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Federal Judge Grants New Trial to Barry Jones Based on Evidence Suggesting His Innocence

Posted: August 3, 2018

A federal district court has vacated the murder conviction of Arizona death-row prisoner Barry Jones (pictured) in the death of 4-year-old Rachel Gray, and has ordered the state to immediately retry or release Jones. On July 31, 2018, U.S. District Judge Timothy Burgess granted a new trial to Jones, who has spent 23 years on Arizona’s death row, finding that if Jones had been competently represented at trial, “there is a reasonable probability that his jury would not have convicted him of any of the crimes with which he was charged and previously convicted.” Jones has consistently maintained his innocence. Jones’s case was tainted by what Judge Burgess called a “rush to judgment” by police investigators. His conviction was based largely on questionable eyewitness testimony from two 8-year-olds, combined with unreliable forensic testimony. A medical examiner who testified against Jones later gave contradictory testimony about the timing of the victim’s fatal injury that would have ruled out Jones as a suspect. Police failed to investigate evidence pointing to other suspects, and Jones’s defense team failed to examine alternative theories of the crime. Jones was also convicted of raping Gray, despite the lack of any evidence that the alleged rape occurred at the time she sustained her fatal abdominal injury. Judge Burgess found that both Jones’s trial lawyer and the lawyer Arizona appointed to represent him in his state post-conviction proceedings were ineffective, and that both failed to conduct professionally appropriate investigations into the case. He wrote that trial counsel “failed to perform an adequate pretrial investigation, leading to his failure to uncover key medical evidence that Rachel’s injuries were not sustained on May 1, 1994”—the day the prosecution said Jones raped and killed her—and unreasonably “fail[ed] to impeach the state’s other physical and eyewitness testimony.” Sylvia Lett, Jones’s former appellate attorney, summarized the judge’s findings, saying, “He saw the state’s investigation for what it was, which was shoddy, the defense investigation for what it was, which was nonexistent, and he said, ‘That’s not fair.’ And that’s how it’s supposed to work.” A decade ago, the federal courts would have considered Jones’s ineffective assistance claim waived because of his prior lawyers’ failures to raise it in state court, and Jones likely would have been executed. However, in 2012 in Martinez v. Ryan, the U.S. Supreme Court ruled that federal habeas corpus courts may review a state prisoner’s claim that his trial lawyer was ineffective if the failure to raise the claim in state court resulted from additional ineffective representation by his state post-conviction lawyer. The federal courts had originally refused to hear Jones’s claim, but after Martinez was decided, the U.S. Court of Appeals for the Ninth Circuit sent the case back to the district court for further consideration.

 

Pope Francis Formally Changes Catholic Church Stance on Death Penalty, Calling It “Inadmissible”

Posted: August 2, 2018

Pope Francis (pictured) has formally changed the official Catholic Church teaching on the death penalty, calling capital punishment “an attack on the inviolability and dignity of the person” and deeming it “inadmissible" in all cases. The Vatican's August 2, 2018 announcement that it had revised its Catechism—the Church's official compilation of teachings on a wide range of issues—to unambiguously oppose capital punishment also committed the Church to work “with determination” to abolish the death penalty worldwide. Prior to the revision, the Catechism used softer language on the death penalty, allowing it “if this is the only possible way of effectively defending human lives against the unjust aggressor,” while noting that “the cases in which the execution of the offender is an absolute necessity ‘are very rare, if not practically nonexistent.’” In a letter to Bishops accompanying the change, Pope Francis wrote, “This conclusion is reached taking into account the new understanding of penal sanctions applied by the modern State, which should be oriented above all to the rehabilitation and social reintegration of the criminal. Finally, given that modern society possesses more efficient detention systems, the death penalty becomes unnecessary as protection for the life of innocent people.” His letter places the new stance in the context of the Church's broader teachings on the dignity of human life, and previous statements by Pope John Paul II, Pope Benedict XVI, and Pope Francis on the need to end capital punishment. Vatican observers said there is no mistaking the political intent of the new revision. The letter to the bishops said the new doctrine sought to “give energy” to efforts working “for the elimination of the death penalty where it is still in effect.” Vatican expert and author John Thavis called Pope Francis's action “the next logical step” in the evolution of formal Catholic opposition to the death penalty. “I think this will be a big deal for the future of the death penalty in the world,” Thavis said. “People who work with prisoners on death row will be thrilled, and I think this will become a banner social justice issue for the church.” The new catechism also poses a direct challenge to Catholic politicians like Philippines President Rodrigo Duterte, who has sought to bring capital punishment back in his nation, and U.S. governors such as Greg Abbott and Pete Ricketts of Texas and Nebraska, who have made support for the death penalty a cornerstone of their policies. “There is no doubt the pope wants politicians to pay attention to this,” said John Gehring, the Catholic program director at the advocacy group Faith in Public Life. “He is not just speaking internally. The pope wants to elevate this as a definitive pro-life issue.”

 

New Podcast: Authors of Tennessee Death-Penalty Study Discuss Arbitrariness

Posted: August 1, 2018

The latest edition of Discussions with DPIC features H.E. Miller, Jr. and Bradley MacLean, co-authors of a recent study on the application of Tennessee's death penalty. Miller and MacLean describe the findings from their article, Tennessee's Death Penalty Lottery, in which they examined the factors that influence death-penalty decisions in the state. Based on their survey of thirty years of homicide cases, they found that whether a death sentence is imposed is influenced far less by the circumstances of the offense than by arbitrary factors such as geography, race, and the poor quality of defense representation. MacLean says, "It operates just like a lottery. There's no rationale, there's no rhyme or reason for why an infinitesimally small number of defendants are sentenced to death and even a much smaller number are actually executed, as compared to all the defendants who are convicted of first-degree murder." The authors collected data on more than 2,500 first-degree murder cases in Tennessee from 1977-2017, and found that about 3.5% of first-degree murder defendants have been sentenced to death and fewer than 0.3% have been executed. Those few who are selected for the death penalty, though, do not represent the worst of the worst, with about 90% of multiple-victim murders resulting in life sentences. "The bottom line is, the people who get the death penalty are the most vulnerable, not the ones who commit the worst crimes," MacLean said. In the podcast, the authors also discuss the litigation surrounding Tennessee's method of execution, saying, "If the state can't get their method of execution right, then how can we expect them to get anything else right about the system?" They conclude, "The whole point of our study was to look at whether we have properly addressed the problem of arbitrariness that the Supreme Court talked about in Furman [v. Georgia, which declared all U.S. death-penalty statutes unconstitutionally arbitrary in 1972]. Our conclusion is that our system is no less arbitrary, it is just as arbitrary, as the systems that existed before Furman was decided. ...That's why we believe that our system is clearly unconstitutional."

 

Associated Press Reporter Michael Graczyk, Who Witnessed More Than 400 Executions, Retires

Posted: July 31, 2018

Michael Graczyk (pictured), who witnessed more than 400 executions as an Associated Press reporter in Texas, has retired after nearly 46 years with the news service. On March 14, 1984, Texas executed James Autry—the second person put to death in Texas since the U.S. Supreme Court upheld the state's capital punishment statute in 1976. According to a non-exhaustive list of execution witnesses maintained by the Texas Department of Criminal Justice, it was the first of at least 429 executions Graczyk witnessed in the nation's most prolific death-penalty state. Graczyk is believed to have witnessed more executions in the U.S. than any other person: no other reporter or corrections official in Texas has seen as many executions, and no other state has executed even one-third as many prisoners. In his 34 years observing executions, Graczyk was committed to telling the full story behind the case, interviewing death-row prisoners if they were willing, and speaking to victims’ families, lawyers, and prison officials. He said the volume of executions in Texas was surprising: “I talked to inmates on death row at the time, and some of them had foreseen that once the ball got rolling the state would be very aggressive. But I don’t think anybody could have foreseen the numbers.” His conversations with prisoners also revealed some of their thinking, including one insight that raises questions about the death penalty’s effect as a deterrent: “Despite Texas’ notoriety as this center of capital punishment, so many inmates I talked to told me they didn’t know or weren’t aware of the death penalty in Texas,” Graczyk said. Noreen Gillespie, the Associated Press’s deputy managing editor for U.S. news, described the critical role that Graczyk played in witnessing executions, saying, “Mike’s description of what happens in an execution is how the world and most of the country knows how that happens.” Graczyk’s retirement on July 31, 2018 does not mark the end of the line for his execution coverage. He will continue to cover Texas executions for the AP as a freelance reporter.

 

New Conservative Voices Criticize Death Penalty as an 'Inept, Biased and Corrupt' Big Government Policy

Posted: July 30, 2018

Calling the death penalty a wasteful "big government" policy that is "inept, biased, and corrupt," a libertarian think tank and a New Orleans columnist have joined the chorus of conservative voices calling for the end of the death penalty. In Conservative doesn't mean supporting death penalty, New Orleans Times-Picayune columnist Tim Morris (pictured) argues that being a conservative requires neither "an unyielding fealty to a party or person [or] simply finding the polar opposite of some liberal position," and that while he believes that "capital punishment can be morally justified," "our government has proven to be ... inept, biased and corrupt in carrying out that responsibility." Likewise, in a July 22, 2018 commentary, If You Hate Big Government, You Should Oppose the Death Penalty, published on the Foundation for Economic Education website, Patrick Hauf writes that "[f]rom fiscal irresponsibility to wrongful convictions to botched executions, the death penalty is merely another wasteful government effort." Hauf, too, criticizes what he sees as reflexive support for the death penalty among some conservatives. While many "pride themselves on their unapologetic use of the death penalty, its enactment," Hauf says, "like most government programs, is both inefficient and ineffective." Morris, whom the newspaper describes as an “independent thinker with a Christian worldview and a journalist’s sense of skepticism,” dismisses the notion that all conservatives must support the death penalty. As evidence that government cannot properly administer capital punishment, he says "too many innocent people are being sentenced to death" and notes that 82 percent of death-row cases in Louisiana from 1975-2015 ended with the conviction or sentence being reversed. In another op-ed, he cites findings from a University of North Carolina study that a black male in Louisiana is 30 times more likely to be sentenced to death if the victim was a white female than when the victim was a black male. After detailing the reasons conservative political strategist Richard Viguerie and Pulitzer prize winning conservative columnist George Will also oppose capital punishment, Morris sums up: “the death penalty is arbitrary, racially discriminatory, and doesn't deter crime. I don't see anything conservative about supporting an inept, biased, corrupt system." Hauf also tauts growing Republican resistance to the death penalty, citing a 2017 report by Conservatives Concerned About the Death Penalty that highlighted a dramatic rise in Republican sponsorship of bills to abolish capital punishment and the results of a Gallup poll that reported 10-percentage-point decrease in support for the death penalty among conservatives in 2017. He notes the ideological inconsistency between principled conservatism and the death penalty, saying capital punishment is "one issue where conservatives often give far too much power to the government." He writes, "many Republicans allow their 'tough on crime' mentality to overrule limited government ideals and innate skepticism of state overreach. This contradiction within the Republican platform, although rarely acknowledged, exposes a weakness in the party’s ideology. If Republicans pride themselves on their limited government philosophy, then why would they grant the government control over life and death?" There is, he concludes, "nothing 'small government' about capital punishment. ... It’s time for Republicans to kill capital punishment off for good." 

 

Public Health Experts, Generic-Pharmaceuticals Association Warn Lethal-Injection Policies Put Public Health at Risk

Posted: July 27, 2018

State lethal-injection practices may have collateral consequences that place public health at risk, according to briefs filed in the U.S. Supreme Court on July 23, 2018 by public health experts and an association representing generic drug manufacturers. In amicus (or friend-of-the-court) briefs filed in connection with a challenge brought by death-row prisoner Russell Bucklew (pictured) to Missouri's use of lethal injection, the Association for Accessible Medicines (AAM)—a professional association representing generic and biosimilar drug manufacturers and distributors—and eighteen pharmacy, medicine, and health policy experts warn that questionable state practices in obtaining and hoarding drugs for use in executions undermine law enforcement efforts to combat black markets in controlled substances and jeopardize the availability of some medicines for their intended therapeutic use. The AAM, which takes no position on the death penalty or the specific issues in Bucklew's case, told the court that its membership "strongly oppose the use of their medicines ... to carry out executions." The Association wrote: "Like doctors and other medical professionals, many drug manufacturers (including the members of AAM) recognize that they have an ethical obligation to ensure that their products are used only to heal, not to harm. Yet despite many manufacturers’ best efforts, drugs that are essential to the healthcare system—including some that are in short supply—have been diverted to state prison systems for use in capital punishment. AAM and its members cannot support such misuse of their products." The AAM brief stressed that their products are developed and tested for particular approved medical uses, but in executions, "powerful injectable drugs such as sedatives and barbiturates are being used at untested levels for an untested purpose, often without adequate physician supervision." The AAM called "the off-label use of these prescription drugs" in executions "medically irresponsible." Further, they wrote, some of the drugs used in executions that "are considered 'essential medicines' by the World Health Organization ... are in short supply," but have been diverted from medical use by death-penalty states. Citing a 2017 study by The Guardian, the AAM said "four states had stockpiled enough of these drugs to treat 11,257 patients—if the drugs were used as intended for medical treatment rather than in executions." Eighteen public health experts filed a brief in support of Bucklew's lethal injection challenge. The portion of that brief addressing public health issues warned that "States have created serious public health risks in their efforts to conduct lethal injections" and that continued improper practices "could lead to a public health crisis." The health experts argue that states have violated federal law by importing unapproved drugs for use in executions, obtained compounded drugs of questionable quality from unlicensed and secret pharmacies, breached supply chain controls and misled healthcare providers to obtain drugs for executions, and employed secrecy laws to "hide potentially illegal and unsafe conduct from scrutiny." These practices, they say, circumvent and undermine the country's "carefully and extensively regulated [medical] supply chain .... The result is twofold: it undermines federal laws that protect the public health, and it circumvents pharmaceutical companies’ ability to ensure the safety and effectiveness of drugs in the supply chain." 

 

Montana Prosecutors Drop Death Penalty Against Mentally Ill Defendant

Posted: July 26, 2018

Lloyd Barrus (pictured, left) will not become the first person sentenced to death in Montana this century, after prosecutors dropped their pursuit of the death penalty for the killing of a sheriff's deputy. In a motion filed July 19, 2018, Broadwater County Attorney Cory Swanson (pictured, right) wrote that, "after extensive analysis of the Defendant's history of ... mental illness," the state would no longer seek the death penalty in the case. Doctors at the Montana State Hospital had diagnosed Barrus with multiple mental health disorders, including a delusional disorder, that led Judge Kathy Seeley to find him incompetent to stand trial and to commit him to a mental hospital for treatment. Medical records documented Barrus's history of mental health issues dating to 2000, and Swanson did not contest the diagnoses. The prosecution's notice to withdraw the death penalty acknowledged that Barrus's mental illness was potentially a "sufficiently mitigating circumstance" for the court to choose a life sentence over the death penalty. Swanson said he believes the mental health treatment plan ordered by the court will restore Barrus's competency to be tried, that he "expects to try this case before a jury, and believes the court will have the opportunity to hold the Defendant accountable through a just sentence, which includes up to imprisonment for life without the possibility of parole." With the death penalty off the table, Montana will continue its 21-year streak without a death sentence. The last time the state sentenced a defendant to death was 1996. Just two people remain on Montana's death row, and the state's last execution was in 2006. Several states have considered bills in recent years that would exempt people with severe mental illness from the death penalty, but no state has imposed such a ban.

 

Florida Juries Reject Death Sentences for Four Men, Highlighting Impact of Unanimity Requirement

Posted: July 25, 2018

Juries in two Broward County, Florida death-penalty trials have handed down life sentences for four capital defendants in the span of one week, highlighting the effect of a new Florida law requiring the unanimous agreement of the jury before a defendant can be sentenced to death. On July 16, a Broward County jury spared three defendants—Eloyn Ingraham, Bernard Forbes, and Andre Delancy—whom it had convicted in March of murdering a Broward sheriff's deputy. Three days later, another Broward jury rejected the death penalty for Eric Montgomery, after having convicted him in April of the murders of his wife and stepdaughter. The verdicts marked the third time in four capital trials since Florida adopted the jury unanimity requirement that Broward juries have opted for life sentences. The sole exception was the case of Peter Avsenew, who represented himself in the penalty-phase after firing his lawyers, presented no penalty-phase defense, and told the jury he had "no regrets" for his actions and was "proud of the decisions [he'd] made." South Florida juries in Palm Beach County also have recommended life sentences in the three first-degree murder trials conducted there since September 2017. In March 2017, the Florida legislature changed its death penalty law in response to two Florida Supreme Court decisions in October 2016 that declared the state’s practice of permitting judges to impose death sentences based upon a non-unanimous jury recommendations for death to be unconstitutional. Those decisions were based on the U.S. Supreme Court's January 2016 decision in Hurst v. Florida, which ruled that Florida's previous death-penalty statute violated the Sixth Amendment right to a jury trial by giving judges, rather than the jury, the ultimate power to find the facts that could lead to a death sentence. Florida's criminal law required unanimity for every other decision made by a jury, and the 2017 amendment brought Florida's law into line with the laws of virtually every other death-penalty state. Only Alabama still permits a trial judge to impose the death penalty based upon a jury's non-unanimous sentencing recommendation. 

 

Arkansas Prisons Suspend Search for Execution Drugs, Ask For Even Broader Drug Secrecy Law

Posted: July 24, 2018

Unable to legitimately purchase lethal-injection drugs or carry out executions without revealing who manufactured its drugs, Arkansas has suspended efforts to obtain a new supply of execution drugs until state law is amended to keep secret the identity of the drug manufacturers. The Arkansas Department of Corrections confirmed on July 17, 2018 that it had halted its search for execution drugs earlier this year following a November 2017 Arkansas Supreme Court decision requiring the state to disclose portions of the pharmaceutical drug and packaging labels for the drugs it intended to use in executions. Those labels permitted the public and the pharmaceutical industry to identify the manufacturers of the execution drugs, who then sued the state or charged state officials with violating the companies' contract rights. Solomon Graves, spokesperson for the Department of Corrections said the department has been working with the governor's and attorney general's offices on amending the Arkansas Method of Execution Act to prevent disclosure of information that would identify drug manufacturers. "We are not actively looking for additional drug supplies at this time," he said. Arkansas does not currently have any execution dates set, but it scheduled eight executions in an unprecedented 11-day period in April 2017 in an attempt to carry out the executions before its supply of the sedative midazolam expired. Four of the executions went forward, but not before controversy surrounded the state's purchase of all three drugs in its execution protocol. Prior to the executions, Associated Press learned that the state's second drug—the paralytic vecuronium bromide—had been manufactured by Hospira, a subsidiary of the drugmaker Pfizer. Pfizer, which made international news with its May 2016 announcement of strict distribution controls designed to block states from obtaining and using its medicines in executions, informed its drug distributor, McKesson Medical-Surgical, that the sale violated their distribution agreement. McKesson then sued Arkansas, alleging that the state had deliberately misled the company to believe that the drug would be used for legitimate medical purposes. The companies Fresenius Kabi USA, LLC, and West-Ward Pharmaceuticals Corp.—the manufacturers of the potassium chloride that Arkansas used as the third drug in its executions—also attempted to intervene in federal litigation to stay the April executions, writing that "use of their medicines for lethal injections violates contractual supply-chain controls that [they] have implemented ... to prevent the sale of their medicines for use in capital punishment." Following the expiration of its supply of midazolam, the director of the Department of Correction, Wendy Kelley, purchased a new supply of the drug in cash. The package identified a New York company, Athenex, as the manufacturer, who said Arkansas acquired the drug in violation of the company's agreements with distributors barring the use of its products in executions. McKesson's lawsuit remained active until the state's supply of vecuronium bromide expired this Spring and the parties agreed the suit had become moot. However, the expiration of the drug left Arkansas without the means to carry out any executions until it obtains a new supply of the paralytic. Graves said that the Department of Corrections has no intention of resuming its search for execution drugs until the state legislature exempts the suppliers and manufacturers from the state's public disclosure laws. The legislature does not meet until 2019, at which point the other two execution drugs will have expired.

 

North Carolina Death-Row Prisoners Challenge Retroactive Repeal of Racial Justice Act

Posted: July 23, 2018

Four African-American death-row prisoners in North Carolina whose death sentences had been overturned for racial discrimination have challenged the constitutionality of subsequent state court rulings that reinstated their death sentences and then denied them a new hearing on their discrimination claims. The four—Marcus Robinson (pictured), Tilmon Golphin, Quintel Augustine, and Christina Walters—had overturned their death sentences in 2012 under the North Carolina Racial Justice Act (RJA), presenting evidence that a multi-decade systematic exclusion of African Americans from death-penalty juries in North Carolina had infected their cases with racial bias. However, the North Carolina Supreme Court vacated those rulings, saying state prosecutors deserved an opportunity to present additional evidence, and the North Carolina legislature repealed the RJA. The trial court then ruled that, because of the repeal, it could no longer hear the prisoners' cases. Backed by a broad coalition of civil rights groups and several former prosecutors, the prisoners filed briefs in the North Carolina Supreme Court on July 16, 2018 arguing that the lower court ruling violated numerous constitutional guarantees, including due process and the Double Jeopardy clauses of the state and federal constitutions. After nearly three weeks of testimony in Robinson’s case, which detailed state prosecutors’ use of jury strikes in 173 capital trials between 1990 and 2010, Superior Court Judge Gregory Weeks overturned Robinson’s death sentence, finding that the “evidence showed the persistent, pervasive, and distorting role of race in jury selection.” Reviewing expert testimony about prosecutors’ choices to accept or strike more than 7,400 jurors, Weeks determined that prosecutors had systematically excluded black jurors from serving in capital cases “with remarkable consistency across time and jurisdictions.” Based on the same statewide evidence, plus the jury strikes in their cases, Weeks concluded that the death sentences imposed on Golphin, Augustine, and Walters also should be overturned. Prosecutors then persuaded the North Carolina Supreme Court to vacate Weeks’s rulings and send the cases back to the trial court for more evidence. “Lo and behold we get back into Superior Court, and at that point, the position shifts, and it’s well wait a minute, the statute’s been repealed, the courthouse door has been shut, and you are out of luck,” explained Gretchen Engel, director of the Center for Death Penalty Litigation. The prisoners’ appeal drew support from numerous civil rights and law-reform organizations, including the NAACP Legal Defense and Educational Fund (LDF), the North Carolina NAACP, the National Association of Public Defenders, the North Carolina Association of Black Lawyers, the North Carolina Council of Churches, North Carolina Advocates for Justice, the ACLU Capital Punishment Project, and a group of former prosecutors. In a statement, LDF senior deputy director of litigation Jin Hee Lee said: “The continuing stain of racial discrimination not only invalidates the death sentences imposed on these defendants, but it also undermines public confidence in North Carolina’s judicial system as a whole.” Former Virginia Attorney General Mark Earley said, “Whatever one thinks of the death penalty, we should all agree that execution can never be an option when racial stereotypes are used to keep black citizens off capital juries. No civil right is more basic than this.” 

 

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