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BOOKS: "Exonerated" Tells the Story of the Innocence Movement

Posted: June 8, 2017

Exonerated: A History of the Innocence Movement, by Robert J. Norris, describes the rise of the "innocence movement," the lawyers, investigators, journalists, lawmakers, and organizations that have worked to uncover wrongful convictions, educate the public about the problem, and reform the criminal justice system to prevent future mistakes. For the book, Norris interviewed 37 key leaders on the issue, including Innocence Project co-founders Barry Scheck and Peter Neufeld, and Rob Warden, co-founder of Northwestern University's Center on Wrongful Convictions. He also researched major cases, such as the exoneration of Kirk Bloodsworth, the first wrongly death-sentenced person to be exonerated by DNA evidence, and reviewed studies on innocence. Exonerated explores how separate scientific, legal, and cultural developments coalesced, leading to a broader understanding of how technology—particularly DNA testing—and more reliable investigative techniques could exonerate the innocent and combat the risks of wrongful convictions. And the book explains how this greater understanding of wrongful convictions was a catalyst in transforming public attitudes about capital punishment. Richard A. Leo, author of The Wrong Guys: Murder, False Confessions and the Norfolk Four, said, "Exonerated is the definitive account of how the innocence movement transformed public views about the everyday fallibility of the American criminal justice system in the late 20th century, and why preventing the wrongful convictions of the factually innocent remains more important than ever in the 21st century.” 159 men and women who were wrongly convicted and sentenced to death in the United States have been exonerated in the 45 years since the U.S. Supreme Court's decision in Furman v. Georgia overturned existing death-penalty laws in 1972. 

 

Death Sentence Commuted, Kevin Keith Presses Innocence Claim in Ohio Appeals Court

Posted: June 7, 2017

An Ohio appeals court heard argument on June 6 on whether to grant a new trial to former death-row prisoner Kevin Keith (pictured), whose death sentence was commuted to life without parole by Ohio Governor Ted Strickland in 2010 amid concerns that he may be innocent. Keith, who has consistently maintained his innocence of the three 1994 murders for which he was sentenced to death, presented argument to the Ohio Court of Appeals for the 3rd District based on newly discovered evidence that the state forensic analyst whose controversial tire-track analysis linked him to the crimes had an undisclosed record of misconduct. Forensic analyst G. Michele Yezzo testified at Keith's trial that a license plate imprint of the numbers 043 left in a snow bank at the crime scene matched Keith's girlfriend's car, and that, by looking at a tire brochure, she could conclude that tire tracks also matched the car. No other forensic evidence linked Keith to the crime. In addition, a seven-year-old survivor who was shown a photo array of suspects excluded Keith's photo and told the police that it was her "Daddy's friend, Bruce" who shot them, and several alibi witnesses testified that Keith was more than 30 minutes away when the shootings took place. An alternate suspect who drove a car fitting eyewitness descriptions of the getaway car and that had a 043 in its license plate number also had a brother named Bruce. During the June 6 argument, Keith's lawyer, Rachel Troutman, told the Court of Appeals, "That expert [Yezzo] was known to the state — though not to Mr. Keith —  as someone who will stretch the truth to satisfy a department. Since the trial her forensic conclusions have proven faulty." Yezzo's personnel file said her analysis was untrustworthy, co-workers thought she suffered from a "severe mental imbalance," she used racial slurs in describing a minority co-worker, and supervisors and colleagues noted her "findings and conclusions regarding the truth may be suspect." Prosecutors said they expected the court's decision, which can be appealed to the Ohio Supreme Court, to be issued within a period of several weeks to several months.

 

Recent Jury Trials in Dallas Highlight Death Penalty Decline Across Texas

Posted: June 6, 2017

From 2007 to 2013, Dallas sentenced twelve capitally charged defendants to death—more than any other county in Texas—and Dallas ranks second nationally, behind only Harris County (Houston), in the number it has executed since 1972. But the county has not imposed any new death sentences since then, and the recent life sentences in the capital trials of Justin Smith and Erbie Bowser highlight a statewide trend away from the death penalty. Smith was charged with killing three and injuring two others in a drug-house robbery; Bowser, with killing four women and injuring four children in what has been described as "a two-city rampage." After hearing evidence of Bowser's prison adjustment after being medicated for mental illness, his jury split on whether he posed a future threat to society and he was sentenced to life without parole. When Smith's jury told the court it was split on whether he had proven mitigating circumstances, he agreed to accept a plea deal to life. Such outcomes are becoming more common in Texas. About half (7 of 15) of the death penalty trials in the state since 2015 have resulted in life sentences. The fact that prosecutors have taken death penalty cases to trial just 15 times in two-and-a-half years is itself a significant change. A combination of factors, including declining public support for capital punishment, the availability of a life-without-parole sentencing option, the high cost of death penalty trials, and concerns about innocence, have led prosecutors to seek death sentences less often. Former Montague County District Attorney Tim Cole said his views on the issue have shifted: "It is time for the death penalty to go away. My primary concern with it is we don't seem to get it perfectly.... The execution of one innocent person isn't worth it to me." He said he believes the option of life without parole has also contributed to the declining number of death sentences by giving prosecutors and jurors a severe alternative punishment. Paul Johnson, an attorney for Justin Smith, agreed: "[Jurors] know that if they don't give them death, they're going to die in prison anyway. Why put someone to death when you can give them life without parole?" In an editorial, The Dallas Morning News wrote, "[e]vidence continues to mount that this system is too ripe for mistakes." The newspaper lauded the state's progress in reducing death sentences, and pointed to recent legislation as further evidence of capital punishment's decline. A death penalty repeal bill was given public hearings this session, and legislators have passed and sent to the governor reforms aimed at reducing wrongful convictions. Under the new bill, "Police would be required to record interrogations, and prosecutors would have to provide jurors more information about testimony from so-called prison snitches. Stricter protocols also would be in place for eyewitness identification." (Click image to enlarge.)

 

Federal Court Grants Lethal-Injection Stay to Alabama Prisoner With Claims of Attorney Abandonment, Flawed Forensics

Posted: June 5, 2017

Robert Melson (pictured), an Alabama death-row prisoner whose clemency petition alleges that abandonment by his post-conviction lawyers prevented him from adequately challenging the flawed forensic evidence in his case, received a stay of execution from the U.S. Court of Appeals for the 11th Circuit on a challenge to Alabama's lethal-injection protocol. Melson was convicted of three murders at a Popeye's restaurant in 1994. A survivor of the crime recognized one of two assailants as Cuhuatemoc “Tempo” Peraita, an acquaintance of Melson's, and described the second assailant only as a black man. More than an hour after the crime occurred, police pulled over Peraita's car, and arrested him along with the black male passenger, Robert Melson. At the suggestion of police, Peraita—a 17-year-old with intellectual impairments—confessed to having been present during the crime, but claimed Melson had shot the victims. (Peraita has since recanted his accusation.) Melson has consistently maintained his innocence. During the interrogation, police took Melson's shoes from him. According to Melson's clemency petition, "Five days later, a police evidence technician belatedly discovered, photographed, and cast footprints in a rainy drainage ditch behind Popeye’s restaurant, which they later said matched Mr. Melson’s shoes." Peraita didn't testify at Melson's trial, and the witness who had identified Peraita did not identify Melson in a photo lineup. No other forensic evidence—such as fingerprints or DNA—linked Melson to the crime. As a result, Melson's conviction relied heavily on the shoeprint evidence, a type of evidence that the landmark 2009 report on forensic science by the National Academies of Science, Strengthening Forensic Science in the United States: A Path Forward, found to be unreliable, unscientific, and susceptible to bias. In addition to the problems inherent with shoeprint evidence, nearly two inches of rain had fallen between the time of the crime and the time police reported discovering the shoeprint. Melson should have been able to challenge the shoeprint evidence during his post-conviction appeal, but was represented by an inexperienced volunteer attorney who was not licensed in Alabama and a local attorney who had a history of malpractice. The lawyers did not properly file Melson's state post-conviction petition, and then, on appeal, they filed the documents in the wrong court, causing his appeal to be dismissed. The error was compounded because the attorneys failed to inform Melson of the dismissal. Melson's time to file a petition for habeas corpus in federal court ran out before he learned his state case had been dismissed. Cases like Melson's raise concerns about Alabama's recently passed "Fair Justice Act," which would potentially exacerbate errors like those made by his attorneys, since state deadlines would be shorter and stricter and all state death penalty appeals would run concurrently. In a separate case, Melson and several other Alabama death-row prisoners challenged Alabama's use of midazolam in executions, highlighting problems that have occurred when the drug was used in past executions. The 11th Circuit stayed Melson's June 8 execution to allow time for it to consider that challenge. [UPDATE: The U.S. Supreme Court vacated the stay of execution, and Melson was executed as scheduled.]

 

Indiana Appeals Court Voids State's Lethal-Injection Protocol

Posted: June 2, 2017

The Indiana Court of Appeals has voided the state's lethal-injection protocol. In a ruling on June 1, 2017, the state intermediate appeals court held that the Indiana Department of Corrections (DOC) had failed to comply with state rulemaking procedures when it adopted a never-before-used execution protocol without public notice or comment. In 2014, the DOC announced that it had adopted a new execution protocol "informally as an internal DOC policy." The protocol called for a three-drug lethal-injection combination of the barbiturate methohexital (Brevital), followed by pancuronium bromide, a paralytic, followed by potassium chloride to stop the prisoner's heart. No state has ever carried out an execution using that drug combination. Death-row prisoner Roy Lee Ward challenged the protocol, saying that DOC's use of informal internal procedures to put the protocol in place violated the Indiana Administrative Rules and Procedure Act (ARPA) and his right to due process. A lower court dismissed the lawsuit. On appeal, the DOC argued that it was exempt from the ARPA, but the appeals court flatly rejected that argument. It wrote: "If the legislature intended to exempt the DOC from the purview of ARPA altogether, or even to exempt the DOC’s execution protocols, it could have easily done so, but it has not." The court held, "[a]s a matter of law, DOC must comply with ARPA when changing its execution protocol, and its failure to do so in this case means that the changed protocol is void and without effect." David Frank, who represented Ward in the appeal, praised the ruling, saying "[t]he public has a right to know what unelected bureaucrats at state agencies are doing." The decision does not mean Indiana cannot carry out executions, he said, but "bring[s] what [Indiana is] doing out of the shadows" and makes state officials "accountable to the public." Indiana has not carried out an execution since 2009.

 

South Carolina Killer Pleads Guilty to 7 Murders in Deal to Avoid Death Penalty

Posted: June 1, 2017

Todd Kohlhepp (pictured) pleaded guilty to seven South Carolina murders on May 26, 2017 and was sentenced to seven consecutive life sentences, plus 60 additional years for the kidnapping and sexual assault of surviving victim Kala Brown. Kohlhepp made a deal with prosecutors to avoid the death penalty, providing information that solved four murders at a motorcycle store in 2003 and sparing Brown and the families of the murder victims from enduring a lengthy trial and appeals process. Seventh Judicial Circuit Solicitor Barry Barnette said "This was a death penalty case. No doubt about it. But it is not fair for families to wait years and years for justice." South Carolina has not had an execution since 2011 and has imposed only one new death sentence in that period. Brown, who Kohlhepp kept chained in a storage container and raped daily for more than two months, told prosecutors she supported the deal, reportedly saying, "he's the killer, not me." Joanne Shiflet, the mother of murder victim Charles David Carver, said she appreciated the certainty of Kohlhepp's sentence: "I am a lot calmer now. There is no apprehension. There is no what if. We know he is going away and going to stay gone." Other multiple killers have also received plea deals to avoid death sentences: In 2003, "Green River" serial killer Gary Ridgway avoided the death penalty in Washington State by pleading guilty to 48 counts of aggravated murder and providing information that solved 48 killings and helped authorities recover the remains of numerous victims who had been missing for nearly two decades. Roland Dominique, who pleaded guilty to eight murders in Louisiana and was a suspect in 15 more, received a life sentence at the request of victims' families in 2008.

 

Las Vegas Prosecutor Who Obtained Wrongful Capital Conviction Engaged in Pattern of Misconduct

Posted: May 31, 2017

A Las Vegas, Nevada, judge—who, as a prosecutor, committed misconduct in several death-penalty trials—now faces judicial misconduct charges arising out of another murder case in which a defendant he prosecuted has been granted a hearing to prove her innocence. The Nevada Commission on Judicial Discipline has charged Bill Kephart (pictured) with several violations of the judicial code of conduct for giving a media interview about his controversial 2002 prosecution of Kirstin Lobato that the Commission alleges "could affect the outcome or impair the fairness of Miss Lobato's case." Kephart denies the charges. Kephart previously withheld exculpatory evidence from defendant Fred Steese in a 1994 capital trial and went on to commit misconduct in at least five other cases before being elected to serve as a judge on the Eighth Judicial District Court of Nevada in 2014.  A pair of articles co-published by ProPublica and Vanity Fair details the story of Steese's wrongful prosecution and what it calls Kephart's "long history of prosecutorial misconduct." In 1994, Kephart led the high-profile prosecution of Steese for the murder of a highly celebrated circus performer, Gerald Soules. After a five-hour interrogation by Las Vegas police and more than 35 hours without sleep, Steese signed a confession to Soules' murder, despite having been in Idaho when the murder occurred. Steese presented 14 alibi witnesses, but Kephart argued to the jury—with no supporting evidence—that Steese's brother had posed as him in Idaho while Steese committed the murder in Nevada. Kephart also presented misleading identification testimony and baselessly accused the defense of doctoring evidence. After Steese was convicted, prosecutors dropped the death penalty and Steese was sentenced to life. Steese's lawyer subsequently learned that prosecutors had unconstitutionally withheld phone records showing Steese was in fact in Idaho at the time of the murder. Nearly 20 years later, a judge handed down an Order Regarding Actual Innocence in Steese's case, and Steese was released in 2013. By then, Kephart had been cited for misconduct in five other cases, including a 1997 capital murder trial in which he made "deliberate" and "improper comments" and a 2008 death penalty trial in which the misconduct was characterized as "significant."  Despite the reprimands, he was elected as a justice of the peace in 2010 and became a District Court judge in 2014.

 

Alabama Governor Signs Law Shortening Death-Penalty Appeals

Posted: May 30, 2017

On Friday, May 26, Alabama Governor Kay Ivey (pictured) signed into law a statute denominated the "Fair Justice Act," which is designed to shorten the state death-penalty appeals process. The law constricts the amount of time death-row prisoners have to file appeals, imposes time limits for judges to rule on appeals, and requires prisoners to pursue their direct appeal and post-conviction appeal simultaneously, including raising claims of appellate counsel's ineffectiveness while appellate counsel is still handling the case. Governor Ivey characterized the law—which will apply to all defendants sentenced to death on or after August 1, 2017—as "strik[ing] an important balance between protecting the rights of a defendant and the state's interest in allowing justice to be achieved effectively and swiftly." Alabama Attorney General, Steve Marshall, said the statute "streamlines the appellate process" but "does not diminish the thoroughness of appellate review of death penalty cases." Critics of the law, however, say that is precisely what it does. Linda Klein, the President of the American Bar Association—which calls for fair process in the administration of capital punishment but takes no position on the death penalty itself—said that the new law "unduly limit[s] counsel’s ability to conduct that critical post-conviction investigation" and will "make Alabama an outlier on how appeals and post-conviction cases are handled." Birmingham civil-rights attorney Lisa Borden said Alabama capital cases typically suffer from a lack of “detailed investigation" into what the issues in the case actually are and if the state curtails the time for post-conviction investigation, "you are going to have people whose valid claims, whose important claims [are] cut off forever and people are going to die.” She said, "If Alabama really wants to fix the process[, it should] . . . provide competent representation and resources to people from the beginning." The National Registry of Exonerations has found that more than half of all murder exonerations involved prosecutorial failures to disclose exculpatory evidence, and that official misconduct was present in 87% of death-row exonerations of black defendants and 67% of death-row exonerations of white defendants. The study also showed that it took an average of four years longer to exonerate an innocent black defendant wrongly convicted of murder and sentenced to death than a wrongly convicted white death-row prisoner. Anthony Ray Hinton, an innocent African-American man who spent nearly 30 years on Alabama's death row for a crime he did not commit, has said that if he were convicted under the Fair Justice Act, "I would have been executed despite my innocence." Hinton says it took more than 14 years before he was able to obtain the competent representation and expert assistance necessary to prove his innocence.  

 

Texas Appeals Court Rules State Must Disclose Identity of 2014 Execution Drug Supplier

Posted: May 26, 2017

The Texas 3rd District Court of Appeals has rejected claims made by state corrections officials that disclosure of the identity of its supplier of the execution drug pentobarbital would expose the company to a "substantial threat of physical harm." Finding these claims to be “mere speculation,” the appeals court ruled on May 25, 2017, that Texas must disclose the identity of the compounding pharmacy that supplied execution drugs to the state in 2014. The ruling upholds a Travis County District Court order in a suit that was filed on behalf of two death-row prisoners under the state's Public Information Act. The prisoners' attempt to litigate a challenge to the state's lethal injection practices failed to halt their executions, but the district court later determined that the identity of the drug supplier was "public information" subject to disclosure under the state public records law. The Texas Department of Criminal Justice (TDCJ) had argued that information concerning the identity of the compounding pharmacy that provided execution drugs fell within a safety exemption in the act, which shields release of otherwise public information where disclosure would create a "substantial threat of physical harm." The court found that TDCJ had shown nothing more than the risk of public criticism, which it said was not enough to block the supplier's identity from disclosure. The court recognized that "[t]here are myriad reasons why a private business or professional involved in the [execution] process would not want that fact known publicly—potential adverse marketplace effects, unwanted publicity, critical written or oral communications from members of the public, or protests, to name but a few of the unpleasantries that can accompany one’s association with such a controversial public issue." But under the law, the "sole permissible focus" is the "threat of physical harm from disclosure of the pharmacy’s or pharmacist’s identity—not, in themselves, any threats of harm to privacy or economic interests, threats of media or political 'firestorms,' or even threats of harm to property short of harm to persons." In 2016, a BuzzFeed News review of FBI records found that state claims that execution drug suppliers have been the subject of threats by anti-death penalty activists were largely unsubstantiated and exaggerated. Maurie Levin, one of the defense lawyers who filed the public records lawsuit, praised the court's ruling, saying: "They stuck to the law … and the law affirms that those who are involved in government actions don’t get to be anonymous and might be subject to criticism and protest." And she added, "That’s the nature of the beast. That is how our government works. I think the affirmation of those principles is really important." The decision is limited to the source of the state's execution drugs in 2014, because the state passed a broader secrecy law after the suit was filed. TDCJ has said it will appeal the ruling to the Texas Supreme Court. Texas is also suing the federal Food and Drug Administration over its seizure of execution drugs the FDA has said Texas attempted to illegally import from India. The FDA seized the drugs in October 2015, and issued a final order in April 2017 refusing to release the drugs.

 

30 Years After Murder, 14 Years After Supreme Court Ruling, Pennsylvania Drops Death Penalty At Request of Victim's Family

Posted: May 25, 2017

Thirty years after the crime that sent him to Pennsylvania's death row and 15 years after his case was argued in the U.S. Supreme Court, David Sattazahn was resentenced to life without parole—the sentence he initially received in his first trial in 1991. Prosecutors, defense attorneys, and the victim's family all agreed that a life sentence was the best outcome at this point in the case. Sattazahn was convicted of first-degree murder and the court sentenced him to life in prison in 1991 when his Berks County sentencing jury split 9-3 in favor of a life sentence. After his life sentence, Sattazahn pled guilty to several unrelated felony charges. His murder conviction was then overturned as a result of prejudicially inaccurate jury instructions, and in his retrial, prosecutors again sought the death penalty, using his guilty pleas as a new aggravating circumstance. In 1999, he was retried and sentenced to death, becoming the first death-after-life-sentenced defendant under Pennsylvania's death penalty statute. His appeal in that trial reached the U.S. Supreme Court (argument, pictured), which ruled 5-4 in 2003 that the non-unanimous jury vote in his case did not constitute a finding rejecting the death penalty, even though it had resulted in a life sentence. As a consequence, the Court wrote, subjecting Sattazahn to a second capital prosecution did not violate the Double Jeopardy clause of the U.S. Constitution. Sattazahn's 1999 death sentence was overturned in 2006 because of ineffective assistance of counsel. Faced with the possibility of a third sentencing hearing and additional appeals, the family of murder victim Richard Boyer, Sr. agreed that dropping the death penalty in favor of life without parole would help bring them closure. “Every time we try to get on with our lives, we're back in court, reliving that night again and again. There has to be an end to this madness,” said Barbara Spatz, Boyer's sister. Senior Deputy Attorney General Anthony Forray said his office consulted with Boyer's four children and four siblings before deciding to drop the death penalty. “No family should have to go through this,” Forray said. “The commonwealth believes that what is occurring today is the appropriate thing to occur if this family is ever going to have closure and if this is ever going to come to an end.” At a May 24, 2017 hearing in Reading, Pennsylvania, the Berks County Court of Common Pleas formally resentenced Sattazahn to life.

 

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