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 In an unpublished opinion issued on September 26, the federal appeals court wrote that the judge's action did not constitute a "fundamental miscarriage of justice" that would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."
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.
Two African nations—The Gambia and Madagascar—acting in connection with the 72nd Session of the United Nations General Assembly in New York, have taken major steps committing themselves to the irreversible abolition of the death penalty. On Thursday, September 21, shortly after making his first address to the United Nations, The Gambia's President Adama Barrow signed the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty at the 72nd General Assembly of the United Nations, committing his nation to death penalty abolition. For The Gambia, this is the first step in abolishing the death penalty. The small West African nation last carried out an execution in 2012, when nine prisoners were executed by firing squad. Those executions, the first in 31 years, had been widely criticized. President Barrow said that The Gambia's acceptance of the treaty shows the nation’s commitment to promote democracy and “protect lives of political activists.” Also on September 21, at a General Assembly event devoted to the treaty, Madagascar completed the ratification process by depositing the instruments of ratification with the United Nations’ General Secretary. The Gambia and Madagascar bring the total number of signed parties to 85. Madagascar, an island nation off the Southeast coast of the African continent, signed the Second Optional Protocol at the 67th U.N. General Assembly in September 2012 and abolished the death penalty by law in January 2015. The nation of 20 million has not executed anyone since 1958. The United Nations General Assembly adopted the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights in 1966 as part of the International Bill of Human Rights, which also includes the Universal Declaration of Human Rights (adopted in 1948). The ICCPR has two optional protocols that nations may join. The First Optional Protocol, which 116 parties have signed, created an international tribunal—the U.N. Human Rights Committee—to adjudicate complaints about human rights violations. The Second Optional Protocol, adopted in 1989, obligates its signatories to abolish the death penalty, although countries are permitted to make reservations permitting use of the death penalty for certain war crimes. Brazil, with a population of more than 209 million, is the largest nation to sign the treaty, which it ratified in 2009. China, India, and the United States, the most populous nations in the world, have not signed the treaty.
An Arapahoe County judge has denied the appeal of Colorado death-row prisoner Sir Mario Owens (pictured), despite finding that prosecutors withheld evidence and failed to disclose money, gifts, and favors they provided informants in exchange for their testimony. In a 1,343-page Order and Opinion issued on September 14, Senior Judge Christopher Munch found that county prosecutors had presented false evidence from two of their most critical witnesses and unconstitutionally withheld more than 20 separate pieces of evidence that could have helped the defense challenge the testimony of seven prosecution witnesses, but said a defendant "must establish more than helpfulness to sustain a claim of constitutional error." The ruling followed the controversial removal from the case of Senior Judge Gerald Rafferty, as the judge was preparing his decision after having presided over the case for more than a decade. Rafferty had ordered the prosecution to produce hundreds of pages of records and granted 37 weeks of hearings on what he had characterized as prosecutors’ “deliberate choice” to withhold evidence from the defense. Owens was sentenced to death in June 2008 for the 2005 shooting death of Javad Marshall-Fields (the son of a Colarado state representative) and Fields's fiancé, Vivian Wolfe. A co-defendant, Robert Ray, was separately tried and sentenced to death. The case against Owens was largely circumstantial. As described by news reports in The Colorado Independent, there was "no definitive physical evidence, no confession, and no eyewitnesses who identified Owens in a case prosecutors built almost entirely on the testimony of informant witnesses to whom the DA’s office gave plea bargains, funds, or both in return for their cooperation against Owens." Owens alleged that the prosecution had withheld evidence from the defense that they had secured the testimony of cooperating informants by making thousands of dollars of cash payments and providing undisclosed favors in unrelated criminal cases. The Denver Post reported that one witness had been "promised and later given a district attorney’s office car" and another "received $3,400 in benefits, including cash for Christmas presents in the months prior to testifying on behalf of the prosecution." The Colorado Independent's review of court records reported that "one of the main witnesses [had been] threatened with being charged for the murders Owens was accused of and with receiving two life sentences" if he didn’t cooperate. Another witness had been granted an undisclosed suspended jail sentence conditioned upon cooperating with prosecutors in Owens’s case. "People working for the prosecution would appear at informant witnesses’ court hearings and ask for lesser sentences on the condition that they testify against Owens," the paper wrote, and "informants who had been convicted of crimes were allowed to violate probation and commit future crimes without consequences as long as they cooperated." Owens's appeal has attracted attention because it was the first in Colorado's "unitary review" process that had been billed as speeding up capital appeals. Instead, it has substantially increased the length of appeals. It also raised questions of transparency because of the extraordinary levels of secrecy throughout the proceedings. Court files were sealed and a gag order prevented the parties from speaking about the case for seven years, until the order was lifted in 2013. Numerous case exhibits remain under seal. Owens's lawyers issued a written statement saying “We disagree with the court’s conclusion that none of this matters and can be tolerated in Colorado in any case, never mind a capital one. This is a sad day for ... the Colorado criminal justice system.”
In a racially charged case raising questions of prosecutorial overcharging, inadequate representation, and questionable jury practices, Kharon Davis (pictured), an African-American man charged with capital murder in Dothan, Alabama, has been imprisoned for 10 years without trial. Davis—who has consistently maintained his innocence and whose prior offense was driving without a license—was 22 years old when he and two others were arrested for the shooting death of a man from whom they were purchasing marijuana. After refusing a plea deal, Davis’s case has gone through two judges, three prosecutors, four sets of defense lawyers, and nine scheduled trial dates, and he has been placed in segregation in the county jail for minor infractions, faced restrictions on his ability to review legal documents, and been denied visits by his mother. A New York Times report described the pre-trial delays as “among the most protracted” the paper could find, and George Washington University law professor and constitutional consultant Jonathan Turley said “It is impossible to look at [the case] and not find it deeply, deeply troubling.” Houston County’s District Attorney Doug Valeska’s decision to seek the death penalty reignited questions of the county’s overuse of the death penalty. Despite a population of only 103,000, its 17-person death row makes Houston County one of the most prolific death-sentencing counties in the country. The county’s prosecutorial and law enforcement practices have also come under scrutiny: a number of capital cases have been overturned for racially biased jury selection, presenting improper evidence, and improper comments to juries. In 2015, Valeska also was accused of covering up evidence that a group of Dothan police officers with ties to white supremacist groups had been planting drugs on young black men. Davis’s case has been rife with questionable activity. His first lawyer, Benjamin Meredith, was the father of one of the investigating officers in the case and cross-examined his son in the preliminary hearing. That conflict was not disclosed for four years, after a new judge was appointed in the case, when Valeska brought it to the attention of the court. In those four years, Meredith had filed only two motions on Davis’s behalf. In that same time, Davis’s co-defendant, Lorenzo Staley, who told police where to find the gun used in the murder, went to trial in 2009 and was acquitted. A second co-defendant, Kevin McCloud—a childhood friend of Davis’s who had no criminal record—had pled guilty and agreed to testify against Davis to avoid the death penalty, although McCloud later said in a letter that Valeska had asked him to “get on the stand and lie” about Davis’s involvement in the case. The case was further delayed when, looking through the court record of Staley’s trial, new defense counsel discovered a gunshot residue kit that prosecutors had failed to disclose. A new district attorney who had once represented one of the co-defendants was elected in February 2017, requiring the case to be transferred to the attorney general’s office. At that point, the prosecution dropped the death penalty from the case. Finally, on September 19, the trial was again held up amid allegations that some members of the newly empaneled jury of 11 whites and one black may have had improper contact with people connected to the case.
The failed capital prosecution of Scott Dekraai for the worst mass murder in Orange County, California history has cost taxpayers more than $2.5 million—more than double the average cost of a California death-penalty case—and the pricetag for continuing investigations into official misconduct by the county district attorney's and sheriff's offices continues to rise. Unlike most capital cases, the costs were not primarily for the trial itself, but the product of a multi-year investigation and court hearings into decades-long abuses by Orange County law enforcement involving the deliberate misuse of jailhouse informants to obtain incriminating statements from targeted prisoners, including Dekraai. “The price of misconduct is steep,” said Seattle University criminal justice professor Peter Collins, an expert on death penalty costs. Dekraai pleaded guilty to eight counts of murder in May 2014, and in normal circumstances, the penalty phase of the case would have been completed later that year. However, for the past three years, the case has been dominated by the informant scandal. In May 2015, Judge Thomas Goethals disqualified the entire Orange County District Attorney's Office from involvement in the case after finding that prosecutors had engaged in widespread misconduct, failed to disclose the improper practices, and repeatedly lied to the court about it. Additional failures by the county sheriff's office to comply with court orders to produce records related to the scandal extended the length of the court's investigation, and ultimately led to the court barring the state from pursuing the death penalty. According to an analysis by the Southern California News Group, taxpayers had already spent more than $2.5 million on the case, not including costs incurred by the Orange County District Attorney's office—which said it did not track what it spent on the case—or by the state attorney general's office after it took over the case. Known costs include approximately $1 million for defense costs over the nearly six years the case has been pending; an estimated $743,000 in costs for court time and personnel; more than $370,000 in costs for a grand jury investigation; $290,000 in pretrial incarceration costs; and more than $100,000 for the county to provide legal representation to the sheriff's department during the investigation. In addition to prosecutor salaries and other prosecution costs, the $2.5 million estimate does not include the costs of the Orange County District Attorney's appeal of the order removing it from the case; any state money spent on the ongoing investigation into the county's informant abuses; nor the costs of a U.S. Department of Justice civil rights investigation into the informant scandal. Dekraai is scheduled to be sentenced on September 22 to eight terms of life without parole.