DPIC News

Missouri Governor Stays Execution of Marcellus Williams to Consider Evidence of Innocence

Calling a sentence of death "the ultimate, permanent punishment," Missouri Governor Eric Greitens (pictured) has stayed the execution of Marcellus Williams “in light of new information" that Williams's lawyers say demonstrate he is innocent of the murder of former St. Louis Post-Dispatch reporter Felisha Gayle. Hours before Williams's scheduled August 22 execution, Greitens issued an executive order that granted Williams a stay and created a Board of Inquiry to review “newly discovered DNA evidence” and “any other relevant evidence not available to the jury” and to make recommendations on Williams's application for executive clemency. In a statement posted on the Governor's webpage, Greitens said "To carry out the death penalty, the people of Missouri must have confidence in the judgment of guilt." Williams's lawyers had presented the governor and Missouri's state and federal courts with the results of new DNA testing of the knife used in the killing, which a defense expert said excluded Williams and implicated an unknown man as the killer. No physical evidence links Williams to the murder, and neither footprints from the murder scene nor DNA from the victim's clothing and under her fingernails match Williams. The courts had denied Williams an evidentiary hearing on his new evidence and declined to stay his execution, and his lawyers' motions to stay his execution were pending before the U.S. Supreme Court when Greitens issued the stay. Kent Gibson, one of Williams's lawyers, said at the time, “They’re never going to ever confront an actual innocence cause more persuading than this involving exonerating DNA evidence. I’ve seen a lot of miscarriages of justice, but this one would take the cake.” Nina Morrison, senior staff attorney at the Innocence Project, which assisted Williams's lawyers in their request to the governor, praised Greitens's decision. "We are relieved and grateful that Gov. Greitens halted Missouri's rush to execution and appointed a Board of Inquiry to hear the new DNA and other evidence supporting Mr. Williams' innocence," she said. "While many Americans hold different views on the death penalty, there is an overwhelming consensus that those sentenced to death should be given due process and a full hearing on all their claims before an execution, and the governor's action honors that principle." NAACP Legal Defense and Educational Fund litigation director, Sam Spital, called the governor’s action "significant" because it reflected the recognition that "when you have capital punishment as an issue, the people of Missouri, like the people of many states, need to have absolute confidence that the conviction is sound.” The case, he said, was “marred by racial discrimination,” with prosecutors striking all but one black juror from a case with a black male defendant and white female victim. Following the governor’s decision, Gipson said he was “looking forward to" the opportunity to present the evidence of Williams's innocence. “I’m confident that we’re going to get a favorable recommendation.”

California Court Bars Death Penalty in Mass Killing Because of "Unprecedented" Government Misconduct

Citing "relentless non-compliance" with court orders and "chronic obstructionism" by a prosecution team it says "has effectively compromised" Scott Dekraai's rights to due process and a fair penalty trial, a California trial court has barred prosecutors from pursuing the death penalty in the worst mass killing in Orange County history. In a scathing opinion on August 18, Judge Thomas M. Goethals (pictured)—who had disqualified the entire Orange County District Attorney's office from the case as a result of earlier misconduct and lying to the court about a decades-long practice of using jailhouse informants to violate defendant's constitutional rights—wrote that in light of continued "indolence and obfuscation" from the Orange County Sheriff's Department in response to orders seeking information on the informant scandal, the court had "lost confidence that it can ever secure compliance" by the prosecution with future court orders in the case. Given the "unprecedented" nature of the government misconduct, Judge Goethals wrote, it would "be unconscionable, perhaps even cowardly," for the court not to take remedial action by barring the death penalty. Judge Goethals addressed the emotional toll on the victims' families created by the need to conduct four years of court proceedings investigating the scandal. He said the court would "do what little it can to mitigate their suffering" by imposing eight consecutive life sentences "that will end this case now and insure that this defendant dies a forgotten man in some obscure maximum security prison." Family members in the courtroom expressed anger at county prosecutors. Butch Fournier, whose sister Michelle, Dekraai’s ex-wife, was one of the eight victims, said, "It’s been six years for nothing. ... They caused us pain and suffering that was unnecessary. It was a cut-and-dry case." Orange County Supervisor Todd Spitzer—a former prosecutor who is considered a likely candidate for District Attorney next year—called on District Attorney Tony Rackauckas and Sheriff Sandra Hutchens to resign, saying the conduct of the District Attorney's and Sheriff's offices had been "reprehensible" and constituted an "egregious assault on our criminal justice system." In a statement, Spitzer wrote: "I am appalled that the misconduct of the Orange County District Attorney’s Office, in collusion with the OC Sheriff’s Department, resulted in this miscarriage of justice. I am incredulous that the Orange County criminal justice system has earned a national reputation for corruption that will take years, if not decades, to repair. Fundamental changes are needed." The editorial board of the Orange County Register said "the fact that a death sentence couldn’t even be secured for an admitted mass murderer speaks to the level of dysfunction within the county’s criminal justice system." The Orange County District Attorney's office was named in a July 2017 report by Harvard University's Fair Punishment Project as one of the prosecuting offices cited for repeated prosecutorial misconduct.

Arkansas, Nevada Obtain New Supplies of Drugs, Plan to Carry Out Two Questionable Executions

The states of Arkansas and Nevada have announced that they have obtained new supplies of execution drugs that will permit them to carry out two executions in what critics have called questionable circumstances. On August 4, Arkansas obtained a supply of midazolam—the controversial drug used in botched executions in at least four states—paying $250 in cash to an undisclosed supplier for 40 vials of the drug. Then, on August 17, Attorney General Leslie Rutledge asked Governor Asa Hutchinson to set an execution date for Jack Greene (pictured), described by his lawyers as “a severely mentally ill man [with] well-documented brain damage.” Also on August 17, Nevada—which does not currently have an execution protocol in place—announced that it had obtained drugs to execute Scott Dozier, using a three-drug formula that no state has ever tried before. Dozier—who has waived his appeal rights and volunteered to be executed—is scheduled to die on November 14. In a press statement, Greene’s lawyer, John C. Williams, said “[c]apital punishment should not be used on vulnerable people like the severely mentally ill.” Greene, he said, is mentally incompetent and suffers from delusions that “his spinal cord has been removed and his central nervous system has been destroyed.” Responding to this delusion, Williams said, Greene “constantly twist[s] his body and stuff[s] his ear and nose with toilet paper to cope with the pain,” often causing himself to bleed. A spokesperson for Hutchinson—who authorized Arkansas’s unprecedented attempt to execute eight prisoners over an eleven-day span in April—has indicated that the governor will set an execution date for Greene. To execute Dozier, Nevada has indicated that it will use an untried combination of diazepam (Valium), fentanyl (an opiod), and cisatracurium (a paralytic). The state has not yet announced how the drugs will be administered. All but one of the prisoners executed in Nevada since 1977 were found to have waived their appeals; Dozier would be the state's 12th death-row prisoner to volunteer to be executed. Nevada recently spent nearly $900,000 on building a new execution chamber.  

Merck CEO Ken Frazier: Application of Death Penalty Not "Fair and Consistent"

Merck Chief Executive Officer Kenneth C. Frazier (pictured) resigned from the president’s American Manufacturing Council on August 14, saying “[a]s CEO of Merck and as a matter of personal conscience, I feel a responsibility to take a stand against intolerance and extremism.” In a statement posted on Merck’s Twitter account, Frazier said: "Our country's strength stems from its diversity and the contributions made by men and women of different faiths, races, sexual orientations and political beliefs. America's leaders must honor our fundamental values by clearly rejecting expressions of hatred, bigotry and group supremacy, which run counter to the American ideal that all people are created equal." It was not the first time that Frazier, the only African-American CEO of a major pharmaceutical company, has spoken out on matters of social justice. Following his successful pro bono representation of James Willie "Bo" Cochran, a black, Alabama death-row prisoner wrongly convicted of the murder of a white grocery store manager, Frazier wrote that the case showed him that "there can be no fair and consistent application of the death penalty under the current system." Frazier undertook Cochran's representation while a partner at the Philadelphia law firm, Drinker, Biddle & Reath, and remained on the case after joining Merck. Cochran won a new trial after Frazier and his team showed that, in two prior trials, the prosecutor had systematically removed 31 of the 35 potential black jurors because he believed they were less "reliable" and more likely to acquit black defendants. Frazier initially doubted Cochran's proclamation of innocence: witnesses inside the store described the suspect as a black man and, as police converged on the scene, heard a gunshot coming from a nearby trailer park, less than one mile from where Cochran was found with a gun and cash. But Frazier discovered during the post-conviction proceedings that there was no physical evidence against his client, the only bullet recovered near the scene did not match Cochran's gun, and the fatal bullet could not be tested because police had cut it out of the victim's body and removed it before delivering the body to the medical examiner. "He was convicted," explains Frazier, "despite evidence suggesting an accidental police shooting and cover-up." Even though the state only had circumstantial evidence against him, Cochran was tried three separate times for the killing (the first time, there was a mistrial, and the second time his conviction was reversed on appeal). "Although some maintain the criminal justice system is color-blind," Frazier wrote, "the reality is that race plays a substantial role in the judicial process." In Cochran's retrial, a jury that Frazier says "was not selected primarily on the basis of race" acquitted him in less than an hour. 

Missouri Court Denies Condemned Prisoner Stay of Execution, Review of Case Despite Exonerating DNA Evidence

After having previously granted Marcellus Williams (pictured) a stay of execution in 2015 to permit DNA testing in his case, the Missouri Supreme Court on August 15 summarily denied him a new execution stay, despite recently obtained results of that testing that support his innocence claim. Williams—who was convicted and sentenced to death in 2001 by a nearly all-white St. Louis County jury in the highly publicized stabbing death of a former St. Louis Post-Dispatch reporter—presented scientific evidence that excluded him as a contributor to DNA on the knife used to kill Felicia Gayle. Williams had filed a motion in the state court to stay his scheduled August 22 execution, along with a petition seeking the appointment of a Special Master to hold hearings on his innocence claim. His petition was supported by reports from two DNA experts who had determined that DNA evidence on the knife did not match Williams or Gayle, but came from an unknown third person. One expert concluded that Williams "could not have contributed to the detected [DNA] profile" and the other found "a clear exclusion of Marcellus Williams from the knife handle." The petition alleged that the "physical evidence collected from the crime scene”—which included fingernail scrapings from the victim, who had been stabbed more than 40 times—“did not match and could not be linked to" Williams. Williams was convicted and sentenced to death based on the testimony of a jailhouse informant and a prostitute who was an admitted crack addict. He has never been provided an evidentiary hearing on the DNA results. The Missouri Supreme Court denied his petition without any written opinion within one day of its filing, and before Williams had an opportunity to respond to the State's opposition. Kent Gipson, one of Williams's lawyers, said the defense plans to seek review in the U.S. Supreme Court. "It certainly would give most reasonable people pause to say, 'Should you be executing somebody when you've got reasonable evidence suggesting another man did it?,'" Gibson said. Williams also has a case pending in federal court arguing that he should be permitted to re-open his habeas proceedings because he can show he is innocent; he was denied relief in the federal district court and is currently appealing that denial to the U.S. Court of Appeals for the Eighth Circuit. In earlier federal habeas corpus proceedings, the district court had overturned Williams’s death sentence, finding that his trial lawyer had failed to investigate and present significant mitigating evidence relating to Williams’s history of mental deficiencies and chronic abuse throughout his childhood. That decision, however, was reversed by the Eighth Circuit in a split 2-1 decision. Williams had also previously raised a claim alleging that St. Louis County prosecutors had a pattern and practice of striking black prospective jurors, including 6 of the 7 African Americans it had the opportunity to empanel in his case.

Arizona Prisoner Asks U.S. Supreme Court To Declare State's Death Penalty Unconstitutional

An Arizona death-row prisoner has petitioned the U.S. Supreme Court to review the constitutionality of the state's capital punishment statute, arguing that Arizona's sentencing scheme "utterly fails" the constitutionally required task of limiting the death penalty to the worst crimes and worst offenders. On August 15, lawyers for Abel Daniel Hidalgo (pictured) wrote that a study of more than a decade's worth of murder cases from Maricopa County, where Hidalgo was tried, showed that aggravating factors that could make a defendant eligible for the death penalty were present in 99% of all the cases. This, they say, violates the Eighth Amendment requirement established by the Court that a capital-sentencing statute must “genuinely narrow the class of persons eligible for the death penalty.” They wrote that evidence presented to the Arizona state courts showed that "every first degree murder case filed in Maricopa County in 2010 and 2011 had at least one aggravating factor" that made a defendant eligible for the death penalty, and that over the course of eleven years, 856 of 866 first-degree murder cases filed in the county had one or more aggravating circumstances present. In a press statement, Hidalgo's defense team says that, as a result, "geography and county resources—rather than the characteristics of the offender or the crime—play an outsized role in Arizona’s arbitrary application of the death penalty." With the fourth largest death row in the U.S. as of January 2013, Maricopa County imposed the death penalty at more than double the rate per murder as the rest of the state, and its 28 death sentences imposed between 2010-2015 were the third most of any U.S. county. Hidalgo's petition notes that defendants of color accused of killing white victims "are more than three times as likely to be sentenced to death as minorities accused of killing other minorities ... [a]nd a Hispanic man accused of killing a white man is 4.6 times as likely to be sentenced to death as a white man accused of killing a Hispanic victim." This, they say, makes Arizona's death penalty unconstitutionally arbitrary. In the alternative, the petition argues—citing national legislative and sentencing trends—that the death penalty nationwide now offends "evolving standards of decency" and should be declared unconstitutional. The lawyers write, "[t]he long experiment ... in whether the death penalty can be administered within constitutional bounds has failed. It has failed both in Arizona in particular and in the Nation more broadly." 

NEW VOICES: More Than 100 Rabbis Issue Statement Calling for End to the "Cruel Practice" of Capital Punishment

A group of more than 100 rabbis from multiple Jewish denominations have issued a statement expressing their opposition to the use of the death penalty in the United States. The statement, posted by Rabbi Dr. Shmuly Yanklowitz (pictured) in Forward.com’s Scribe—a curated contributor network of Jewish thought—called for an end to the “cruel practice” of capital punishment and “for the beginning of a new paradigm of fair, equitable restorative justice.” The rabbis said that “[a]s Jews and citizens, we believe that governments must protect the dignity and rights of every human being. By using the death penalty, our country fails to live up to this basic requirement.” The rabbis invoked classical Jewish thought that, “[w]hile not categorically opposed to capital punishment, … saw the death penalty as so extreme a measure that they all but removed it from their system of justice.” The Sages, they wrote, “had a very high bar for reliable evidence, were eager to find ways to acquit, and were deeply concerned about the dignity of [the] condemned. In contrast, our American system today lacks the highest safeguards to protect the lives of the innocent and uses capital punishment all too readily.” The rabbis criticized the unreliability, unfairness, and costliness of the death penalty as administered across the U.S., exacerbated by a defendant’s poverty or “lack of access to legal resources.” “The consequences of this system,” they wrote, “are not only fundamentally unjust but also produce racially disparate outcomes.” They also expressed concerned about the system sending innocent people to death row: “too often,” they said, “the wrong person is convicted …. We do not naively believe that everyone on death row is completely innocent of any crime. Yet, it is time to see the death penalty for what it is: not as justice gone awry, but a symptom of injustice as status quo.”

Florida Denies Relief to Prisoner Unconstitutionally Sentenced to Death, in Decision that Could Affect More Than 75 Cases

In a decision that could have broad impact on the state's death row, the Florida Supreme Court on August 10 upheld the death sentence imposed on James Hitchcock, despite his having been unconstitutionally sentenced to death. In a 6-1 ruling, the court said it would not enforce its 2016 ruling in Hurst v. State—which declared unconstitutional any death sentence imposed after one or more sentencing jurors had voted that a life sentence was the appropriate punishment—in cases that had completed the direct appeal process before June 2002. That date is when the U.S. Supreme Court ruled in Ring v. Arizona that a capital defendant has a Sixth Amendment right to have the jury determine all facts necessary for the state to impose a death penalty. But the Florida courts did not apply Ring to death-penalty cases in the state until the U.S. Supreme Court struck down Florida's death-penalty statute in 2016. At that time, in Hurst v. Florida, Justice Sonia Sotomayor reiterating that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." When Hurst's case returned to the Florida Supreme Court later that year, the state court ruled that non-unanimous jury verdicts were unconstitutional. However, the court then ruled in an appeal brought by Mark Asay—scheduled to be executed August 24—that it would not apply Hurst to cases that pre-dated Ring. Hitchcock and other Florida death-row prisoners pressed a number of other constitutional arguments, including that death sentences imposed after non-unanimous jury votes are unreliable, in violation of the Eighth Amendment, and that the court's bright-line cutoff for enforcing Hurst was unconstitutionally arbitrary, violating due rocess and the right to equal protection of the law. The Hitchcock court declined to consider those arguments, dismissing them as "nothing more than arguments that Hurst v. State should be applied retroactively to [Hitchcock's] sentence." Hitchcock's case was closely watched because the Florida courts had frozen the briefing schedules for 77 similarly situated death-row prisoners who also were arguing that Hurst should be enforced in their cases. Justice Barbara J. Pariente dissented, writing, "[r]eliability is the linchpin of Eighth Amendment jurisprudence, and a death sentence imposed without a unanimous jury verdict for death is inherently unreliable." She noted that Hitchcock, who was twenty years old at the time of his crime, has had four different unconstitutional death sentences since he was first tried in 1977, with the U.S. Supreme Court twice overturning the death penalty in his case. She further noted that four Florida Supreme Court justices had written that his death sentence was disproportionate and that he should be resentenced to life. “To deny Hitchcock relief when other similarly situated defendants have been granted relief amounts to a denial of due process,” she wrote.

Federal Appeals Court Removes Military Judge From Case For Comments Prejudging 9/11 Detainee's Guilt

A federal appeals court in Washington has ordered the recusal of a military judge from hearing an appeal in the Guantánamo military commission death penalty trial of five defendants accused of direct responsibility for the 9/11 attacks. A unanimous three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled on August 8 that Judge Scott L. Silliman of the United States Court of Military Commission Review (CMCR) was disqualified from participating in appeals in the case because of prior public comments he had made prejudging the guilt of accused 9/11 conspirator Khalid Sheikh Mohammad. Lawyers for Mohammad had petitioned the court to have Silliman removed from the case, citing more than a dozen instances in which, they said, Silliman had made comments exhibiting a constitutionally intolerable risk of bias. Before becoming a judge, Silliman gave an interview to The World Today in 2010 about the case of Guantánamo Bay detainee Ahmed Khalfan Ghailani. During that interview, he said: “We’ve got the major conspirators in the 9/11 attacks still at Guantánamo Bay—Khalid Sheikh Mohammed and four others.” Later in the same interview, Silliman compared Ghailani's culpability to that of Mohammed, calling them "two totally different types of cases” and saying “the magnitude of what they did is very different.” The judges wrote that “the Court can hardly perceive how calling Petitioner one of the ‘major conspirators in the 9/11 attacks’ and referring to what he 'did’ is anything other than the expression of an opinion concerning his responsibility for those attacks.” Such statements, they wrote, required Silliman to disqualify himself from the case. Because “Judge Silliman failed to do so," the court wrote, Mohammad had provided "clear and indisputable” grounds for his removal. Mohammad's petition also cited remarks made by Silliman in a 2008 interview with the Los Angeles Times, where he said that “we’re going to have a military commission for those the United States believes, and most of the world acknowledges, to be ring leaders of the 9/11 attacks.” The petition also said that Silliman was quoted in another media interview in 2011 discussing how and where Mohammad “will be” executed. The ruling vacates a June 29 order by the CMCR that had reinstated two charges against the defendants that the trial judge had dismissed. The CMCR will now have to re-hear the government's appeal of that issue before a new panel. University of Texas Law Professor Steve Vladeck, who represents several Guantánamo detainees in petitions seeking U.S. Supreme Court review of their cases, called the decision “yet another stinging rebuke" of the CMCR by the Court of Appeals. He said the decision in Mohammad's case puts off resolution of another question raised concerning the CMCR, “whether active-duty military officers (including the other two judges on the CMCR panel that originally heard the government’s appeal) may lawfully serve as judges on the CMCR."

Federal Court Invalidates Oklahoma Conviction and Death Sentence of Native American for Murder on Tribal Lands

A federal appeals court has vacated the conviction and death sentence of Patrick Dwayne Murphy (pictured), a Native-American death-row prisoner in Oklahoma from the Muscogee (Creek) Nation, holding that the state lacked authority to try him for a murder that occurred within the borders of the Creek Reservation. On August 8, a unanimous three-judge panel of the U.S Court of Appeals for the Tenth Circuit sided with Murphy and Native American friend-of-the-court advocates in designating a region that spans eleven counties across Oklahoma—including most of Tulsa—part of “Indian country,” subject to exclusive federal jurisdiction for certain crimes enumerated under the federal Major Crimes Act. “Mr. Murphy is a member of the Muscogee (Creek) Nation,” the court wrote. “Because the homicide charged against him was committed in Indian country, the Oklahoma state courts lacked jurisdiction to try him.” The decision does not absolve Murphy of potential criminal liability for the murders: "The decision whether to prosecute Mr. Murphy in federal court," the Circuit panel said, "rests with the United States." The land in issue—falling inside the reservation boundaries of the Creek Nation drawn by the United States in 1866—has long been claimed by the Muscogee (Creek) Nation and lawyers for the Muscogee (Creek) Nation, the Seminole Nation of Oklahoma, and the United Keetoowah Band of Cherokee Indians in Oklahoma had filed amicus curiae briefs in the case arguing that it constituted Indian country under federal law. Judith Royster, an expert on tribal law at the University of Tulsa, said that the court's ruling reaffirms that claim. However, the decision's impact, she says, extends beyond the Creek Nation: "any crime committed by or against an Indian, not just a Creek citizen, but any Indian, in the boundaries of the Creek reservation can no longer be prosecuted by the state of Oklahoma,” said Rosyter. The Creek Nation jurisdiction includes Hughes, McIntosh, Okfuskee, Okmulgee, Wagoner, and Creek counties and portions of Tulsa, Mayes, Seminole, and Rogers counties. Muscogee (Creek) Nation Principal Chief James Floyd celebrated the court’s decision. “Today’s unanimous decision is a complete and unqualified victory for not only the Muscogee (Creek) Nation, but all of Indian Country,” Floyd said. “This decision affirms the right of the Nation and all other Indian Nations to make and enforce their own laws within their own boundaries.” Murphy first raised the jurisdictional issue in his second application for state post-conviction relief in 2004 after losing prior court challenges to his conviction and sentence, including one that claimed he should not be executed because he is intellectually disabled.

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