Death-row exoneree John Thompson (pictured), described by Innocence Project New Orleans director Emily Maw, as "an amazing force in the world" and a "national legend," died October 3 at a New Orleans-area hospital after suffering a heart attack. Exonerated in 2003, he had survived a corrupt Orleans Parish prosecution, seven death warrants, and an imminent execution by the state of Louisiana for a murder he did not commit. Following his release, Thompson became a national advocate for criminal justice reform and founded Resurrection After Exoneration, a re-entry and support program for released prisoners. Thompson's odyssey towards exoneration began when he was wrongly charged with, and wrongly convicted of, two crimes that took place a few months apart in 1984—a carjacking and the unrelated murder of New Orleans hotel executive Ray Liuzza, Jr. He was wrongly sentenced to death for Liuzza's murder. Just 30 days from an execution date, an investigator in his case discovered a report about exculpatory blood evidence on the carjacking victim's clothes that the state had never revealed. The blood did not belong to Thompson and both the carjacking and murder cases against him soon unraveled. A former prosecutor revealed that one of the prosecutors who tried Thompson, Gerry Deegan, had confessed on his death bed in 1994 that he intentionally hid the blood evidence. Thompson won a new trial and was acquitted and released in 2003. He had spent 18 years in prison (14 years on death row), and lost his grandmother and father during that time. Thompson was prosecuted by the Orleans Parish Assistant District Attorney's office during the administration of District Attorney Harry Connick, Sr. His lead prosecutor, James Williams—who had a replica electric chair on his desk and framed photographs of the men he had sent to death row on his office wall—told a reporter in 2007, “There was no thrill for me unless there was a chance for the death penalty.” 11 of the 36 men sentenced to death during Connick’s tenure had their convictions overturned as a result of prosecutorial misconduct, and four—including two wrongly prosecuted by Williams—were exonerated. Thompson later won a federal jury verdict for $14 million in 2007 after suing the District Attorney's Office for prosecutorial misconduct, but the U.S. Supreme Court, in a controversial 5-4 decision written by Justice Clarence Thomas, reversed the verdict, ruling that the prosecutors had immunity from liability. In a 2011 op-ed in the New York Times, The Prosecution Rests, but I Can't, Thompson wrote that more than money, justice was at stake. "I don't care about the money," he said. "I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn't do and nearly had me killed are not in jail themselves."
Duane Buck (pictured), the Texas death-row prisoner whose controversial racially tainted death sentence was reversed by the U.S Supreme Court in February, has been resentenced to life in prison. In a plea deal entered in a Harris County (Houston) courtroom on October 3, Buck, who is 54, pled guilty to two new counts of attempted murder that each carried terms of 60 years in prison to be served concurrently with two life sentences imposed on his capital murder charges. In a news release, District Attorney Kim Ogg said, "[a]fter reviewing the evidence and the law, I have concluded that, twenty-two years after his conviction, a Harris County jury would likely not return another death penalty conviction in a case that has forever been tainted by the indelible specter of race. Accordingly, in consideration for Buck pleading guilty to two additional counts of attempted murder we have chosen not to pursue the death penalty." After 20 years on death row and numerous appeals in which he was denied relief by the state and federal courts, the U.S. Supreme Court ruled in February that Buck's capital sentencing hearing had been unconstitutionally poisoned by the testimony of a psychologist—presented by his own lawyer—that Buck was more likely to commit future acts of violence because he is black. Saying that the "law punishes people for what they do, not who they are," Chief Justice John Roberts said that the "particularly noxious" stereotyping of Buck as dangerous because he is a black man was toxic testimony that was "deadly" even "in small doses." "No competent defense attorney," Roberts wrote, "would introduce such evidence about his own client.” Because Texas did not provide life without parole as an alternative to the death penalty at the time of Buck's trial in 1995, Ogg insisted on the two additional charges for attempted murder to foreclose the possibility of release when Buck became eligible for parole from the life sentences in 2035. She said the plea deal "can close a chapter in the history of our courts, in that they will never again hear that race is relevant to criminal justice or to the determination of whether a man will live or die. Race is not and never has been evidence."
"The death penalty in the United States is at the end of its rope [and] its abolition will be a catalyst for reforming our criminal justice system." So argues University of Virginia Law Professor Brandon L. Garrett in his widely anticipated new book, End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice, which analyzes the reasons behind the steep decline in capital punishment in over the last 25 years. With the help of other researchers at the University of Virginia, Garrett analyzed death-sentencing data from 1990 to 2016, county by county. He found that numerous interrelated factors contributed to the decline: the drop in murders across the country, the creation of institutional capital defender offices that greatly improved the quality of representation, the availability of life without parole as a sentencing option, the cost of the death penalty system, and growing public awareness of exonerations and the risk of wrongly sentencing innocent defendants to death, fueled further by the abolition of capital punishment in some states and the abandonment of capital prosecutions by many counties. Local culture had a profound effect on death sentencing practices: Garrett found that states and counties that most frequently executed people developed what he terms a “muscle memory” for the practice and “imposed far more death sentences just as a function of having done so in the past." But, the converse was also true: when a county stopped sentencing people to death, it was less likely to resume the practice. Garrett found that death sentences have now all but disappeared from rural America, and are now imposed mainly in larger, urban areas. Garrett told the The Marshall Project, "we found a strong county-level pattern of racial bias. Counties with more black residents have more death sentences. And counties with more white victims of murder have more death sentences. Call it a 'white lives matter' effect," he said. In an interview with University of Virginia publicists, Garrett described the death penalty as "a failed experiment." He said states’ recent efforts to reform death-penalty procedures to “save the death penalty from itself” have failed because “the bias, both racial and geographic, is too ingrained. Lawmakers have tried to speed up executions, but have instead seen more delays and botched executions. They have tried to insist on higher-quality proof, and have still seen exonerations of innocent death row inmates." Garrett hopes that as the death penalty wanes, the lessons learned can buttress other efforts to reform America's criminal justice system and to move away from "mass incarceration and harsh punishment more broadly.”
The U.S. Court of Appeals for the Eleventh Circuit has upheld the death sentence imposed by an Alabama trial judge who disregarded the jury's 10-2 vote in favor of a life sentence and sentenced Bobby Waldrop (pictured) to death because of his race. When he imposed Waldrop's death sentence, Randolph County Circuit Court Judge Dale Segrest, who is white, referred to three prior cases in which he had overriden jury life verdicts and said: "If I had not imposed the death sentence [in this case], I would have sentenced three black people to death and no white people." In an unpublished opinion issued on September 26, the federal appeals court wrote that the judge's action did not constitute a "fundamental miscarriage of justice" that would allow federal court review of Waldrop's race claim in light of the failures by Waldrop's trial lawyer to have objected at the time of trial or raise the issue in his initial state court appeal. The opinion was issued the same day the U.S. Supreme Court stayed Georgia's execution of Keith Tharpe to determine whether to review his claim that his death sentence had been unconstitutionally tainted by the participation of a white juror who referred to him and other African Americans with a racial slur and said he wondered “if black people even have souls.” In 2014, the Eleventh Circuit refused to review a claim presented by Georgia death-row prisoner Kenneth Fults, saying that his claim of racial bias—based on the signed affidavit of a white juror who said “I don’t know if he ever killed anybody, but that (N-word) got just what should have happened"—had not been properly presented to the state courts. Fults was executed in April 2016 without receiving any review of that claim. Ten months later, the U.S. Supreme Court ruled in Buck v. Davis that "it is inappropriate to allow race to be considered as a factor in our criminal justice system" and that race-based capital sentences “are a disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are." Two of the Eleventh Circuit judges involved in the Fults decision also decided Waldrop's appeal. They ruled that the “miscarriage of justice” doctrine, which permits review of otherwise defaulted claims, applies only when the defendant shows “by clear and convincing evidence that, but for [the alleged] constitutional error, no reasonable juror would have found [him] eligible for the death penalty.” The exception did not apply in his case, they wrote, because the jury verdict convicting Waldrop of murder during a robbery had made him death-eligible, even if the jury had overwhelmingly believed he should not be sentenced to death. The third judge on Waldrop's court panel, Beverly Martin, concurred with the court's interpretation of the law, but wrote: "I am at a loss to ... explain how a person being sentenced to death based on his race could be anything other than a fundamental miscarriage of justice."
The United States Supreme Court has ordered the Florida Supreme Court to reconsider a decision that had denied a death-row prisoner's claim that he was ineligible for the death penalty because he has Intellectual Disability. On October 16, the Court reversed and remanded the case of Tavares Wright (pictured, left), directing the Florida courts to reconsider his intellectual-disability claim in light of the constitutional standard the Court set forth in its March 2017 decision in Moore v. Texas. The decision in Wright v. Florida was the sixth time the Court has vacated a state or federal court's rejection of an intellectual-disability claim and remanded the case for reconsideration under Moore—and the third time it has done so in less than a month. Earlier in October, the Court vacated two decisions by the U.S. Court of Appeals for the 5th Circuit and remanded the cases of Texas death-row prisoners Obie Weathers and Steven Long for reconsideration in light of Moore, and on October 18, the Texas Court of Criminal Appeals cited Moore as grounds for reconsidering its own prior rejection of intellectual-disability claims raised by Carnell Petetan, Jr. (pictured, right). Moore was expected to have broad impact in Texas, where—the Court unanimously agreed—the state courts had unconstitutionally adopted an unscientific set of lay stereotypes to determine whether a defendant facing the death penalty had impairments in functioning that qualified him or her as intellectually disabled. Five members of the Court also stressed in the majority opinion in Moore that the state had improperly rejected claims of intellectual disability by emphasizing a capital defendant's perceived adaptive strengths, instead of "focus[ing] the adaptive-functioning inquiry on adaptive deficits," as required by accepted medical practice. Lawyers in Harris County (Houston)—which has executed more prisoners than any other county—anticipate that more than a dozen prisoners sentenced to death in that county may be entitled to reconsideration of their death sentences under Moore, and one prisoner, Robert James Campbell, has already been resentenced to life. However, the Supreme Court's recent rulings indicate that its pronouncement in Moore that a state's determination of Intellectual Disability must be "informed by the medical community’s diagnostic framework" is not limited to Texas. In May, the Court vacated a decision of the Alabama Court of Criminal Appeals in the case of Taurus Carroll after his lawyer invoked Moore to argue that Alabama had unconstitutionally deviated from accepted methods of determining intellectual disability. In the Florida case, Wright's lawyers argued that the state supreme court's decision in his case was inconsistent with a line of Supreme Court cases on intellectual disability—Atkins v. Virginia (2002), which declared execution of those with intellectual disability to be unconstitutional; Hall v. Florida (2014), which struck down Florida's approach to measuring the role of IQ in determining intellectual disability; and Moore. Although its order did not set forth the reasons for its decision, the Supreme Court agreed and directed the Florida courts to reconsider the issue.
U.S. Supreme Court to Hear Louisiana Death Penalty Case Where Lawyer Conceded Guilt Over Client's ObjectionPosted: September 29, 2017
The United States Supreme Court will review a Louisiana death-penalty case to answer the question "Is it unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection?" On September 27, the court agreed to hear McCoy v. Louisiana, a case in which defense counsel informed the jury in his opening argument that Robert McCoy (pictured)—who was charged with murdering the son, mother, and stepfather of his estranged wife—had "committed these crimes," even though McCoy had consistently maintained his innocence and repeatedly objected to the defense strategy. The case is one of a number of Louisiana death penalty cases in which defense lawyers have told death penalty juries, against the defendant's wishes, that their clients had committed the killing. In McCoy's case, the prosecution offered a plea deal that McCoy turned down against the advice of his lawyer, Larry English. When English later told McCoy that he intended to concede McCoy's guilt, McCoy objected and tried to fire English two days before the start of the trial. The trial court refused to remove English from the case, and also denied McCoy’s request to represent himself. When English conceded guilt during the opening statement, McCoy interrupted, saying the police had killed the victims. He later took the stand and testified that he had been framed for the murders by a drug trafficking ring headed by law enforcement. McCoy's petition for review was supported with amicus (friend of the court) briefs by the Yale Law School Ethics Bureau and the Louisiana Association of Criminal Defense Lawyers. English had argued that he had admitted guilt as part of his ethical duty to try to save McCoy’s life. The Ethics Bureau, however, argued that conceding McCoy's guilt over his express opposition was an "egregious" violation of the lawyer's ethical duty. It wrote that the rules of ethics "do not allow a lawyer to sell out his client in court against their wishes." The brief of the Louisiana defense lawyers, joined by the Promise of Justice Initiative, said the court's refusal to permit McCoy to obtain new counsel was emblematic of a pattern of decisions undermining the right to meaningful representation in Louisiana death penalty cases. The brief pointed to 12 capital cases in which Louisiana courts resolved disagreements between capital defendants and their lawyers in a manner that was detrimental to the defendant. The brief said that, in four cases since 2000, the Louisiana courts had allowed capital defense counsel to concede guilt over their clients’ express objection. In four other capital cases during that time frame, capital defendants were required to represent themselves to avoid having their lawyer concede guilt. Four other times, invoking the same right to personal autonomy over litigation decisions that they rejected in the prior circumstance, the state courts gave capital defendants who wanted to waive rights final say in doing so. “What can be distilled from Louisiana’s approach is that when a question about a defendant’s autonomy arises, Louisiana appears to resolve the question in favor of expediency, rather than autonomy or dignity,” the brief said. "Rather than a principled and consistent commitment to the autonomy and dignity of capital defendants, the Louisiana Supreme Court has adopted a set of rules that ameliorates always to the benefit of the state, and never to the defendant."
After staying Tilon Carter's execution in May to consider allegations that his conviction and death sentence were the product of false or misleading forensic testimony, the Texas Court of Criminal Appeals has now ruled that Carter (pictured) is entitled to an evidentiary hearing on two of his claims. In a September 27 order, the appeals court directed the Tarrant County (Fort Worth) trial court to conduct a hearing on whether Texas "presented false or misleading testimony by the State Medical Examiner," in violation of Carter's right to due process and whether "new scientific evidence, which was unavailable at the time of his trial, contradicts scientific evidence the State relied on at this trial." The order leaves the prior stay of execution in place. Carter was convicted and sentenced to death in November 2006 based upon testimony by Tarrant County Medical Examiner Nizam Peerwani that he had smothered 89-year-old James Tomlin during the course of a robbery. In fact, the autopsy listed Tomlin's cause of death as "smothering with positional asphyxia," which could have been unintentional. Carter's lawyers argued that scientific evidence that was unavailable at the time of trial contradicts Peerwani's testimony, and he presented statements from three forensic pathologists who concluded that the autopsy findings contradict the state's theory that Tomlin was intentionally smothered. Carter's attorney, Raoul Schonemann, wrote in a court filing, “While the experts disagreed on the ultimate cause—whether Mr. Tomlin’s death was caused by positional asphyxiation or a cardiac event—they unanimously agreed that the evidence does not show that Mr. Tomlin’s death was the result of intentional smothering." Carter would not be subject to the death penalty if he did not intentionally kill Tomlin. Carter's lawyers also alleged that his trial counsel had provided ineffective assistance by failing to investigate and present available evidence that Carter had not intentionally killed Tomlin. However, the Court of Criminal Appeals did not grant an evidentiary hearing on that claim.
Three hours after his execution was scheduled to begin, the U.S. Supreme Court stayed the execution of Keith Tharpe (pictured), a Georgia death-row prisoner who sought review of his claim that he was unconstitutionally sentenced to death because a juror whom Tharpe alleged "harbored profound racial animus against African Americans voted to impose the death penalty . . . because of his race.” Over the dissents of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, the Court issued a stay of execution on September 26, pending a final ruling on whether to review a decision of the U.S. Court of Appeals for the Eleventh Circuit that had denied Tharpe permission to appeal the issue. Tharpe, who had been convicted and sentenced to death for the murder of his sister-in-law, had challenged his death sentence after learning that Barney Gattie, a white juror in his case, had said that there were "two types of black people: 1. Black folks and 2. Ni**ers"; described Tharpe as "a ni**er"; doubted "if black people even have souls"; and said if the victim "had been the same type [of black person] Tharpe is, then picking between life of death wouldn't have mattered so much." The Georgia courts had refused to consider his biased-juror challenge, saying that state law prohibitted him from attempting to impeach the jury's verdict. However, after the U.S. Supreme Court ruled earlier this year that overt expressions of racial bias by a juror are not insulated from judicial review, Tharpe argued that he was entitled to have his claim heard and to have a new, fair sentencing hearing. The Eleventh Circuit disagreed, concluding that he had not “made a substantial showing of the denial of a constitutional right” and "had failed to demonstrate that Barney Gattie’s behavior had [a] substantial and injurious effect or influence in determining the jury’s verdict.” When Tharpe again attempted to raise the issue in the Georgia state courts, the Georgia Supreme Court ruled that the Supreme Court decision made no difference and his challenge was barred as "res judicata"—meaning that the issue had alrady been decided against him. His appeal from the state-court decision had just been filed in the U.S. Supreme Court when it stayed his execution based upon the federal litigation. The Court's order specified that the stay "shall terminate automatically" if the Court ultimately decides not to review the issue or if the Court ultimately rules against Tharpe. Under Supreme Court rules, the votes of four Justices are sufficient to decide to hear a prisoner's appeal. However, the votes of five Justices are required to stay an execution, effectively overriding the Court's rules for cases presented during an active death warrant. Brian Kammer, one of Tharpe’s attorneys, expressed gratitude that "the court understands this case merits thoughtful consideration outside the press of an execution warrant.” He said, “We are extremely thankful that the court has seen fit to consider Mr. Tharpe’s claim of juror racial bias in regular order.”
Death sentences are sharply down in North Carolina and the combination of cost concerns and more effective representation have made them progressively rare. In an interview with The Hickory Daily Record, David Learner, District Attorney for the 25th prosecutorial district encompassing Catawba, Caldwell, and Burke counties, who has personally tried two death-eligible cases, says “It’s extraordinarily difficult to get a death verdict. ... [Y]ou come to realize it’s very difficult for a jury seated in that box to say ‘yes, you need to kill that man.'” Murder cases in which the death penalty may be sought are defended by five regional capital defender offices, which have a record of effectively investigating cases and negotiating non-capital outcomes. According to statistics maintained by the North Carolina Office of Indigent Defense Services (NCIDS), from 2007 to 2015, nearly 60% of capital prosecutions ended with non-capital convictions for second-degree murder or less, and only 2.2 percent of all capital cases in the state resulted in death sentences. In Wake County, juries have returned life verdicts in eight consecutive capital sentencing trials. When a case is charged, Assistant Capital Defender Victoria James told the paper, "you know what happened, but you don’t know why it happened.... And that’s where you get into the client’s mental health, provocation, and many times, those are the kind of cases you hope to be able to resolve without going to trial.” With representation by the regional capital defenders, there have been only 5 death sentences in the state over the past five years, down from 140 death sentences imposed 20 years ago in the five years spanning 1992-1996. No one has been executed in the state since 2006 and most of the 262 prisoners who the North Carolina Department of Public Safety (NCDPS) says have been removed from death row have been resentenced to life in prison without the possibility of parole after their convictions or death sentences were overturned. Although 98% of North Carolina cases that start out as capital do not end up with a death sentence, pursuing the death penalty has had significant financial consequences. NCIDS reports that, in fiscal years 2007 to 2015, the average costs were 4.4 times higher in a capital case ($93,231 per case) than when prosecutors did not pursue the death penalty ($21,022 per case). A Duke University study in 2009 concluded that repeal of the death penalty would have produced approximately $10.8 million in annual savings from reduced expenditures on murder cases. Between 2008 and 2013, the percentage of cases in which prosecutors have sought the death penalty has fallen from 28.1% to 11%, and budget cuts to the North Carolina Attorney General's office have shifted to local district attorneys the cost of criminal appeals that used to be handled by state prosecutors. “This thing about, ‘we need to execute him,’ the actual mechanics of the court system, it’s not happening,” Learner said. “Realizing the reality of the death penalty in North Carolina through the court system, it’s really about worthless.” Looking to the future, he said, “I wouldn’t be surprised if North Carolina eventually had a moratorium or completely dismantled the death penalty.”
Recent court rulings in Arkansas and Arizona reaching opposite outcomes highlight the continuing controversy over state practices keeping information relating to state acquisition of drugs for use in executing prisoners secret from the public. A state trial court judge in Pulaski County, Arkansas ruled on September 19 that the Arkansas Department of Correction must disclose package inserts from the supplies of the sedative midazolam recently purchased by the state as part of its three-drug execution protocol. On September 21, a federal district court judge in Arizona denied a First Amendment challenge brought by a coalition of news organizations seeking disclosure of who supplies execution drugs to the state. In the Arkansas case, circuit court judge Judge Mackie Pierce rejected arguments by lawyers for the state that the packet inserts were shielded from disclosure under state law because disclosure of the inserts would ultimately result in the discovery of who supplied execution drugs to the state. The Arkansas ruling was the second time a state trial court had ordered the Arkansas Department of Correction to disclose packaging information about its execution drugs under the state's Freedom of Information Act and public-disclosure requirements in the Arkansas Method of Execution Act. In April, another Arkansas judge directed the state to disclose packaging information related to its supply of potassium chloride, the third drug in the execution protocol, which causes the prisoners searing pain before it stops the heart unless the prisoner has been adequately anesthetized. Also in April, the drug distributor, McKesson Medical-Surgical, Inc., sued the state in an attempt to prevent it from carrying out executions with supplies of the paralytic drug, vercuronium bromide, obtained from the company under what McKesson described as false pretenses. Assistant Attorney General Jennifer Merritt had told Judge Pierce that it was necessary to keep the package labels secret because some drug manufacturers had objected to the state’s use of their drugs in executions. In his ruling, Judge Pierce said the Arkansas legislature knew how to grant pharmaceutical companies secrecy under the state's execution law, but didn’t do so. “They know what manufacturers are. They knew what the issues were," he said. The state has appealed the April order and is seeking an emergency stay to block implementation of the current order. In the Arizona case, a group of local and national news organizations, including The Arizona Republic, Guardian News & Media, Arizona Daily Star, The Associated Press, and two local television stations had sought disclosure of the state's drug suppliers, arguing that such disclosure was essential for the integrity of the criminal justice system and to determine whether the death penalty was being carried out humanely. District court judge Grant Murray Snow wrote that while the First Amendment protects speech about the death penalty, it does not require Arizona to disclose "protected information" about the identity of its drug supplier, "to the detriment of the state's ability to carry out its constitutional, lawfully imposed criminal punishments." Last December, Judge Snow had ruled in favor of the media on a separate secrecy issue, requiring the Arizona Department of Corrections to permit media witnesses to see the entire execution, including each time drugs are administered. Media witnesses had been unable to see key portions of the botched execution of Joseph Rudolph Wood in 2014, when he was administered 15 doses of lethal-injection drugs in an execution that took nearly two hours to complete. Arizona has not carried out an execution since then and no executions are currently scheduled.