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California Supreme Court Upholds, But Limits, Initiative to Speed Up Death-Penalty Appeals

Posted: August 25, 2017

In a 5-2 decision that left both proponents and opponents of the death penalty declaring victory, the Supreme Court of California has upheld the constitutionality of Proposition 66, a voter initiative intended to speed up death-penalty appeals and executions, but severely limited the scope of its core provisions. In Briggs v. Brown, the court on August 24 sustained portions of the measure that shifted which court will hear capital cases, increased the pool of death-penalty appeal lawyers by requiring lawyers who accept other appellate appointments to also take capital cases, eliminated public review of execution methods, and limited both the issues that can be raised in capital habeas appeals and the time courts have to decide them. However, the majority ruled that the measure’s flagship provision—a five-year deadline on appeals by condemned prisoners—was "directive, rather than mandatory"; that "courts must make individualized decisions based on the circumstances of each case"; and that "prisoners may seek to challenge [the time limitations and limitation on the claims they are permitted to raise] in the context of their individual cases." Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, who argued in support of Proposition 66 in the California Supreme Court, lauded the decision, saying that "Proposition 66 will go into effect almost entirely as written." He called the time limits for deciding appeals a “minor part” of the proposition. Scheidegger said "Californians finally have a chance to see justice carried out in the very worst murder cases." Death penalty opponents sharply disagreed with his characterization. Ana Zamora, criminal justice policy director for the ACLU of Northern California, said “Today’s decision changes nothing. The fact remains that California has not carried out an execution in over 10 years and executions will not resume any time soon.” Christina Von der Ahe Rayburn, who argued the case against the proposition, said the ruling had rendered the deadlines in Proposition 66 "toothless," allowing courts to continue to perform their "critical role in carefully reviewing the appeals of the state's death row inmates, in order to avoid the execution of an innocent person." The justices questioned the efficacy of the proposition and whether it could accomplish its stated aims. "We do not consider or weigh the economic or social wisdom or general propriety of the initiative," the court wrote. "It remains to be seen how effective the procedures enacted by Proposition 66 will be in expediting the capital posttrial review process." Justice Goodwin Liu, concurring in the court's decision, wrote "I find it stunning that Proposition 66’s proponents and the Attorney General claim that the voters intended the five-year limit to be nonbinding or aspirational when that claim is plainly belied by the ballot materials and advocacy campaign for Proposition 66." He said “Proposition 66 contains no plan to compress into five years a process that often takes two decades, and no entity – not this court, not the Judicial Council, not the Legislature – can simply wave a magic wand and make it so.” Santa Clara University law professor Gerald Uelmen, who served as executive director of a state senate commission that undertook a comprehensive review of the state's death penalty in 2008, said several of the provisions in Proposition 66 may actually increase delays in deciding death penalty cases. “It is just going to boggle up the system even more,” he said.

 

Florida Death-Penalty Practices, Mark Asay Execution Draw Criticism From Human Rights Groups, Johnson & Johnson

Posted: August 24, 2017

As Florida prepared to execute Mark Asay (pictured) on August 24, the state’s death-penalty practices came under fire from human rights groups, criminal justice reformers, and one of the world’s largest pharmaceutical companies. Asay was executed despite the Florida Supreme Court’s recognition that his death sentence—imposed by a judge after three jurors had voted for life—was unconstitutionally imposed and that the court mistakenly believed both of Asay’s victims were black when it upheld his death sentence for what it believed to have been two racially motivated killings. Asay's execution also drew criticism from Johnson & Johnson, the world’s largest pharmaceutical company. Its pharmaceutical division, Janssen Pharmaceuticals, condemned the state’s proposed use of the drug etomidate, which the company invented a half-century ago exclusively for medical use. Asay’s execution has been described as a twist on Florida’s racially disproportionate use of capital punishment. His execution made him the first white defendant since the state brought back capital punishment in the 1970s to be put to death for the murder of any black victim. In December 2016, African-American Florida Supreme Court Justice James Perry—in dissenting from the court’s decision to lift a stay of execution for Asay—described this “sad statistic” as a “reflection of the bitter reality that the death penalty is applied in a biased and discriminatory fashion, even today.” To date, all 57 white prisoners executed in Florida in the modern era were condemned for killing at least one white or Latino victim. In that same time period, Florida has executed 28 black death-row prisoners, with more than 70% condemned for the interracial murder of at least one white victim. On August 21, Amnesty International issued a new report, USA: Death in Florida, saying that the Asay execution and Governor Rick Scott’s decision to remove Orlando State Attorney Aramis Ayala from 27 homicide prosecutions provided “a moment to reflect upon an often overlooked aspect of Florida’s history—that it was a leader in lynching in the South and slow to eradicate this phenomenon in the 20th century.” The Amnesty report noted that Ayala, the first African American to be elected as a Florida state attorney, had cited systemic racial discrimination as one of the flaws in capital punishment that led to her decision that pursuing the death sentences in first-degree murder prosecutions was “not in the best interests of the community” or “the best interests of justice.” It also highlighted her replacement, Brad King, a white prosecutor whose “well-established” support for the death penalty, Amnesty said, included “act[ing] as lobbyist-in-chief for the Florida prosecutorial community” in legislative efforts to oppose requiring unanimous jury recommendations for death. Asay’s execution was the first ever in which a state has used the injectable sedative etomidate. As part of its three-drug process, Florida then administered rocuronium bromide as a paralytic drug and potassium acetate to stop the heart. In a statement issued on August 21, Janssen said: “Janssen discovers and develops medical innovations to save and enhance lives. … We do not condone the use of our medicines in lethal injections for capital punishment." The human rights organization, Reprieve, issued a statement saying that “Governor Scott should listen to clear and unequivocal statements from Johnson & Johnson and others calling time on this dangerous misuse of medicines, and stay the execution of Mark Asay.” The state and federal courts denied Asay's applications to stay his execution and he was put to death on August 24.

 

Divided Pennsylvania Court Upholds New Sentencing Hearing in Judicial Bias Case Overturned by U.S. Supreme Court

Posted: August 23, 2017

In a case that led to a landmark U.S. Supreme Court decision on judicial bias, a divided Pennsylvania Supreme Court on August 22 upheld a lower court's order overturning the death penalty imposed on Terrance Williams (pictured) for the murder of a Philadelphia church deacon. The court split 2-2 on the outcome of a new appeal that had been ordered by the U.S. Supreme Court after former Philadelphia District Attorney Ronald Castille—who had personally authorized seeking the death penalty against Williams—participated as a state supreme court justice in deciding a 2014 appeal that reinstated the death penalty against Williams. Under court rules, the tie vote left in place a 2012 decision by a Philadelphia trial court judge that had granted Williams a new penalty hearing. Three other justices who had participated with former Justice Castille in deciding the 2014 appeal recused themselves from the new appeal. In 1984, Williams—then barely 18 years old—killed Amos Norwood, who Williams alleges had been sexually abusing him for years. The teen never met his defense lawyer until shortly before the trial and did not confide in him that he had been sexually abused. Instead, Williams testified that he was innocent and had never met Norwood. With Williams facing an execution warrant in 2012, the state's lead witness, Marc Draper—a childhood friend of Williams and a co-defendant in the case—came forward and admitted that prosecutors had instructed him to be silent about the sexual abuse and to testify that the murder had been part of a robbery. Williams filed a petition for clemency that drew support from Norwood’s widow, five of the jurors in the case, and advocates against child abuse. Three of the five members of the Pardons Board—including the state attorney general—voted in favor of clemency, but Pennsylvania law requires a unanimous vote before the governor has authority to commute a death sentence. Days before the scheduled execution, Philadelphia Common Pleas Court Judge M. Teresa Sarmina ordered the prosecution to turn over its files to her to determine whether they contained any evidence that should have been disclosed to the defense. The files contained evidence that prosecutors had presented false testimony from Draper; withheld evidence that it had given him favorable treatment for his testimony; suppressed evidence that Norwood had sexually abused Williams and other boys; and misrepresented to the jury that Norwood had been simply a "kind man" and "innocent" good Samaritan who had been murdered after offering Williams a ride home. Judge Sarmina upheld Williams' conviction, but ruled that the combination of the government's suppression of exculpatory evidence and deliberate false argument to the jury denied Williams a fair sentencing decision. Williams was facing a new execution date when Governor Tom Wolf issued a reprieve and imposed a moratorium on executions in February 2015. The Philadelphia District Attorney's office challenged the governor's use of the reprieve power, but the Pennsylvania Supreme Court unanimously ruled in Williams's favor in December 2015.  Shortly thereafter, the U.S. Supreme Court agreed to hear Williams's judicial bias claim. The case now returns to Judge Sarmina for resentencing proceedings. Williams’s lawyer, Shawn Nolan, who heads the Philadelphia federal defender's capital habeas unit, thanked the court for its decision and urged the Philadelphia District Attorney’s Office to drop the death penalty in the case. “[T]hey should never have sought death against a teenager who killed his sexual abuser,” Nolan said.

 

Missouri Governor Stays Execution of Marcellus Williams to Consider Evidence of Innocence

Posted: August 22, 2017

Calling a sentence of death "the ultimate, permanent punishment," Missouri Governor Eric Greitens (pictured) has stayed the execution of Marcellus Williams “in light of new information" that Williams's lawyers say demonstrate he is innocent of the murder of former St. Louis Post-Dispatch reporter Felisha Gayle. Hours before Williams's scheduled August 22 execution, Greitens issued an executive order that granted Williams a stay and created a Board of Inquiry to review “newly discovered DNA evidence” and “any other relevant evidence not available to the jury” and to make recommendations on Williams's application for executive clemency. In a statement posted on the Governor's webpage, Greitens said "To carry out the death penalty, the people of Missouri must have confidence in the judgment of guilt." Williams's lawyers had presented the governor and Missouri's state and federal courts with the results of new DNA testing of the knife used in the killing, which a defense expert said excluded Williams and implicated an unknown man as the killer. No physical evidence links Williams to the murder, and neither footprints from the murder scene nor DNA from the victim's clothing and under her fingernails match Williams. The courts had denied Williams an evidentiary hearing on his new evidence and declined to stay his execution, and his lawyers' motions to stay his execution were pending before the U.S. Supreme Court when Greitens issued the stay. Kent Gibson, one of Williams's lawyers, said at the time, “They’re never going to ever confront an actual innocence cause more persuading than this involving exonerating DNA evidence. I’ve seen a lot of miscarriages of justice, but this one would take the cake.” Nina Morrison, senior staff attorney at the Innocence Project, which assisted Williams's lawyers in their request to the governor, praised Greitens's decision. "We are relieved and grateful that Gov. Greitens halted Missouri's rush to execution and appointed a Board of Inquiry to hear the new DNA and other evidence supporting Mr. Williams' innocence," she said. "While many Americans hold different views on the death penalty, there is an overwhelming consensus that those sentenced to death should be given due process and a full hearing on all their claims before an execution, and the governor's action honors that principle." NAACP Legal Defense and Educational Fund litigation director, Sam Spital, called the governor’s action "significant" because it reflected the recognition that "when you have capital punishment as an issue, the people of Missouri, like the people of many states, need to have absolute confidence that the conviction is sound.” The case, he said, was “marred by racial discrimination,” with prosecutors striking all but one black juror from a case with a black male defendant and white female victim. Following the governor’s decision, Gipson said he was “looking forward to" the opportunity to present the evidence of Williams's innocence. “I’m confident that we’re going to get a favorable recommendation.”

 

California Court Bars Death Penalty in Mass Killing Because of "Unprecedented" Government Misconduct

Posted: August 21, 2017

Citing "relentless non-compliance" with court orders and "chronic obstructionism" by a prosecution team it says "has effectively compromised" Scott Dekraai's rights to due process and a fair penalty trial, a California trial court has barred prosecutors from pursuing the death penalty in the worst mass killing in Orange County history. In a scathing opinion on August 18, Judge Thomas M. Goethals (pictured)—who had disqualified the entire Orange County District Attorney's office from the case as a result of earlier misconduct and lying to the court about a decades-long practice of using jailhouse informants to violate defendant's constitutional rights—wrote that in light of continued "indolence and obfuscation" from the Orange County Sheriff's Department in response to orders seeking information on the informant scandal, the court had "lost confidence that it can ever secure compliance" by the prosecution with future court orders in the case. Given the "unprecedented" nature of the government misconduct, Judge Goethals wrote, it would "be unconscionable, perhaps even cowardly," for the court not to take remedial action by barring the death penalty. Judge Goethals addressed the emotional toll on the victims' families created by the need to conduct four years of court proceedings investigating the scandal. He said the court would "do what little it can to mitigate their suffering" by imposing eight consecutive life sentences "that will end this case now and insure that this defendant dies a forgotten man in some obscure maximum security prison." Family members in the courtroom expressed anger at county prosecutors. Butch Fournier, whose sister Michelle, Dekraai’s ex-wife, was one of the eight victims, said, "It’s been six years for nothing. ... They caused us pain and suffering that was unnecessary. It was a cut-and-dry case." Orange County Supervisor Todd Spitzer—a former prosecutor who is considered a likely candidate for District Attorney next year—called on District Attorney Tony Rackauckas and Sheriff Sandra Hutchens to resign, saying the conduct of the District Attorney's and Sheriff's offices had been "reprehensible" and constituted an "egregious assault on our criminal justice system." In a statement, Spitzer wrote: "I am appalled that the misconduct of the Orange County District Attorney’s Office, in collusion with the OC Sheriff’s Department, resulted in this miscarriage of justice. I am incredulous that the Orange County criminal justice system has earned a national reputation for corruption that will take years, if not decades, to repair. Fundamental changes are needed." The editorial board of the Orange County Register said "the fact that a death sentence couldn’t even be secured for an admitted mass murderer speaks to the level of dysfunction within the county’s criminal justice system." The Orange County District Attorney's office was named in a July 2017 report by Harvard University's Fair Punishment Project as one of the prosecuting offices cited for repeated prosecutorial misconduct.

 

Arkansas, Nevada Obtain New Supplies of Drugs, Plan to Carry Out Two Questionable Executions

Posted: August 18, 2017

The states of Arkansas and Nevada have announced that they have obtained new supplies of execution drugs that will permit them to carry out two executions in what critics have called questionable circumstances. On August 4, Arkansas obtained a supply of midazolam—the controversial drug used in botched executions in at least four states—paying $250 in cash to an undisclosed supplier for 40 vials of the drug. Then, on August 17, Attorney General Leslie Rutledge asked Governor Asa Hutchinson to set an execution date for Jack Greene (pictured), described by his lawyers as “a severely mentally ill man [with] well-documented brain damage.” Also on August 17, Nevada—which does not currently have an execution protocol in place—announced that it had obtained drugs to execute Scott Dozier, using a three-drug formula that no state has ever tried before. Dozier—who has waived his appeal rights and volunteered to be executed—is scheduled to die on November 14. In a press statement, Greene’s lawyer, John C. Williams, said “[c]apital punishment should not be used on vulnerable people like the severely mentally ill.” Greene, he said, is mentally incompetent and suffers from delusions that “his spinal cord has been removed and his central nervous system has been destroyed.” Responding to this delusion, Williams said, Greene “constantly twist[s] his body and stuff[s] his ear and nose with toilet paper to cope with the pain,” often causing himself to bleed. A spokesperson for Hutchinson—who authorized Arkansas’s unprecedented attempt to execute eight prisoners over an eleven-day span in April—has indicated that the governor will set an execution date for Greene. To execute Dozier, Nevada has indicated that it will use an untried combination of diazepam (Valium), fentanyl (an opiod), and cisatracurium (a paralytic). The state has not yet announced how the drugs will be administered. All but one of the prisoners executed in Nevada since 1977 were found to have waived their appeals; Dozier would be the state's 12th death-row prisoner to volunteer to be executed. Nevada recently spent nearly $900,000 on building a new execution chamber.  

 

Merck CEO Ken Frazier: Application of Death Penalty Not "Fair and Consistent"

Posted: August 17, 2017

Merck Chief Executive Officer Kenneth C. Frazier (pictured) resigned from the president’s American Manufacturing Council on August 14, saying “[a]s CEO of Merck and as a matter of personal conscience, I feel a responsibility to take a stand against intolerance and extremism.” In a statement posted on Merck’s Twitter account, Frazier said: "Our country's strength stems from its diversity and the contributions made by men and women of different faiths, races, sexual orientations and political beliefs. America's leaders must honor our fundamental values by clearly rejecting expressions of hatred, bigotry and group supremacy, which run counter to the American ideal that all people are created equal." It was not the first time that Frazier, the only African-American CEO of a major pharmaceutical company, has spoken out on matters of social justice. Following his successful pro bono representation of James Willie "Bo" Cochran, a black, Alabama death-row prisoner wrongly convicted of the murder of a white grocery store manager, Frazier wrote that the case showed him that "there can be no fair and consistent application of the death penalty under the current system." Frazier undertook Cochran's representation while a partner at the Philadelphia law firm, Drinker, Biddle & Reath, and remained on the case after joining Merck. Cochran won a new trial after Frazier and his team showed that, in two prior trials, the prosecutor had systematically removed 31 of the 35 potential black jurors because he believed they were less "reliable" and more likely to acquit black defendants. Frazier initially doubted Cochran's proclamation of innocence: witnesses inside the store described the suspect as a black man and, as police converged on the scene, heard a gunshot coming from a nearby trailer park, less than one mile from where Cochran was found with a gun and cash. But Frazier discovered during the post-conviction proceedings that there was no physical evidence against his client, the only bullet recovered near the scene did not match Cochran's gun, and the fatal bullet could not be tested because police had cut it out of the victim's body and removed it before delivering the body to the medical examiner. "He was convicted," explains Frazier, "despite evidence suggesting an accidental police shooting and cover-up." Even though the state only had circumstantial evidence against him, Cochran was tried three separate times for the killing (the first time, there was a mistrial, and the second time his conviction was reversed on appeal). "Although some maintain the criminal justice system is color-blind," Frazier wrote, "the reality is that race plays a substantial role in the judicial process." In Cochran's retrial, a jury that Frazier says "was not selected primarily on the basis of race" acquitted him in less than an hour. 

 

Missouri Court Denies Condemned Prisoner Stay of Execution, Review of Case Despite Exonerating DNA Evidence

Posted: August 16, 2017

After having previously granted Marcellus Williams (pictured) a stay of execution in 2015 to permit DNA testing in his case, the Missouri Supreme Court on August 15 summarily denied him a new execution stay, despite recently obtained results of that testing that support his innocence claim. Williams—who was convicted and sentenced to death in 2001 by a nearly all-white St. Louis County jury in the highly publicized stabbing death of a former St. Louis Post-Dispatch reporter—presented scientific evidence that excluded him as a contributor to DNA on the knife used to kill Felicia Gayle. Williams had filed a motion in the state court to stay his scheduled August 22 execution, along with a petition seeking the appointment of a Special Master to hold hearings on his innocence claim. His petition was supported by reports from two DNA experts who had determined that DNA evidence on the knife did not match Williams or Gayle, but came from an unknown third person. One expert concluded that Williams "could not have contributed to the detected [DNA] profile" and the other found "a clear exclusion of Marcellus Williams from the knife handle." The petition alleged that the "physical evidence collected from the crime scene”—which included fingernail scrapings from the victim, who had been stabbed more than 40 times—“did not match and could not be linked to" Williams. Williams was convicted and sentenced to death based on the testimony of a jailhouse informant and a prostitute who was an admitted crack addict. He has never been provided an evidentiary hearing on the DNA results. The Missouri Supreme Court denied his petition without any written opinion within one day of its filing, and before Williams had an opportunity to respond to the State's opposition. Kent Gipson, one of Williams's lawyers, said the defense plans to seek review in the U.S. Supreme Court. "It certainly would give most reasonable people pause to say, 'Should you be executing somebody when you've got reasonable evidence suggesting another man did it?,'" Gibson said. Williams also has a case pending in federal court arguing that he should be permitted to re-open his habeas proceedings because he can show he is innocent; he was denied relief in the federal district court and is currently appealing that denial to the U.S. Court of Appeals for the Eighth Circuit. In earlier federal habeas corpus proceedings, the district court had overturned Williams’s death sentence, finding that his trial lawyer had failed to investigate and present significant mitigating evidence relating to Williams’s history of mental deficiencies and chronic abuse throughout his childhood. That decision, however, was reversed by the Eighth Circuit in a split 2-1 decision. Williams had also previously raised a claim alleging that St. Louis County prosecutors had a pattern and practice of striking black prospective jurors, including 6 of the 7 African Americans it had the opportunity to empanel in his case.

 

Arizona Prisoner Asks U.S. Supreme Court To Declare State's Death Penalty Unconstitutional

Posted: August 15, 2017

An Arizona death-row prisoner has petitioned the U.S. Supreme Court to review the constitutionality of the state's capital punishment statute, arguing that Arizona's sentencing scheme "utterly fails" the constitutionally required task of limiting the death penalty to the worst crimes and worst offenders. On August 15, lawyers for Abel Daniel Hidalgo (pictured) wrote that a study of more than a decade's worth of murder cases from Maricopa County, where Hidalgo was tried, showed that aggravating factors that could make a defendant eligible for the death penalty were present in 99% of all the cases. This, they say, violates the Eighth Amendment requirement established by the Court that a capital-sentencing statute must “genuinely narrow the class of persons eligible for the death penalty.” They wrote that evidence presented to the Arizona state courts showed that "every first degree murder case filed in Maricopa County in 2010 and 2011 had at least one aggravating factor" that made a defendant eligible for the death penalty, and that over the course of eleven years, 856 of 866 first-degree murder cases filed in the county had one or more aggravating circumstances present. In a press statement, Hidalgo's defense team says that, as a result, "geography and county resources—rather than the characteristics of the offender or the crime—play an outsized role in Arizona’s arbitrary application of the death penalty." With the fourth largest death row in the U.S. as of January 2013, Maricopa County imposed the death penalty at more than double the rate per murder as the rest of the state, and its 28 death sentences imposed between 2010-2015 were the third most of any U.S. county. Hidalgo's petition notes that defendants of color accused of killing white victims "are more than three times as likely to be sentenced to death as minorities accused of killing other minorities ... [a]nd a Hispanic man accused of killing a white man is 4.6 times as likely to be sentenced to death as a white man accused of killing a Hispanic victim." This, they say, makes Arizona's death penalty unconstitutionally arbitrary. In the alternative, the petition argues—citing national legislative and sentencing trends—that the death penalty nationwide now offends "evolving standards of decency" and should be declared unconstitutional. The lawyers write, "[t]he long experiment ... in whether the death penalty can be administered within constitutional bounds has failed. It has failed both in Arizona in particular and in the Nation more broadly." 

 

NEW VOICES: More Than 100 Rabbis Issue Statement Calling for End to the "Cruel Practice" of Capital Punishment

Posted: August 14, 2017

A group of more than 100 rabbis from multiple Jewish denominations have issued a statement expressing their opposition to the use of the death penalty in the United States. The statement, posted by Rabbi Dr. Shmuly Yanklowitz (pictured) in Forward.com’s Scribe—a curated contributor network of Jewish thought—called for an end to the “cruel practice” of capital punishment and “for the beginning of a new paradigm of fair, equitable restorative justice.” The rabbis said that “[a]s Jews and citizens, we believe that governments must protect the dignity and rights of every human being. By using the death penalty, our country fails to live up to this basic requirement.” The rabbis invoked classical Jewish thought that, “[w]hile not categorically opposed to capital punishment, … saw the death penalty as so extreme a measure that they all but removed it from their system of justice.” The Sages, they wrote, “had a very high bar for reliable evidence, were eager to find ways to acquit, and were deeply concerned about the dignity of [the] condemned. In contrast, our American system today lacks the highest safeguards to protect the lives of the innocent and uses capital punishment all too readily.” The rabbis criticized the unreliability, unfairness, and costliness of the death penalty as administered across the U.S., exacerbated by a defendant’s poverty or “lack of access to legal resources.” “The consequences of this system,” they wrote, “are not only fundamentally unjust but also produce racially disparate outcomes.” They also expressed concerned about the system sending innocent people to death row: “too often,” they said, “the wrong person is convicted …. We do not naively believe that everyone on death row is completely innocent of any crime. Yet, it is time to see the death penalty for what it is: not as justice gone awry, but a symptom of injustice as status quo.”

 

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