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Louisiana Justice Recused From “Angola 5” Death-Penalty Appeal After Radio Interview Commenting on the Case

Posted: November 29, 2017

Louisiana Supreme Court Justice Scott Crichton (pictured) will not participate in deciding the appeal of a prisoner sentenced to death in a controversial, high-profile prison killing, after Crichton publicly commented on the case during an appearance on a local radio program. On November 21, Crichton recused himself from the pending appeal of death-row prisoner David Brown, one day after Brown's lawyers sought his removal from the case because of Crichton's on-air comments about the "Angola 5" case and the judge's derrogatory references to capital appeals. Brown is one of the five men charged in the murder of prison guard, Capt. David Knapp at the Angola State Penitentiary in 1999. Crichton's "notice of self-recusal" provided no explanation for his decision. However, Brown's lawyers had argued in their recusal motion that, during an October 23 talk-radio appearance on the KEEL Morning Show with Robert and Erin, "[Crichton] and his interviewer agreed that inmates with life sentences 'have nothing to lose' and that murders by prisoners, like 'the Angola 5 in South Louisiana,' prove that the death penalty is a deterrent because inmates who have been executed cannot then harm prison guards." The lawyers also argued that Crichton had expressed personal opinions about the death penalty both on the October 23 program and in other recent radio interviews that violated the Code of Judicial Conduct and disqualified him participating in Brown's death-penalty appeal. In addition to his comments about the Angola 5 case, Justice Crichton—a former death-penalty prosecutor and judge in Caddo Parish, where the rate of death sentences per homicide was nearly 8 times greater between 2006 and 2015 than in the rest of Louisiana—disparaged death-penalty appeals, saying that it "boggles my mind" when an "inmate who has committed capital murder who is on death row is begging for his life. Think about the fact that the victim gets no due process." In 2014, a trial court had reversed Brown's death sentence after finding that Hugo Holland—another former Caddo Parish prosecutor who had been appointed as a special prosecutor to handle the case—had withheld evidence that a prisoner interviewed in connection with the murder had told prosecutors that two of the five men charged in the killing had admitted to him that only they had committed the murder. The Louisiana Supreme Court later reinstated Brown's death sentence, ruling that the suppression of this evidence was not "material" to the jury's sentence. Crichton had complained in previous appearances on the talk show about the appeal process in the death-penalty case of Nathaniel Code, against whom Crichton had obtained a death sentence in the 1980s: “He’s been on this crazy post-conviction relief status,” Crichton said. “He had 18 years of [post-conviction appeals] in the state system, which is absurd, obscene, and hideous.”

 

Senior U.N. Official Assails Death-Penalty Secrecy As Obstruction of Human Rights

Posted: November 28, 2017

A senior United Nations human rights official has criticized the secrecy with which countries carry out the death penalty and called for greater transparency by countries that still employ capital punishment. "There is far too much secrecy," United Nations Assistant Secretary-General for Human Rights Andrew Gilmour (pictured) said in an interview released November 21 by the U.N. News Centre, "and it’s quite indicative the fact that although many countries are giving up the practice, those that retain it nevertheless feel that they have something to hide." 170 nations have either abolished the death penalty—which U.N. Secretary-General António Guterres has described as a “barbaric practice” that “has no place in the 21st century”—or have not carried out an execution in more than a decade. Many of the governments that continue to execute prisoners have shrouded their death-penalty practices in secrecy, hiding who is on death row and why, how executions are carried out, and—in some countries—how the government has disposed of the executed prisoner's body. Guterres said the practice manifests “a lack of respect” for the human rights of those sentenced to death and "obstructs efforts to safeguard the right to life.” In December 2016, the General Assembly added an anti-secrecy provision to its regular resolution calling for a moratorium on executions, saying that transparency was essential to assess whether countries were administering their death penalty laws in compliance with international human rights standards. In September 2017, the death-penalty moratorium resolution adopted by the U.N. Committee on Human Rights again emphasized the link between transparency and respect for human rights. At an October 2017 event at U.N. Headquarters in New York commemorating World Day Against the Death Penalty, the Secretary-General said "[f]ull and accurate data is vital to policy-makers, civil society and the general public. It is fundamental to the debate around the death penalty and its impact.” Execution secrecy, he said, "undermines that debate." Secrecy has been implicated in recent execution botches and questionable execution practices across the United States, In May 2016, an Oklahoma grand jury found that “paranoia” on the part of prison officials about keeping execution information secret had “caused administrators to blatantly violate their own policies,” contributing to the botched execution of Clayton Lockett, the execution of Charles Warner with an unauthorized execution drug, and the aborted attempt to execute Richard Glossip. In Missouri, prosecutors affirmatively used the state's secrecy provisions to prevent prisoners from obtaining evidence that the out-of-state compounding pharmacy from which the state was illegally obtaining drugs had committed 1,892 violations of pharmacy health and safety regulations. Gilmour singled out for criticism Arkansas’s rush to execute eight prisoners in an eleven-day span in April before its supply of the drug midazolam expired. “I’ve heard various arguments, absurd arguments for executing and some rather obscene arguments for executing,” Gilmour said, “but I don’t really think I’ve heard many more obscene ones or absurd ones than the fact that the drugs for executing had reached their sell-by date.” As part of an international human rights efforts to end the secret trade in lethal-injection drugs, the U.N. Office of the High Commissioner for Human Rights has supported a multi-national initiative called the Alliance for Torture-Free Trade. "I think it’d be a step forward in civilization to block this trade, and luckily there are some major drug companies who are refusing to allow their drugs to be used in instances of execution,” Gilmour said.

 

BOOKS: Deadly Justice—A Statistical Portrait of the Death Penalty

Posted: November 27, 2017

In their new book, Deadly Justice: A Statistical Portrait of the Death Penalty, a team of researchers led by University of North Carolina-Chapel Hill political science professor Frank Baumgartner uses forty years of empirical data to assess whether the modern death penalty avoids the defects that led the U.S. Supreme Court to declare in Furman v. Georigia (1972) that the nation's application of capital punishment was unconstitutionally arbitrary and capricious. Their conclusion: "A reasoned assessment based on the facts suggests not only that the modern system flunks the Furman test but that it surpasses the historical death penalty in the depth and breadth of the flaws apparent in its application." Deadly Justice explores an enormous range of issues—including, among others, racial, gender, and geographical bias, innocence, deterrence, mental health, childhood abuse, length of time on death row, reversal rates, and execution methods—to determine whether the death penalty is fairly and proportionally applied and reserved for the "worst of the worst." Reviewing the data, Baumgartner et al. find that the modern death penalty "is it just as arbitrary, just as biased, and just as flawed as the pre-Furman system." Worse yet, they write, "it has added to these flaws increased levels of geographical focus on the South, even more concentration in just a few jurisdictions, astronomical financial costs unimagined in the earlier period, average periods of delay now measured in the decades, odds of reversal well over 50 percent, routine and often successful last-minute legal maneuvering even while the inmate is in the execution room and has been prepared to be executed, and a medicalization paradox that was not even imagined in the pre-Furman period." In an interview with the Houston Chronicle, Baumgartner says "[t]he key driver in the system" is not the frequency of homicides or the nature of the murder but "the choices that district attorneys make .... There's really no rhyme or reason to it." He says the biggest change in public opinion began in the 1990s as evidence began to mount that "there might be innocent people on death row. ... The innocence argument has really shaken people's faith that you can count on the government to get it right every single time. ... The system is so tied up in knots, partly because of the concern of executing an innocent person. It's really hard to justify or have enthusiasm about a system so dysfunctional as the current modern death penalty, even if you're a prosecutor."

 

South Carolina Seeks Drug-Secrecy Law to Carry Out Execution that was Never Going to Happen

Posted: November 22, 2017

Claiming that a lack of lethal-injection drugs was preventing the state from executing Bobby Wayne Stone (pictured, right) on December 1, South Carolina Governor Henry McMaster (pictured, left) urged state legislators to act quickly to enact an execution-drug secrecy law. But as McMaster and Department of Corrections Director Bryan Stirling held a press conference outside barbed-wire fences at the Broad River Capital Punishment Facility in Columbia, South Carolina on November 20, they knew, critics say, that there was no lethal-drug emergency and that the death warrant against Stone was never going to be carried out. Since his conviction and death sentence in 1997, Stone has been actively pursuing the court review of his case to which he is entitled as a matter of state and federal law. The South Carolina Supreme Court overturned Stone's death sentence in 2002, but he was resentenced to death in 2006. In February 2017, after completing the state direct appeal and post-conviction appeal processes, the South Carolina Supreme Court affirmed Stone's death sentence. In April, he asked the federal court to appoint counsel to represent him in federal habeas corpus proceedings challenging his conviction and death sentence. At a telephone conference with a federal district court judge one week prior to the press conference, lawyers for Stone and the state attorney general's office agreed to a procedure by which the court would stay Stone's execution to permit his lawyers to file his habeas petition. The parties agreed to a November 21 deadline for Stone to file his stay motion, and he filed the motion on November 20. The state attorney general's reponse, also filed November 20, "agree[d] that the issuance of a stay of execution [was] warranted." The federal court granted the stay of execution on November 21. Justice 360, a non-profit legal services organization that tracks death-penalty issues in South Carolina, criticized the press conference at the prison as a public relations ploy. In a news release, its executive director, Lindsey Vann said: "The Director of the South Carolina Department of Corrections ... knew a stay would be issued by the court. He nevertheless chose to make public statements implying otherwise in an attempt to force the General Assembly to pass a 'secrecy' bill that would allow the State to purchase unsafe drugs for execution and shield their source from the public." In its daily newsletter, the "Opening Statement," The Marshall Project summarized the issue, "Officials in South Carolina ginned up a death penalty deadline — a death warrant that a judge promptly declared premature — to press state lawmakers for new injection secrecy rules." Governor McMaster said at the press conference that executions in South Carolina were "at a dead stop" because the state lacked execution drugs. He said "[t]he reason we don't have the drugs despite intense efforts to get them is because the companies that make them, the distributors who distribute them and the pharmacies who may have to compound them don't want to be identified." All of the FDA-regulated pharmaceutical manufacturers in the U.S. that produce drugs used in executions oppose the use of their products for capital punishment and have distribution agreements with drug suppliers that prohibit the sale of their medicines to states for use in executions. Governor McMaster said a secrecy law was necessary because potential suppliers are "afraid that their names will be made known and they don't want to have anything to do with it for fear of retribution or exposure." The South Carolina legislature has twice in the past rejected execution secrecy bills. Vann said Justice 360 was "disappointed" that the Department of Corrections was "attempting to mislead the press and the public, especially if [Stirling] led the victim’s family to believe that an execution was imminent."

 

Ex-Virginia Death-Row Prisoner With Strong Claim of Innocence Get Parole After 38 Years

Posted: November 21, 2017

Joseph M. Giarratano (pictured), a former Virginia death-row prisoner who came within two days of execution, has been been granted parole after 38 years in jail for a rape and double murder that lawyers and supporters have long said he did not commit. On November 20, twenty-six years after Governor L. Douglas Wilder commuted Giarratano's death sentence to life, the Virginia State Parole Board voted to grant him parole. Giarratano was convicted and sentenced to death in Norfolk, Virginia in 1979 for the rape and capital murder of a fifteen-year-old girl and the murder of her mother. Giarratano had lived in their apartment—which was known as a "party house" with a free flow of visitors—in the month before the murder and was there the night of the murders, but because of drug use, he says, he has no recollection of what happened. He said he woke up on the couch, discovered the bodies, and because no one else was in the apartment, he assumed he had committed the killings. He fled to Florida, where he turned himself in to a sheriff at a Jacksonville bus station and confessed to the murders. Over the course of time, Giarratano gave a total of five confessions, which were inconsistent with one another and conflicted with the evidence at the crime scene. Footprints, fingerprints, and pubic hairs were recovered at the crime scene and did not match either Giarratano or the victims. Experts indicated that the killer was right-handed, but Giarratano is left-handed. Giarratano's confessions were so inconsistent that detectives told him they did not believe him and, he said, provided him with detailed information that he then parroted back to them in his fifth confession. Gerald Zerkin, one of Giarratano’s lawyers, said "[t]here is nothing in the physical evidence that links Joe to the murders.... The prosecution’s whole case hinged on Joe’s confessions, which were total nonsense.” Leading experts on false confessions concluded in 2001 that there was "not a shred of significant or credible physical evidence supporting the conclusion that Joseph Giarratano’s contradictory and inconsistent confessions are reliable" and that considerable evidence led to "the conclusion that his confessions are false." While on death row, Giarratano became an avid reader and an advocate for other condemned prisoners, assisting in the exoneration of Earl Washington, a wrongfully convicted intellectually disabled man who came within eight days of execution. Giarranto was also the named party in a U.S. Supreme Court case, Murray v. Giarratano, in which Giarratano and others challenged Virginia's failure to provide post-conviction attorneys for condemned prisoners. The Court ruled 5-4 against the prisoners. Following his transfer off death row to the Augusta Correctional Center, Giarratano helped found the Center for Teaching Peace, a peace education program for prisoners. The state parole board's decision marks the first time in modern Virginia history that a defendant whose death sentence was commuted was granted parole. Richmond lawyer Stephen A. Northup represented Giarratano before the parole board and said, “For all the reasons that caused Governor Wilder to give Joe a conditional pardon more than 26 years ago, I believe Joe is innocent of the crimes for which he was convicted.”

 

Lawyer Says North Carolina Client's Brutally Traumatic Childhood Characteristic of Many on Death Row

Posted: November 20, 2017

The life of Terry Ball (pictured) "is worth remembering," says his appeal lawyer, Elizabeth Hambourger. She says Ball's life, which ended October 18 when he died of natural causes on North Carolina's death row, "hold[s] keys to understanding the origins of crime and our shared humanity with people labeled the worst of the worst." His "story of childhood trauma and brain damage" is characteristic of the backgrounds of many on death row, Hambourger says, but "was barely told at trial." Ball was convicted and sentenced to death for the cocaine-induced murder of his pastor's wife and attempted murder of his pastor in 1993, which occurred during a relapse of Ball's cocaine addition. His road to death row began when he was hit by a car at age 10, suffering injuries that kept him hospitalized for eight weeks. The head trauma changed his personality, but the severity of his brain damage was not detected at the time. He and a girlfriend ran away from home when he was 13, during which time he was abducted by a serial rapist, Jerry Wood, and repeatedly raped, kept high on drugs, and forced to steal, until he was able to escape nearly a month later. Rather than receiving mental-health services as a victim of sexual assault, Ball was adjudicated delinquent for running away and was incarcerated in a juvenile detention center, where a state psychiatrist questioned his sexual identity, writing that his month-long "association" with his rapist "raised the question of possible homosexuality." Wood, who was never prosecuted for raping and abducting Ball, was later convicted of raping two other children and sentenced to 45 years in jail. Ball then turned to drugs as self-medication for his trauma. He later enlisted in, but was swiftly discharged from, the Navy and subsequently committed several violent drug-motivated robberies and was jailed for nearly killing two people. After his release from prison, he checked himself in to three treatment centers over the course of three years, all in an unsuccessful effort to overcome his addiction to crack cocaine. Hambourger says that Ball's story is a reminder that "[t]his is who we sentence to death: the most damaged, the most abused; traumatized children who grow into adults without learning how to cope with their fear and anger." In North Carolina, death sentences have fallen from an average of 28 per year in the five years spanning 1992-1996 to an average of one per year between 2012-2016. Hambourger believes that, had Ball's trial been held today, "this mitigating evidence would have been thoroughly presented and likely would have persuaded a jury to sentence him to life without parole instead of death."

 

Nevada Pardons Man Imprisoned 21 Years as a Result of Wrongful Capital Murder Prosecution

Posted: November 17, 2017

Nevada has pardoned Fred Steese (pictured), who spent 21 years in prison after Las Vegas prosecutors wrongly sought the death penalty against him while witholding evidence that he was not even in the state at the time the murder occurred. In what news reports described as "a clear rebuke to the Las Vegas prosecutors," the Nevada Board of Pardons Commissioners voted 8-1 on November 8 to grant Steese a full pardon. “I’m a new man now,” Steese said. “It’s lifted a black cloud over me.” The seven justices of the Nevada Supreme Court and Governor Brian Sandoval voted in favor of clearing Steese's name; only Adam Laxalt, the state's attorney general and a current candidate for governor, voted against the pardon. Steese was charged with capital murder in the high-profile 1992 killing of Las Vegas circus performer, Gerard Soules. He was prosecuted by Bill Kephart and Doug Herndon, who both went on to become district judges in Las Vegas. Steese was in Idaho at the time of Soules's death, but signed a false confession after a five-hour interrogation and 35 hours without sleep. At trial he presented numerous alibi witness who testified that he was in Idaho at the time. Kephart—who also committed misconduct in several other capital trials before being elected as a judge in 2014—argued to the jury (with no supporting evidence) that the witnesses had seen Steese's brother in Idaho and that Steese had manufactured the alibi. After Steese was convicted in 1995, prosecutors withdrew the death penalty and Sreese was sentenced to two life sentences. He spent two decades in prison before federal public defenders proved that his brother, estranged since childhood, couldn’t have helped with Steese’s alibi. The federal defenders' investigation also unearthed phone records in the prosecution’s files that proved Steese was in Idaho at the time of the murder. In 2012, a Nevada Eighth Judicial District Court judge issued an Order of Actual Innocence, declaring that Steese didn’t kill anyone. But the Clark County District Attorney’s Office refused to admit it had convicted an innocent man. In 2013, Assistant District Attorney Pamela Weckerly told Steese she’d agree to release him from prison only if he entered an Alford plea, in which, while maintaining his innocence, he admitted there was sufficient evidence on which he could be convicted. After gaining his freedom, Steese—still with a murer conviction on his record— struggled to find employment and experienced periods of homelessness before finding work as a cross-country trucker. At the pardon hearing, Steese’s pro-bono attorney lawyer, Lisa Rasmussen, said that from the time of his interrogation through the time of his release from prison, his constitutional rights had been “violated in a huge way.” Rasmussen condemned the prosecutorial misconduct in the case as “an embarrassment and a black mark on Clark County and the state of Nevada." After Steese himself testified, the board heard from Kathy Nasrey, the sister of Gerard Soules, who demanded that Kephart, Herndon, and others be held accountable for knowingly convicting an innocent man while her brother’s killer remained on the loose. “Now that it was clear that certain lawyers and detectives helped convict an innocent man,” she said, “will they be held accountable for taking away 20 years of his life?”

 

Ohio Halts Execution of Physically Debilitated Prisoner After It Cannot Find Vein for Intravenous Line

Posted: November 16, 2017

Having failed to find a suitable vein in which to set an intravenous execution line, Ohio called off the scheduled November 15 execution of gravely ill and physically debilitated death-row prisoner, Alva Campbell (pictured). After execution personnel failed in four attempts to find a vein for the IV line, Ohio Department of Rehabilitation and Correction Director Gary Mohr stopped the execution and Governor John Kasich granted Campbell a temporary reprieve. Kasich rescheduled Campbell's execution for June 5, 2019. The execution was delayed for nearly an hour as executioners assessed Campbell's veins, and then witnesses watched for another half hour as prison personnel used an ultraviolet light to probe Campbell's arm for a vein, sticking him twice in the right arm, once in the left arm, and once in the left leg. Columbus Dispatch reporter Marty Schladen, a media witness to the execution, reported that, when he was stuck in the leg, "Campbell threw his head back and appeared to cry out in pain." Campbell's lead lawyer, assistant federal public defender David Stebbins said, "We had warned them for months that they were going to have this problem." In court documents seeking to stay his execution, Campbell's lawyers unsuccessfully argued that a combination of severe medical ailments and physical disabilities made it inappropriate for him to be executed. These afflictions include lung cancer, chronic obstructive pulmonary disease, respiratory failure, prostate cancer, and severe pneumonia, and Campbell relies on a colostomy bag that hangs outside his body, needs oxygen treatments four times a day, and requires a walker for even limited mobility. Following the reprieve, Stebbins questioned whether the state would be able to successfully execute Campbell. "He's 69 years old and has all kinds of illnesses and his veins are a mess," he said. "They're just not going to get any better." "This type of state-sponsored torture is not acceptable," said ACLU of Ohio senior policy director Mike Brickner. “This marks the fifth botched execution for Ohio in recent years, and the second time the state could not complete an execution. This is not justice," he said, "and this is not humane." In the past eleven years, Ohio has also botched the executions of Joseph L. Clark, Christopher Newton, Romell Broom, and Dennis McGuire. In a video posted on the website of the Columbus Dispatch, reporter Marty Schladen, who was scheduled to witness the execution, said "I don't think anything that happened today would make anybody sanguine about the death penalty in Ohio right now."

 

Utah County Fires Lawyer Who Criticized Its Underfunding of Death-Penalty Appeals

Posted: November 15, 2017

A Utah county has fired an appeals lawyer who had publicly criticized the county's underfunding of death-penalty cases. Attorney Samuel Newton (pictured)—hired by Weber County to handle the appeals of condemned prisoners Douglas Lovell and Floyd Maestas, as well as other indigent criminal defendants in the county—had his contract terminated by County Commissioner James Harvey, who said Newton's comments to the media about underfunding were "harmful to the county's reputation." Harvey also criticized Newton for assertedly spending too much time developing a relationship with his clients when "all the state wants to know is if the appropriate decision has been made." The American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases require that a capital defense attorney "establish a relationship of trust with the client, and should maintain close contact with the client." Newton had previously withdrawn from Lovell's case after arguing that the financial strain placed upon him from the county's funding cap, and the county's interference with his ability to communicate with his client, has caused him stress-related heart problems. In an email to the Salt Lake Tribune, Newton said that “[t]he state gives enormous resources to the prosecution” and "must similarly commit to equally and adequately support criminal defense attorneys, which is a right guaranteed by the United States Constitution.” He said that defense attorneys—and especially solo practitioners such as himself—“should not have to personally bear and front the financial cost for the enormous review required in a capital case.” The payment dispute with Weber County, Newton said, left him feeling as thought he "had to choose" between supporting his family financially and effectively representing his clients. Commissioner Harvey told Newton that his contract to handle the appeals of indigent Weber County defendants has been terminated effective January 31. Harvey said, "I don’t agree with giving a guy an open checkbook because he wants to create a relationship with a convicted felon on the taxpayers' dime." In a letter to the judge, Lovell wrote, “For the first time, I got an attorney who represented me to the fullest, … who knows my case inside & out & now the county had pulled the rug on funding him." Ralph Dellapiana, chairman of the Utah Association of Criminal Defense Lawyers capital defense committee, said that the state should not expect capital defense attorneys to work for free. “That’s a problem, the state refusing to pay qualified counsel to do the necessary work for appeals in death penalty cases,” he said. “And the solution is either to pay for it or end the death penalty.”

 

Ohio Set to Execute Gravely Ill Prisoner, Alva Campbell

Posted: November 14, 2017

Ohio death-row prisoner Alva Campbell (pictured) is 69, suffers from severe chronic obstructive pulmonary disorder, is unable to walk without a walker, relies on a colostomy bag that hangs outside his body, requires four breathing treatments each day, may have lung cancer, and is reportedly allergic to midazolam, the controversial first drug in the state's lethal-injection process. Prison personnel have been unable to find veins suitable for inserting an intravenous line into either of Campbell's arms. Ohio intends to execute him November 15. Campbell has challenged the constitutionality of Ohio’s lethal-injection protocol, arguing that it carries unconstitutional risks for a person with his medical conditions, and has asked to be executed by firing squad. The Ohio federal courts denied Campbell's challenge earlier in November, and he has petitioned the U.S. Supreme Court to stay his execution, arguing he is too ill for lethal injection. Ohio is defending its execution process, and officials for the state’s Department of Rehabilitation and Correction say that as a medical accommodation, the state will provide Campbell with “a wedge-shaped pillow” to prop him up “in a semi-recumbent position” to help him breathe as he is being executed. Corrections spokesperson JoEllen Smith said that Campbell's “medical condition and history are being assessed and considered in order to identify any necessary accommodations or contingencies for his execution.” Campbell’s lawyer, assistant federal public defender David Stebbins, warns that Campbell's death could become a “spectacle” if prison staff are unable to find a suitable vein during his execution. “All of this in an attempt to execute an old and frail man who is no longer a threat to anyone,” Stebbins said. “Killing Alva Campbell is simply not necessary.” On November 9, Gov. John Kasich rejected Campbell's plea to stop the execution and let him die of his terminal illnesses. [UPDATE: The U.S. Supreme Court has denied Campbell's motion for a stay of execution. After four unsuccessful attempts to find a vein, Ohio called off the execution.]

 

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