Texas plans to execute a Mexican national on November 8, despite claims that he is innocent and that Texas violated U.S. international treaty obligations by denying him access to legal assistance from his government. Senior Mexican diplomats called the death sentence imposed on Ruben Ramírez Cárdenas (pictured) "illegal" and a violation of due process. In a news conference in Mexico City on November 6, Carlos Sada, Mexico’s deputy foreign minister for North America, said “From the start, there has been a failure, and from our perspective, this is an illegal act.” Cárdenas was convicted and sentenced to death in Hidalgo County in 1998 for the kidnapping, rape, and murder of his 15-year-old cousin. No physical evidence links him to the crime, and his lawyers say there is no forensic evidence of sexual intercourse or any sexual assault. In a pleading filed with Texas Court of Criminal Appeals, his lawyer, Maurie Levin, has sought a stay of execution to obtain DNA testing of scrapings taken from under the victim’s fingernails, arguing that that Cárdenas’s “conviction and death sentence bear all the indicia of a wrongful conviction.” Those indicators, she writes, include “questionable eyewitness testimony, coerced, uncounseled confessions, and unreliable forensic evidence." Prosecutors have opposed permitting the DNA testing. Despite U.S. treaty obligations under the Vienna Convention on Consular Relations requiring law enforcement to notify foreign citizens of their right to assistance from their nation’s consulate, police failed to notify Mexico of Cárdenas’s arrest or Cárdenas of his right to speak with officials from his government. Levin said that Cárdenas repeatedly asked for a lawyer, but that the state did not appoint counsel for 11 days, during which time he was subject to interrogation and gave a series of inconsistent statements, including a coerced confession that was inconsistent with the physical evidence. Eyewitnesses to the abduction—including the victim’s sister, who knew Cárdenas—either did not identify Cárdenas in statements they gave to police or gave descriptions of the assailant that did not match Cárdenas. Mexico did not learn of Cárdenas’s arrest for five months, and has been attempting to assist him since that time. In 2004, the International Court of Justice ruled that the United States had violated the Vienna Convention rights of 51 Mexican nationals sentenced to death in the United States, including Cárdenas, and ordered that foreign nationals whose consular rights are violated must be provided judicial review to determine whether that violation influenced the outcome of their cases. Cárdenas has sought review of his case in the Inter-American Commission on Human Rights, which has granted "precautionary measures"—a form of injunction—against his execution until the treaty violation is adjudicated. However, in 2008, in a case in which Texas failed to provide such a hearing to Jose Ernesto Medellin, the U.S. Supreme Court ruled that although the world court decision “constitutes an international law obligation” on the United States, it is nevertheless unenforceable against the states unless and until Congress passes legislation, which Congress has yet to do. Since then, a number of foreign nationals have been executed in the U.S. in violation of international treaty obligations without judicial review of their treaty claims. Gregory Kuykendall, a lawyer who represents Mexico, said "It's a significant treaty violation. ... What separates us from anarchy is our commitment to due process and that's the processes of the laws that are in effect in both the United States as well as internationally." Cárdenas has never been granted review of his treaty claim in the U.S. courts.
The Arkansas Supreme Court has ruled that the state's Freedom of Information Act requires the Arkansas Department of Corrections (ADC) to release copies of the pharmaceutical drug and packaging labels for the supply of the drug midazolam that it intends to use in upcoming executions, but that the secrecy provisions of the state's Methods of Execution Act permit the department to redact the batch and lot numbers that appear on the labels. The high court's November 2 decision reverses part of an earlier ruling by a Pulaski County Circuit Court that had directed the ADC to disclose the entire packaging labels. The appeals court ruling effectively permits the public and the pharmaceutical industry to identify the company that manufactured the midazolam that Arkansas purchased for the execution of Jack Greene on November 9, but the redaction prevents disclosure of information that could allow the public and the manufacturer to learn the identity of the company or companies that supplied and sold those drugs to the state. The identities of both the manufacturers and suppliers of the drugs used to execute prisoners have been at the center of a continuing controversy in Arkansas, as both drug manufacturers and their distributors have alleged that the state improperly obtained the drugs by misrepresenting the purposes for which they would be used or by breaching contracts between manufacturers and suppliers that prohibit the sale of medicines to state prisons for use in executions. The Arkansas Department of Corrections had argued in the litigation that the Methods of Execution Act required that materials that could reveal the identities of the drug manufacturers be kept secret because "[a]bsent such an interpretation, drug manufacturers will continue to be publicly identified in published news reports and will continue to interject themselves into litigation in an effort to halt the State’s use of their drugs for capital punishment." The state supreme court disagreed, saying that when the legislature wrote the MEA, it included specific provisions relating to manufacturers, could have included manufacturers among those identities covered by secrecy provisions, and did not do so. The court said that, instead, the legislature required the ADC to conduct executions with "drugs that are made by an FDA-approved manufacturer," and that withholding the identity of the manufacturer would make it impossible for the public to "verify whether the ADC is complying with that requirement."
In a Houston death-penalty case that reached the U.S. Supreme Court and resulted in a decision overturning the Texas courts' standard for determining Intellectual Disability in capital cases, prosecutors have conceded that Bobby James Moore (pictured) is himself intellectually disabled and ineligible for the death penalty. In a brief filed November 1 in the Texas Court of Criminal Appeals, Harris County prosecutors agreed with Moore's lawyers and mental health advocacy organizations that Moore meets the medically established criteria for intellectual disability and cannot be executed. Moore had been convicted and sentenced to death for his involvement in the armed robbery of a Houston supermarket in 1980 in which a store employee was shot to death. Subsequently, the U.S. Supreme Court ruled in 2002 in the case of Atkins v. Virginia that the execution of individuals with mental retardation—now known as Intellectual Disability—violated the Eighth Amendment's proscription against cruel and unusual punishments. In 2014, a Texas trial court determined that Moore qualified as intellectually disabled under the clinical standards accepted in the medical community. However, the Texas Court of Criminal Appeals reversed that ruling, saying that to be considered intellectually disabled in Texas a death-row prisoner must meet a more stringent standard for proving impaired adaptive functioning, consisting of a set of lay stereotypes known as the “Briseño factors” (named after the Texas court decision that announced them). The U.S. Supreme Court rejected the use of the Briseño factors, calling them an unscientific "invention" of the Texas courts that was "untied to any acknowledged source" and that lacked support from "any authority, medical or judicial." The Court sent the case back to the Texas Court of Criminal Appeals in March 2017 with instructions that any judicial determination of whether a death-sentenced prisoner is intellectually disabled must be “informed by the medical community’s diagnostic framework." In their brief to the Texas appeals court, filed after the remand, Moore's lawyers wrote that "[a] review of the Supreme Court's decision and the record before this Court supports but a single conclusion: Bobby James Moore is intellectually disabled under current medical standards and ineligible for execution" and they asked that the state court "reform his death sentence to a term of life imprisonment." Harris County prosecutors agreed. District Attorney Kim Ogg said in a statement released to the media, "I'm doing what I believe the law requires.... The nation's highest court has ruled that intellectually disabled persons can't be subject to the death penalty." The Texas Court of Criminal Appeals still must rule on the case before Moore can be taken off death row.
Finding that an Alabama prosecutor with a history of misconduct had "intentionally" made improper comments in the capital trial of Artez Hammonds (pictured) "in flagrant violation" of a pre-trial order warning him not to do so, the U.S. Court of Appeals for the Eleventh Circuit nevertheless denied Hammonds's appeal and permitted his conviction and death sentence to stand. While the court noted that the prosecutor, District Attorney Douglas Valeska "had been reprimanded in prior cases for engaging in precisely the same unconstitutional and unethical behavior" and said it was "very disturbed" by the prosecutor's deliberate unconstitutional references to Hammonds's decision not to testify and to his prior incarceration, the court ultimately held that the comments did not affect the jury's verdict and denied him relief. While in prison for an unrelated offense, Hammonds was tried, convicted, and sentenced to death in Houston County in 1997 for the rape and murder of a white woman in a high-profile case that had gone unsolved for six years. Despite a population of only 100,000, the county currently has 18 people on its death row. As of January 1, 2013, its death row ranked 30th in size among all counties in the United States, even though it was less than one-quarter the size of any other county in the top thirty, and two-thirds of those counties had populations of more than one million. Valeska served as Houston County's district attorney for three decades until his retirement in January 2017, obtaining more than a dozen death sentences during that period. A study by the Equal Justice Initiative in May of 2008 reported a 16-fold increase in the number of death sentences in Houston County between 1995 and 2008, while Valeska was in office, over the death sentences imposed in the previous two decades. During his time in office, Valeska was found to have violated the rights of capital defendants on numerous occasions by unconstitutionally striking African Americans from death penalty juries because of their race and making improper inflammatory comments during trial. Because of this history, Hammonds's trial lawyer specifically requested the court, before the trial started, to order Valeska to refrain from commenting on Hammonds's decision to exercise his Fifth Amendment right not to testify. But, as the Eleventh Circuit wrote, "neither the Constitution nor a direct order from the court inhibited Valeska" from improperly commenting on Hammonds's choice not to testify. The court critcized the Alabama Attorney General's office, which represented the state during the appeal, for "perpetuat[ing] the charade that Valeska did not intend" to violate Hammonds's rights, saying that the state attorney's "insistence on defending this improper conduct implicitly condones the unethical tactics that Valeska used" and invites other prosecutors to engage in similar "unsavory conduct." The court provided a copy of its opinion to the Alabama State Bar to review Valeska's conduct for possible disciplinary action.
Appeals courts in Mississippi and Pennsylvania have granted new trials to two men who have long asserted their innocence of charges that had sent them to their states' death rows. On October 26, the Mississippi Supreme Court ordered a new trial for Sherwood Brown (pictured, left), after reviewing exculpatory results of DNA testing and evidence that Brown's triple-murder conviction and death sentence had been obtained as a result of misleading forensic testimony. On October 31, the Pennsylvania Superior Court granted a third trial to former death-row prisoner Daniel Dougherty (pictured, right), who had been wrongly convicted of setting a fire in which his two sons died, ruling that Philadelphia prosecutors improperly presented the same questionable arson testimony in his retrial that had caused his first conviction to be overturned in 2013. Brown was sentenced to death in 1995 for the sexual assault and murder of a 13-year-old girl and received life sentences for the murder of the girl's mother and grandmother. Prosecutors had argued that blood on Brown's shoes came from the victims, and a forensic bitemark expert had claimed that a bitemark on Brown's wrist matched the girl's bite pattern. In 2012, the Mississippi Supreme Court granted Brown's motion for DNA testing. The results showed that the blood on Brown's shoe could not have come from any of the victims because it was male DNA and a saliva sample taken from the victim who had allegedly bitten Brown showed no evidence of Brown's DNA. In their motion for a new trial, Brown's lawyers, including lawyers from the Mississippi Innocence Project, argued that "the two pieces of physical evidence that the state alleged at the 1995 trial, linked petitioner to the crime scene—and upon which the state relied to gain a conviction and sentence in this matter—do not in fact link the petitioner to the crime scene, and are not what the state purported them to be." In an act it described as “extraordinary and extremely rare in the context of a petition for leave to pursue post-conviction collateral relief,” the court overturned Brown's convictions without need for an evidentiary hearing on the DNA evidence and returned the case to the DeSoto County Circuit Court for a new trial. The Pennsylvania Superior Court reversed Dougherty's conviction for a second time, ruling that the trial court had improperly permitted prosecutors to use the same testimony an assistant fire marshal had presented in Dougherty's first trial in 2000, even though Dougherty's 2000 conviction and death sentence had been overturned because of his trial lawyer's failure to retain a fire science expert to explain the scientific invalidity of that testimony and the lawyer's resulting inadequate cross-examination of the fire marshal. The court ruled that Philadelphia prosecutors also improperly presented the testimony of another former Philadelphia fire marshal that relied on and prejudicially bolstered the initial questionable arson testimony. At the time of the retrial, Pennsylvania Innocence Project legal director Marissa Boyers Bluestine had said the case against Dougherty "should never have been allowed to go to trial." Boyers had criticized the testimony of the prosecution's experts as having "no scientific validity." She said "To be able to put that in front of a jury today, in 2016, was a travesty." Dougherty's jury in 2016 acquitted him of first-degree murder, determining that he had not intended to kill his children, but convicted him of arson and two counts of second-degree murder, which carries an automatic life sentence in Pennsylvania. Dougherty's current lawyer, David Fryman, expressed gratitude "that the Superior Court righted the errors committed by this trial judge.... We’re hopeful the District Attorney’s office will finally put an end to the pursuit of a case that never should have been brought in the first place," he said.
A new study of more than two decades of murders in Oklahoma has found that defendants charged with killing a white woman have odds of being sentenced to death in the Sooner State that are nearly ten times greater than if they had been charged with killing a man who is a racial minority. The study, published in the Fall 2017 issue of the Northwestern University Pritzker School of Law's Journal of Criminal Law and Criminology, examined more than 4,600 Oklahoma homicide cases over a 23-year period between January 1, 1990, and December 31, 2012 in which a suspect had been identified, including 153 cases in which a death sentence had been imposed. The researchers—research scientist Dr. Glenn L. Pierce and professors Michael L. Radelet and Susan Sharp (pictured, left)—found "large disparities in the odds of a death sentence" that they said "correlate with the gender and the race/ethnicity of the victim." Among other findings, the study determined that there was "a strong correlation" between the race of the victim and the probability that the death penalty would be imposed, with cases involving white victims "significantly more likely to end with a death sentence than cases with nonwhite victims." Among all murders, cases with white victims were the most likely to result in death sentences (3.92% of cases), followed by killings of Latino victims (2.67%), black victims (1.87%), and Native-American victims (1.26%). Overall, white-victim cases were more than twice as likely as cases involving black victims or non-white victims as a whole to end in a death verdict and more than three times as likely to result in a death sentence as cases with Native-American victims. The study also found significant victim-gender disparities, with murders involving at least one female victim more likely to result in a death sentence than other cases. The combination of race and gender produced even more profound disparities in death-sentencing rates. The odds that a death sentence would be imposed were nearly 10 times greater (9.59 times) in cases with white female victims than in cases with minority male victims; 8.68 times greater in cases with minority female victims than in cases with minority male victims; and more than triple (3.22 times greater) in cases with white male victims than in cases with minority male victims. While the study found that the defendant’s race by itself did not correlate with a death sentence, the probability of a death sentence for a nonwhite defendant charged with killing a white victim (5.8%) was more than triple the probability of a death sentence for a white defendant charged with killing a non-white victim (1.8%). After spending more than a year studying Oklahoma's capital punishment practices—including a draft version of the researchers' study—the bipartisan Oklahoma Death Penalty Review Commission issued a report unanimously recommending that Oklahoma continue its moratorium on executions "until significant reforms are accomplished." Two African-American death-row prisoners, Julius Darius Jones and Tremane Wood, have argued based upon that draft of the study, that Oklahoma's death penalty unconstitutionally discriminates on the basis of race.
"The death penalty is dying in the United States, and Republicans are contributing to its demise," concludes a new report, The Right Way, released on October 25 by the advocacy group Conservatives Concerned About the Death Penalty. The report traces "the dramatic rise in Republican sponsorship of bills to end the death penalty" and the trends that it says helped contribute to this rise. Based on this data, the report says "[m]ore Republican lawmakers are recognizing that the death penalty is a broken policy and taking an active role in efforts to end it." The data in the report reflect both the emergence of Republican leadership in bills to repeal the death penalty and increased bi-partisanship in the sponsorship of these bills. Forty Republican legislators sponsored bills to abolish the death penalty in 2016, the report says, "ten times as many [who] sponsored repeal bills ... in 2000." It also reports that the percentage of repeal-bill sponsors who are Republicans has risen to 31%, a six-fold increase since 2007. The report highlights grassroots, party-level, and religious shifts in Republican views about and activism against the death penalty. In addition to the national Conservatives Concerned About the Death Penalty, conservative anti-death-penalty advocacy groups have formed in eleven predominently Republican "red states." In Kansas, the state Republican Party "removed its death penalty support from the Party’s platform in 2014" in favor of a neutral position and voted down an attempt to restore a pro-death penalty stance in 2016. The report also says Evangelicals are increasingly "forsak[ing] the death penalty," pointing to the public involvolvement of prominent Evangelical leaders opposing state efforts to carry out executions in a number of recent cases and the new policy of position the National Association of Evangelicals, expressing neutrality on the death penalty and acknowledging its flaws. Recent national polls confirm the report's observations. The October 2017 Gallup poll on the death penalty indicated that death-penalty support among Republicans fell by ten percentage points, from 82% to 72%, in the last year, and the Pew Research Center reported a seven percentage-point decline in support for capital punishment between 2011 and 2015 among respondents who described themselves as conservative Republicans. The Right Way highlights the actions of five Republican state legislators' efforts to repeal capital punishment in predominantly Republican states, and addresses the substantive concerns that have given rise to Republican death-penalty opposition. "Plagued by wrongful convictions, high costs, and delays," the report says, "the death penalty has proven to be ineffective and incompatible with a number of core conservative principles. It runs afoul of conservative commitments to limited government, fiscal responsibility, and a culture of life." As renewed pushes to abolish the death penalty move forward in states like Utah and New Hampshire, the Gallup organization suggests that the actions of Republicans may be critical in determining the death penalty's future. It's analysis of this year's poll states: "Thirty-one states, primarily in Republican-leaning regions, allow the death penalty. The likelihood of many of those states changing their laws hinges on whether rank-and-file Republican support for capital punishment remains high or declines in the future."
“Americans' support for the death penalty has dipped to a level not seen in 45 years,” according to the results of the 2017 Gallup poll released on October 26. Gallup reported that, in a nationwide survey of 1,028 adults polled October 5-11, 2017, 55% of Americans said they are "in favor of the death penalty for a person convicted of murder," down from a reported 60% in October 2016. The five percentage-point decline represented an 8% decrease in the level of support for the death penalty nationwide and, Gallup said, "continue[s] a trend toward diminished death penalty support" in the United States. This year's results reflected the lowest level of support for the death penalty in the U.S. since March 1972—just before the June 1972 U.S. Supreme Court decision in Furman v. Georgia declared the nation's death-penalty laws unconstitutional—and was 25 percentage points below the peak of 80% of Americans who said in September 1994 that they supported in the death penalty. In September 2016, a Pew Research Center poll also measured support for the death penalty at the lowest level in 45 years, with 49% of Americans saying they supported the death penalty for persons convicted of murder. The 2017 Gallup results simultaneously reflect a continuing party-based divergence in views on the death penalty and a steep drop among Republicans in support for capital punishment. While 72% of Republicans say they favor the death penalty, as compared to 58% of Independents and 39% of Democrats, death-penalty support among Republicans fell by ten percentage points, from 82% just before the presidential election in October 2016. Death-penalty support has plummeted 26 percentage points among Democrats—a 40% decline—since 2002, when 65% told Gallup they favored capital punishment. Long-term death-penalty support has also declined among respondents identifying themselves as Independents, with respect to whom it has fallen ten percentage points since 2000, when Gallup measured it at 68%. Although support for capital punishment overall has declined significantly this century, 51% of Americans told Gallup that they believe that the death penalty is applied fairly—the same percentage as in 2000. A solid core of 39% believe the death penalty is not imposed enough—down 14 percentage points from May 2005, but roughly equal to the 38% who gave that response when Gallup asked that question in May 2001. The Gallup poll also reported opposition to the death penalty at 41%. The last time Gallup reported higher opposition to the death penalty was 51 years ago, in May 1966, when 47% of respondents said they opposed capital punishment. (Click here for enlarged graph.)
A federal judge has voided a contract that had provided Orlando-based attorney Patrick Megaro hundreds of thousands of dollars of compensation at the expense of Henry McCollum (pictured left, with his brother Leon Brown), an intellectually disabled former death-row prisoner who was exonerated in 2014 after DNA testing by the North Carolina Innocence Inquiry Commission showed that he had not committed the brutal rape and murder of a young girl for which he had been wrongly convicted and condemned. McCollum and Brown—who both have IQs measured in the 50s and 60s—had been convicted in 1983 based on coerced false confessions that the brothers (aged 19 and 15 at the time) provided to interrogating officers. At the time of his exoneration, McCollum had spent 30 years on death row and was the state's longest serving death-row prisoner. Megaro became McCollum's and Brown's lawyer in March 2015, after two women who claimed to be advocating on behalf of the brothers persuaded them to fire the lawyers who had been representing them in their efforts to obtain compensation and to hire Megaro's firm. McCollum was awarded $750,000 in compensation from North Carolina in October 2015, at least half of which appears to have been paid to Megaro. Within seven months, McCollum was out of money and taking out high-interest loans that had been arranged and approved by Megaro. Megaro also negotiated a proposed settlement of the brothers' wrongful prosecution lawsuit in which he was to receive $400,000 of a $1 million payment to the brothers. Defense lawyer Ken Rose, who represented McCollum for 20 years and helped win McCollum's release from prison, provided testimony that two mental experts had previously found that McCollum was "not competent to provide a confession" and that McCollum remained "vulnerable to manipulation and control by others." After hearing additional evidence from experts and other witnesses, U.S. District Court Judge Terrence Boyle determined that, as a result of his intellectual disability, McCollum lacked knowledge and understanding of financial issues, "remains easily manipulated," and was "unable to make important decisions about his person and property." As a result, the court voided the contract between McCollum and Megano, including the fee arrangements. Raymond Tarlton, whom Judge Boyle appointed to serve as McCollum's guardian ad litem, said the decision "made clear that the same disabilities that led to Henry McCollum giving a false confession in 1983 made him vulnerable to be manipulated and controlled after release.” The court also has appointed a guardian to protect the interests of Leon Brown. Judge Boyle ordered further briefing pending receipt of the guardian's report to assist in determining the status of the contract between Megaro and Brown.
Two recent appellate decisions by the Texas courts have thrust into the national spotlight the continuing controversy over the use of false or flawed forensic testimony to secure convictions in death penalty cases. On October 18, the Texas Court of Criminal Appeals ordered a Travis County (Austin) trial court to conduct a hearing to consider evidence that the Austin police crime lab had botched its analysis of DNA evidence and presented scientifically false DNA testimony leading to the conviction and death sentencing of Areli Escobar in 2011. The same day, the court reversed an order of a Harris County (Houston) trial court that had granted Arthur Brown a new trial after the lower court had found that prosecutors had presented false ballistics testimony in securing Brown's conviction and death sentence in 1993. In his petition for relief, Escobar argued that he was entitled to a “comprehensive, independent review” of the scientific evidence presented in his case because his capital conviction “rests on forensic evidence developed by incompetent scientists using bad science.” The Austin crime lab has come under fire during the past few years as a result of improper procedures and poor quality control—problems that ultimately resulted in the closure of the lab and dismissal of almost all its employees. The court of appeals directed the trial court to examine Escobar's claims that the lab staffed his case with poorly trained analysts, cross-contaminated samples, practiced questionable analytical methods, and provided false and misleading DNA testimony that tainted his prosecution for the sexual assault and murder of a neighbor. The appeals court also ruled that Escobar was entitled to review of a claim that prosecutors had presented misleading forensic testimony about his proximity to the murder scene based on false or misleading cell-tower location information. The same day that it granted Escobar further review of his claims, the appeals court overturned the decision of a Houston trial court that had granted Brown a new trial based on the prosecution's presentation of false or misleading ballistic expert testimony at his trial. In securing his conviction and death sentence for four drug-related murders that he and two accomplices allegedly committed in southwest Houston, prosecutors relied on the testimony of a firearms expert who said "absolutely" that the bullets recovered from the victims matched two guns that were linked to Brown. Brown's execution had been stayed in October 2013 to allow for additonal review of that evidence. After reviewing the new ballistic evidence, the trial court determined that the state presented forensic testimony that was "plainly wrong and false" with respect to one of the guns and that was "plainly false" with respect to the other gun. However, the appeals court ruled that, even if the forensic evidence was false, it did not entitle Brown to a new trial because the jury could have still convicted him under Texas's law of the parties, a broad rule that makes a defendant criminally liable for the actions of his accomplices. Judge Elsa Alcala dissented, rejecting the majority's conclusion that guilt was a foregone conclusion and noting that "other evidence of guilt was exceedingly weak when examined without the support of the erroneous firearms evidence." She noted that the testimony from the two witnesses at the crime scene had credibility issues, and Brown's sister recanted her testimony that Brown had told her he shot and killed six people, saying she had been coerced into testifying falsely. Given these facts, Judge Alcala concluded that knowledge that the forensic testimony painting Brown as the shooter was false and unreliable may have affected the jury's determination of guilt or the sentence it imposed in the case.