First Execution, New Death Sentence During Coronavirus Pandemic Highlight Grave Flaws in U.S. Capital Punishment System

The first new death sentence and first execution since public health concerns arising from the coronavirus pandemic shuttered most court proceedings across the country have highlighted several of the gravest concerns about the death penalty in the United States.

On May 18, 2020, as defense lawyers questioned their client’s mental competency, a three-judge panel sentenced Joel Drain to death in Warren County, Ohio in trial proceedings lasting less than six hours. Drain, who had attempted suicide in prison, entered a no contest plea to charges of murdering a fellow prisoner, waived his right to a jury trial, and waived the presentation of evidence to spare his life.

One day later, Missouri executed Walter Barton (pictured), without providing him a hearing on evidence of innocence that had led the Midwest Innocence Project, the national Innocence Project, the MacArthur Justice Center, and the American Bar Association to urge Governor Mike Parson to halt the execution and convene a Board of Inquiry to examine the issues in his case. In a statement released before the execution, Vanessa Potkin, the Innocence Project’s director of post-conviction litigation, characterized Barton’s conviction as resting “solely upon two of the known leading causes of wrongful convictions — testimony from a jailhouse informant and flawed forensic science.” New evidence in the case revealed that the state’s forensic analysis of blood patterns had been faulty and that the prosecution’s informant had been convicted of thirty separate crimes of dishonesty, including fraud and deceit. “There is simply no reliable evidence left to sustain [Barton’s] conviction,” Potkin said.

After the execution, Death Penalty Information Center Executive Director Robert Dunham told CNN, “The last two executions in the United States, Nathaniel Woods on March 5 in Alabama and Walter Barton tonight in Missouri, are bookends to injustice. The last state to carry out an execution before the pandemic and the only state reckless enough to carry out an execution during the pandemic have almost certainly both executed innocent men.”

Drain’s death sentence was the latest in a disproportionate number of new death sentences imposed on defendants who proceeded to trial without critical procedural protections. In 7 of the 34 new death sentences imposed in 2019, capital defendants were permitted to waive their rights to counsel, to a guilt-stage trial, to trial and/or sentencing by a jury, and/or their right to present mitigating evidence. In 2018, 9 of the 43 new death sentences involved a non-unanimous jury vote at sentencing or a waiver of key trial rights. Drain is the fourth defendant of the 12 death sentences DPIC is aware of so far in 2020 who waived the right to counsel or who did not contest guilt and waived a sentencing jury.

Drain pleaded no contest to charges of murdering fellow prisoner Christopher Richardson in 2019 at Warren Correctional Institution, where he was already serving 30 years to life for a 2016 murder. He had been transferred to the Warren facility after having attempted suicide by cutting his own wrist. At a hearing in February 2020, Drain informed Judge Donald Oda II that he wished to plead no contest and waive his rights to a sentencing jury and to present mitigating evidence. In response, his lawyers filed motions requesting a hearing on whether Drain was competent to stand trial. The court ruled that Drain was competent and allowed his plea request and waiver of rights to proceed, against the advice of his lawyers. “My death sentence was handed down long ago,” Drain said at the time, noting that he had spent most of his life in and out of prison.

Barton’s case raised questions regarding innocence and junk science, as well as concerns about impairments in defense counsel’s ability to appropriately investigate during the pandemic to prepare an adequate clemency petition and to further develop new evidence in the case. His May 19 execution raised questions about the public health ramifications of performing an execution in the midst of a pandemic. Barton had consistently maintained his innocence in the murder of Gladys Kuehler, and continued to do so in his final statement, saying, “I, Walter ‘Arkie’ Barton, am innocent and they are executing an innocent man!!” In the weeks leading up to his execution, Barton’s attorneys had obtained affidavits from three jurors who stated that “compelling” new blood spatter evidence that undermined the prosecution’s case against Barton “would have affected [their] consideration of Mr. Barton’s guilt.”

Though courts in Texas and Tennessee delayed seven executions that were scheduled to take place during the COVID-19 pandemic, citing public health concerns, Missouri proceeded with Barton’s execution. The prison checked the temperatures of those entering the facility for the execution and required all witnesses to wear masks, providing them for those who did not already have one. Witnesses were divided into three rooms, each with no more than 10 people.