At Least Seven States Introduce Legislation Banning Death Penalty for People with Severe Mental IllnessPosted: February 3, 2017
Bills to exempt individuals with severe mental illness from facing the death penalty are expected in at least seven states in 2017. Legislators in Idaho, Indiana, North Carolina, Ohio, South Dakota, Tennessee, and Virginia have either introduced such legislation or announced that they plan to. Six of the seven states have sponsorship from Republican legislators, indicating bipartisan support for the measures. The author of Indiana's bill, Sen. James Merritt (pictured, R-Indianapolis), says he supports the death penalty but draws a “bright line of distinction” around executing people with severe mental illness. There are some variations in the bills, but each creates a process in which a determination is made—usually by a judge—whether the defendant qualifies for the exemption. Some bills define serious mental illness by particular diagnoses, others by behavioral impairments in functioning. Qualifying diagnoses under the exemption typically included Schizophrenia and Schizoaffective Disorder, Bipolar Disorder, Major Depressive Disorder, Post-Traumatic Stress Disorder, and Traumatic Brain Injury. Defendants found to be suffering from severe mental illness would not be exempted from criminal responsibility, but would be subject to a maximum sentence of life without parole. Numerous mental health organizations have called for an exemption to the death penalty for individuals with severe mental illness. The measures have the support of the American Psychiatric Association, the American Psychological Association, the National Alliance on Mental Illness (NAMI), Mental Health America (MHA), and state-level coalitions of mental health advocates. In December 2016, the American Bar Association held a national summit and issued a white paper in support of a severe mental illness exemption. Several religious leaders also have spoken out in favor of the exemption. Richard Cizik, President of the New Evangelical Partnership for the Common Good, wrote an op-ed for The Virginian-Pilot in late January saying, "Their conditions affect many aspects of the legal process, impacting their appearance in court, the jury’s perception of ticks or socially inappropriate interactions, the defendant’s presentation of facts, and even their own admission of guilt. Indeed, studies have shown that defendants with severe mental illness are more likely to give a false confession. ...As a faith leader, I am compelled to advocate for compassionate and fair laws such as this." Glenn Tebbe, executive director of the Indiana Catholic Conference, called the bill "prudent and just."
A Texas federal appeals court has upheld the ruling by a U.S. district court judge to stay the execution of John Henry Ramirez, who had been scheduled to be executed in Texas on February 2. The District Court had ruled that Ramirez was entitled to a stay so new lawyers could seek clemency on his behalf after Michael Gross, the lawyer initially appointed to represent Ramirez in his state and federal habeas corpus proceedings, had failed to file a clemency petition and left Ramirez "effectively without counsel" at the time of his death warrant. The court did not rule on a second issue alleged by Ramirez's new counsel, that Gross had an inherent conflict of interest in the case because he had provided ineffective representation in state court and could not be expected to litigate his own ineffectiveness as part of the federal habeas corpus proceedings. After the federal courts denied his habeas petition, Ramirez informed Gross that he wanted to replace him as counsel, and asked him not to file a clemency petition because he wanted his new attorney to do that. The district court held that "Gross had a duty to either (1) inform the Court of his client’s wishes and seek the substitution of new counsel or (2) ensure that a clemency petition was filed on his client’s behalf. Gross did neither. Gross’ inaction prevented judicial consideration of whether the circumstances required the substitution of counsel." The court also noted that Gross had previously failed to file key motions in the death penalty case of John Battaglia, requiring the courts to issue a stay of execution in December 2016 in that case. In Battaglia's case, Gross had refused to filed a state competency petition, saying that fell "outside the scope" of his representation. The Texas Attorney General's Office appealed Ramirez's stay to the U.S. Court of Appeals for the Fifth Circuit, arguing that Gross's action constituted "gamesmanship," not abandonment. A three-judge panel of the court disagreed and dismissed the state's motion to vacate the stay.
Prosecutors in Augusta, Georgia are seeking the death penalty against a man accused of murdering the Rev. Rene Robert (pictured), despite their knowledge that the Franciscan priest had requested that the death penalty not be used "under any circumstances" if he were killed. On January 31, Catholic Bishops from Georgia and Florida traveled to Augusta to meet with Hank Sims, the acting district attorney for the Augusta Judicial Circuit, asking him to respect Reverend Robert's wishes and to withdraw capital charges against Steven Murray. They also delivered a petition signed by more than 7,400 people from Rev. Robert's diocese in St. Augustine, Florida, asking that the Reverend's wishes be honored. In his work as a Catholic priest, Rev. Robert had devoted his life to serving people convicted of crimes and those struggling with addiction and mental health problems. He had worked with Murray through his ministry. Twenty years before he was killed, Rev. Robert signed a "Declaration of Life" that stated: "I hereby declare that should I die as a result of a violent crime, I request that the person or persons found guilty of homicide for my killing not be subject to or put in jeopardy of the death penalty under any circumstances, no matter how heinous their crime, or how much I have suffered." His declaration also requested that the Declaration of Life be admitted as evidence at trial if the prosecution sought the death penalty for his murder, and asked that the Governor “take whatever action is necessary” to prevent any person convicted of his murder from being executed. “During my life," he wrote, "I want to feel confident that under no circumstances whatsoever will my death result in the capital punishment of another human being.” At a press conference before the meeting, St. Augustine Diocese's Bishop Felipe Estevez expressed the bishops' opposition to capital punishment. "Imposing a death sentence as a consequence of killing wrongly perpetuates a cycle of violence in our community," he said. "The death penalty only contributes to an ever-growing disrespect for the sacredness of human life. … Societies remain safe when violent criminals are in prison for life without parole." The views of Rev. Robert and the bishops reflect the Catholic Church's longstanding opposition to the death penalty, which Pope Francis reiterated in an address to Congress in 2015.
A BuzzFeed News investigation reports that Texas sought to import execution drugs from a supplier in India that the Indian Narcotics Control Bureau shut down for allegedly selling psychotropic drugs and opioids illegally to customers in the United States and Europe. A Drug Enforcement Agency report from January 2015, obtained by BuzzFeed, indicates that Texas was in contact with an Indian drug supplier, Provizer Pharma, to obtain lethal injection drugs, just weeks before Indian narcotics control agents raided Provizer Pharma for the illegal sale of generic Xanax, generic Ritalin, opiods, and other drugs. Hari Om Gandhi, a regional director with the Indian Narcotics Control Bureau, said the drugs—which Indian court documents allege were being illegally sold online—are used medically "for relieving stress ... [, but] are also used as party drugs, as it stimulates senses.” Five Provizer Pharma partners were arrested and detained for nine months for violating India’s Narcotic Drugs and Psychotropic Substances Act and the company's facility was shut down after what the Narcotics Control Bureau described as "a significant sezure" of illegal drugs. The DEA investigative report states that Texas "will be importing" 500 to 1,000 grams of sodium thiopental, which it "will be importing from the following supplier: Provizer Pharma." The Texas Department of Criminal Justice has issued a statement saying that the state has never “engaged in any transaction” with Provizer Pharma. Sodium thiopental was widely used in executions before its U.S. manufacturer halted production because it objected to the use of its medicine in executions. Shortly after the deal with Provizer Pharma fell through, Texas purchased sodium thiopental from another Indian company, Harris Pharma, but the shipment was halted by the Food and Drug Administration. Texas recently filed suit against the FDA to have the drug shipment released, but the FDA is under a federal court order to block importation of sodium thiopental.
Missouri plans to execute Mark Christeson (pictured) on January 31, without his case ever receiving substantive review in a federal court. Christeson's appellate attorneys effectively abandoned him, failing to meet with him until a month after the filing deadline in his case had already passed. They filed his federal appeal four months late. As a result, the federal court rejected it as untimely. New attorneys offered to represent him, since the attorneys who missed the filing deadline could not effectively argue his case without admitting their own error. Two federal courts rejected the substitution before the U.S. Supreme Court granted it. A federal district court then, without explanation, denied nearly all the funding requested by his new attorneys to reinvestigate the case. In 2016, a group of former judges and three of the nation's leading criminal defense organizations filed amicus briefs with the U.S. Court of Appeals for the Eighth Circuit, urging the court to grant Christeson the funding necessary to prepare his case. His attorneys say that evidence of Christeson's intellectual impairments and abusive upbringing were never presented to a jury. On January 18, 2017, the Eighth Circuit ordered the federal district court to “convene promptly a limited evidentiary hearing on the question of abandonment.” U.S. District Judge Dean Whipple found that the missed filing deadline did not constitute abandonment and denied Christeson a stay of execution. The Missouri federal district courts have been notable for their failure to intervene in a string of controversial executions, including the cases of Cecil Clayton, Andre Cole, and Richard Strong, but according to the Columbia Daily Tribune, Christeson would be the first person executed in Missouri in the modern era of the death penalty to have had no federal appeals. [UPDATE: The U.S. Supreme Court denied Christeson's petition for certiorari and motion for stay of execution and he was executed on January 31.]
STUDIES: At Least 201 Florida Death Row Prisoners May Be Eligible for Resentencing, 134 Had Non-Unanimous JuriesPosted: January 27, 2017
A new study reports that at least 201 Florida death row prisoners—including at least 134 whom judges sentenced to death after juries had returned non-unanimous sentencing recommendations—may be eligible for resentencing hearings as a result of recent rulings by the United States and Florida Supreme Courts declaring the state's death sentencing practices unconstitutional. In 2016, the U.S. Supreme Court struck down Florida's statute in Hurst v. Florida, ruling that it unconstitutionally denied defendants the right to have juries decide whether the prosecution had proven key facts necessary to impose the death penalty. Later in the year, in Hurst v. State, the Florida Supreme Court also struck down the statute for permitting judges to impose death sentences without a unanimous jury recommendation for death. In a pair of rulings issued in December 2016, Asay v. State and Mosley v. State, the court applied that decision to any defendant whose death sentence was finalized after the U.S. Supreme Court ruling Ring v. Arizona, in 2002. The authors of the study, Michael Radelet (pictured), a sociology professor at the University of Colorado-Boulder, and G. Ben Cohen, a capital litigator in New Orleans, Louisiana, caution that the 134 non-unanimous post-Ring death verdicts that they have identified "are not the only cases that may require resentencing, as defendants may have different claims arising from other constitutional deficiencies in the Florida statutes." Their study shows that ten counties account for nearly 60% of Florida's death row, more than 60% of those sentenced to death since Ring, and 62% of the known non-unanimous verdicts and will most heavily bear the cost of resentencing these defendants. The counties with the largest numbers of affected prisoners are also among the 2% of U.S. counties responsible for a majority of people on death row nationwide. Duval County has 31 defendants who may be eligible for resentencing, of whom at least 26 had a non-unanimous jury. The same is true of 11 of 12 affected defendants from Miami-Dade County, 8 of 12 from Broward County, and 7 of 11 from Seminole County. The authors point out that the constitutional failures of Florida's statute have been evident for many years, and that earlier acknowledgement of these problems could have saved the state from the costly resentencing hearings it now faces: "The significant cost of resentencing all of these individuals under a constitutional scheme was very predictable at the time of Ring in 2002, and was also foreseen by at least some experts who examined the post-Furman statute that was enacted in 1972." They conclude that "In 2017, the Florida legislature will need to make changes in the Florida death penalty statute that were predictable when the statute was first passed in 1972, and inevitable when the U.S. Supreme Court released Ring v. Arizona in 2002. Finally, they will need to acknowledge that Ring has rung."
After receiving evidence during a five-day hearing, U.S. Magistrate Judge Michael R. Merz ruled on January 26 that Ohio's lethal injection process will create a substantial and objectively intolerable risk of serious harm in violation of the Eighth Amendment. Based on that ruling, the court issued a preliminary injunction staying the executions of Ronald Phillips, Raymond Tibbetts, and Gary Otte. Ohio has not conducted an execution since January 2014, when it used a combination of the drugs midazolam and hydromorphone in the 26-minute long botched execution of Dennis McGuire. In January 2015, Ohio changed its protocol and removed the controversial drug midazolam, only to announce in October 2016 that it had changed course and would use midazolam in upcoming executions as part of a three-drug protocol. Ohio's proposed protocol consisted of: midazolam, a sedative the state claimed would anesthetize the prisoner; then a drug that causes complete muscle paralysis and consequently suffocation; followed by potassium chloride to ultimately stop the heart. The second and third drugs will cause excruitating pain and suffering if given to a person who is not properly anesthetized. Numerous medical experts have asserted that midazolam does not anesthetize a person sufficiently to prevent experiencing intense pain from the other drugs, but a number of states have nevertheless continued to use the drug in executions. In addition to Ohio, Arizona, Oklahoma, and Alabama all have conducted visibly problematic executions with midazolam. Florida, which has carried out more executions with midazolam than any other state, recently changed its protocol to abandon use of the drug. Judge Merz credited the testimony of scientific experts, finding that "midazolam does not have the same pharmacologic effect on persons being executed as the barbiturates thiopental sodium and pentobarbital." The magistrate judge rejected Ohio's argument that midazolam would cause the prisoner to forget any pain he might experience during the execution, writing, "That does not mean the pain was not inflicted and the Supreme Court has yet to tell us that inflicted pain that is not remembered does not count as severe pain for Eighth Amendment purposes." Under the doctrine of "judicial estoppel," the court also blocked the state from using the proposed second and third drugs because it had relied on abandoning their use as grounds for winning a prior lawsuit in 2009. The court said applying the estoppel rule was necessary to "prevent a party from abusing the judicial process through cynical gamesmanship."
Texas Prisoner Seeks Stay of Execution Based on Claims of Innocence, Discriminatory Jury Selection, Junk SciencePosted: January 25, 2017
Alleging wrongful prosecution, Texas death row prisoner Terry Edwards (pictured), who is scheduled for execution on January 26, is seeking a stay of execution and an opportunity to present new evidence that his case was tainted by racially-discriminatory jury selection, prosecutorial misconduct, and false and misleading forensic testimony. Edwards was prosecuted by Dallas County assistant district attorney Thomas D'Amore, who, the defense says, was lead prosecutor in at least three other cases in which defendants were exonerated after similar misconduct was disclosed. The Dallas DA's office fired D'Amore in 2006. Edwards, who had no prior history of violence, says that he was not the triggerman in a robbery-murder that prosecutors say he committed with his cousin, and that the prosecution presented false expert testimony to bolster its claim that he was the killer. The cousin—who has an extensive history of violent recidivism—was charged with both murders but then permitted to plead guilty to only robbery, and is now eligible for parole. A state forensic analyst initially testified that no gunshot residue was detected on Edwards' hands when they were tested immediately after the crime. She changed her testimony on cross-examination, stating that one of three chemical elements associated with gunshot residue was found on Edwards hands and that he could have sweated or wiped away the other two. A former FBI agent who later reviewed the case has called that explanation "scientifically unsupportable," explaining that the components of gunshot residue increase or decrease together, and that particles from gunshot residue contain at least two of the three elements that are tested, making it impossible to wipe away two of the elements without wiping away the third. D'Amore and the same state forensic analyst were involved in the 1995 trial of Richard Miles, who was exonerated in 2012 after his lawyers found similar flaws in the analyst's forensic testimony. Defense lawyers also contend that D'Amore withheld evidence that eyewitnesses saw Edwards’ cousin inside the restaurant at the time of the murders and fleeing out the front door. Citing evidence strikingly similar to that presented in the recent Supreme Court case Foster v. Chatman, Edwards' lawyers also argue that his conviction by an all-White jury was the unconstitutional product of racial discrimination.
Lethal injection as practiced in U.S. executions "is an impersonation of medicine populated by real doctors who don't acknowledge the deception," Dr. Joel Zivot (pictured), an anesthesiologist and associate professor of anesthesiology at Emory University School of Medicine, writes in an op-ed for CNN. Setting aside the question of the rightness or wrongness of capital punishment itself, he says, "it's time to reject lethal injection" as the method of execution. Dr. Zivot's op-ed describes how the medicalization of executions has created an ethical problem for doctors. He cites as an example the recent Virginia execution of Ricky Gray, which used midazolam and potassium chloride from a compounding pharmacy, along with a paralytic drug. He calls lethal injection, "a trick of chemistry" that "does not cause a cruelty-free death," explaining, "Virginia used a paralytic drug that may obscure the failure of midazolam to create the sort of deep unconsciousness contemplated by lethal injection proponents." He says that, because lethal injection "approximates a medical act," it "fall[s] within the purview of physicians who now find themselves wittingly or unwittingly cast in the role of execution adviser." These physicians must choose between their profession's ethical prohibition against killing—both the American Medical Association and the American Board of Anesthesiology have issued statements condemning physician involvement in executions—and their ethical imperative to reduce suffering, especially in the face of botched executions. "An inmate facing death is not a patient by virtue of being connected to an intravenous device and having a doctor in a lab coat standing by. Physicians can only work with patient consent," Zivot says. He asks, "What is the role of the doctor in the execution chamber? When does the alleviating of suffering become physician-assisted homicide?" Because of these ethical dilemmas, and the failure of lethal injection to offer a cruelty-free execution, Zivot concludes, "If capital punishment continues, it needs another method."
Texas Court Orders Release of Former Death Row Prisoner Who Spent 32 Years in Prison Without a Valid ConvictionPosted: January 23, 2017
A Texas Court of Appeals ruled on January 19, 2017 that all charges against Jerry Hartfield should be dismissed with prejudice after the state had kept the intellectually disabled former death row prisoner in prison for 32 years without retrying him after his conviction had been overturned. Calling the situation a "criminal judicial nightmare," the court ruled that the three-decade delay in trying Hartfield violated his constitutional right to a speedy trial. Hartfield had been convicted and sentenced to death for a 1976 murder, but in 1983, the Texas Court of Criminal Appeals overturned his conviction and death sentence because a juror in his case had been improperly excluded. Hartfield, an illiterate man with an IQ of 51, believed he was awaiting retrial, but prosecutors were working to render the court's ruling moot under Texas law by having the governor commute his sentence to life. However, they failed to do so in the time period prescribed by law, and then-Governor Mark White's order attempting to commute Hartfield's former death sentence to life without parole was without legal effect. Hartfield's attorneys did nothing further because they believed they were done with the case. In 2006, a fellow prisoner helped Hartfield begin filing motions in his case. In 2013, the Texas Court of Criminal Appeals told him his motions were improperly filed because the provision under which he sought review applied only to people who had been convicted. At that point, he refiled his claims saying he was improperly incarcerated without a conviction, and finally got a new trial. Hartfield's new lawyers then asked for the charges to be dismissed because he had not received a speedy trial, but prosecutors successfully persuaded the trial court that Hartfield himself was partly to blame for the delay. In 2015, he was retried, convicted, and sentenced to life in prison. If his sentence were counted from his first trial, his 38 years in prison would have made him eligible for parole. He appealed his conviction, once again arguing that his constitutional right to a speedy trial had been violated, and a Texas Court of Appeals agreed, noting that there was precedent for a delay of as many as eight years, but not 32. Prosecutors may appeal the ruling to the Texas Court of Criminal Appeals. David R. Dow of the University of Houston Law Center, one of the lawyers who represented Mr. Hartfield on appeal, described Hartfield's case as, “the perfect storm of everything that could go wrong with the criminal justice system.”