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.