A new study of Louisiana’s death penalty reports that the state’s capital punishment system costs taxpayers at least $15.6 million a year more than a system with life without parole as the maximum sentence. The study by retired New Orleans district Chief Judge Calvin Johnson (pictured, left) and Loyola Law Professor William Quigley (pictured, right), released on May 2, 2019, found that Louisiana has spent more than $200 million on its death-penalty system in the last 15 years, resulting in a single execution of a prisoner who gave up his appeals. The researchers projected that, for an offense committed after August 1, 2019, it would cost taxpayers more than a quarter billion dollars to keep in place its capital punishment system from the time of arrest to the time of an eventual execution.
For their study, Johnson and Quigley examined data compiled by the Louisiana Department of Corrections, the Louisiana Public Defender Board, and the Louisiana Legislative Fiscal Office to arrive at what the authors characterize as “a conservative estimate” of the system’s costs. “The actual costs may be significantly higher, as the costs do not include the prosecution or court costs spent on capital cases that ultimately did not go to trial as a capital case, or the costs of Louisiana Supreme Court review,” they said. Quigley summarized the study’s findings, saying, “Louisiana has spent over $200 million in the past 15 years, to operate a broken death penalty system in which 83% of the death sentences imposed at trial [that have completed appellate review] have been overturned. Louisiana has to decide whether it wants to spend more than $250 million dollars in the future, for a death penalty system that has resulted in more exonerations than executions over the last 15 years.”
Louisiana has executed only one person in the past 15 years, Gerald Bordelon in 2010. Bordelon dropped his appeals and “volunteered” for execution. In that same period, the state has exonerated five people: Dan L. Bright and Ryan Matthews in 2004, Damon Thibodeaux in 2012, Glenn Ford in 2014, and Rodricus Crawford in 2017. Dating back to 1976, when the U.S. Supreme Court struck down Louisiana’s then-mandatory death penalty, the state has sent 242 defendants to death row. Ten of those prisoners were subsequently exonerated — or 4.1% of every death sentence imposed. Police or prosecutorial misconduct played a major role in each of the wrongful capital convictions. The study reported that Louisiana has the nation’s highest per capita death-row exoneration rate and the highest rate of death sentences overturned on appeal.
The study’s authors estimate that Louisiana would have to spend at least $281 million to maintain the death penalty long enough to execute a person arrested this year for capital murder. They found that Louisiana death-penalty cases take approximately three years after arrest to reach trial. Once sentenced to death, prisoners spend an average of 17.6 years before being executed. “The study reveals how shockingly little Louisiana gets in return for the millions being spent on the death penalty," said Marcus Maldonado, Louisiana Conservatives Concerned about the Death Penalty Advisory Committee member. "It is a staggering sum and an indefensible government expenditure when you consider all this money results in reversals, wrongful convictions, and no public safety benefit.” Two death-penalty abolition bills were proposed in the Louisiana legislature this year, sponsored by Sen. Dan Claitor (R-Baton Rouge) and Rep. Terry Landry (D – Iberia). One of them, SB 112, a constitutional amendment abolishing capital punishment, failed in the Senate on May 6. A bill to conceal information about the state’s lethal-injection drug purchases was reported favorably from a House committee on May 7 and is scheduled for floor debate on May 20.
A federal appeals court has declared that Virginia for many years housed its death-row prisoners in unconstitutional conditions and has barred the state from reverting to its prior practices. On May 3, 2019, the U.S. Court of Appeals for the Fourth Circuit ruled that the Commonwealth’s former policy of 23- or 24-hour per day solitary confinement of death-row prisoners constituted cruel and unusual punishment in violation of the Eighth Amendment. The 2-1 decision upheld a ruling by the U.S. District Court that found Virginia’s death-row conditions “created, at the least, a significant risk of substantial psychological or emotional harm” and that the state had been “deliberately indifferent” to that risk.
At the time the Commonwealth’s three current and two since-executed death-row prisoners filed suit, Virginia limited death-row prisoners to one hour of recreation per day five days a week and a ten-minute shower three days per week. During recreation, they “were confined to individual enclosures with concrete floors and enclosed by a steel and wire mesh cage.” At all other times, they were held alone in 71-square-foot cells, about half the size of a parking space, with lights on 24 hours a day. Contact visits with immediate family members could be granted at the warden’s discretion once every six months under “extreme circumstances.” In practice, this policy meant that prisoners were only granted contact visits as their execution date approached.
The appeals court decision cited overwhelming scientific research that has found serious detrimental effects of solitary confinement. A leading survey of such research stated “there is not a single published study of solitary or supermax-like confinement in which nonvoluntary confinement lasted for longer than 10 days, where participants were unable to terminate their isolation at will, that failed to result in negative psychological effects.” The court also relied upon a growing body of caselaw in which courts have found solitary confinement conditions to be unconstitutional. The court found particularly relevant “the empirical evidence … that solitary confinement poses an objective risk of serious psychological and emotional harm to inmates, and therefore can violate the Eighth Amendment.” Cate Stetson, who argued on behalf of the prisoners, praised the court’s action as “a landmark decision.” In a statement released to the media, she said: “The court was right to find that the severe isolation to which our clients were subjected for years on end put them at a substantial risk of severe psychological and emotional harm and violated their right to be free from cruel and unusual punishment.”
In August 2015, about a year after the suit was originally filed, Virginia revised its death-row regulations to allow weekly contact visits with family, in-pod shared recreation seven days a week and outdoor recreation five days a week, and daily showers. However, the Commonwealth repeatedly refused to rule out the option of reverting to its prior death-row housing practices. The death-row prisoners conceded that the new conditions do not violate the constitution, but persuaded the court that the state’s lack of “repentance” left the prisoners facing a “cognizable danger of recurrent violation.” The decision prohibits the state from returning to the earlier, unconstitutional conditions. Judge Paul V. Niemeyer dissented from the majority opinion because the unconstitutional conditions are no longer in effect.
A two-week federal trial on the constitutionality of Arkansas’s lethal-injection protocol came to a close May 2, 2019, as the parties presented legal arguments to the court after eight days of testimony. U.S. District Judge Kristine G. Baker must now determine whether the state’s three-drug protocol beginning with the sedative midazolam is allowable. Lawyers representing a group of death-row prisoners presented testimony from witnesses of recent executions, as well as medical experts who said that midazolam does not render prisoners unconscious. In his closing argument, the prisoners’ lawyer Will Freeman likened the three-drug cocktail of midazolam followed by a paralytic drug and the heart-attack inducing drug potassium chloride to being conscious while “having gasoline poured on you and being set on fire.” The Arkansas attorney general’s office presented testimony from other execution witnesses and medical professionals that contradicted the prisoners’ evidence. “The prisoners’ burden is … [to] show that the midazolam protocol is sure or very likely to cause needless suffering by pointing to actual objective evidence, or at the very least, demonstrating a strong scientific consensus," Assistant Attorney General Jennifer Merritt argued. “They’ve simply failed to carry the burden.”
Much of the testimony in the trial came from people who had witnessed the four executions performed in Arkansas in April 2017, with an intense focus on the executions of Kenneth Williams (pictured) and Marcel Williams. Kelly Kissel, a former Associated Press reporter who has witnessed ten executions, provided a detailed timeline of Kenneth Williams’s execution. “Three or four minutes into the execution was where he had the episode in which his body lurched forward 15 times in quick succession and then five additional times at a slower rate,” Kissell testified. “It was lurching, jerking, convulsing.” Kissel also testified that Williams moaned loud enough that he could hear it in the witness chamber, even though the microphone in the execution chamber had been turned off. Cassandra Belter, a lawyer from Philadelphia who had assisted in Kenneth Williams’s defense, corroborated Kissell’s account. “He was convulsing up and, like, bucking against the restraints,” she testified. “At that point, I think at 10:55 [p.m.], he also groaned in pain. The breathing became audible, he was gasping as it grew stronger to the point that it sounded like he was choking.” Former Arkansas Times reporter Jacob Rosenberg recounted the execution of Marcel Williams, testifying: “At the time he was breathing heavily with [his] chest lifting off of the gurney and his back arching in order to do so. And his eyes began to slowly droop, though one sort of stayed open throughout this process, and his heavy breathing and arching sort of continued throughout this time.”
The state’s witnesses characterized the prisoners’ reactions differently, describing them as “muscle spasms,” rather than “convulsions.” State Sen. Trent Garner, a legislative proponent of capital punishment who witnessed Kenneth Williams’s execution, said that "[f]or approximately 10 to 15 seconds there were some brief involuntary muscle spasms. His chest rose two to three inches a few times." Garner, who has no medical training, testified that he can recognize pain from seeing soldiers killed and injured during his military service in Afghanistan. “I call it involuntary because I didn’t see any pain on his face, no grimacing. I didn’t hear any noises that would indicate pain,” he said.
The two sides also presented competing testimony from medical professionals. Craig W. Stevens, a professor of pharmacology at Oklahoma State University in Tulsa, said "For a certain, [the second and third drugs are] going to cause severe pain because midazolam does not produce anesthesia. ... Even at massive doses, persons still respond to noxious stimulus. There will be pain and suffering masked by the paralytic.” State’s witness Dr. Daniel Buffington, a clinical pharmacologist with the University of South Florida, said convulsions are a known side effect of midazolam. “They would go from still to moving or moving aggressively or gasping or coughing, making an audible sound. It’s when the body is sending a signal to the body so it’s a neuromuscular response to try to get more air at that moment,” he said.
In closing arguments, Freeman called the Arkansas execution protocol “a clear step backward. It is sure or very likely to cause serious illness and needless suffering when it is implemented, and, respectfully, we have identified an alternative that is feasible; it is readily implemented and is, in fact, significantly likely to reduce the substantial risk of severe pain.” To fulfill the requirement that the prisoners present a viable alternative execution method, attorneys offered secobarbital, a drug used in physician-assisted suicide, or the firing squad.
Sometimes you need a joke about a cute but very angry desert rain frog to prepare an unsuspecting audience for a serious discussion of lethal-injection executions in the United States. That was the approach undertaken by Last Week Tonight, the satirical weekly HBO comedy-news show hosted by John Oliver, as Oliver addressed the deadly serious issue of lethal injection in the show’s May 5, 2019 episode. Oliver called the death penalty “a wrong, bad thing the government should not be able to do,” but said that whether you are against the death penalty or not, the evidence graphically demonstrates that lethal injection is a “horrifying” way to carry it out.
In the twenty-minute segment, Oliver outlined several of the reasons he opposes the death penalty, including wrongful convictions, lack of deterrent effect, and cost. “There’s actually no proof it has an effect on bringing down crime, [and] it’s technically more expensive to execute someone than to keep them in prison for life,” he explained, citing DPIC’s 2009 report, Smart on Crime, for data on the cost of capital punishment. “According to one study, around 4% of people sentenced to death are actually innocent, which in itself, should give us pause about the whole enterprise,” he added.
Oliver devoted most of the segment to discussion of the problems and controversy surrounding the use of lethal injection. “Let’s start with the idea that it’s medical, that is more than a bit of a stretch, because lethal injections aren’t performed by medical personnel for a pretty obvious reason,” Oliver said, quoting death-penalty researcher Michael Radelet, who said, “It violates ethical codes for physicians to be involved.” Recounting the history of lethal injection, Oliver explained that the formula was invented by an Oklahoma medical examiner who called himself “an expert in dead bodies, but not an expert in getting them that way.” Oliver described him as “just an enthusiast with a can-do attitude for killing people.” He also criticized an expert witness who has testified in support of the use of midazolam for several death-penalty states. Dr. Roswell Lee Evans, Oliver said, has been a key witness for six states, but he has never conducted any research on any kind of anesthetic. Dr. Evans presented 150 pages of printouts from drugs.com in his 300-page expert report for a case before the U.S. Supreme Court. “Incredibly, in our desire to find a more humane method, we’ve ended up letting amateurs both invent and administer a form of unpredictable torture,” Oliver said.
He went on to describe how the use of midazolam has created new problems with lethal injection, as it does not adequately anesthetize prisoners before a suffocating paralytic and a profoundly painful heart-stopping drug are administered. “You could be fully aware, feel like you’re suffocating, but unable to move or communicate while fire is about to be injected into your veins. And this somehow qualifies as more humane than an electric chair, which seems pretty debatable at best,” he summarized. Oliver concluded with a repudiation of lethal injection as a sanitized, humane execution method: “If the thing that’s making you comfortable with lethal injection is that it’s humane, it isn’t. Because the fundamental fact to understand about lethal injection is, it is a show. It is designed not to minimize the pain of people being executed, but to maximize the comfort of those who want to support the death penalty without confronting the reality of it, which is that it’s violent and it’s brutal, and it’s never going to be anything other than that.”
A Texas trial court judge has formally declared Alfred Dewayne Brown (pictured) “actually innocent” of the murder charges that led to his wrongful conviction and death sentence in 2005. The order, issued on May 3, 2019 by Harris County District Court Judge George Powell, paves the way for Brown to receive compensation from the state for the ten years he was wrongfully incarcerated on death row for the killing of a Houston police officer.
Brown was exonerated in 2015 after evidence showed that Harris County prosecutors had manipulated the grand jury system, jailed a witness until she agreed to falsely implicate Brown, and suppressed phone records showing that Brown could not have been at the crime scene when the murder occurred. At that time, then-District Attorney Devon Anderson dismissed all charges against Brown, but refused to provide a statement that he was “actually innocent,” which is a prerequisite for a wrongfully convicted person to receive compensation from the state. Anderson’s successor, Kim Ogg, appointed John Raley to serve as special prosecutor to reinvestigate the case and make a recommendation regarding compensation. Following a ten-month investigation, Raley produced an extensive report detailing the prosecutor’s manipulation of witnesses to testify against Brown and suppression of the phone records that corroborated his alibi. The report concluded, “By clear and convincing evidence, no reasonable juror would fail to have a reasonable doubt about whether Brown is guilty of murder. Therefore his case meets the legal definition of ‘actual innocence.’” In March 2019, Harris County District Attorney Kim Ogg signed an affidavit declaring Brown “actually innocent.”
After Ogg’s declaration, Judge Powell assessed the legal question of whether he had jurisdiction to formally declare Brown innocent. Based on the declaration, Brown could be eligible for nearly $2 million in compensation for the decade he was wrongfully confined on death row. Texas law generally requires that an actual innocence finding be issued as part of the appeals process, specifically through a writ of habeas corpus, but that process was not available to Brown, whose legal case was already closed. The court considered, but rejected, the possibility of prosecutors bringing new charges against Brown and dismissing the case anew, saying that would be an “absurd result” and a “second injustice.” Instead, Judge Powell rescinded his previous order that had formally dismissed the charges against Brown and issued a new one-page order specifically stating that “the criminal action...is DISMISSED due to Alfred Dewayne Brown’s actual innocence.”
Outside the courtroom, Ogg reiterated that Brown is innocent. "Alfred Brown was wrongfully convicted,” she said. “Given the state of the evidence today and the law as it’s applied we don’t believe that any reasonable juror would find Alfred Brown guilty under the evidence as it exists now.” Attorney Neal Manne said, “[t]he law of the state of Texas entitles [Brown] to compensation but it can never fully compensate him for spending 12 years in prison for a crime that he had no involvement in. But he’s entitled to the compensation and I hope that he can now lead a peaceful and happy life.” Despite the declaration, and the report explaining Brown’s innocence, Houston’s police union continues to assert that Brown is guilty of killing Officer Charles Clark. The union president said it plans to fight Brown’s compensation. Brian Stolarz, one of the attorneys who helped free Brown, responded, saying, “Dewayne was peaceful and graceful today. He thanks his lawyers and supporters and thanks the district attorney and special counsel for their thorough investigation. Clearing his name has been the goal since he was released almost four years ago, and to those who seek otherwise, he meets hatred with love.”
For the second time in as many years, New Hampshire Governor Chris Sununu (pictured, left) has vetoed a bill to repeal the state’s death penalty. Sununu’s action on May 3, 2019 sets the stage for an anticipated attempt later in the legislative session to override the Governor’s veto. A two-thirds vote in each house is required to override.
The New Hampshire legislature also voted to repeal the death penalty during its 2018 legislative session, but fell short of the two-thirds majority necessary to override Gov. Sununu’s veto. The legislature again approved a repeal bill this session, this time with veto-proof majorities in both houses. In February, the New Hampshire House of Representatives conducted a public hearing at which more than 100 witnesses—including representatives of law enforcement, family members of homicide victims, death-row exonerees, and faith leaders—testified. The witnesses voiced overwhelming support for the bill. On March 7, the House voted 279-88 in favor of repeal. After holding an additional public hearing, the State Senate voted 17-6 on April 11 to pass the repeal bill.
As he did in 2018, Governor Sununu made law enforcement the visual focus of his veto message. Flanked by uniformed police officers In a photo opportunity at a community center named for slain Officer Michael Briggs, Sununu called the repeal bill “an injustice not just to Officer Briggs and his family, but to law enforcement and other victims of violent crime across the state.” Sununu said: “I cannot thank those standing behind me enough. They put their lives on the line every single day. Every day they walk out that door and put their lives on the line. They don’t ask a whole lot, but they do ask for our support.”
A Death Penalty Information Center analysis of 31 years of FBI homicide data has shown that the death penalty makes no measurable contribution to public safety or to protecting police officers. DPIC Executive Director Robert Dunham summarized the findings in testimony before the New Hampshire House Committee on Criminal Justice and Public Safety during the February legislative hearings. The FBI murder data, Dunham said, “shows that officers are disproportionately murdered in states that have the death penalty, as compared to states that don’t.” Four of the five safest states for police officers had no death penalty at any time in the last three decades, and seven of the eight safest states for police officers either never had the death penalty or had recently abolished it, he said. Overall, Dunham testified, “[t]he data … strongly suggests that having the death penalty has not made officers safer.”
The repeal bill was introduced by State Rep. Renny Cushing (D – Rockingham; pictured, right), whose father and brother-in-law were murdered in unrelated incidents years apart. Cushing has described the death penalty as a “ritualized killing” that does nothing to compensate for a victim’s family’s loss. State Sen. Ruth Ward (R – Stoddard), whose father was killed when she was 7 years old, also supported the measure. “[My father] never saw us grow up,” she said. “My mother forgave whoever it was, and I will vote in favor of this bill.”
New Hampshire last carried out an execution in 1939. It has imposed one death sentence since reinstating the death penalty in 1991, sentencing Michael Addison to death in 2008 for the murder of Officer Briggs. The bill would not affect Addison’s sentence, but death-penalty proponents argue that the courts would overturn his sentence if the death penalty were to be repealed.
Tennessee executed Sedley Alley in 2006 for the brutal rape and murder of Marine Lance Corporal Suzanne Collins, after having denied him DNA testing that his lawyers believed could have established his innocence. Now, after new evidence suggests that another man may have committed the murder, the Innocence Project has filed a petition in Shelby County (Memphis) Criminal Court on behalf of Alley’s estate renewing Alley’s request for DNA testing. Local counsel also sent a letter to Governor Bill Lee asking him to exercise his clemency power to order DNA testing and, if the evidence exonerates Alley, to issue a posthumous pardon.
Innocence Project co-founder and special counsel Barry Scheck announced the filings at a May 1, 2019, news conference in Memphis. “There has never been a full and fair hearing on Mr. Alley’s guilt or innocence,” Scheck said. “This case has all the tell-tale signs of a wrongful conviction – a confession that has been demonstrated to be false by objective forensic evidence, mistaken eyewitness identification, and, most disturbing, the refusal to test DNA evidence that could have exonerated Mr. Alley or removed the doubts about his guilt.” Alley was convicted and sentenced to death after the lawyers appointed to represent him at trial failed to investigate glaring inconsistencies between the physical evidence and a confession Alley consistently said had been coerced. Instead, with no prior history of mental illness, his lawyers argued that he suffered from a multiple-personality disorder and was not guilty by reason of insanity. In 2003, after Alley had lost his appeals, new lawyers, including assistant federal defender Kelly Henry (pictured, at the news conference), were appointed to represent Alley in clemency proceedings. “When I started looking at the evidence, I immediately realized that this was a case of innocence, and that nobody — nobody — had realized it,” Henry said.
Alley’s clemency lawyers found numerous inconsistencies in the state’s evidence, unearthed evidence that pointed to another suspect who fit the eyewitness descriptions of the murderer and had a car that matched descriptions of the murderer’s car, and discovered that Alley had been at home under police surveillance at the time Collins was raped and killed. Based on these discoveries, they asked for DNA testing of clothing and the murder weapon. The evidence persuaded the Tennessee Board of Parole to recommend that then-Governor Phil Bredesen stay Mr. Alley’s execution and order DNA testing. Instead, Bredesen directed the lawyers to present their request for testing to the Tennessee courts, which refused to allow the testing to occur. Five years later, the Tennessee Supreme Court disavowed its decision in Alley’s case, saying they had misapplied Tennessee’s post-conviction DNA testing act. “The courts got it wrong in 2006 when they allowed Mr. Alley to be executed before testing the DNA,” Scheck said. “If Mr. Alley were alive today, he would be entitled to DNA testing under the … statute. We now have a chance to learn the truth in this case.”
Scheck was joined at the conference by Alley’s daughter April, who is executor of her father’s estate; members of the DNA litigation team; and death-row exonerees Ray Krone and Sabrina Butler-Smith, who both now live in Tennessee. The Innocence Project renewed efforts to obtain DNA testing last year, after receiving a tip from law enforcement that a suspected serial killer arrested in an unrelated murder in Missouri attended classes with Lance Corporal Collins near the time of the murder. Speaking at the press conference, Vanessa Potkin, the Innocence Project’s Director of Post-Conviction Litigation said, “It's never too late to find the truth. ... We have an opportunity to get to the truth today, and that's what we're asking for.”
Christian church leaders from Catholic and Protestant denominations across Louisiana have called upon state lawmakers to pass legislation to end the death penalty in the Bayou State. On April 25, 2019, the Louisiana Interchurch Conference and two dozen faith representatives held a press conference on the steps of the state capitol in Baton Rouge advocating for legislation to abolish the state’s capital punishment law and pledging their support for as long as it takes for abolition efforts to succeed. Rev. Dan Krutz, executive director of the Louisiana Interchurch Conference, read from a resolution adopted by the faith leaders. "People of the Gospel must reject capital punishment as a way of dealing with crime because death does not restore, heal or make whole what was lost. Death only causes more death," he said.
Two other prominent Louisiana Catholic leaders, Bishop Shelton J. Fabre (pictured) and Sister Helen Prejean, also called for repeal, authoring op-eds urging Louisiana to "become the first ‘Deep South’ state to end the death penalty.” In a commentary for The Advocate, Bishop Fabre invoked the words of Pope Francis, calling the death penalty “inadmissible in today’s world because it offends the dignity of the human person without actually helping to promote the common good.” Noting that 70% of Louisianans identify themselves as highly religiously devout, Bishop Fabre said capital punishment is “inconsistent with Louisiana’s values.” Fabre, who also chairs the U.S. Conference of Catholic Bishops’ Ad Hoc Committee Against Racism, emphasized the discriminatory nature of Louisiana’s death penalty. “In one study of Louisiana’s system, the chances of a death sentence were 97 percent higher for defendants whose victim was white than for defendants whose victim was black,” he wrote. “Louisianans,” he said, “should not stand for this prejudice.”
Sister Helen Prejean, an internationally renowned advocate against the death penalty and author of Dead Man Walking, wrote in a second op-ed in The Advocate that, per capita, Louisiana “has wrongfully condemned more people to death than any other state.” She highlighted the opportunities for good lost to society when the state diverts enormous resources to the death penalty. “What if we took the millions of dollars spent on a handful of capital cases and funded support services for victims instead? Or redirected resources into educating and mentoring at-risk kids to help prevent violent crimes from happening in the first place?” she wrote.
Two proposals to end Louisiana’s death penalty are currently pending before the legislature, both with bipartisan sponsorship. House Bill 215, introduced by Democratic state representative Terry Landry, would repeal the state’s death-penalty statute. Senate Bill 112, introduced by Republican state senator Dan Claitor, would amend the state constitution to abolish the death penalty. SB 112 advanced out of the Senate Judiciary Committee on a 4-2 vote on April 30, 2019. It now moves to the full Senate, where it would require a two-thirds vote to pass because it is a constitutional amendment. Landry’s bill was scheduled for consideration in a House committee May 1. “I think hearts have changed,” he said, but “I don’t think the votes have changed.”
A federal district court has overturned the conviction of Genesis Hill (pictured), who was sentenced to death in Ohio in 1991 for the death of his six-month-old daughter, Domika, based upon a questionable shaken-baby diagnosis. On April 24, 2019, Chief Judge Edmund A. Sargus, Jr. of the U.S. District Court for the Southern District of Ohio found that Ohio prosecutors had unconstitutionally withheld exculpatory evidence that called into question the credibility of a key witness and the testimony of the state’s forensic expert at trial. That evidence and several new affidavits produced by the defense, Chief Judge Sargus said, demonstrate that Domika’s death was most likely accidental and that no reasonable juror exposed to all the evidence would have found Hill guilty.
Hill was convicted of capital murder based on forensic testimony that he had shaken his infant daughter, causing a head injury that killed her. Crucial testimony came from Teresa Dudley, Domika’s mother, and from Dr. Amy Martin, a deputy coroner and forensic pathologist who performed Domika’s autopsy. On appeal, Hill presented a police report that had been withheld from his defense team that suggested Dudley may have been involved in the child’s death. He also submitted three affidavits – two from witnesses who saw what appeared to be Dudley and a friend hiding Domika’s body, and one from Dr. Martin stating that, based on changes in scientific literature, her assessment of Domika’s injuries has changed. The Court found that the new evidence established Hill’s “actual innocence” and overcame procedural roadblocks that would otherwise have required the court to deny his petition as untimely.
The withheld police report contains the account of the first officer who responded to the report of a missing child. The officer said that Dudley ran from police when they arrived at the scene, a fact not presented at Hill’s trial. A day before Domika’s body was found, Dudley repeatedly implored police to check in the location where the girl’s body was eventually discovered. Two new affidavits also support the theory that Dudley was involved in Domika’s death, or at least in hiding her body and blaming the death on Hill. Two witnesses who did not testify at Hill’s trial reported that they had seen Dudley and a friend of hers carrying a brown Similac baby formula box down the street toward the alley in which Domika’s body was later discovered. The baby was found inside a Similac box. One of the witnesses also said in an affidavit that the day before Domika’s body was found, Dudley told her that Domika was dead.
In addition to the withheld police report and supporting affidavits, Hill presented an affidavit from Dr. Martin, recanting her testimony that Domika’s death was a homicide. Dr. Martin said that, “based in part of my experience as a forensic pathologist over the past 25 years, as well as the scientific literature now available that discusses more clearly the characteristics of crushing injuries to the head in children, I believe [the victim's] head injury is much more consistent with a crush injury then with inflicted impacts, and certainly more consistent with a crush injury than with injuries seen in shaking or shaking/impact.” The doctor’s new statement is consistent with Hill’s claim at the time of trial that he had fallen from a retaining wall while holding his daughter and that his knee had landed on her head. Martin’s statement also reflects the change in scientific consensus regarding “shaken baby syndrome,” a diagnosis that has sent hundreds of parents and caregivers to prison, including some to death row, but has now been debunked in medical and legal journals. Two people, Sabrina Butler and Rodricus Crawford, have been exonerated from death row after they were wrongfully convicted of killing their children on the basis of false forensic testimony when the medical evidence showed no crime had occurred.
The district court ordered prosecutors to retry or release Hill within 180 days. The state may appeal the ruling.
One month into California’s moratorium on executions, the historic action by Governor Gavin Newsom (pictured) is drawing high praise from exonerees, mixed reviews from victims’ families, and unusually personal condemnation from political adversaries. Kirk Bloodsworth — the first former death-row prisoner exonerated by DNA evidence — wrote that he was “thrilled” by the news of the moratorium. Bloodsworth, the interim executive director of the death-row exonerees’ organization, Witness to Innocence, said the moratorium would prevent the “unforgivable and grave mistake” of executing an innocent person. Beth Webb — whose sister and a close friend were killed and whose mother was wounded in the deadliest mass shooting in Orange County history — said she “could not be prouder to have Gov. Gavin Newsom standing with me and other loved ones of victims for whom the death penalty has created years of prolonged pain and suffering rather than any sense of justice.” At the same time, several California district attorneys staged a press conference with family members of other victims to denounce Newsom and the moratorium, and four prosecutors authored a CNN op-ed accusing the governor of ignoring victims and “singlehandedly undermining” California’s democratic government.
At an April 11 press conference in Sacramento the day after prosecutors announced they would seek the death penalty against Joseph DeAngelo — linked by DNA to at least 13 murders and 50 rapes in the 1970s and 1980s — Orange County District Attorney said “Governor Newsom took a knife and stabbed all the victims and all the victims’ families in the heart.” Ron Harrington — whose brother was murdered and sister-in-law was raped and murdered called the accused Golden State Killer “the worst of the worst of the worst ever. He is the poster child for the death penalty,” Harrington said. In their CNN op-ed, District Attorneys Anne Marie Schubert of Sacramento County, Michael Hestrin of Riverside County, Lisa Smittcamp of Fresno County, and Gilbert Otero of Imperial County derided the moratorium order as “a slap in the face to crime victims and their families” and an “autocratic decree [that was] a disgraceful day for democracy.”
In an op-ed in the Mercury News, Bloodsworth called the moratorium necessary to address California’s “long history of wrongful convictions.” He wrote that, “[s]ince 1989, 191 men and women have been exonerated of serious crimes in California. And since the death penalty was reinstated in the state, five men have been released from death row.” Those wrongful convictions, he said, had been caused by “witness misidentification, the use of junk science, false informant testimony, misconduct by police or prosecutors, and false confessions,” with multiple causes often present in each case. In an April 28, 2019 op-ed in the Orange County Register, Webb described how years of deliberate misconduct by Orange County sheriffs and prosecutors forced local courts to bar the death penalty for convicted mass murderer Scott Dekraai. “From the beginning, it was clear the Orange County Sheriff’s Department and the District Attorney’s office were so focused on pursuing the death penalty that they were willing to cheat, withhold evidence and even lie on the stand” to stonewall the investigation of a multi-decade scandal involving the deliberate misuse of prison informants. “Because of the way some overzealous prosecutors pursue the death penalty at all costs, this case that should have been quickly concluded dragged on for six years, subjecting me, my family and the loved ones of the other victims to unimaginable pain,” Webb said. She also warned of “another, insidious, evil of the death penalty... [, that] it is wielded as a tool to score political points by an increasingly small group of prosecutors.”
Newsom’s moratorium order also drew support from six former governors who had granted clemency, imposed moratoria, or ended the death penalty in their states. In a blog post, Governors Richard Celeste, John Kitzhaber, Martin O’Malley, Bill Richardson, Pat Quinn and Toney Anaya wrote that Newsom’s action “took great courage, and the ability to see that his state’s death row … exemplified just how broken the system is.” The former governors praised Newsom for recognizing that “inaction isn’t an option” and assured Newsom that “he isn’t alone.”