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Montana Prosecutors Drop Death Penalty Against Mentally Ill Defendant

Posted: July 26, 2018

Lloyd Barrus (pictured, left) will not become the first person sentenced to death in Montana this century, after prosecutors dropped their pursuit of the death penalty for the killing of a sheriff's deputy. In a motion filed July 19, 2018, Broadwater County Attorney Cory Swanson (pictured, right) wrote that, "after extensive analysis of the Defendant's history of ... mental illness," the state would no longer seek the death penalty in the case. Doctors at the Montana State Hospital had diagnosed Barrus with multiple mental health disorders, including a delusional disorder, that led Judge Kathy Seeley to find him incompetent to stand trial and to commit him to a mental hospital for treatment. Medical records documented Barrus's history of mental health issues dating to 2000, and Swanson did not contest the diagnoses. The prosecution's notice to withdraw the death penalty acknowledged that Barrus's mental illness was potentially a "sufficiently mitigating circumstance" for the court to choose a life sentence over the death penalty. Swanson said he believes the mental health treatment plan ordered by the court will restore Barrus's competency to be tried, that he "expects to try this case before a jury, and believes the court will have the opportunity to hold the Defendant accountable through a just sentence, which includes up to imprisonment for life without the possibility of parole." With the death penalty off the table, Montana will continue its 21-year streak without a death sentence. The last time the state sentenced a defendant to death was 1996. Just two people remain on Montana's death row, and the state's last execution was in 2006. Several states have considered bills in recent years that would exempt people with severe mental illness from the death penalty, but no state has imposed such a ban.

 

Florida Juries Reject Death Sentences for Four Men, Highlighting Impact of Unanimity Requirement

Posted: July 25, 2018

Juries in two Broward County, Florida death-penalty trials have handed down life sentences for four capital defendants in the span of one week, highlighting the effect of a new Florida law requiring the unanimous agreement of the jury before a defendant can be sentenced to death. On July 16, a Broward County jury spared three defendants—Eloyn Ingraham, Bernard Forbes, and Andre Delancy—whom it had convicted in March of murdering a Broward sheriff's deputy. Three days later, another Broward jury rejected the death penalty for Eric Montgomery, after having convicted him in April of the murders of his wife and stepdaughter. The verdicts marked the third time in four capital trials since Florida adopted the jury unanimity requirement that Broward juries have opted for life sentences. The sole exception was the case of Peter Avsenew, who represented himself in the penalty-phase after firing his lawyers, presented no penalty-phase defense, and told the jury he had "no regrets" for his actions and was "proud of the decisions [he'd] made." South Florida juries in Palm Beach County also have recommended life sentences in the three first-degree murder trials conducted there since September 2017. In March 2017, the Florida legislature changed its death penalty law in response to two Florida Supreme Court decisions in October 2016 that declared the state’s practice of permitting judges to impose death sentences based upon a non-unanimous jury recommendations for death to be unconstitutional. Those decisions were based on the U.S. Supreme Court's January 2016 decision in Hurst v. Florida, which ruled that Florida's previous death-penalty statute violated the Sixth Amendment right to a jury trial by giving judges, rather than the jury, the ultimate power to find the facts that could lead to a death sentence. Florida's criminal law required unanimity for every other decision made by a jury, and the 2017 amendment brought Florida's law into line with the laws of virtually every other death-penalty state. Only Alabama still permits a trial judge to impose the death penalty based upon a jury's non-unanimous sentencing recommendation. 

 

Arkansas Prisons Suspend Search for Execution Drugs, Ask For Even Broader Drug Secrecy Law

Posted: July 24, 2018

Unable to legitimately purchase lethal-injection drugs or carry out executions without revealing who manufactured its drugs, Arkansas has suspended efforts to obtain a new supply of execution drugs until state law is amended to keep secret the identity of the drug manufacturers. The Arkansas Department of Corrections confirmed on July 17, 2018 that it had halted its search for execution drugs earlier this year following a November 2017 Arkansas Supreme Court decision requiring the state to disclose portions of the pharmaceutical drug and packaging labels for the drugs it intended to use in executions. Those labels permitted the public and the pharmaceutical industry to identify the manufacturers of the execution drugs, who then sued the state or charged state officials with violating the companies' contract rights. Solomon Graves, spokesperson for the Department of Corrections said the department has been working with the governor's and attorney general's offices on amending the Arkansas Method of Execution Act to prevent disclosure of information that would identify drug manufacturers. "We are not actively looking for additional drug supplies at this time," he said. Arkansas does not currently have any execution dates set, but it scheduled eight executions in an unprecedented 11-day period in April 2017 in an attempt to carry out the executions before its supply of the sedative midazolam expired. Four of the executions went forward, but not before controversy surrounded the state's purchase of all three drugs in its execution protocol. Prior to the executions, Associated Press learned that the state's second drug—the paralytic vecuronium bromide—had been manufactured by Hospira, a subsidiary of the drugmaker Pfizer. Pfizer, which made international news with its May 2016 announcement of strict distribution controls designed to block states from obtaining and using its medicines in executions, informed its drug distributor, McKesson Medical-Surgical, that the sale violated their distribution agreement. McKesson then sued Arkansas, alleging that the state had deliberately misled the company to believe that the drug would be used for legitimate medical purposes. The companies Fresenius Kabi USA, LLC, and West-Ward Pharmaceuticals Corp.—the manufacturers of the potassium chloride that Arkansas used as the third drug in its executions—also attempted to intervene in federal litigation to stay the April executions, writing that "use of their medicines for lethal injections violates contractual supply-chain controls that [they] have implemented ... to prevent the sale of their medicines for use in capital punishment." Following the expiration of its supply of midazolam, the director of the Department of Correction, Wendy Kelley, purchased a new supply of the drug in cash. The package identified a New York company, Athenex, as the manufacturer, who said Arkansas acquired the drug in violation of the company's agreements with distributors barring the use of its products in executions. McKesson's lawsuit remained active until the state's supply of vecuronium bromide expired this Spring and the parties agreed the suit had become moot. However, the expiration of the drug left Arkansas without the means to carry out any executions until it obtains a new supply of the paralytic. Graves said that the Department of Corrections has no intention of resuming its search for execution drugs until the state legislature exempts the suppliers and manufacturers from the state's public disclosure laws. The legislature does not meet until 2019, at which point the other two execution drugs will have expired.

 

North Carolina Death-Row Prisoners Challenge Retroactive Repeal of Racial Justice Act

Posted: July 23, 2018

Four African-American death-row prisoners in North Carolina whose death sentences had been overturned for racial discrimination have challenged the constitutionality of subsequent state court rulings that reinstated their death sentences and then denied them a new hearing on their discrimination claims. The four—Marcus Robinson (pictured), Tilmon Golphin, Quintel Augustine, and Christina Walters—had overturned their death sentences in 2012 under the North Carolina Racial Justice Act (RJA), presenting evidence that a multi-decade systematic exclusion of African Americans from death-penalty juries in North Carolina had infected their cases with racial bias. However, the North Carolina Supreme Court vacated those rulings, saying state prosecutors deserved an opportunity to present additional evidence, and the North Carolina legislature repealed the RJA. The trial court then ruled that, because of the repeal, it could no longer hear the prisoners' cases. Backed by a broad coalition of civil rights groups and several former prosecutors, the prisoners filed briefs in the North Carolina Supreme Court on July 16, 2018 arguing that the lower court ruling violated numerous constitutional guarantees, including due process and the Double Jeopardy clauses of the state and federal constitutions. After nearly three weeks of testimony in Robinson’s case, which detailed state prosecutors’ use of jury strikes in 173 capital trials between 1990 and 2010, Superior Court Judge Gregory Weeks overturned Robinson’s death sentence, finding that the “evidence showed the persistent, pervasive, and distorting role of race in jury selection.” Reviewing expert testimony about prosecutors’ choices to accept or strike more than 7,400 jurors, Weeks determined that prosecutors had systematically excluded black jurors from serving in capital cases “with remarkable consistency across time and jurisdictions.” Based on the same statewide evidence, plus the jury strikes in their cases, Weeks concluded that the death sentences imposed on Golphin, Augustine, and Walters also should be overturned. Prosecutors then persuaded the North Carolina Supreme Court to vacate Weeks’s rulings and send the cases back to the trial court for more evidence. “Lo and behold we get back into Superior Court, and at that point, the position shifts, and it’s well wait a minute, the statute’s been repealed, the courthouse door has been shut, and you are out of luck,” explained Gretchen Engel, director of the Center for Death Penalty Litigation. The prisoners’ appeal drew support from numerous civil rights and law-reform organizations, including the NAACP Legal Defense and Educational Fund (LDF), the North Carolina NAACP, the National Association of Public Defenders, the North Carolina Association of Black Lawyers, the North Carolina Council of Churches, North Carolina Advocates for Justice, the ACLU Capital Punishment Project, and a group of former prosecutors. In a statement, LDF senior deputy director of litigation Jin Hee Lee said: “The continuing stain of racial discrimination not only invalidates the death sentences imposed on these defendants, but it also undermines public confidence in North Carolina’s judicial system as a whole.” Former Virginia Attorney General Mark Earley said, “Whatever one thinks of the death penalty, we should all agree that execution can never be an option when racial stereotypes are used to keep black citizens off capital juries. No civil right is more basic than this.” 

 

Ohio Governor Commutes Death Sentence Based on Jurors Concerns About Unfair Sentencing

Posted: July 20, 2018

Ohio Governor John Kasich (pictured, left) has commuted the death sentence imposed on Raymond Tibbetts (pictured, right) to life without parole, in response to a juror's concerns about the unfairness of the sentencing proceedings in the case. It was the seventh time Kasich had commuted a prisoner's death sentence. The July 20, 2018, news release announcing the commutation explained that Kasich had granted clemency because "fundamental flaws in [the] sentencing phase of [Tibbetts’s] trial … [had] prevented the jury from making an informed decision about whether Tibbetts deserved the death penalty." Kasich had previously issued Tibbetts a reprieve, delaying his scheduled February 13 execution until October 17, after receiving a detailed letter from juror Ross Geiger asking him "to show mercy" to Tibbetts. Geiger's January 30 letter alerted the governor to serious flaws in the trial that misled jurors to sentence Tibbetts to death, including defense counsel's failure to present critical mitigating evidence about Tibbetts's horrific upbringing and the prosecution's misrepresentation of important details of Tibbetts's family history. "If I had known all the facts," Geiger wrote, "if the prosecutors had been honest and forthcoming about the horrors [Tibbetts] and his siblings experienced in the foster care system, and if we had an accurate understanding of the effects of Mr. Tibbetts' severe drug and alcohol addiction and his improper opioid prescription, I would have voted for life without parole over death." As part of his order granting the reprieve, Gov. Kasich directed the Ohio Parole Board to reconvene to hear Geiger's concerns and to reconsider Tibbetts's request for clemency. However, even after hearing from Geiger, the parole board voted 8-1 to recommend against clemency. In a statement by Tibbetts's lawyers praising the commutation, Erin Barnhart said, "Governor Kasich acted in the interests of fairness and justice by recognizing that Mr. Tibbetts’ death sentence was fundamentally unreliable. The jury was deprived of crucial information about the abusive and traumatic upbringing and the long-term impact it had on Mr. Tibbetts and his siblings. These circumstances provided compelling reasons for the exercise of clemency to correct the failures in the legal process in this case." Kasich also granted a reprieve to Ohio death-row prisoner Cleveland Jackson, pushing back his execution by nine months to "allow his newly appointed legal counsel sufficient time to review the case and properly prepare for his clemency hearing before the Parole Board." Jackson’s September 13 execution is now rescheduled for May 29, 2019.

 

Court Order: No Executions in Louisiana For Another Year

Posted: July 19, 2018

A Louisiana federal court judge has ordered that executions in the state be stayed for at least another year. On July 16, 2018, in proceedings brought by Louisiana death-row prisoners challenging the state's lethal-injection protocol, U.S. District Court Judge Shelly Dick granted a request by state officials to extend by one year the temporary stay of execution that has been in effect in Louisiana since 2014. Jeffrey Cody, the state's lawyer in the case, told the court that continuing the lethal-injection litigation now would be "a waste of resources and time." He asked for the one-year extension "because the facts and issues involved in this proceeding continue to be in a fluid state." The request for an extension has triggered a partisan dispute among Louisiana state elected officials. Jeff Landry, the state's Republican Attorney General, blamed Democratic Governor John Bel Edwards for Louisiana's inability to execute prisoners and for facilitating a court ruling further delaying executions. In a July 18 letter to the Governor that Landry simultaneously distributed to the media, the attorney general said he was withdrawing his office from participating in the lethal-injection lawsuit and would no longer represent the Department of Corrections in that case. Landry claimed that Edwards was "unwilling[ ] to proceed with any executions" and called that "the biggest obstacle" to resuming executions in the state. Edwards called the attorney general's actions "political grandstanding," saying "[h]e issued this release today without trying to contact me at all." He said, "[i]n the one year since the state last requested a stay, which the Attorney General signed on and supported at the time, nothing has changed – the drugs are not available and legislation has not passed to address concerns of drug companies or offer alternative forms of execution." Louisiana currently authorizes the use of a one-drug protocol of the anesthetic pentobarbital, with a backup two-drug method consisting of the sedative midazolam and the painkiller hydromorphone. According to Department of Corrections spokesperson Ken Pastorick, the state does not have a supply of any of those drugs. The latest stay marked the fourth time since 2015 that the state has requested a delay of the lethal injection litigation. By the time Judge Dick's order expires on July 18, 2019, it will have been nearly ten years since the last execution in Louisiana, which was carried out on January 7, 2010. Bobby Jindal, a Republican, was governor from 2010 until January 2016, after the first federal stay of execution was in effect. 

 

Texas Executes Another Defendant of Color Over Objection of Victim’s Family

Posted: July 18, 2018

Against the wishes of the victim's family and amidst charges that the rejection of his clemency application was rooted in racial bias, Texas executed Christopher Young (pictured) on July 17, 2018. Young—who had been drunk and high on drugs when he killed Hashmukh Patel during a failed robbery in 2004—had repeatedly expressed remorse for the murder and had been mentoring troubled youth in an effort to prevent them from repeating his mistakes. The victim's son, Mitesh Patel, had urged clemency for Young, saying that he didn't want Young's children to grow up without a father, and that Young could be a positive influence by continuing his mentorship activities. Mitesh Patel, who had an emotional visit with Young the day before the execution, said the meeting left him with "a sense of sadness." "I really do believe Chris Young today is not the person he was 14 years ago," Patel said. "It's really unfortunate that the [pardons] board didn't hear our request for clemency. I feel sadness for his family. They're going to be walking down the same path my family has been on the last 14 years." On July 13, the Texas Board of Pardons and Parole voted 6-0, with one abstention, to deny Young's clemency application. Young's attorneys then filed a civil-rights suit in federal court, seeking a stay of execution on the grounds that the board's decision had been racially biased. Young's lawyer, David Dow, said family members of the murder victim have asked the pardons board six times this century to commute the death sentence imposed on the person convicted of murdering their loved one. "[O]f those six," Dow said, "three are black, two are Hispanic and one is white. Only in the case of the white guy [Thomas Whitaker] did they vote to recommend commutation.” U.S. District Judge Keith Ellison denied Young's request for a stay, but expressed extreme displeasure about the constricted timeframe for judicial review and the state's lack of concern about the possibility of racial bias. The case, he said, "dramatizes much of what is most troubling about the procedures by which we execute criminal defendants." He continued, "In a rational world, the Court would be able to authorize discovery and sift through the evidence obtained thereby. ... Here, ... the time frame is designed to render impossible intelligent and dispassionate judicial review. Applicable principles of law seem nonexistent." "Those engaging in race discrimination seldom announce their motivations," Judge Ellison said, and the timeframe made it "well-nigh impossible" for Young to prove his claims. "Ideally," Ellison wrote, Texas "would be determined to show that racial considerations had not infected the clemency proceeding. ... [H]owever, the State is eager to proceed with [Young's] execution without either side having any opportunity to explore the [issue]." In his final statement, Young said "l want to make sure the Patel family knows I love them like they love me. Make sure the kids in the world know I’m being executed and those kids I’ve been mentoring keep this fight going." The execution was the eighth in Texas and the thirteenth in the U.S. in 2018. 

 

POLL: Washington State Voters Overwhelmingly Prefer Life Sentences to Death Penalty

Posted: July 17, 2018

A new poll of likely voters in Washington State shows that Washingtonians are nearly 3 times more likely to prefer some form of a life sentence to the death penalty as punishment for defendants convicted of murder. The poll, commissioned by the Northwest Progressive Institute (NPI), was conducted by Public Policy Polling and released on July 12, 2018. It found that 69% of likely voters in the state preferred some version of a life sentence as punishment for people convicted of murder, as compared to 24% who said they preferred the death penalty. In a statement describing the poll results, NPI said "not a single subsample within the survey favored the death penalty… not even Donald Trump voters. ... What this tells us is that there is broad agreement across the ideological spectrum for getting rid of the practice of putting convicted murders to death." The poll asked respondents: "Of the following list of choices, which punishment do you prefer for people convicted of murder: life in prison with NO possibility of parole, life in prison with NO possibility of parole and a requirement to work in prison and pay restitution to the victims, life in prison with a possibility of parole after at least forty years, or the death penalty?" The most preferred option was life in prison without parole, plus restitution, which 46% of all respondents supported. An additional 10% preferred life without possibility of parole, while 13% favored life in prison with parole eligibility after at least forty years. 8% said they were not sure. Every political demographic preferred some version of a life sentence over the death penalty: 82% of respondents who identified themselves as Democrats favored one of the life options, as did 63% of Independents or supporters of a minor party, and 54% of Republicans. 48% of respondents who said they voted for Donald Trump preferred one of the life-sentencing alternatives, as compared with 46% who preferred the death penalty. In 2014, Gov. Jay Inslee imposed a moratorium on executions, saying that "[t]he use of the death penalty in [Washington] state is unequally applied." A bipartisan bill to abolish the death penalty passed the state senate and was approved in the House Judiciary Committee in 2017, but House Speaker Frank Chopp, a Democrat, did not bring the bill to a vote in the full House before the legislature adjourned. "Five Republicans stood with us in the Senate," said Reuven Carlyle, a Democratic senator from Seattle, "but the House leadership was still unwilling to bring it to the floor." Washington's Democratic Attorney General Bob Ferguson, who along with his Republican predecessor Rob McKenna have urged legislators to repeal the state's capital-punishment statute, said he was "not shocked by the numbers." He said the public mood about the death penalty has "been changing quickly" and "we need additional legislators to help out. ... This poll will further signal to them that not only is this the right thing to do, to abolish the death penalty law in Washington state, but is precisely what the people of Washington state want and expect their legislature to do." (Click graphic to enlarge.) Washington juries have not imposed any new death sentences in more than five years and the state last carried out an execution in 2010.

 

Amid War-Court Turmoil, Guantánamo Death-Penalty Judge Retires From Military Service

Posted: July 16, 2018

The U.S. Air Force has announced that the Guantánamo military commission’s USS Cole death-penalty judge, Air Force Colonel Vance Spath (pictured) is retiring, injecting new uncertainty into war court proceedings already steeped in chaos. In a one-sentence email to the McClatchey news service on July 5, an Air Force spokesperson confirmed that Spath “has an approved retirement date of Nov. 1, 2018,” well before the controversial trial proceedings in the capital prosecution of Abd al Rahim al Nashiri are expected to begin. Nashiri is accused of orchestrating the October 2000 attack on the U.S. Navy destroyer USS Cole that killed 17 American sailors, but his former lawyers describe him instead as an intellectually limited al-Qaeda foot soldier. Presenting evidence that the CIA admittedly subjected Nashiri to 14 years of “physical, psychological and sexual torture,” those lawyers unsuccessfully challenged Nashiri’s military detention and U.S. government efforts to try him in a military tribunal rather than in a civilian court. In October 2017, Brigadier General John Baker, the Chief Defense Counsel for the Military Commissions Defense Organization, found “good cause” to permit the entire civilian defense team assigned to Nashiri's case to withdraw amid allegations that the government had been illicitly eavesdropping on privileged attorney-client legal meetings. At the time, Baker advised war court defense attorneys that he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo. In November 2017, Spath convicted Baker of criminal contempt and sentenced him to 21 days of confinement for allowing the resignations. After two days of confinement, Harvey Rishikof, who served as the Convening Authority of all of the Guantánamo tribunals, released Baker from confinement, and a federal court later overturned Baker’s contempt conviction. The civilian resignations left Nashiri represented by a single military lawyer, Lieutenant Alaric Piette, who had graduated law school only five years earlier, does not meet the American Bar Association standards for death-penalty defense, and has never tried any murder case. During a January 2018 pretrial hearing in the case, Spath criticized Piette for seeking a continuance in the case until expert death-penalty co-counsel could be appointed, telling Piette to “engage in self help” by attending special training to become “more comfortable handling capital matters.” Media reports described an exasperated Spath as having delivered “a 30-minute monologue” expressing frustration over having his orders ignored, alleged inaction by Pentagon officials to help him return civilian counsel to the case, and uncertainty over his authority raised by Baker’s actions. In early February, U.S. Secretary of Defense Jim Mattis fired Rishikof without explanation, raising concerns of political interference in the already tumultuous legal proceedings. Then, on February 16, Spath halted all pretrial proceedings in the USS Cole case indefinitely. “We’re done until a superior court tells me to keep going,” he said. Spath said at the time that he was considering retiring from the Air Force.

 

Alabama Prisoners End Execution Lawsuit, State Will Drop Lethal Injection in Favor of Nitrogen Gas

Posted: July 12, 2018

Alabama will not execute eight death-row prisoners by means of the problematic lethal-injection protocol they have been challenging, but will instead carry out the executions using lethal gas. In a Joint Motion to Dismiss the prisoners' federal litigation over the state's execution protocol, filed on July 10, 2018, the parties agreed that the lawsuit had been rendered moot by the state's passage of legislation authorizing execution by nitrogen gas and the prisoners' election to die by nitrogen hypoxia. Alabama's lethal-injection process uses the controversial sedative midazolam, which has been implicated in numerous executions across the country that have been described as "botched." In October 2017, witnesses to Alabama's 35-minute execution of Torrey McNabb reportedly "expressed repeated concerns to each other that he was still conscious during the lethal injection." Alabama federal defender Christine Freeman, the director of the Alabama Post-Conviction Relief Project, testified on July 10 in separate litigation over Tennessee's lethal-injection process that she had witnessed McNabb grimacing and raising his arm up twenty minutes into the execution, well after the midazolam was supposed to have rendered him unconscious. Witnesses also reported that Alabama prisoner Ronald Smith heaved, coughed, clenched his left fist, and opened one eye during one 13-minute period of his 34-minute execution in December 2016. After Alabama added nitrogen gas as an option for carrying out the death penalty, the prisoners had a June 30 deadline to select gas as the method of their execution. In a nitrogen hypoxia execution, the prisoner breathes pure nitrogen, which displaces oxygen in the bloodstream, suffocating them. Experts characterized the prisoners' choice as preferring the unknown risks of execution by nitrogen gas to the known risks of execution by lethal injection. Nitrogen gas has never been used as a method of execution in the United States, but has been approved as an option by three states—Alabama, Mississippi, and Oklahoma. Of the three states, only Alabama leaves the choice of execution method to the prisoner. Mississippi and Oklahoma allow nitrogen executions only if lethal injection is held unconstitutional or is "otherwise unavailable," although Oklahoma has indicated that it is developing a lethal gas protocol to replace lethal injection. According to the federal defender's office representing the Alabama prisoners, their clients in the case, "and anyone else who elected the new method, cannot now be executed by lethal injection." Alabama still must develop a nitrogen-hypoxia protocol before it can carry out any executions using that method, and the prisoners have not waived their right to challenge that protocol. Federal public defender John Palombi, who represents the prisoners, said "While the best way to reduce the risks of botched executions would be to abolish the death penalty, if the death penalty does exist, it must be carried out in a constitutional manner with the respect and dignity that is required of such a solemn event." Alabama's lethal-injection protocol is the most secretive in the nation. Palombi encouraged the state to make the nitrogen hypoxia protocol public "so that the people of the state of Alabama know what is being done in their name."

 

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