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Arizona Makes Key Concessions, Reaches Deal With Prisoners to Settle Lethal-Injection Lawsuit

Posted: June 13, 2017

Death-row prisoners and the state of Arizona have reached a tentative settlement to address the state's lethal-injection protocol. Under the settlement, which could have an impact on lethal-injection litigation across the country, Arizona has dropped a three-drug formula from its protocol in favor of using a high dose of single barbiturate, and will honor a prior commitment not to use the sedative midazolam. The state also agreed not to use any paralytic drug in the execution process—which defense lawyers argued had served only to mask the prisoners' reaction to the painful third drug used to stop his heart. The proposed agreement provides greater transparency and accountability throughout the execution process, permitting witnesses to see corrections personnel escort the prisoner into the execution chamber, strap him to the gurney, and insert the intravenous line. The witnesses also will be able to view via closed-circuit monitors the drugs being inserted into the IV lines. In the past, Arizona had been sharply criticized for repeatedly changing execution procedures, and the state has agreed that the director of the Department of Corrections would no longer be able to make last-minute changes to the execution process. Arizona also agreed to test the drugs before they are used in an execution, and committed to not use expired drugs. Previously, the state had agreed it would not use the sedative midazolam—which was used in the botched execution of Joseph Wood in 2014—but had hedged on that commitment in a revised protocol published in 2015. At a hearing before U.S. District Judge Neil Wake, Assistant Attorney General Jeff Sparks said the agreement wouldn't immediately restart executions. "The state doesn't have drugs right now and has no intention of seeking a warrant," Sparks said. Dale Baich, a lawyer for the death-row prisoners, praised the settlement. "Arizona has had this history of problematic executions, but today the state is taking steps to decrease the risk that prisoners will be tortured to death," he said. Prisoners in Ohio are raising similar challenges as the state has repeatedly changed its proposed protocol, promising in 2009 that it would never again use a three-drug formula, then proposing exactly such a protocol in 2016. Arizona's lethal-injection procedure is still the subject of another lawsuit brought by a group of media organizations that are seeking transparency on the source of execution drugs and the qualifications of executioners.

 

Kentucky Attorneys Argue to Expand Juvenile Death Penalty Exemption, Citing Neurological Studies

Posted: June 12, 2017

Defense attorneys for Travis Bredhold, a Kentucky defendant facing the death penalty for a murder committed when he was 18 years old, are asking a judge to extend the death-penalty exemption for juvenile offenders to those younger than age 21. In 2005, the U.S. Supreme Court (pictured) ruled in Roper v. Simmons that the death penalty was unconstitutionally cruel and unusual punishment when applied to offenders who were under age 18 at the time of the crime. The Court held at that time that a national consensus had evolved against such executions and that the death penalty was a disproportionate punishment for juvenile offenders. In reaching that determination, the Court said that neither retribution nor deterrence provided adequate justification for imposing the death penalty. Justice Kennedy wrote for the majority, "Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity." Joanne Lynch, an attorney for Bredhold, told Fayette Circuit Judge Ernesto Scorsone that research indicates that brain maturation continues beyond the age of 18, and the juvenile exemption should be extended, "because people under the age of 21 are almost completely like people under the age of 18. You really don’t mature until you are in your mid-20s." According to Temple University psychology professor Laurence Steinberg, a process called myelination continues into a person's twenties, affecting their ability to plan ahead, analyze risks and rewards, and make complex decisions. In a 2014 paper, Hollis Whitson cited both neurological evidence of the immaturity of late-adolescent brains, as well as examples of how the law differentiates people under 21, including liquor laws, inheritance laws, and eligibility for commerical drivers' licenses. She also found that death sentences for those aged 18-20 were disproportionately applied to racial minorities. From 2000 through 2015, 142 prisoners were executed in the United States for offenses committed before age 21: 87 (61.3%) were black or Latino.

 

Duane Buck's Lawyer Discusses How Future Dangerousness Taints Texas Death Penalty System

Posted: June 9, 2017

Thirty years ago, filmmaker Errol Morris, who directed the documentary “The Thin Blue Line,” helped to exonerate Texas death-row prisoner Dale Adams, falsely accused of murdering a police officer. During the course of making the film, Morris met the notorious Texas prosecution psychiatrist, Dr. James Grigson, who routinely testified that capital defendants—including the innocent Mr. Adams—posed a risk of future dangerousness. Morris recently interviewed Christina Swarns (pictured, center), litigation director for the NAACP Legal Defense and Education Fund, about the case of Duane Buck and the hazards of Texas’s continued use of the concept of future dangerousness in sentencing defendants to death. Swarns argued Buck v. Davis in the U.S. Supreme Court, a case tainted by the testimony of Dr. Walter Quijano, a psychologist who told the jury that Buck was more likely to commit future crimes because he was black. On February 22, 2017, the Supreme Court overturned Buck’s death sentence, saying Our law punishes people for what they do, not who they are.” Swarns said "[t]he introduction of evidence linking race to dangerousness — like that which was presented in the Duane Buck case — was an inevitable product of future dangerousness in the capital punishment system in Texas.” With a death penalty system already “contaminated and corrupted by racial bias,” she said, Duane Buck’s death sentence “was a predictable outcome of that mess." Swarns called the future dangerousness requirement "insane," saying "The business of predicting future dangerousness without becoming corrupted by the various factors that are so tied to human functioning is impossible. It’s an absurd requirement." She added that Buck's perfect disciplinary record in his more than 20 years in prison is evidence that predictions of future dangerousness are unreliable. On August 19, the Texas Court of Criminal Appeals granted Jeffery Wood a stay of execution to litigate his claim that the testimony Dr. Grigson presented in his case claiming that Wood was certain to pose a future danger to society if he was not executed was false and scientifically baseless. While the Supreme Court did not address the issue of future dangerousness determinations in its Buck decision, Chief Justice Roberts, writing for the majority, sharply condemned the racially biased testimony from Buck's trial. "When a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses," Roberts wrote.

 

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

Posted: June 8, 2017

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

 

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

Posted: June 7, 2017

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

 

Recent Jury Trials in Dallas Highlight Death Penalty Decline Across Texas

Posted: June 6, 2017

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

 

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

Posted: June 5, 2017

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

 

Indiana Appeals Court Voids State's Lethal-Injection Protocol

Posted: June 2, 2017

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

 

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

Posted: June 1, 2017

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

 

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

Posted: May 31, 2017

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

 

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