosecutors admitted that the forensic evidence they used to convict Benavides was false, but asked the state court to sustain a conviction for second-degree murder. Even after agreeing on April 17, 2018 to drop all charges, District Attorney Green refused to concede that Benavides was innocent of murder. “[I]t doesn’t mean he’s innocent of the physical child abuse,” she said. “My decision not to retry the case is not the same as a finding of factual innocence[.] I'm not stating in any way that he’s factually innocent of the death of the child.” 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. Benavides is the fourth person exonerated from California’s death row since 1980. A California prison spokesperson said he is expected the be freed “within a few days,” as soon as the Kern County court orders his release. [UPDATE: The court formally dismissed all charges against Mr. Benavides and he was released on April 19, 2018.]

 

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