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Georgia Lawyers Seek to Intervene After Brain-Damaged Defendant Permitted to Represent Herself in Death-Penalty Trial

Posted: April 26, 2019

Arguing that a brain-damaged woman facing the death penalty for the starving death of her young daughter “was incapable of representing herself,” lawyers from the Georgia Office of the Capital Defender have asked that they be reappointed as her counsel if the case advances to the penalty-phase of her trial for life or death. Gwinnett County Superior Court Judge George Hutchinson had permitted Tiffany Moss (pictured) to discharge her lawyers and represent herself, even though she has not reviewed the boxes of evidence turned over to her by the prosecution, produced no list of defense witnesses, and said she was placing her defense in God’s hands. She asked very few questions during pretrial proceedings, gave no opening statement, and did not cross-examine witnesses presented by the prosecution. When the prosecution rested on April 26, Moss presented no defense. Veteran Atlanta criminal defense lawyer Jack Martin told the Atlanta Journal-Constitution: “It looks like a prolonged suicide. God may be an all-powerful and merciful force in nature, but he’s a lousy criminal defense lawyer.”

No Georgia jury has imposed a death sentence since 2014, largely because of the representation provided by the Office of the Capital Defender. The office’s lawyers were relegated to the role of stand-by counsel when Hutchinson permitted Moss to represent herself, although media reports indicate they had previously filed a motion alerting the court to her brain damage. In their motion, the capital defenders advised the court that “neuropsychological testing data … showed the defendant to have damage to the premotor and prefrontal regions of the brain.” Dr. Don Stein, the Director of the Brain Research Laboratory at Emory University, told the Atlanta television station 11 Alive that these portions of the brain “are very much thought to be intimately involved in executive function, decision making, and impulse control.” Those brain functions are critical to making rational judgments about self-representation. On April 25, the capital defender lawyers filed a motion in the trial court to terminate Moss’s self-representation in a potential death-penalty phase of the trial. The motion argued that “[t]he jury will have nothing upon which to base a life sentence [if Moss represents herself in the penalty phase], not because Mrs. Moss wanted the death penalty, but because she was incapable of representing herself. … Society’s interest in justice is not served by such a one-sided and arbitrary proceeding.”

Moss’s case, and another trial in progress in Cleveland, Ohio, illustrate the difficulty the judicial system has in assessing the competence of defendants to represent themselves and in ensuring reliability of capital proceedings in which they are permitted to do so. A Cuyahoga County jury convicted Joseph McAlpin of aggravated murder on April 18, 2019, after he had represented himself in the guilt portion of the trial. Following his conviction, McAlpin asked the court for a mitigation report and a pre-sentence investigation to help him present mitigating evidence. To provide time to complete these reports, the court delayed the start of the penalty phase until May 13. Life history investigations typically take months to perform and provide information critical to the mental health evaluation and to giving the jury a full picture of the defendant’s background, upbringing, and impaired ability to function in society.

As death sentences decline nationwide, many of those still sentenced to death are defendants whose cases involved the most unreliable trial proceedings. In 2018, one of every seven death sentences was imposed without a unanimous jury vote, often after defendants were permitted to waive critical trial rights. Several of those defendants fired or refused to cooperate with counsel.


Saudi Arabia Condemned for Mass Execution of 37 People, Including Juveniles, After Unfair Trials

Posted: April 25, 2019

In an action condemned by the United Nations and human rights groups as a flagrant violation of international law, Saudi Arabia beheaded 37 people, including juvenile offenders, in six separate locations on April 23, 2019. It was the nation’s largest mass execution since January 2016. Most of the people executed were members of the Shi’a Muslim minority community. The human rights advocates blasted Saudi officials for targeting politically disfavored groups and disregarding international fair trial norms. At least three of those executed were minors at the time of their alleged crimes. Executing juvenile offenders violates two international agreements Saudi Arabia has agreed to, the Convention on the Rights of the Child and the Convention Against Torture.

Lynn Maalouf, Middle East Research Director at Amnesty International called the Saudi mass beheadings a “gruesome indication of how the death penalty is being used as a political tool to crush dissent from within the country’s Shi’a minority.” The Saudi Kingdom has long been accused of using the death penalty against political dissidents, trying them in terrorism courts notorious for the denial of due process. It drew criticism last year for using the threat of capital punishment against peaceful human rights activist Israa al-Ghomgham, as part of a crackdown on women’s rights activists.

According to Human Rights Watch, 25 of the 37 men executed were convicted in two mass trials that involved allegations that authorities had tortured prisoners to obtain confessions. “Saudi authorities will inevitably characterize those executed as terrorists and dangerous criminals,” said Michael Page, deputy Middle East director at Human Rights Watch, “but the reality is that Saudi courts are largely devoid of any due process and many of those executed were condemned based solely on confessions they credibly say were coerced.” At one of the mass trials, 11 men were convicted of spying for Iran, and at the other, 14 were convicted of violence committed during anti-government demonstrations. The court rejected all allegations of torture and ignored defendants’ requests for video footage from the prison that could have shown the torture. International human rights organization Reprieve said the three juveniles were among those denied basic legal rights, and two of them were severely beaten to obtain confessions.

United Nations High Commissioner for Human Rights Michelle Bachelet released a statement on the executions, saying, “I strongly condemn these shocking mass executions across six cities in Saudi Arabia yesterday in spite of grave concerns raised about these cases by numerous UN Special Rapporteurs, the UN Committee on the Rights of the Child and others. … I urge the Government of Saudi Arabia to immediately launch a review of its counter-terrorism legislation and amend the law to expressly prohibit the imposition of the death penalty against minors.” Saudi Arabia has performed at least 104 executions so far in 2019, far outpacing 2018, when it executed 149 people over the course of the year. Amnesty reported that only China and Iran carried out more executions than Saudi Arabia last year.


John William King Executed in Infamous Lynching Case, Said Attorneys Had Violated His Right to Present Innocence Defense

Posted: April 24, 2019

Texas has executed John William King (pictured), one of three men convicted of the brutal lynching of James Byrd, Jr., after the U.S. Supreme Court declined to intervene in his case. King's lawyers had asked the Court to grant a stay of his scheduled April 24, 2019 execution after a divided Texas Court of Criminal Appeals voted 5-4 on April 22 to permit the execution to proceed. King, an avowed white supremacist, had maintained since the time of his arrest that he was not present at the time of King's murder and did not participate in the killing, and he had repeatedly but unsuccessfully demanded that his lawyers present an innocence defense at trial. King’s appeal lawyers had asked the Texas appeals court and the Supreme Court to halt his execution to review King’s claim that his lawyers’ actions denied King the assistance of counsel guaranteed by the Sixth Amendment.

King says he left Byrd and his co-defendants, Lawrence Russell Brewer and Shawn Berry, prior to Byrd’s murder. When King’s trial lawyers decided to concede his guilt, he tried to replace them. He wrote letters to the court and to a Dallas newspaper describing his innocence claims and complaining that his attorneys would not present them. King’s appellate attorneys argued that his trial lawyers’ concession of guilt violated the U.S. Supreme Court’s 2018 ruling in McCoy v. Louisiana, which said, “With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.” The Texas appeals court dismissed King’s application for review without addressing the merits of his claim.

Judge Michael Keasler, joined by three other judges, dissented, citing “substantial” unresolved factual and legal questions. Judge Keasler wrote: “A death-sentenced man who has asserted his innocence since his capital-murder trial has asked us to review his claim that his trial lawyer overrode his express wishes to pursue a defense consistent with his innocence. In light of … the horrible stain this Court’s reputation would suffer if King’s claims of innocence are one day vindicated (or, perhaps, if the Supreme Court eventually decides that McCoy should apply retroactively), I think we ought to take our time and decide this issue unhurriedly. I would grant the stay.” The U.S. Supreme Court denied King's stay application without comment.

Ahead of King’s execution date, the Beaumont Enterprise interviewed community members in Jasper, Texas to understand how King, who grew up in the same small town as Byrd, came to be associated with one of the nation’s most notorious hate crimes. Capt. James Carter, a black man who worked for the Jasper County Sheriff’s Office for 30 years, has known King since he was a child. “My boys liked him,” Carter said. “He came and spent the night with us often. I treated him like my own.” When Byrd was killed, Carter and his boss had to tell Byrd’s family. Ronald King, John William King’s father, struggled to understand how his son became a white supremacist, and linked the change to time his son spent in prison for a series of burglaries he committed at age 20. “Something happened to my boy in prison. Something bad,” Ronald King had told his priest, Rev. Ron Foshage. “He never had this kind of hate in his heart.” While in prison, the Reverend said, King had been sexually assaulted by an African-American prisoner.

Byrd’s family did not blame King’s family for the murder, and showed kindness to Ronald during the trial. According to Foshage, “Every day after the trial had ended for the day, Mr. Byrd and other members of the Byrd family would touch Ronald on the arm as they were leaving. He was so grateful for their kindness.” “We as parents raise our children to do the right thing and not hate,” said Louvon Harris, James Byrd Jr.’s older sister. “But once they’re not in your control anymore, we’re not sure what kids will grow up to be. ...There were no winners in this. We felt their pain, as well.” Shortly before the trial, Jasper residents gathered to tear down a fence separating racially segregated sections of the town cemetery. According to the Enterprise, if King chose to have his body returned to Jasper after the execution, “he’ll be buried next to his parents and just 100 yards from James Byrd Jr.”


Wrongful Use or Threat of Capital Prosecutions Implicated in Five Exonerations in 2018

Posted: April 23, 2019

At least five people were exonerated in 2018 after having been wrongfully convicted in cases that involved the misuse or threatened use of the death penalty, a DPIC analysis of data accompanying a new report by the National Registry of Exonerations has shown. The National Registry’s annual report on wrongful convictions, Exonerations in 2018, recorded a record 151 new exonerations across the United States in 2018, including 68 exonerations resulting from wrongful homicide convictions. Two of those exonerations freed death-row prisoners Vicente Benavides and Clemente Aguirre.

A record number of the exonerations in 2018 were the product of wrongful convictions obtained by police and/or prosecutorial misconduct (107) or perjury/false accusation (111), with both often occurring in combination. The two also were the leading factors contributing to wrongful homicide convictions, 79.4% of which involved police and/or prosecutorial misconduct (54 cases) and 76.5% of which involved perjury/false accusation (52 cases). Historically, those two factors are the leading causes of wrongful capital convictions. Both were present in more than two-thirds of the homicide exonerations (47 cases, 69.1%) in 2018, including the wrongful capital convictions of Benavides and Aquirre. DNA evidence helped to exonerate 14 of those wrongfully convicted of homicide in 2018, only 20.1% of homicide exonerations. The prosecution presented perjured testimony or false witness accusations in all of the murder cases involving DNA, and police and/or prosecutorial misconduct was also present in more than 60% of those cases. DNA helped to rebut false or misleading forensic evidence presented by the prosecution in five of the homicide exonerations.

At least three other homicide exonerations in 2018 involved the wrongful use or threat of the death penalty. Bobby Joe Maxwell was capitally prosecuted in Los Angeles, California for a series of ten murders and five robberies attributed to the “Skid Row Stabber” in 1978 and 1979. No physical evidence directly linked Maxwell to the murders and witnesses failed to identify him or his voice in police lineups. He won a new trial in 2010 after new evidence exposed the prosecution’s prison informant as a “serial liar.” The prosecution dropped charges against Maxwell after he suffered a heart attack that left him comatose. Matthew Sopron was convicted of a double murder and sentenced to life without parole in 1998 in Chicago, Illinois after an 18-year-old prosecution witness falsely implicated him after having been threatened with the death penalty. William Bigeck subsequently admitted that Sopron “had absolutely nothing to do with the murders” and testified in post-conviction proceedings in 2018 that he would have done anything to avoid the death penalty and that he had changed his initial statement to obtain a plea deal that took the death penalty off the table. Daniel Villegas was convicted of capital murder and sentenced to life in El Paso, Texas in August 1995 for a drive-by double murder. The 16-year-old falsely confessed to the murders after a police detective handcuffed him to a chair, threatened to take him to the desert and “beat his ass,” slapped him, and said he would die in the electric chair if he didn’t confess. “[T]errified out of his mind,” Villegas confessed. The Texas state courts overturned the conviction in 2012, citing ineffective assistance of counsel. Presenting evidence of innocence at his third trial, Villegas was acquitted in October 2018.


Fresno DA Drops Death Penalty for California’s Longest Serving Death-Row Prisoner

Posted: April 22, 2019

The Fresno County District Attorney’s office has announced that it is dropping the death penalty against Douglas Stankewitz (pictured),  California’s longest-serving death-row prisoner. After reviewing extensive mitigating evidence that Stankewitz’s trial counsel had failed to investigate, Fresno prosecutors announced on April 19, 2019 that a sentence of life without parole would be “fair and just” in Stankewitz’s case and that they will not pursue a third capital-sentencing proceeding against him.

Stankewitz was first convicted and sentenced to death in 1978 for a murder committed while he was 19 years old. He was the first person sent to California's death row after the state reestablished the death penalty earlier that year. Prior to trial, Stankewitz’s trial lawyer asked the court to conduct a hearing on his client’s competency to stand trial. The court-appointed psychiatrist reported that Stankewitz suffered from “paranoid delusions that his public defender was in collusion with the prosecutor” and that this delusion “interfered with his ability to cooperate in the conduct of his defense.” Nonetheless, the trial court refused to conduct a competency hearing and Stankewitz was tried, convicted, and sentenced to death. The California Supreme Court overturned his conviction in 1982 based upon doubts about Stankewitz’s competency. Before his retrial, the trial court found an irreparable conflict existed between Stankewitz and his public defender and appointed private counsel, Hugh Goodwin, as substitute counsel. Despite believing that Stankewitz was incompetent, Goodwin failed to obtain a psychological evaluation of his client. Stankewitz was convicted and sentenced to death a second time.

More than 25 years later, a California federal district court overturned that death sentence based upon Goodwin’s failure to investigate and present a broad range of mitigating evidence of intellectual impairment, abuse, neglect, and brain damage. The U.S. Court of Appeals for the Ninth Circuit, in Stankewitz v. Wong, upheld the district court’s decision in 2012. The court wrote that Goodwin presented a “paltry” penalty-phase defense that primarily “focused … on the ‘power of God’ to help persons change their lives” and that praised the work of prison chaplains.

The available mitigating evidence showed that Stankewitz had experienced a deeply traumatic upbringing, enduring a variety of abuses common among death-row prisoners. Stankewitz was born into poverty in a home without electricity or running water, where there was rarely enough food for all ten children. While she was pregnant with him, Stankewitz’s mother drank alcohol excessively, and his father hit her in the abdomen. His parents and older siblings abused him physically and mentally, and by age five, he had started sniffing paint. Alcohol and drug abuse soon followed. His older siblings abused him so severely that he has “a substantial indentation on his cranium.” He was removed from his home at age six because his mother beat him with an electrical cord and was sent to jail. From then until his arrest at age 19, he was in various forms of government care, where he continued to experience abuse. He was sexually abused, beaten, unnecessarily drugged, tied to beds, and deliberately tortured. Mental health examinations have shown that he is borderline intellectually disabled and has significant brain dysfunction, likely as a result of fetal alcohol syndrome and severe childhood trauma.

Rather than extend the case further, prosecutors ultimately agreed that this mitigating evidence justified a life sentence.


Veil of Execution Secrecy Expands in Several Southern Death-Penalty States

Posted: April 19, 2019

Three southern states have taken action to limit the public’s access to information relating to executions by increasing secrecy surrounding lethal-injection drug suppliers. On April 12, 2019, the Texas Supreme Court reversed an earlier decision that would have disclosed the source of lethal-injection drugs used to carry out executions in Texas in 2014, asserting that disclosure “would create a substantial threat of physical harm to the source’s employees and others.” On April 9, Arkansas Governor Asa Hutchinson signed into law one of the most expansive and punitive execution secrecy laws in the nation, concealing the identity of lethal-injection drug suppliers from the public and criminalizing disclosure of execution-related information. Act 810 exempts lethal-injection records from the state’s Freedom of Information Act and makes the intentional or reckless disclosure of the exempted information a felony. In Louisiana, amidst partisan feuding over the reasons the state has not carried out executions, a bill that would make secret the source of execution drugs was referred to the House Committee on Administration of Criminal Justice on April 8, the first day of the 2019 Louisiana state legislative session. Democratic Governor John Bel Edwards, who voted against a similar bill five years ago while serving as a state legislator, indicated that he would likely sign the measure. Louisiana’s legislature is also considering two bills that would abolish capital punishment.

The Texas Supreme Court decision marked the culmination of several years of litigation over the state’s lethal-injection secrecy policy. A Texas district court and a state court of appeals both ordered disclosure of the drug supplier’s identity, and the Supreme Court initially upheld those lower court rulings. The state asked for a rehearing, arguing that disclosure would have “potentially devastating consequences” to public safety. The rehearing took place after BuzzFeed News revealed through investigative reporting that the state had obtained lethal-injection drugs from Greenpark Compounding Pharmacy, a Houston based compounding pharmacy with a history of safety violations. When the compounder’s identity was revealed, activists peacefully protested outside the pharmacy. Attorney Ari Cuenin, arguing for the state, said that protests, along with alleged threats, had convinced pharmacies not to provide drugs to the state. The state called the pharmacy a “soft target” in an “urban area, whose only defense is its anonymity.”

A number of states have asserted that anti-death-penalty activists have intimidated pharmacies and major pharmaceutical companies into refusing to supply drugs for executions and have argued in legislative debates and in litigation that these alleged threats justify execution secrecy. In its secrecy bill, the Arkansas legislature alleged without evidence that “there is a well-documented guerilla war being waged against the death penalty” and that “[a]nti-death penalty advocates have pressured pharmaceutical companies to refuse to supply the drugs used by states to carry out death sentences.” In fact, calling the use of their medicines in execution contrary to their medical mission, several drug companies have sued Arkansas or filed friend-of-the-court briefs alleging that the state engaged in misrepresentations and subterfuge to improperly obtain their drugs. Independent media and law enforcement investigations have concluded that the alleged threats against drug manufacturers and suppliers have been unfounded or grossly exaggerated. A 2016 BuzzFeed News investigation revealed that FBI records debunked an alleged threat that Texas and Ohio claimed established the need for secrecy. That supposed threat was an email from a university professor who provided his name and phone number and warned an Oklahoma pharmacy to take safety precautions. The email was one of three pieces of evidence, along with a blog post and comments left on the website of a previous supplier, that the Texas court relied on in its decision. “There is no evidence of a history of specific threats to that particular pharmacist or pharmacy because the source's identity has been kept confidential,” the court wrote. “Thus, the question before us in this case is whether the mere fact that the public knows that the Department is receiving lethal injection drugs from some source, whoever it might be, is enough to conclude that a substantial threat of physical harm will come to bear on the source of the drugs if the identifying information is made public.”


Second Alabama Prisoner Files Suit to Allow Muslim Chaplain in Execution Chamber

Posted: April 18, 2019

A second Muslim death-row prisoner has filed a federal civil rights lawsuit challenging Alabama’s policy of allowing only a Protestant Christian chaplain in the execution chamber. Charles Burton, Jr. (pictured), converted to Islam 47 years ago. In a complaint filed in the United States District Court for the Middle District of Alabama, Burton, who was sentenced to death in 1992, argues that Alabama’s policy violates the Establishment and Free Exercise Clauses of the First Amendment and the religious freedom amendment of the Alabama state constitution by denying non-Christian prisoners access to religious advisors during executions in circumstances in which spiritual assistance is made available to Protestant Christian prisoners. The Stanford Religious Liberty Clinic and the Alabama federal defenders office are representing Burton in his lawsuit. “In practice, inmates who share the chaplain’s faith may hold his hand and pray with him in their final moments, but that same comfort and prayer is denied to those of other denominations or faiths,” the clinic wrote in a press release announcing the suit. “This violates basic principles of religious equality and human dignity,” the clinic said.

Burton’s challenge was filed after a 5-4 majority of the U.S. Supreme Court lifted a federal appeals court’s stay of execution and allowed Alabama to execute Domineque Ray, another Muslim prisoner who had argued that the state’s refusal to accommodate his request to permit an imam in the execution chamber was religiously discriminatory. Overturning the fact-finding of a federal appeals court, the Court asserted that Ray had filed his claim too late and therefore was not entitled to a stay of execution. The decision in Ray’s case drew significant criticism, and less than two months later, the Court halted the execution of Texas prisoner Patrick Murphy, who raised a strikingly similar claim. Murphy, a Buddhist, challenged Texas’ policy of allowing only Christian or Muslim chaplains, both employed by the Department of Criminal Justice, to be present during executions. Texas responded to the ruling by barring all religious advisors from the execution chamber. To avoid any possibility that Alabama could say he did not timely raise his challenge, Burton filed suit before the state has set an execution date for him.

Burton’s filing emphasizes the importance of religious freedom. Alabama’s actions, the suit alleges, “violate two of the most elementary principles of our constitutional democracy, principles that the law requires to be honored even in prison: to be able to practice one’s religion free from substantial and unjustified governmental burdens and to be free from governmental discrimination based on one’s religion.” In an editorial on April 11, 2019, the Wall Street Journal supported Burton’s claim. “The death penalty ranks among America’s most divisive issues,” the editorial board wrote. “But on one point we suspect advocates and detractors agree: the right of a condemned man to have a minister of his own faith inside the execution chamber at the hour of his death.”


Federal Appeals Court Strikes Two Years of Guantánamo Tribunal Decisions in USS Cole Case

Posted: April 17, 2019

A civilian federal appeals court has dealt another blow to the Guantánamo military commission death-penalty proceedings, striking more than two years of decisions in the USS Cole bombing prosecution of Abd Al-Rahim Hussein Muhammed Al-Nashiri because of a military judge’s undisclosed conflict of interest. Al-Nashiri faces capital charges for his alleged role in the suicide bombing attack on the USS Cole in Yemen in October 2000 in which 17 U.S. Navy sailors were killed and another 39 were injured.

A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued a writ of mandamus vacating all orders issued by Colonel Vance Spath (pictured) between November 19, 2015 and his retirement in 2018 because Spath had not disclosed to defense counsel that he had applied for employment with the Department of Justice (DOJ) as an immigration judge while continuing to preside over pretrial proceedings against Al-Nashiri, who is being prosecuted by the DOJ. During the time period in which he was seeking employment with the DOJ, Spath issued numerous oral rulings from the bench and more than 450 written orders. The panel wrote that “[r]equiring Al-Nashiri to proceed under the long shadow of all those orders, even if enforced by a new, impartial military judge, would inflict an irreparable injury unfixable on direct review. Al-Nashiri thus has no adequate remedy for Spath’s conduct other than to scrub Spath’s orders from the case at the earliest opportunity.” The court, which has appellate authority over the Guantánamo U.S. military commissions, also vacated all military appeals decisions by the United States Court of Military Commission Review involving orders issued by Spath.

The long-delayed Guantánamo military commission proceedings against Al-Nashiri have been beset by controversy. Captured in 2002, Al-Nashiri was subjected to 14 years of "physical, psychological and sexual torture" in secret CIA-run detention centers. His lawyers unsuccessfully sought to have him tried in civilian court rather than in a military tribunal as a result of the torture. In October 2017, after Spath refused to allow Al-Nashiri’s defense lawyers to investigate the discovery of eavesdropping devices in a meeting room reserved for attorney-client communications, his entire civilian legal team resigned from the case. Judge Spath then held Brigadier General John Baker, the Chief Defense Counsel for the Military Commissions Defense Organization, in contempt after Baker said he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo and refused to reverse his decision authorizing the defense team to withdraw. The civilian Convening Authority of the Guantánamo tribunals, Harvey Rishikof, then intervened to release Baker from detention. The resignations left Al-Nashiri's defense solely in the hands of a single military lawyer, Navy Lt. Alaric Piette, who had never tried a murder case. Spath repeatedly denied Piette’s request for a continuance until expert death-penalty counsel could be appointed, instead telling Piette to “engage in self help” by attending special training to become “more comfortable handling capital matters.” Then, in February 2018, Spate indefinitely halted all pretrial proceedings in the case, and in July 2018 announced his retirement from military service. A Freedom of Information Act request by reporter Carol Rosenberg discovered that Spath had been seeking to become a DoJ immigration judge during this period.

In vacating Spath’s rulings, the federal appeals court wrote: “We do not take lightly the crimes that Al-Nashiri stands accused of committing. To the contrary, the seriousness of those alleged offenses and the gravity of the penalty they may carry make the need for an unimpeachable adjudicator all the more important.”


Supreme Court Denies Review in Case of Death Sentence Tainted by Anti-Gay Bias

Posted: April 16, 2019

The U.S. Supreme Court has declined to review the case of a South Dakota death-row prisoner whose jurors made anti-gay statements and relied on homophobic beliefs in deciding to sentence him to death. On April 15, 2019, the Court without comment denied a petition filed by Charles Rhines (pictured) asking the Court to declare that the constitutional right to an impartial jury applies equally to bias against a defendant’s sexual orientation. In a statement responding to the Court’s decision, Shawn Nolan, one of Rhines’ federal appeals lawyers, said: “As Chief Justice Roberts wrote in an earlier case, ‘[o]ur law punishes people for what they do, not who they are.’ New evidence – which has never been heard by any court – shows that some of the jurors who sentenced Mr. Rhines to death did so because of who he was, not for what he did.” The jurors in Rhines’ case knew that he was gay, and, Nolan said, new statements from jurors in the case “show that some jurors … thought that he would enjoy life in prison with other men and it would not serve as a sufficient punishment. The jurors’ anti-gay bias deprived Mr. Rhines of his right to a fair sentencing process under the Sixth and Fourteenth Amendments.”

Rhines had sought review based on the Supreme Court’s 2017 ruling in Peña-Rodriguez v. Colorado that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires ... the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” He argued that the same constitutional principle should apply to bias based on sexual orientation.

Jurors told Rhines’ attorneys that “[t]here was lots of discussion of homosexuality” during sentencing deliberations. “There was a lot of disgust. … There were lots of folks who were like, ‘Ew, I can’t believe that.’” In a 2016 sworn statement, juror Frances Cersosimo reported that one juror said, “If he’s gay, we’d be sending him where he wants to go” by sentencing Rhines to life in an all-male prison. Juror Harry Keeney said in a sworn statement, “We also knew he was a homosexual and thought he shouldn’t be able to spend his life with men in prison.” Several civil rights groups urged the Court to hear his case. The NAACP Legal Defense and Educational Fund, American Civil Liberties Union, and seven LGBTQ rights organizations submitted amicus briefs in support of Rhines. The NAACP Legal Defense Fund wrote, “Just as the Constitution does not permit a person to be sentenced to die because of his race, it should not permit a person to be sentenced to die because of his sexual orientation.” Nolan echoed that idea in his statement on the Supreme Court’s denial, saying, “both racial prejudice and anti-gay prejudice have no place in the criminal justice system. Both undermine public confidence in the fairness of the system, particularly when jurors must decide between life imprisonment and death.”

Despite the 2017 decision allowing consideration of racially biased juror comments, the Court has declined to intervene in two cases this term in which death-row prisoners were sentenced to death by racist jurors. On March 18, the Court denied review in the case of Georgia death-row prisoner Keith Tharpe. One of Tharpe’s jurors signed an affidavit saying “there are two types of black people: 1. Black folks and 2. N[**]gers,” and Tharpe was not in “the 'good' black folks category.” This same juror also said he “wondered if black people even have souls.” On April 1, the Court also declined to hear the case of Julius Jones, an Oklahoma death-row prisoner whose jury included a juror who said, “they should just take the n****r out and shoot him behind the jail.” The Court also received harsh criticism after it vacated a federal appeals court stay of execution and permitted Alabama to execute Domineque Ray, a Muslim prisoner who said Alabama’s refusal to allow his imam in the execution chamber amounted to religious discrimination.


Post-Midnight Decision on Alabama Execution Highlights Deeply Divided Supreme Court

Posted: April 15, 2019

In a contentious ruling issued in the early morning hours of April 12, 2019, the U.S. Supreme Court vacated a stay of execution issued by lower federal courts and cleared the way for Alabama to execute Christopher Price (pictured). The Court’s 5-4 decision, issued after 2:00 a.m. Eastern time, came after Alabama had postponed Price’s execution minutes before the midnight Central time expiration of his death warrant, with the lower court stay of execution still in effect. Joined by the three other liberal and moderate justices, Justice Breyer authored a scathing dissent that exposed sharp divisions in the Court over the manner in which it considers execution-related challenges in death-penalty cases.

Scheduled to be executed April 11, Price challenged Alabama’s lethal-injection protocol as unnecessarily torturous and –as required by Supreme Court case law – proposed an alternative method of execution. Price selected nitrogen hypoxia, the alternative method of execution made available in Alabama’s death-penalty statute. The Alabama Attorney General’s office opposed Price’s motion, arguing that lethal gas was not available to Price because he had failed to select it during the 30-day window created when Alabama added lethal gas to its execution statute. The district court agreed and denied Price’s claim, prompting an appeal to the U.S. Court of Appeals for the Eleventh Circuit. The circuit court ruled that once Alabama had codified lethal gas as an alternative method of execution under its statute, it could not claim that gas was unavailable to execute Price. However, the circuit court rejected Price’s stay motion, saying he had failed to meet the additional burden imposed by the U.S. Supreme Court that he prove that execution by nitrogen hypoxia would significantly reduce the risk of unnecessarily severe pain during the execution.

Following the 11th Circuit’s ruling, Price returned to the district court with uncontroverted affidavits from medical experts who said nitrogen gas posed a significantly reduced risk of severe pain compared to the state’s lethal-injection protocol. Based on this evidence, the federal district court granted Price a stay of execution. Later in the day, without ruling on the merits of the district court’s order, the 11th Circuit imposed its own stay of execution to consider jurisdictional issues presented by the district court stay. Alabama then filed an emergency motion in the U.S. Supreme Court seeking to vacate the stay, leading to the overnight ruling by the Court.

In a one-paragraph order vacating the stay, the majority said that Price had not timely selected lethal gas during a 30-day window created when Alabama added lethal gas to its execution statute and then waited until February 2019 to challenge the state’s method of execution. As a result, the majority viewed Price’s lawsuit and pre-execution filings as untimely. Justice Stephen Breyer – joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan – wrote an impassioned dissent. “Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way,” he wrote, “let that person review the … circumstances as they have been presented to our Court this evening.” Breyer highlighted the uncontested evidence presented in the courts below: that Alabama’s lethal injection protocol will likely cause Price “severe pain and needless suffering”; that lethal gas is a readily available method, and that lethal gas is likely less painful than Alabama’s lethal injection protocol. Breyer also criticized the majority’s substitution of its judgment for the district court’s finding that Price had been “proceeding as quickly as possible on this issue since before the execution date was set” and was not attempting “to manipulate the execution.” Breyer expressed deep concern for the majority’s insistence on vacating a stay despite his request to consider the issue at a prescheduled conference to be attended by all the justices that morning. “To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system,” Breyer wrote.

Alabama has not yet set a new execution date.