New Podcast: Duane Buck's Appeal Lawyer Tells Story of His Case, Discusses Future Dangerousness and Racial BiasPosted: June 28, 2017
In DPIC's latest podcast, NAACP Legal Defense and Educational Fund Litigation Director Christina Swarns (pictured, center, outside the U.S. Supreme Court following the argument in Buck v. Davis) discusses the issues of race, future dangerousness, and ineffective representation presented in the landmark case. She calls the case—in which a Texas trial lawyer who represented 21 clients sent to death row presented an expert witness who testified that his own client was more likely to commit future acts of violence because he is black—"astonishing" and "a complete failure, literally, of all aspects of the criminal justice system." Swarns argued in the Supreme Court on behalf of Texas death-row prisoner Duane Buck, one of seven death-row prisoners whose trials were tainted by the racist testimony of Texas psychologist Dr. Walter Quijano, who testified that Buck presented a greater risk of future dangerousness because he is black. The Texas Attorney General's office conceded the impropriety of the testimony and agreed to new sentencing hearings in the other cases, but when a new attorney general was elected, opposed relief for Buck. In Texas, a jury must find that a defendant is a future danger to society as a prerequisite to imposing the death penalty, and the prosecutor seized on Dr. Quijano's testimony as a reason to sentence Buck to die. On February 22, 2017, nearly 20 years after his trial and after all state and federal courts to have considered his case had denied relief, the Supreme Court overturned Buck’s death sentence. In a conversation with DPIC Executive Director Robert Dunham, Swarns explains how Buck's case made its way to the Supreme Court, and how racial bias and the concept of future dangerousness are inextricably linked. Texas had argued that Quijano's testimony, while improper, was harmless because his and the prosecutor's comments on race were very short. Swarns, however, explains that "[t]he race-as-dangerousness link is so pernicious and so ingrained in history and culture and the death penalty in this country, that ... the explicit introduction of that evidence by a defense expert can only be deeply prejudicial ... no matter how many lines of transcript space it occupies." Chief Justice John Roberts, writing the Court's majority opinion, agreed, stating, "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." Later in the discussion, Swarns places the Buck case in the broader context of the historically racially discriminatory application of the death penalty in the U.S. "This is a story as old as the death penalty itself," she says. "There has never been a time, there has never been a place in the administration of the death penalty where there isn't a race effect. Period. Hard stop."
European Union Calls for Abolition of Capital Punishment as World Coalition Hosts International Death Penalty ConferencePosted: June 27, 2017
At an international death penalty conference in Washington, DC, hosted by the World Coalition Against the Death Penalty, the European Union strongly renewed its call for a global end to the use of capital punishment. In his opening remarks for the conference, David O'Sullivan, the European Union's Ambassador to the United States, expressed optimism about recent declines in the use of the death penalty in the United States and said "the abolition of capital punishment ... would put the U.S. on the right side of history." On June 22-24, 2017, government representatives, non-governmental organizations, abolitionists, and death-penalty experts from around the world gathered on the campus of Catholic University in Washington, DC for a conference on the state of the death penalty throughout the world and a celebration of the World Coalition's 15th anniversary. The 2017 conference looked in-depth at the relationship between poverty and capital punishment, with speakers from India, Nigeria, and the U.S. describing the pervasive impact of poverty on crime, death-penalty charging practices, and access to qualified defense counsel and the courts. Other sessions included a panel of seven U.S. death-row exonerees, who discussed their cases and the inherent risk of sentencing innocent people to death. In his remarks, Ambassador O'Sullivan described as an "inherent flaw of the death penalty ... that it is deeply rooted in social injustice. Everywhere the death penalty is applied globally, statistics show that it discriminates against the poor, the minorities and the marginalised citizens of a society." O'Sullivan said, "[a]s a union founded on democracy, human rights and the rule of law, it is natural for us to oppose [the death penalty]." He described capital punishment as "a dehumanizing practice" that disserves victims' families. "We are also convinced that it is an illusion to believe that the death penalty deters the most serious crimes," he said. "What we need, in the United States and in those countries where the death penalty continues to be legal, is a vibrant civil society working in conjunction with political leaders, who together with public support will work to repeal the death penalty, thus ending this blight on our common humanity."
U.S. Supreme Court Rules Texas Death-Row Prisoner Cannot Challenge Ineffectiveness of His Appeal LawyerPosted: June 26, 2017
In a 5-4 decision released June 26, the United States Supreme Court upheld the decision of the U.S. Court of Appeals for the Fifth Circuit, denying review of Texas death-row prisoner Erick Daniel Davila's claim that he had been provided ineffective representation by his state appeal lawyer. The case, Davila v. Davis, raised the question of whether two earlier Supreme Court decisions (Martinez v. Ryan and Trevino v. Thaler) permitted a federal court to review a prisoner's claim that his direct appeal counsel had been ineffective, if—because of his state post-conviction lawyer's ineffectiveness—the appellate ineffectiveness claim had never been presented to the state courts. Davila's federal habeas corpus lawyer challenged an improper jury instruction to which his trial lawyer had objected at trial, but both his direct appeal and his state habeas lawyers failed to raise the issue. When his state habeas lawyer also failed to challenge the adequacy of his appellate lawyer's performance in failing to raise the issue, the federal habeas court ruled that the claim was procedurally defaulted and would not be reviewed. Justice Clarence Thomas, writing for the majority, said that Martinez is limited to claims of trial counsel's ineffectiveness and does not apply to appellate-ineffectiveness claims. "Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default," Thomas wrote. He said granting prisoners like Davila federal review of meritorious claims of constitutional error "could flood the federal courts with defaulted claims of appellate ineffectiveness," calling that "especially troublesome because those claims could serve as the gateway to federal review of a host of trial errors." Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan, arguing that the majority had interpreted Martinez too narrowly. "[E]ffective trial counsel and appellate counsel are inextricably connected elements of a fair trial," Breyer wrote. He added, “[t]he fact that ... nearly a third of convictions or sentences in capital cases are overturned at some stage of review suggests the practical importance of the appeal right, particularly in a capital case such as this one.” The dissent also said the majority’s concern was unfounded that granting review of the type of constitutional violation in Davila's case would overburden federal habeas corpus courts. He wrote, “there is no evidence before us that Martinez has produced a greater-than-expected increase in courts’ workload.”
Lawyers for William Morva (pictured), a seriously mentally ill death-row prisoner suffering from a delusional disorder that leaves him unable to distinguish his delusions from reality, has petitioned Virginia Governor Terry McAuliffe seeking clemency from his scheduled July 6, 2017 execution. Morva's lawyers say that he has suffered for years from "a serious psychotic disorder" that includes beliefs that "local law enforcement and the Administration of former President George W. Bush conspired to harass him, to arrest him unjustly, and to incarcerate him in jail conditions that would cause his death." He also believes that he suffers from "a life-threatening gastrointestinal condition that require[s] him to spend hours every day on a toilet and adhere to a diet of raw meat, berries, and pinecones." Morva was sentenced to death for killing a hospital security guard and a corporal with the sheriff's office in an escape from custody. Because Morva was misdiagnosed with a personality disorder before trial, his jury was never told about his serious mental illness and the role that it played in the murders. According to Morva's lawyers, after having been taken to a hospital for evaluation of his complaint of having been injured falling from a bunk in an overcrowded county jail, Morva falsely believed that his life was in imminent danger and that he needed to escape. Morva has been on death row since 2008, but has never received treatment for his mental illness, although, his lawyers say, "administration of anti-psychotic medications has proven successful in controlling symptoms of people similarly affected.” His mental condition has continued to deteriorate in his time on death row. The psychiatrist who diagnosed Morva considered his prognosis for successful treatment to be “very promising,” in part because Morva’s older brother was successfully treated for a psychotic disorder when he was around Morva's current age. Virginia Governors James Gilmore and Timothy Kaine cited concerns about serious mental illness when they commuted the death sentences of Calvin Swann and Percy Walton. Governor McAuliffe is out of the country through June 30, but a spokesman says he will review the clemency petition and make an announcement when the review is complete. [UPDATE: Governor McAuliffe denied clemency to Morva on July 6 and Virginia executed him that night. McAuliffe also denied a request for a temporary reprieve after Morva's lawyers learned of problems with the execution of Ricky Gray. An independent autopsy report suggested that Gray had suffered an an acute pulmonary edema during his execution and had blood in his lungs while he was still breathing.]
Decisions Not to Seek Death in Two New Orleans Cases Highlights Louisiana's Trend Away From Capital PunishmentPosted: June 22, 2017
The New Orleans District Attorney's office has decided not to pursue the death penalty in two high-profile murder cases, highlighting a trend in Louisiana away from the use of capital punishment. In a one-week period, Leon Cannizzaro (pictured), the District Attorney for Orleans Parish, announced that his office would not seek the death penalty against Travis Boys, charged with fatally shooting a New Orleans police officer, and Chelsea Thornton, charged with killing her 3-year-old son and 4-year-old daughter. According to capital defense lawyer Nick Trenticosta, “prosecutors throughout the state are thinking twice about taking a case to trial for the death penalty.” Defense lawyers say that, in New Orleans, District Attorney Cannizzaro's office has been taking note of jury verdicts: one death sentence in 19 years. "New Orleans juries are life-giving people,” Trenticosta said. Assistant DA Christopher Bowan, a spokesperson for the Orleans DA's office, said the office evaluates each prosecution "on a case-by-case basis." In the Boys case, he said, dropping the death penalty would assure a quicker resolution of the case for Officer Daryle Holloway's family. Officer Holloway's mother, Olander Holloway, said, "I just think, at some point in time, this needed to move forward. I think with the death penalty issue, this would've dragged on forever and ever." Bowan did not give a reason for dropping the death penalty against Thornton, who has a long history of mental illness, but noted that Louisiana's prisons do not have a stock of lethal injection drugs and "there's no means for carrying out a capital verdict at this point.” No prisoner has been executed in the state since 2010, when Gerald Bordelon waived his right to appeal, and the last contested Louisiana execution was in 2002. Since the turn of the century, the state has carried out three executions, while eight death-row prisoners have been exonerated. In addition, the one case in which an Orleans Parish jury did vote for death—after convicting Michael Anderson for a quintuple murder—was overturned by the courts and later resolved with a plea to lesser charges. In 2016, federal authorities presented evidence that another man had committed the five killings.
When University of Colorado Boulder sociology professor Michael Radelet began doing research on the death penalty in the 1970s, the noted death-penalty scholar tells Colorado Public Radio, he didn't have an opinion about capital punishment and "didn't know anything about it." After researching issues of race, innocence, and the death penalty, he came to have grave reservations. "I believe the death penalty is about making god-like decisions without god-like accuracy," he told Colorado Matters interviewer Andrea Dukakis. Radelet's latest book, The History of the Death Penalty in Colorado, chronicles the historic use of capital punishment in a state in which the practice is currently under scrutiny. Proponents and opponents of the death penalty both invoke "justice" in support of their positions, Radelet told Colorado Matters. "There's a debate about what 'justice' really means," he said, noting that Governor John Hickenlooper raised important questions about the fairness and accuracy of the death penalty when he imposed a moratorium on executions in Colorado in 2013. Commenting on the book, Hickenlooper said, "Professor Radelet reminds us we are not unique in asking whether our 'experiment with the death penalty' has worked: we have asked this question since our territorial days. The History of the Death Penalty is an insightful examination of the death penalty and whether it has a place in our state." Radelet's book documents each execution in the state since 1859 and explores the systemic concerns that have affected its implementation throughout Colorado's history. A Denver Post book review says: "In what could have been a dismal treatise, Radelet turns this fact-filled book into an absorbing history of Colorado’s flirtation with legal killing."
Ha'im Al Matin Sharif (pictured), formerly known as Charles Robins, has been released from Nevada's death row, nearly 30 years after he was convicted of killing his girlfriend's 11-month-old daughter, after medical evidence revealed that the baby died from infantile scurvy, rather than from physical abuse. Prosecutors agreed to amend the charges against Sharif and release him on time served after a prosecution doctor confirmed that Brittany Smith actually died of Barlow's disease, a form of scurvy affecting infants. The child's autopsy showed broken bones and hemorrhages, a local medical examiner listed the cause of death as blunt force trauma, and Las Vegas police accused Sharif of torturing her. “I was confused as to the nature of the injuries they described, because I had done nothing,” Sharif said. The child's mother initially told police that Sharif was not abusive, but then testified against him. She later recanted her testimony and told Sharif's appellate attorney that police had coerced her into providing false testimony implicating Sharif by threatening to take her other children away. During Sharif's appeals, medical experts who reviewed the baby's X-rays to rule out disease as the cause of death said the injuries were likely caused by scurvy. The Nevada Supreme Court ordered that the case be sent back to the trial court, writing, "We are satisfied that Robins has presented specific factual allegations that, if true, would show that it is more likely than not that no reasonable juror would have convicted him of first-degree murder and child abuse beyond a reasonable doubt or found the single aggravating circumstance used to make him death eligible." Prosecutors agreed to a deal in which Sharif would plead guilty to second-degree murder and be sentenced to time served. Although Sharif continues to maintain his innocence, he agreed to the reduction in charges to obtain his immediate release. Sharif's case is the latest in a growing number of cases in which men and women have been wrongly sentenced to death based upon erroneous forensic testimony that they had murdered a child, when the children had actually died from natural or accidental causes. Rodricus Crawford was exonerated in Louisiana in 2017 on evidence that his one-year-old son died of pneumonia and sepsis, not suffocation. Sabrina Butler was just 17 years old when her infant son died. She spent five years on death row in Mississippi before she was acquitted at a retrial, where she presented evidence that her child died of a hereditary kidney condition. Others have been condemned for the deaths of their children in cases that junk-science testimony misattributed to arson: Texas executed Cameron Todd Willingham in 2004 based on faulty fire testimony; in 2006, after more than 15 years on Pennsylvania's death row, Dennis Counterman agreed to enter a no-contest plea to third-degree murder and was released.
In a 5-4 decision released June 19, 2017, the U.S. Supreme Court ruled that Alabama had unconstitutionally denied death-row prisoner James McWilliams (pictured) the assistance of an independent mental health expert. The Court wrote that its 1985 ruling in Ake v. Oklahoma, which entitles indigent defendants to the assistance of a mental health expert, encompassed a clearly established right to an expert who is "independent from the prosecution." In his opinion for the Court, Justice Breyer wrote that "Alabama’s provision of mental health assistance fell ... dramatically short of Ake’s requirements." The defense had no expert to help it prepare to examine the doctors who testified for the state, and only presented testimony about his mental condition from McWilliams and his mother. After the jury voted 10-2 to recommend the death penalty, the court scheduled a formal sentencing hearing and appointed a state neuropsychologist to examine McWilliams. That doctor prepared a report of the evaluation and consulted with the prosecution. Defense counsel received the neuropsychological report—which stated that McWilliams had “organic brain damage,” “genuine neuropsychological problems,” and “an obvious neuropsychological deficit”—only two days before his sentencing hearing. On the day of the hearing, counsel received extensive prison mental health records that contained evidence that McWilliams was being prescribed anti-psychotic medication. After denying the defense time to consult with an independent expert to develop the mental health evidence for use in mitigation, the court found no mitigating evidence and sentenced McWilliams to death. Justice Breyer wrote, "Ake clearly established that when certain threshold criteria are met, the state must provide a defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively 'conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.'" The Court remanded the case to the U.S. Court of Appeals for the 11th Circuit, which must now determine whether Alabama's violation of McWilliams' right to an independent expert had the "'substantial and injurious effect or influence' required to warrant a grant of habeas relief." Stephen Bright, who argued on behalf of McWilliams before the Supreme Court, said, "Today’s decision is about fairness. The adversarial process cannot function properly if the prosecution can retain mental health experts, but the defense is not even allowed to consult with an expert." He said, "James McWilliams could not have a fair trial without a mental health expert to assess his brain damage and other mental impairments and to help his counsel present that information to the sentencing court."
In a Washington Post op-ed, former New Mexico Governor and United Nations Ambassador Bill Richardson (pictured)—who in 2009 signed a bill to abolish his state's death penalty—urged that capital punishment be abolished in the United States, saying "[t]he practice is wrong and I hope it isn’t long for this world." Richardson said he supported the death penalty for decades before "empirical evidence and common sense" convinced him that the practice should end. That evidence, he writes, included that that "the death penalty is an ineffective deterrent, is unfairly applied and has become increasingly costly for states." Richardson now serves as a commissioner on the International Commission Against the Death Penalty, advocating the worldwide abolition of capital punishment. He explains how the use of the death penalty, especially lethal injection, hurts state business interests by putting them at odds with the views of pharmaceutical companies. Using Arkansas' April 2017 flurry of executions as an example, he writes, "In their effort to push through these executions, state officials needlessly hastened the application of an unjust policy while senselessly placing Arkansas at odds with the private sector." McKesson, a pharmaceutical distributor, sued the state of Arkansas for using "false pretense, trickery, and bad faith" to obtain execution drugs. He also points to a recent vote by the Delaware House of Representatives to reinstate the death penalty, saying, "As a state that has worked successfully for decades to build an international brand as America’s leading incorporation venue, a major source of its revenue, Delaware could lose if the globally disfavored death penalty once again becomes law." Richardson also ties his international experience to the issue, writing, "States that continue to employ the death penalty will remain isolated from the growing international consensus." "To effectively represent the interests of citizens, and protect our nation’s role as a global leader," he concludes, "a new generation of policymakers and politicians must put the death penalty to rest once and for all."
NEW VOICES: A Psychologist—a War Veteran with Schizophrenia—Urges Adoption of a Death Penalty Exemption for Severe Mental IllnessPosted: June 15, 2017
In a recent commentary article in Medium, psychologist Dr. Frederick J. Frese, III (pictured)—a Marine Corps veteran who has himself been diagnosed with paranoid schizophrenia—argues that Congress and state legislatures should pass laws exempting people with severe mental illness from the death penalty. "Supporters and opponents of the death penalty agree that it should only be reserved for the most culpable and deliberate of criminals who commit heinous crimes," Frese writes. He says that "[m]y experience as a practitioner who has himself experienced psychosis or a flight from reality has taught me that people with severe mental illnesses such as schizophrenia or bi-polar disorder do not possess that level of culpability during these times." This year, legislators in eight states have introduced bills to bar use of the death penalty against defendants with severe mental illness, putting them in a similar class with juveniles and those with intellectual disabilities, who are also ineligible for the death penalty. Frese calls these bipartisan bills "well balanced" because they "require that each defendant be evaluated individually — usually by a judge, who carefully considers expert testimony." Jurors often misunderstand severe mental illness and, Frese says, "may even consider it to be an additional reason to impose the death penalty, rather than a reason to opt for a sentence of life without parole." A 2015 DPIC Report, Battle Scars: Military Veterans and the Death Penalty, estimated that veterans may constitute as much as 10% of the nation's death row and highlighted the prevalence of combat-related post-traumatic stress disorder among veterans sentenced to death. As a military veteran himself, Frese ties the issue of the mental illness exemption from capital punishment to the many veterans of war who are affected by PTSD and traumatic brain injury. Writing during PTSD Awareness Month, he states, "Our justice system should respond firmly, but with compassion and understanding for those who volunteered to serve our county. They should not face execution."