Texas executed Robert Jennings (pictured) on January 30, 2019 for the 1988 murder of Houston police officer Elston Howard, amid questions as to his eligibility for capital punishment and the constitutionality of his death sentence. Jennings was convicted under a sentencing procedure that the U.S. Supreme Court had struck down shortly before his trial in 1989 because it did not adequately allow jurors to consider evidence supporting a sentence less than death. The jury instructions given in his case to redress that error were also later declared unconstitutional, and 25 Texas death-row prisoners had their death sentences overturned as a result. However, Jennings’s court-appointed trial and appeal lawyers failed to raise the issue in Texas state court and the Texas federal courts refused to consider the issue on the grounds that the state court lawyers had procedurally defaulted the claim. The U.S. Supreme Court later changed federal habeas corpus procedures to permit review if ineffective state-court representation caused the default. But when Jennings’s federal lawyers attempted to raise the issue again, the Texas federal appeals court ruled on January 28 that its prior decision had not been based on procedural default and that it had already rejected the claim. Without comment, the Supreme Court issued an order on January 30 declining to hear Jennings’s case, and he was executed.
In challenging Jennings’s death sentence, his current lawyers also argued that both Jennings’s trial lawyer and his previous appellate attorney provided inadequate representation. Jennings’s trial attorney was defending two death-penalty cases at the same time and did not investigate significant mitigating evidence that included Jennings’s history of brain damage from a car crash and an injury with a baseball bat, an IQ of 65, and intellectual and adaptive deficits associated with his low IQ. Trial counsel also failed to present readily available evidence of Jennings’s impoverished, abusive, and neglectful upbringing: he was born as the result of a rape, and his mother frequently told him she did not want him. His original appeal lawyers also failed to raise these issues. Edward Mallett, one of Jennings’s current lawyers, said, “There has not been an adequate presentation of his circumstances including mental illness and mental limitations.”
U.S. District Judge Lynn Hughes took the unusual step earlier in January of asking the state to consider supporting clemency for Jennings, citing the 30-year delay between the crime and the scheduled execution. Jennings's attorneys argued in his clemency petition that the state had granted clemency last year to a white death-row prisoner with fewer mitigating circumstances. "Denying a commutation truly will demonstrate that race, class, and privilege matter in determining who is executed in Texas," attorney Randy Schaffer wrote. "This would send a terrible message to the world."
Stephen Curry (pictured, right, during a 2015 visit to the White House), star of the NBA’s Golden State Warriors and executive producer of the upcoming documentary Emanuel, has publicly voiced his opposition to the death penalty. Emanuel tells the story of the murder of nine Black members of the Emanuel African Methodist Episcopal Church in Charleston, South Carolina by white supremacist Dylann Roof. It is the first film produced by Curry’s production company, Unanimous Media, and was co-produced by Viola Davis’s company JuVee Productions. After a January 23, 2019 advance screening at Howard University, Curry participated in a panel discussion of the movie’s themes, including faith, race relations, forgiveness, gun violence, and the death penalty. Asked about his views on the death penalty and Dylann Roof’s death sentence, Curry said, “I don’t believe in the death penalty. I feel like there are situations where an individual can be redeemed or be healed and mentally or physically with whatever the issue is and the root of why they are in that situation.” Curry also spoke about taking inspiration from the forgiveness that victims’ family members offered to Roof. “It’s hard for me to put myself in their shoes and empathize with what they’re going through. But it’s so inspiring the way they handled it. They chose forgiveness. They chose faith. They chose to support each other and the community. That alone speaks volumes for humanity and hope of humanity.”
Curry also addressed the issue of athletes becoming involved in social causes. “Athletes in general, especially in the NBA, guys are educated. They know what they’re talking about,” he said. “They know what they believe. And there’s a reason when you say something there are headlines. People want to hear what you have to say. We shouldn’t shy away from it.” He praised the NBA and its commissioner, Adam Silver, for “support[ing] us in using our voice to speak for those who can’t speak for themselves. And I think this era of athlete is unafraid to be unapologetically themselves, whatever that means.”
Emanuel will be released in select theaters on June 17, 2019, the fourth anniversary of the shooting at Emanuel AME Church.
The Missouri Supreme Court may soon rule on the constitutionality of the state’s practice of having the trial judge determine whether a capital defendant should live or die if the sentencing jury is unable to reach a unanimous verdict. Death-row prisoner Marvin Rice (pictured) was sentenced to death by the trial judge in August 2017, even though 11 of the 12 jurors in his case voted for a life sentence. His appeal, which the state court heard on January 23, 2019, argues that the portion of Missouri’s death-penalty statute that gives the trial judge exclusive sentencing authority in the event of a hung sentencing jury violates his “constitutionally protected rights to due process, a trial by jury, and to a unanimous jury verdict.”
At the time of the offense, Rice – a former deputy sheriff and disabled Army veteran – was suffering from a major depressive disorder that had been worsened by the effects of a pituitary gland tumor. Court documents indicated that he had been diagnosed with 12 various medical and psychiatric conditions for which he had been taking 17 different medications. Eleven jurors were persuaded by this and other mitigating evidence that Rice’s life should be spared, but a single hold-out juror for death hung the jury. Trial judge Kelly Wayne Parker then disregarded the jury’s vote and sentenced Rice to death.
Rice’s appeal also challenges the constitutionality of Missouri’s capital punishment statute on the grounds that virtually any homicide now qualifies as a capital offense. This, he argues, violates the constitutional requirement that the death penalty be limited to a narrow class of the worst-of-the-worst killings. He also seeks a new trial based upon police and prosecutorial misconduct in his case. Police, he says, unconstitutionally continued to interrogate him while he was hospitalized for gunshot wounds sustained during his arrest, even after he had said he did not want to answer their questions. He also argues that the prosecutor repeatedly violated his constitutional right to remain silent, improperly commenting on both his decision not to testify at trial and his refusal to answer police questions after having been given his Miranda warnings. Rice’s lawyer, Craig Johnston told the state justices: “This court has repeatedly held that where an objection is made and overruled as happened here, a direct reference to the defendant’s failure to testify will invariably result in a new trial.”
Only Missouri and Indiana allow a judge to impose a death sentence following a jury deadlock in the sentencing phase of a capital trial. Alabama also allows a judge to impose a death sentence following a non-unanimous jury sentencing vote, but only if at least ten jurors vote for death. No jury in Missouri has imposed a death sentence since 2013, but judges sentenced Rice and Craig Wood to death after juries could not reach a unanimous sentencing decision. Wood was sentenced to death in 2018 after his jury voted 10-2 for a death sentence. The U.S. Supreme Court has not addressed the constitutionality of Missouri’s hung jury sentencing practice. However, in 2016, the Court struck down Florida’s death sentencing statute saying its provision requiring the judge, rather than a jury, to find facts necessary to impose a death sentence violated the Sixth Amendment right to a jury trial.
Citing a federal court’s concerns that Ohio’s lethal-injection process is unnecessarily torturous, newly inaugurated Ohio Governor Mike DeWine (pictured, left) has issued a six-month reprieve to death-row prisoner Warren Keith Henness (pictured, right), delaying his execution from February 13 to September 12, 2019. In granting the reprieve, DeWine also directed the Ohio Department of Rehabilitation and Correction to review Ohio’s possible alternative drugs to carry out lethal-injection executions.
On January 14, federal magistrate Judge Michael Merz issued an opinion likening Ohio’s current three-drug execution process to a combination of waterboarding and chemical fire. Judge Mertz wrote: “If Ohio executes Warren Henness under its present protocol, it will almost certainly subject him to severe pain and needless suffering. Reading the plain language of the Eighth Amendment, that should be enough to constitute cruel and unusual punishment.” Nonetheless, Merz allowed the execution to go forward, saying the U.S. Supreme Court’s controversial 2015 ruling in the lethal-injection case Glossip v. Gross prevented him from granting a stay. Glossip requires a prisoner who challenges an execution protocol to provide an alternative method that is “available, feasible and can be readily implemented,” a standard Mertz said that Henness was unable to meet. Henness’s attorneys applauded the governor’s decision to issue a reprieve. “The evidence presented in the federal court hearing made it clear that moving forward under the current lethal-injection protocol would subject Mr. Henness to needless pain and suffering, in direct violation of his rights under state law and the state and federal constitutions,” said David Stebbins of the federal public defender’s office. “We commend Governor DeWine for his leadership and for ensuring the justice system operates humanely in Ohio."
Merz’s ruling described several problems with the use of midazolam, the first drug in Ohio’s lethal-injection protocol. He said that — contrary to the evidence available to the Court at the time of Glossip — midazolam does not render the prisoner sufficiently unconscious to block the painful effects of the second drug, a paralytic, and the third drug, potassium chloride, which he said would feel “as though fire was being poured” through the prisoner’s veins. He also noted that 24 of 28 available autopsies from midazolam executions showed the prisoner experienced pulmonary edema, or fluid in the lungs, which he said was “painful, both physically and emotionally, inducing a sense of drowning and the attendant panic and terror, much as would occur with the torture tactic known as waterboarding.”
Ohio has struggled to find a constitutionally and legally acceptable method of execution. Its state law holds that executions must be “quick and painless.” After the 2014 botched execution of Dennis McGuire, the state changed its protocol, removing midazolam. It reversed course in October 2016, announcing a three-drug protocol beginning with midazolam. In January 2017, Judge Merz halted three executions because he said the protocol amounted to cruel and unusual punishment, and a three-judge panel of the U.S. Court of Appeal for the Sixth Circuit upheld that decision, but the full Sixth Circuit court reversed it in June 2017, allowing executions to resume. Since 2014, Ohio has carried out three executions, while 33 have been delayed by court decisions or by the state’s inability to obtain lethal-injection drugs.
Charles Wright (pictured), a prisoner on Tennessee’s death row, may die of cancer before the October 10, 2019 execution date that the state has set for him. His attorneys and supporters, including a former U.S. Congressman, are seeking clemency so Wright can spend his final days with his family. Wright has prostate cancer that has spread to his bones, and was recently moved from Tennessee’s death-row facility to a prison infirmary. He is asking the governor to either reduce his sentence to time served or to life without parole, allowing him to apply for a medical furlough, a special release that can be granted to terminally ill prisoners, but not to those on death row.
In September 2018, former Congressman Bob Clement wrote to then-Governor Bill Haslam, asking Haslam to grant clemency to Wright. “It is clear to me that Charles is not among the ‘worst of the worst’ for whom the ultimate punishment is to be reserved,” Clement wrote. “He was a product of his environment and the deprivation in which he — I will not say ‘was raised’ as the fact is, Charles and his siblings basically raised themselves. He turned to drugs early in his teenage years — he was fourteen or fifteen when an older drug dealer put a heroin needle in Charles’ arm. Charles does not absolve himself of his responsibility for making wrong choices.” Clement’s father, Frank Clement, served as governor of Tennessee in the 1960s, and commuted all the state’s death sentences in 1965, after the legislature defeated an abolition bill by one vote.
In court filings, Wright’s attorneys also raised issues of arbitrariness and racial bias. Wright, who is Black, was convicted and sentenced to death for a drug-related double-homicide in 1985. According to his attorneys, capital cases in the 1980s were infected with racial bias, and Wright’s case exemplifies the arbitrariness of Tennessee’s death penalty. While Wright was sentenced to death, many other drug-related murders have resulted in life sentences, even when there were more than two victims. A 2018 study of Tennessee's death-penalty system called it “a cruel lottery” and found that the best indicators of whether a case would result in a death sentence were arbitrary factors such as where the murder occurred, the race of the defendant, the quality of the defense, and the views of the prosecutors and judges assigned to the case.
The United States Supreme Court has declined to review challenges brought by two Oklahoma death-row prisoners who alleged that their death sentences were the unconstitutional product of racial bias. Julius Jones and Tremane Wood had sought to overturn their death sentences based on the findings of a 2017 study that showed significant racial disparities in Oklahoma’s death sentencing practices. On January 22, 2019, the Court denied the petitions for writ of certiorari after having rescheduled consideration of Jones’s (pictured, left) and Wood’s (pictured, right) cases 25 times each.
In their petitions for certiorari, Jones and Wood relied upon a statistical study of Oklahoma death sentences imposed between 1990 and 2012 to argue that racial bias unconstitutionally infected their death sentences. In 2017, the Oklahoma Death Penalty Review Commission released a report on the state’s administration of the death penalty that included the findings of Dr. Glenn L. Pierce and professors Michael L. Radelet and Susan Sharp about the impact of race on death sentences. The study found that a murder defendant in Oklahoma accused of killing a white victim was more than twice as likely to be sentenced to death than a defendant accused of murdering a nonwhite victim. In cases like Jones’s and Wood’s, which involved only male victims, the study found that death sentences were nearly three times more likely to be imposed if the victim was white than if the victim was a person of color. It also found that when the victim was a white male, defendants of color, like Jones and Wood, were twice as likely as a white defendant to be sentenced to death.
Jones and Wood described other evidence that racial bias affected decisionmakers in their cases. The judge who presided over Wood's trial has made openly racist remarks, saying in 2011 that Mexicans are “nothing but filthy animals.” Jones was sentenced to death by a nearly all-white jury, following what his current lawyers describe as “pervasive and highly racialized pre-trial media coverage” and “racialized remarks made by prosecutors and at least one juror” during his trial. Dale Baich, one of Jones’s appellate lawyers, told The Oklahoman, that the facts of the case “vividly show how racial bias can lead to a wrongful conviction.” Jones is scheduled to file a separate petition for certiorari on January 28 raising the issue that one of the jurors in the case said “they should just take the n****r out and shoot him behind the jail.”
A bipartisan coalition of Wyoming legislators has introduced a bill to abolish the state’s death penalty. On January 15, 2019, Cheyenne Republican State Representative Jared Olsen (pictured, left) and Republican State Senator Brian Boner (pictured, right), introduced HB145, which would repeal the death penalty and replace it with a judicially imposed sentence of life without parole or life imprisonment. The bill, co-sponsored by sixteen other representatives and senators, has the backing of several legislative leaders, including Speaker of the House Steve Harshman, R-Casper, and Senate Minority Leader Chris Rothfuss, D-Laramie. “You’ve got social conservatives and libertarians and that’s a little more of a mix than we’ve had before,” Olsen said. “And then if you look at the heavy hitters on the bill, we’ve got three-quarters of the House leadership on the bill.”
A coalition of outside organizations that includes he League of Women Voters of Wyoming, the Catholic Diocese of Cheyenne, and the ACLU of Wyoming also are supporting the repeal effort. The groups released a statement on January 16 calling the death penalty “a costly and unfair practice that does not enhance public safety or promote justice in Wyoming.” The breadth of the support distinguishes this year’s effort to abolish capital punishment from prior efforts over the past five years, according to Rep. Olsen. “The momentum and desire behind all those groups is just flourishing right now,” he said. “They’re coming to me every day, working different legislators and reporting back to me on what they’re doing. I think there’s a lot of outreach in the community as well. There’s a lot of momentum.”
Proponents of the bill say that Wyoming’s death penalty is impractical and costs too much. The state has only carried out one execution since 1976, and does not currently have any prisoners facing an active death sentence. (The death sentence imposed on Dale Wayne Eaton, who had been the state’s only death-row prisoner, was overturned in 2014, and federal appeals relating to that grant of relief are still pending.) Despite the rarity of the death penalty in Wyoming, the fiscal note that accompanies the abolition bill estimates it would cost the state $750,000 to maintain capital punishment in 2020. “We continue to spend hundreds of thousands of dollars every year to maintain the death penalty,” Sen. Boner said. “I believe the availability of a life without parole sentence adequately balances the need to protect public safety while recognizing the need to reduce the strain on taxpayer resources.”
The Casper Star-Tribune editorialized in 2013 that life without parole was a better option than the death penalty for many family members of murder victims. The current abolition efforts have also gained the editorial support of the Powell Tribune, which wrote on January 22 that “[i]t seems that, for all practical purposes, the death penalty has already been abolished in Wyoming.” Noting that “like anything else that involves people, [the Wyoming legal system] will sometimes get it wrong,” the paper said that when someone is wrongfully executed, “that mistake is irreversible. And it’s a risk that’s not worth taking.”
By a vote of 23-17, the Virginia State Senate has approved a bill that, if enacted, would ban capital punishment for defendants with severe mental illness. With the support of all nineteen Democratic senators and four Republicans, the bill passed the GOP-controlled Senate on January 17, 2019. It now moves on to the Commonwealth’s House of Delegates, which is comprised of 51 Republicans and 49 Democrats.
SB 1137 defines severe mental illness as “active psychotic symptoms that substantially impair a person’s capacity to (i) appreciate the nature, consequences, or wrongfulness of the person’s conduct; (ii) exercise rational judgment in relation to the person’s conduct; or (iii) conform the person’s conduct to the requirements of the law.”However, the bill excludes disorders that are “manifested primarily by repeated criminal conduct or attributable to the acute effects of voluntary use of alcohol or any drug.”Under the proposal, the determination of severe mental illness would be made in the sentencing phase of trial, after the defendant already has been convicted. The jury (or the judge, if the defendant waives the right to a jury trial) would decide if the defendant has proven “by a preponderance of the evidence” that he or she was severely mentally ill at the time of the offense. A defendant found to be severely mentally ill would be sentenced to life without parole. The bill also provides for indigent defendants with mental illness claims to receive assistance from a mental health expert appointed by the court.
The bill’s sponsor, Sen. Barbara Favola (D – Arlington), called the proposal “a vehicle for us to administer justice in a way that’s humane and, I would say, in a way that reflects the values of Virginians.” Sen. Scott Surovell (D – Fairfax), said the mental illness exemption would have limited impact in Virginia because of the decline in death sentences across the state, but was a necessary mental-health reform. “The reality is we have a broken mental health system in this country,” he said. “We have a broken mental health system in this state. We don’t give it enough money.” Senate Minority Leader Richard Saslaw (D – Fairfax), who called himself “a pretty strong proponent of capital punishment,” supported the bill, saying that, when it comes to defendants who are severely mentally ill, “probably we ought to think twice.”
Virginia is second only to Texas in the number of executions carried out since 1976, but it has had a sharp decline in the use of the death penalty in recent years. No one has been sentenced to death in Virginia since 2011, and just two men remain on the state’s death row. In July 2017, lawyers for William Morva, a seriously mentally ill death-row prisoner suffering from a delusional disorder that his lawyers said left him unable to distinguish his delusions from reality, unsuccessfully sought a commutation from Governor Terry McAuliffe. Previously, Governors James Gilmore and Timothy Kaine commuted the death sentences of Calvin Swann and Percy Walton, citing concerns about serious mental illness. Other states are also considering legislation that would ban the death penalty for seriously mentally ill defendants. In 2017, bills were introduced in seven states, including Virginia, calling for such measures. The American Bar Association in 2016 issued a white paper in support of a mental-illness exemption.
Citing Evidence of Innocence, Race Discrimination, Georgia Court Grants New Trial to Former Death-Row PrisonerPosted: January 18, 2019
A Georgia judge has granted a new trial to Johnny Lee Gates (pictured recently, right, and at the time of trial, left) based on new evidence that excludes him as the source of DNA on implements used by the killer during the 1976 rape and murder for which Gates was sentenced to death. DNA testing disclosed that Gates’s DNA was not found on a necktie and the bathrobe belt the prosecution said were used by the killer to bind Kathrina Wright, the 19-year-old wife of a soldier stationed at Fort Benning during the murder. In a January 10, 2019, decision overturning Gates’s conviction, Senior Muscogee County Superior Court Judge John Allen credited the analysis of defense DNA expert Mark Perlin that Gates’s DNA was not present on the evidence. Judge Allen noted that Perline had trained the two Georgia Bureau of Investigation scientists the prosecution relied upon in the most recent court proceedings in the case and that the testimony of the GBI witnesses supported Perlin's conclusions. Judge Allen wrote that “[t]he exclusion of Gates’ profile to the DNA on the two items is material and may be considered exculpatory” and entitled Gates to a new trial.
Gates, who is African American, was convicted and sentenced to death by an all-white jury in a racially charged case. His death sentence was overturned in 2003 based upon evidence that he is intellectually disabled, and he was resentenced to life. Heightening the racial tensions of a black man accused of raping and murdering a young white woman, prosecutors deliberately excluded African American jurors from the case. Lawyers from the Georgia Innocence Project and Southern Center for Human Rights filed a motion in March 2018 arguing that Columbus, Georgia prosecutors engaged in a pattern and practice of systematically striking black prospective jurors because of their race in Gates’s case and six other capital cases with black defendants, discriminatorily empanelling all- or nearly-all-white juries in those cases. The prosecutors’ jury selection notes in those seven capital trials showed that the state attorneys in his case had carefully tracked the race of jurors, struck every black juror they could, and repeatedly wrote derogatory comments about blacks and black prospective jurors. A Georgia Tech mathematics professor provided expert testimony that the probability that black jurors were removed for race-neutral reasons was infinitesimally small – 0.000000000000000000000000000004 percent. In an opinion that excoriated local prosecutors for “undeniable ... systematic race discrimination during jury selection,” Judge Allen found that the prosecutors “identified the black prospective jurors by race in their jury selection notes, singled them out … and struck them to try Gates before an all-white jury.” However, the court said the race discrimination against Gates was not grounds to grant him a new trial because he had not shown that the lawyers who previously represented him did not have access to the evidence of systematic discrimination.
Retiring Texas Court of Criminal Appeals judge and former prosecutor Elsa Alcala now believes that the death penalty is unreliably and discriminatorily applied in the nation’s most aggressive capital punishment state. In a new Houston Chronicle “Behind the Walls” podcast, Judge Alcala – who calls herself “a Republican hanging on by a thread” – told reporter Keri Blakinger, “I think we know enough right now to even call for a moratorium or just to pause all of this and to say, you know, ‘What is going on? Why does Texas have such a high percentage of people who get the death penalty and are executed as compared to the rest of the country?’”
Hired as a prosecutor by Harris County District Attorney Johnny Holmes, who gained notoriety as one of the nation’s deadliest prosecutors, Alcala spent nine years trying capital cases in the DA’s office of the country’s leading death-sentencing county. She then served as a county trial judge before being appointed by then-governor George W. Bush to serve on the state’s highest criminal court, the Texas Court of Criminal Appeals. As she was exposed to a range of problems in Texas death penalty cases, her views on the capital punishment evolved. She became a skeptic of capital punishment, often dissenting from denials of death-penalty relief and, in the case of Julius Murphy, called on the court to consider whether the state’s death penalty was constitutionally administered. When she left the bench, Judge Alcala accepted a policy role at the Texas Defender Service, where she will advocate for criminal justice reform. In an interview with the Texas Tribune, she joked, “[m]aybe I can have more success at the legislative level to get somebody to understand that there are some real true problems.”
In the podcast interview, Alcala cites a range of factors that changed her views about capital punishment. She discusses ineffective lawyers and parole laws that, at the beginning of her career, forced jurors to choose between a 15-year prison sentence and a death sentence for death-eligible defendants. “What do you do with these people who ... got there back to in the 90s when we know for a fact that the lawyers were not doing what they should have been doing in my mind?” Alcala asked. “And then the question is, as they come up to be executed, are we going to continue to execute them and tolerate the fact that things were done imperfectly? … I think, still percolating through all of that is that a lot of those [cases] are subject to that old parole law.”
When asked about the decline of the death penalty in Texas, Alcala said, “It is on the decline significantly. Whether it will ever go away and when it will go away – I don't know, I think it is imperfect. More accurately, I should say it is unreliable – I have lost faith in the reliability of the death penalty. And that is what underlies my involvement with the Texas Defender Service. It is: If you're going to have the death penalty, then do it correctly. You know, give them a good trial lawyer, give them a good appellate lawyer, give them a good habeas lawyer at the state level, give them a good federal lawyer and don't let racial prejudice at all influence anything that's going on.” The death penalty, she said, “is just not reliable. It’s not something that I can say is being done the way that it should be done to give you confidence in it as a punishment form. … I think, why is Texas so out of line with the rest of the country? It can't be that our people are worse, right? I mean, Texans are good people. Are our crimes worse than the rest of the country? I don't think so. Are our people worse than the rest of the country? I don't think so. So somehow we are out of line.”