Aging of Death Row Raises Humanitarian and Practical Concerns, As Alabama Executes 83-Year Old PrisonerPosted: April 20, 2018
Death row is aging and increasingly infirm and, as a series of recent death warrants suggest, that phenomenon is raising legal, practical, and humanitarian concerns. One year after executing 75-year-old Thomas Arthur, Alabama on April 19 executed 83-year-old Walter Moody (pictured, left), the oldest person and only octogenarian put to death in the United States since executions resumed in 1977. Attempts to execute prisoners debilitated by physical and cognitive impairments exacerbated by aging have proven problematic and inhumane. After canceling his previously scheduled cancer surgery to issue a death warrant, Alabama failed for 2 1/2 hours to set an intravenous line to execute gravely ill 61-year-old Doyle Hamm on February 22. His lawyer moved to bar the state from trying a second time, describing the failed attempt as "torture." Ohio tried and failed to execute terminally ill 69-year-old Alva Campbell (pictured, center) in November 2017. He then died of his terminal illness on March 3. And in late January 2018, the U.S. Supreme Court halted Alabama's scheduled execution of 67-year-old Vernon Madison (pictured, right), who is legally blind, incontinent, and unable to walk independently, and suffers from vascular dementia caused by strokes that have left him with no memory of the offense for which he was sentenced to death. The Court on February 26 agreed to review his claim that his illness leaves him mentally incompetent to be executed. A Washington Post review of Department of Justice data reported that the percentage of death-row prisoners aged sixty or older has more than doubled this century, up from 5.8 percent of U.S. death rows in 2007 to 12.2 percent in 2013. The aging of the row has also affected executions. An Associated Press review of the Death Penalty Information Center execution database found that the median age of an executed prisoner in the U.S. rose from 34 to 46 between 1983 and 2017. A DPIC analysis of U.S. execution data found that only two of the 933 prisoners executed in the United States between 1977 and 2004 were aged 65 or older. That total was matched in a single 35-day period this year between March 15 and April 19, when Georgia executed 67-year-old Carlton Gary and Alabama executed Mr. Moody. In 23 years of executions between 1977 and the close of the 20th century, ten prisoners aged 60 or older were executed. Thirty-six have already been executed this decade, 13 since 2015 alone. The aging of death row raises humanitarian issues, separate and apart from the risk of botched executions. Speaking to Associated Press, DPIC Executive Director Robert Dunham noted that, while many of the prisoners facing execution have been convicted of terrible crimes, the public is "torn between wanting to punish [them] severely and the belief it is beneath us as a nation to kill a frail person who is already dying. It’s a challenge to our morality and our sense of humanity,” Dunham said. The attempts to execute the infirm also have attracted international attention and approbation. When Alabama sought to execute Madison, David O'Sullivan, the European Union's Ambassador to the United States, wrote "an urgent humanitarian appeal" to Alabama Governor Kay Ivey not to execute him. The Ambassador's letter reminded Alabama that "[t]he execution of persons suffering from any mental illness or having an intellectual disability is in contradiction to the minimum standards of human rights, as set forth in several international human rights instruments." When Ohio sought to execute Campbell, his lawyer, assistant federal defender David Stebbins, predicted that the execution could become a “spectacle” if prison staff were unable to find a suitable vein. “All of this in an attempt to execute an old and frail man who is no longer a threat to anyone,” Stebbins said. In a statement that applies to more and more prisoners facing death warrants, Madison’s lawyer, Bryan Stevenson of the Equal Justice Initiative, summed up the issue: “Killing a fragile man suffering from dementia," he said, "is unnecessary and cruel.”
In 1764, Italian philosopher Cesare Beccaria wrote the treatise, Dei delitti e delle pene, which author John Bessler (pictured) says spawned global movements for fair and proportional punishment and against practices such as torture and the death penalty. Beccaria’s book was a best-seller that swept across Europe and, translated into English in 1767 as An Essay on Crimes and Punishments, into the American colonies, shaping the beliefs of America’s founding fathers, and influencing leaders, revolutionaries, and law reformers. In two recent publications, Bessler—a law professor and author of numerous books on the death penalty—traces the lasting influence of the 18th-century Italian nobleman and describes how Beccaria’s advocacy of equal treatment under the law and his powerful opposition to torture and the death penalty remains relevant today and has inspired an international movement that, he says, now “involv[es] scores of highly respected anti-death penalty activists and organizations.” Bessler’s latest book, The Celebrated Marquis, takes its title from a compliment given to Beccaria by the delegates of the Continental Congress. In it, Bessler describes how Beccaria’s ideals have taken root in the U.S. and shaped progressive criminal justice reforms across a span of 250 years. His article, The Abolitionist Movement Comes of Age, published in the winter 2018 issue of the Montana Law Review, chronicles Beccaria’s historical impact on efforts to abolish the death penalty across the globe. “There was a time when death sentences and executions were almost universally embraced throughout the world and when the punishment of death was the mandatory punishment for a wide array of felonies,” Bessler writes. “That has largely changed, with those changes in law and practice taking place in many nations.” The death-penalty debate, he writes, has transformed over the centuries “from one that originally focused on absolute power, the divine right of kings, and the asserted right of monarchs to take human life with impunity, to one focused on whether it violates basic or fundamental human rights for the state to kill individual offenders.” Comparing it to the anti-slavery movement in the 19th century, Bessler says “today’s global anti-death penalty movement ... has finally come into its own on the international stage.” Looking forward, he says, one can see a day in the not too distant future in which there is a peremptory international norm against executions and the death penalty itself joins torture as a prohibited international practice.
Mexican national Vicente Figueroa Benavides (pictured), wrongly convicted and sentenced to death in Kern County, California for supposedly raping, sodomizing, and murdering his girlfriend’s 21-month-old daughter, will soon be freed after nearly 26 years on death row. He will be the 162nd person and fifth foreign national exonerated from a U.S. death row since 1973. In a media advisory on April 17, 2018, Kern District Attorney Lisa Green announced on April 17, 2018 that her office would be dropping all charges against Benavides, one month after the California Supreme Court vacated the former farmworker’s convictions for sexually assaulting and murdering Consuelo Verdugo, which the court called a product of “extensive,” “pervasive,” “impactful,” and “false” forensic testimony. The girl, the court said, had never been sexually assaulted and may actually have died from being hit by a car. At trial, the prosecution presented testimony from forensic pathologist Dr. James Diblin, who told the jury that Consuelo had died from “blunt force penetrating injury of the anus” and claimed that many of her internal injuries were the result of rape. He further testified that arm injuries, other internal trauma, dilated pupils, and compression rib fractures she had sustained had been “caused by tight squeezing during a sexual assault.” During post-conviction proceedings, Benavides’s lawyers presented evidence from Dr. Astrid Heger, one of the country’s leading experts on child abuse, debunking Diblin’s false testimony. Dr. Heger described Diblin’s assertion that Consuelo’s injuries had been the product of sexual assault as “so unlikely to the point of being absurd. … No such mechanism of injury has ever been reported in any literature of child abuse or child assault.” Rather, she said, the internal injuries Consuelo sustained were commonly seen in victims of automobile accidents. Hospital records and witness statements obtained by Benavides’s appeal lawyers also undermined Diblin’s false testimony. Records showed that the examining physicians from Consuelo’s initial hospitalization had not seen any signs of bleeding when she was brought to the emergency room, and a nurse who helped treat Consuelo reported that neither she nor any of her colleagues had seen evidence of anal or vaginal trauma when the child arrived. Indeed, the court said, the medical records showed that the injuries to Consuelo’s genitalia and anus that Diblin had claimed were evidence of sexual assault were actually “attribut[able] to medical intervention,” including repeated failed efforts to insert a catheter and the improper use of an adult-sized catheter on the small child. Associate Justice Carol Corrigan—a former prosecutor—described the forensic testimony that Benavides had brutally raped and anally sodomized Consuelo as “among the most hair-raising false evidence that I’ve encountered in all the time that I’ve been looking at criminal cases.” On appeal, prosecutors admitted that the forensic evidence they used to convict Benavides was false, but asked the state court to sustain a conviction for second-degree murder. Even after agreeing on April 17, 2018 to drop all charges, District Attorney Green refused to concede that Benavides was innocent of murder. “[I]t doesn’t mean he’s innocent of the physical child abuse,” she said. “My decision not to retry the case is not the same as a finding of factual innocence[.] I'm not stating in any way that he’s factually innocent of the death of the child.” At least ten men and women have been exonerated from death rows across the United States after having been wrongly convicted for killing a child. In the cases of Rodricus Crawford and Sabrina Butler, the medical evidence also showed that no crime had occurred, but the defendants were convicted based on false forensic testimony. Benavides is the fourth person exonerated from California’s death row since 1980. A California prison spokesperson said he is expected the be freed “within a few days,” as soon as the Kern County court orders his release. [UPDATE: The court formally dismissed all charges against Mr. Benavides and he was released on April 19, 2018.]
Sister of Murder Victim and Wife of Death-Row Exoneree Says Death Penalty Fails Victims’ Family MembersPosted: April 17, 2018
As the sister of a murder victim and the wife of a death-row exoneree, LaShawn Ajamu has a unique perspective on what victims’ families need and how they are treated as criminal cases wend their way through the legal process. And the co-chair of the Murder Victims Families Support Project at Ohioans to Stop Executions strongly believes that the death penalty fails victims’ family members. Ajamu, the wife of 150th U.S. death-row exoneree Kwame Ajamu, spoke in London, England on April 7 at a conference of LifeLines, an international organization that provides support for prisoners on death row in the United States. Ajamu’s brother, James Nero, was shot to death, but his accused killer—the son of a former Stark County, Ohio sheriff—claimed self-defense and was acquitted. “When the court case was over,” Ajamu said, “[t]here was no help except from our own community. My parents, my two other brothers, James’s fiancé and my nephew never received any information about resources available to help us deal with the situation in which we found ourselves. None of us had ever experienced traumatic loss like this.” Ajamu said that states need to provide “a simple guide and a list of resources that can help the loved ones of murder victims,” including trained grief counselors, assistance with funeral arrangements, and financial assistance. Frustrated at the lack of support available to her family, Ajamu became an advocate for the families of murder victims. Ajamu also advocates protecting the integrity and neutrality of government victim assistance programs by making them independent of county prosecutors, where they are housed in most states. “I’m here to tell you that if the crime victim is somehow found in disfavor, or if the victims’ family disagrees with the prosecutors’ office, their services dry up. That must be unacceptable. Victim services personnel should not be beholden to the county prosecutor.” These services, not the death penalty, are what truly help victims’ families, she said. “[E]very time they are trying to execute a prisoner, the politicians come out and say ‘We need to do this for the murder victims family.’ ‘We need executions so that the victims family can heal, or have closure.’” Instead of executions, she said, family members “want the truth about what happened, and we want the killer held accountable in a way that he can’t do it again. No amount of killing is going to bring our loved one back, and we certainly don’t want the state using our pain and suffering to justify another family losing their loved one — even if they are guilty.” The death penalty further victimizes families, she said, because the comparative infrequency with which it is sought and obtained is “really saying to most of us is that our loved ones were not valuable enough to them.” Finally, she says, her husband’s experience proves that “the state makes mistakes. ... No murder victim[’s] family wants an innocent person held accountable for the loss of their loved one. Not only does that create more victims, but it leaves the real killer free to kill again. Get rid of the death penalty and you won’t risk executing the wrong person,” she said.
Former Prosecutors Say Intellectually Disabled Louisiana Man Entitled to New Trial After Exculpatory Evidence WithheldPosted: April 16, 2018
Forty-four former state and federal prosecutors and Department of Justice officials—including former U.S. Attorney General Michael Mukasey—have asked the U.S. Supreme Court to grant a new trial to Corey Williams (pictured), saying that Caddo Parish, Louisiana prosecutors violated their duty to ensure that “justice shall be done” by withholding exculpatory evidence in a murder case that sent an intellectually disabled teenager to death row. Williams’s petition alleges that police and prosecutors knew that Williams had been framed by the actual killers, that police coerced him to falsely confess, and that the prosecution deliberately withheld witness statements given to police that could have helped Williams prove he had been framed. No physical evidence linked Williams to the 1998 robbery and murder of Jarvis Griffin, who was delivering a pizza to a Shreveport home. Several witnesses said they saw Gabriel Logan, Nathan Logan, and Chris Moore (nicknamed “Rapist”) steal money and pizza from Griffin, while the sixteen-year-old Williams was simply standing outside at the time. The victim’s blood was found on Gabriel Logan’s sweatshirt; Nathan Logan’s fingerprints were found on the empty clip of the murder weapon; and Moore was in possession of some of the proceeds of the robbery. Only Moore claimed to have seen Williams commit the killing. Williams, who had intellectual disability caused by severe lead poisoning from regularly eating dirt and paint chips as a young child and who as a teenager still repeatedly urinated himself, initially told police he had nothing to do with the killing. But after six hours of police interrogation, Williams confessed to the murder. After detectives presented the older men with Williams’s confession, their stories changed to corroborate it. At trial, Caddo Parish prosecutor Hugo Holland presented the confession and Moore’s testimony as evidence of WIlliams’s guilt. Then, having withheld from the defense police statements that implicated his witnesses in framing Williams, Holland ridiculed the defense claim that Williams had been framed, calling it “the biggest set of circumstances concerning a conspiracy since John Kennedy was killed in 1963.” The prosecutors’ amicus brief in support of Williams states that “[t]he prosecutor’s goal is not only to strive for a fair trial, but also to protect public safety by ensuring that innocent persons are not convicted while the guilty remain free.” It stresses that this is a case in which, “[h]ad the statements not been withheld, there is a reasonable probability that the verdict would have been different.” Ben Cohen, Williams’s longtime lawyer, said that “[w]hat the prosecutor and the police did is outrageous. They knew Williams was innocent and they just went forward anyway.... They don’t think his life matters.” Eleven men have been exonerated from Louisiana's death row since the 1970s, including the Caddo Parish exonerations of Glen Ford and Rodricus Crawford. All eleven cases involved police and/or prosecutorial misconduct. Holland himself has been implicated in withholding witness statements in another capital prosecution showing the defendant had not participated in the killing. Holland was forced to resign his position as an assistant district attorney for Caddo Parish in 2012 after he and another prosecutor were caught falsifying federal forms in an attempt to obtain a cache of M-16 rifles for themselves through a Pentagon program that offers surplus military gear to police departments. Williams was released from death row after the U.S. Supreme Court decided Atkins v. Virginia, barring the death penalty for persons with intellectual disability, and is currently serving a life sentence.
Washington Supreme Court Unanimously Finds Reversible Error, But Upholds Prisoner’s Conviction and Death SentencePosted: April 13, 2018
A fractured Washington Supreme Court unanimously found that a death-row prisoner’s constitutional rights had been violated under circumstances that had always before required overturning a conviction and granting a new trial, but nevertheless voted to uphold his conviction and death sentence. In five opinions spanning 254 pages published on April 12, 2018, the nine justices agreed that Conner Schierman’s (pictured) rights to be present and to a public trial were violated during the jury selection process in his case when the court discussed potential challenges for cause related to six prospective jurors in the judge’s chambers outside the presence of the defendant and the public without making a record of the proceedings. Under long-established Washington law, such constitutional violations had long been considered “structural error” requiring that a new trial automatically be granted. In the lead opinion in the case, Justice Sheryl Gordon McCloud wrote that the 10-minute proceeding could not have had any effect on the trial and did not undermine public confidence in the justice system. In a concurring opinion, Justice Mary Yu, joined in by three other justices, wrote: “A majority of this court agrees that justice demands we affirm Schierman’s convictions, but every member of the court unanimously agrees that our precedent precludes us from doing so. In this direct conflict between justice and precedent, justice must prevail.” Four justices dissented from the majority’s decision to change exisiting law to uphold Schierman’s convictions. Two other justices, and one of the guilt-stage dissenters, also believed that Schierman’s death sentence had been unconstitutionally imposed, for a total of six justices who had determined that the constitutional violations in the case required that Schierman be granted a new trial or that his death sentence be overturned. But rather than ruling that a death sentence cannot be imposed for an unconstitutionally obtained conviction, three of the guilt-stage dissenters—Justices Debra Stephens, Charles Johnson, and Susan Owens—joined with the remaining justices to uphold Schierman’s death sentence by a vote of 6-3. Schierman was convicted and sentenced to death in King County in 2010 for stabbing to death four members of Leonid Milkin’s family while the National Guardsman was deployed to Iraq. He is the last person to have been sentenced to death in King County, which includes the city of Seattle. King County Prosecuting Attorney Dan Satterberg has advocated abolishing Washington’s capital-punishment statute, writing that “the death penalty law in our state is broken and cannot be fixed. It no longer serves the interests of public safety, criminal justice, or the needs of victims.” He testified before a state senate committee, “If you look at it carefully and take away the politics and the emotion, by any measure this doesn’t work. Our criminal justice system would be stronger without the death penalty.” Satterberg said Leonid Milkin “is supportive of the death penalty in this matter and we continue to pursue it, as it continues to be the law of the state.” The bi-partisan abolition bill, which has the support of Governor Jay Inslee and the state’s last two attorneys general, passed the state senate and a house committee in the 2018 legislative session that ended in March, but never received a vote before the full house. Governor Inslee imposed a moratorium on executions in Washington in February 2014.
Use of the death penalty declined worldwide in 2017, according to the Amnesty International’s annual global report on capital punishment. The human rights organization recorded 2,591 death sentences imposed in 53 countries in 2017, down 17% from the 3,117 death sentences it recorded from 55 countries in 2016. Executions also fell, with 23 nations carrying out a recorded 993 executions, off 4% from the the 1,032 executions recorded in 2016 and 39% below the 1,634 executions reported in 2015. Two more countries—Guinea and Mongolia—abolished capital punishment, increasing the number of abolitionist nations to 106, and Guatemala outlawed executions for “ordinary crimes” such as murder, bringing to 142 the number of nations Amnesty reports as having “abolished the death penalty in law or practice.” As in previous years, Amnesty’s execution total does not include the estimated thousands of executions carried out in China or executions in North Korea and Vietnam, all of which treat information on the death penalty as a state secret. Four countries—Iran, Saudi Arabia, Iraq, and Pakistan—which collectively accounted for 87% of the confirmed executions in the rest of the world in 2016, accounted for 84% of the world’s confirmed executions in 2017. The United States dropped to 8th in documented executions (23) in 2017 and ranked 11th in death sentences imposed. For the 9th consecutive year, it was the only country in the Americas to carry out executions. Among human rights violations, Amnesty reported that 15 countries imposed death sentences or executed people for drug-trade related offenses, with China, Iran, Saudi Arabia, and Singapore executing prisoners for involvement in the drug trade. The secrecy practices in Malaysia and Vietnam prevented Amnesty from determining whether similar human rights violations had occurred in those countries. “Despite strides towards abolishing this abhorrent punishment, there are still a few leaders who would resort to the death penalty as a ‘quick-fix’ rather than tackling problems at their roots with humane, effective and evidence-based policies,” said Amnesty’s Secretary General Salil Shetty. “The draconian anti-drug measures widely used in the Middle East and Asia-Pacific have totally failed to address the issue.” Amnesty also cited Iran for violating the human rights proscription against applying the death penalty to prisoners charged with offenses committed when they were younger than age 18. Iran executed five juvenile offenders in 2017, and has at least 80 others remaining on death row. Amnesty said Japan, the Maldives, Pakistan, Singapore, and the United States violated the international prohibition on executing prisoners with mental or intellectual disabilities or keeping such prisoners under sentence of death. Amnesty reported that at least 21,919 people were known to be on death rows around the world at the end of 2017.
Nine years after New Mexico prospectively abolished capital punishment, lawyers for the state’s two remaining death-row prisoners argued to the New Mexico Supreme Court that the death penalty was unconstitutionally disproportionate punishment as applied to Timothy Allen (pictured, left) and Robert Fry (pictured, right), and that they should not be executed. The lengthy oral argument on April 10 turned on how the court should go about determining whether a death sentence is arbitrary and disproportionate. State prosecutors urged the court to follow a 1983 decision that would limit the court’s review to cases involving the same aggravating factors that were present in the prisoners’ crimes. “[T]he ultimate question,” said Assistant Attorney General Victoria Wilson, “is: ‘Was this sentence imposed arbitrarily?’” On the other hand, the prisoners’ lawyers argued that executing the men would be disproportionate punishment and unconstitutionally arbitrary when compared to all the cases in which New Mexico could have imposed the death penalty. Between 1979 and 2009, when New Mexico authorized capital punishment, prosecutors sought the death penalty more than 200 times. The sentence was imposed in only 15 cases, leading to a single execution in 2001, when Terry Clark waived his appeals. During the argument, Justice Charles Daniels questioned whether New Mexico had applied the death penalty in an “evenhanded” manner. “In the first 47 years of our existence as a state, we executed 27 people with fairly regular frequency,” Daniels said. “In the next 57 years, we executed one—at a time when there were horrible murders and over 200 where the death penalty was sought.” Given that history, he asked, “[c]an we really look in the mirror and say we’ve walked the talk and imposed the death penalty consistently in New Mexico?” Allen, who suffers from schizophrenia and auditory hallucinations, was sentenced to death in connection with the kidnapping, attempted rape, and murder of a 17-year-old girl in 1994. His lawyer had never tried a capital case, conducted no mental health investigation, and presented no witnesses in the penalty phase of Allen’s trial. Fry was sentenced to death for stabbing and bludgeoning a mother of five to death in 2000. Fry’s lawyer, Kathleen McGarry, argued: “What we’re looking at are cases that are far worse than Mr. Fry’s case and yet those persons are not going to be … sentenced to death. How does that make Mr. Fry’s death sentence be the poster child of what we’re going to do here in New Mexico?”
After 22 Years, District Attorney’s Office to Examine Possible Innocence of Philadelphia Death-Row PrisonerPosted: April 10, 2018
Twenty-two years after Walter Ogrod (pictured) was sentenced to death for a murder he insists he did not commit, a new Philadelphia District Attorney’s administration has dropped the office’s long-time opposition to Ogrod’s request for DNA testing and has referred the case for review by a revitalized Conviction Integrity Unit. As that review proceeds, an hour-long documentary on the case—aired April 8 as part of CNN’s Headline News Network series Death Row Stories—presents what Philadelphia Daily News columnist Will Bunch describes as “compelling evidence that the snitch testimony that the Philadelphia District Attorney’s Office used to convict Ogrod was fabricated” and that the confession the intellectually impaired man gave to Philadelphia police was coerced. Ogrod was sentenced to death in 1996 for the high-profile 1988 murder of 4-year-old Barbara Jean Horn, whose body was found discarded in a television box on a Northeast Philadelphia street. No physical evidence linked Ogrod to the murder, but four years after the murder, police questioned the 25-year-old truck driver—variously described as “slow,” possibly autistic, and lacking “common sense”—for 14 hours, telling him he was repressing memories of the murder. In the documentary, a friend of Ogrod’s recounts that Ogrod signed a confession after police told him that if he didn’t, he would have to wait for a lawyer in a holding area with other prisoners and “you know what they do to child molesters down there.” Author Tom Lowenstein, who investigated the case and wrote the 2017 book The Trials of Walter Ogrod, says in the documentary that the 16-page confession, hand written by the detective, “is a flowing monologue of thought and process and description that Walter Ogrod is not capable of…. He could not have given the confession.” Ogrod was tried twice for the murder. In 1993, the jury in his first trial appeared to have acquitted him, filling out “not guilty” on the verdict sheet. But as the verdict was being read, one juror said he had changed his mind, resulting in a mistrial. Following the mistrial, Ogrod was celled with John Hall, a notorious (and later discredited) jailhouse informant nicknamed “The Monsignor” for his proclivity in producing confessions. Hall’s widow, Phyllis Hall, explains in the documentary that Hall introduced Ogrod to another prisoner, Jay Wolchansky, and worked with police and prosecutors to feed Wolchansky information to implicate Ogrod in the murder. Wolchansky then testified against Ogrod in his second trial, claiming that Ogrod had confessed. Phyllis Hall says her husband “would get some of the truth and he would sit in his cell and make up stories—and he was darned good at it.” For years, Philadelphia's district attorneys—first Lynne Abraham, who oversaw Ogrod’s prosecution, and later her successor, Seth Williams—fought requests from Ogrod’s lawyers to test DNA evidence that might prove his innocence. While campaigning for District Attorney in 2017, Krasner told Bunch “it is clear that for decades the practice and policy of the District Attorney’s Office has been to win convictions at any cost, too often at the cost of justice itself.” When he took office in January 2018, Krasner rankled many entrenched prosecutors by emphasizing a reform agenda that included a willingness to take a look at questionably obtained past convictions. Krasner has not spoken about the specifics of the Ogrod case, but told Bunch, “Four-year-old Barbara Jean Horn was murdered. If the wrong person went to death row for it—and I specify that I am saying if—then the person who did murder her walked free.”
Black Prisoner on Georgia’s Death Row, Sentenced by Racist Juror, Denied Federal Court Appellate ReviewPosted: April 9, 2018
Less than three months after the U.S. Supreme Court directed a federal appeals court to reconsider whether Georgia death-row prisoner Keith Tharpe (pictured) is entitled to federal-court review of his claim that he was unconstitutionally sentenced to death because he is Black, the U.S. Court of Appeals for the Eleventh Circuit has declined to review Tharpe’s appeal, saying he had never presented the issue to the state courts. Citing “principles of comity and federalism,” the court denied Tharpe’s application for a certificate of appealability—a federal court prerequisite for a habeas petitioner to appeal—on the grounds that the Georgia state courts “have yet to examine” Tharpe’s juror-misconduct claim. Tharpe was sentenced to death by a Georgia jury that included a racist White juror who called him a “ni***er,” and questioned “if black people even have souls.” The juror, Barney Gattie, signed an affidavit saying that there were “two types of black people: 1. Black folks and 2. Ni**ers.” Tharpe, Gattie said, “wasn’t in the ‘good’ black folks category [and] should get the electric chair for what he did.” Gattie’s affidavit also said “[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks,” but denied that race influenced his own vote. When Tharpe first presented the claim to the state and lower federal courts, it was denied based on a state-court rule prohibiting courts from considering evidence questioning why jurors reached their verdict. However, after Tharpe’s claim was rejected, the U.S. Supreme Court decided a case in 2017, Pena-Rodriguez v. Colorado, that made clear a state rule cannot insulate a juror’s overt expressions of racial bias from judicial review. While Tharpe faced imminent execution in September 2017, he asked the state and federal courts to review the issue again in light of Pena-Rodriguez. The Georgia Supreme Court and the Eleventh Circuit both denied his request. Three hours after his execution was scheduled to start, the U.S. Supreme Court issued a stay of execution based upon his federal appeal. On January 8, 2018, the Court granted Tharpe’s petition for certiorari and vacated the judgment of the Eleventh Circuit. The Court said the fact that Gattie had never retracted his “remarkable affidavit” strongly suggested that “Tharpe’s race affected Gattie’s vote for a death verdict.” Tharpe is expected to ask the Supreme Court to review the circuit court’s latest ruling. On April 2, he filed a separate petition asking the Court to review the Georgia state court’s denial of the issue.