DPIC News

In Act of ‘Christian Forgiveness,’ Tennessee Victim’s Daughter Asks Governor for Mercy for Her Mother’s Killer

A Tennessee murder victim’s daughter is asking Governor Bill Lee to honor their shared faith by sparing the life of her mother’s killer. In what they describe as an “exceptional” clemency plea, lawyers for Tennessee death-row prisoner Don Johnson (pictured) write that Cynthia Vaughn, the daughter of Connie Johnson, has requested a meeting with Gov. Lee to tell him her story of “Christian forgiveness” and ask that he commute Johnson’s sentence to life without parole. The clemency petition describes such a request as extremely rare, saying “[w]e know of only one other case in the history of the State of Tennessee in which the child of the ultimate victim has begged the Governor for mercy for the murderer – and in that case clemency was granted to Gaile Owens.” Johnson’s clemency petition also stresses his remorse and redemption, explaining that he has become an Ordained Elder in the Seventh Day Adventist Church and now ministers to his fellow prisoners. Vaughn and Johnson’s lawyers hope his story of Christian redemption will be of particular interest to Gov. Lee, whose campaign for governor in 2018 repeatedly emphasized his Christian faith.

In a letter to Governor Lee that is excerpted in the petition, Vaughn describes her change of heart about Johnson. For most of her life, she supported his execution, publicly saying, “I want the freak to burn.” However, in 2012, she sought a meeting with Johnson in prison to tell him about the pain he had caused her. “After I was finished telling him about all the years of pain and agony he had caused, I sat down and heard a voice. The voice told me, ‘That’s it, let it go.’ The next thing that came out of my mouth changed my life forever. I looked at him, told him I couldn't keep hating him because it was doing nothing but killing me instead of him, and then I said, ‘I forgive you.’” Forgiving Johnson, she said, has freed her from her anger and allowed her to live her life more fully. “Letting go of anger has let me love more,” she wrote.

Johnson’s religious conversion is the subject of much of the clemency petition and includes numerous testimonials about the positive effect he has had on other prisoners. It also details his personal journey from the routine beatings and psychological abuse he endured from his father and in the juvenile justice system to what the petition characterizes as his religious redemption. "What is most remarkable about Don Johnson’s life story is not that he ended up on death row following a loveless and hate filled childhood, it is that he overcame that childhood to become the man of God he is today," his petition states. Prison ministers and volunteers wrote in support of clemency, describing Johnson’s remorse and his impact on the lives of others. “Don has asked for forgiveness of his sins and crimes he committed years ago and by the grace of God has become a new person in Christ,” wrote Linda Faulk, a prison volunteer who has known him since 2004. “Donnie is no ordinary person and he has unusual perceptivity. I am aware that the prison uses his talents as a counselor and his unit has one of the best behavioral records in the State of Tennessee. Many people rejoice that he has served so well in spite of his environmental circumstances,” said Dr. John L. DuBosque, a visitor and telephone advisor of Johnson’s since 1998. Johnson’s petition concludes with a plea for a grant of mercy by the governor: “Cynthia Vaughn, the person with the greatest claim on his life, deserves to have her forgiveness honored. She should not have her own healing journey ended with an unnecessary and unwanted execution. Don Johnson should not have his journey from the darkness into the light ended in the death chamber.”

Commentators Question Why Supreme Court Stopped One Execution, But Not Another With Identical Religious Exercise Issues

Legal scholars and commentators across the political spectrum have criticized the U.S. Supreme Court for its seemingly contradictory actions, less than two months apart, in two nearly identical religious freedom claims from death-row prisoners. On February 7, 2019, the Court vacated a stay of execution and permitted Alabama to execute death-row prisoner Domineque Ray (pictured, left), who had claimed that the Alabama Department of Corrections was violating his First Amendment rights by refusing to allow his Muslim religious advisor in the execution chamber in circumstances in which the state permitted a Christian chaplain to be present for Christian prisoners. The following month, the Court issued a stay to Patrick Murphy (pictured, right), a Buddhist Texas death-row prisoner who had  challenged the state’s refusal to allow his Buddhist spiritual advisor in the execution chamber. Both states only permitted chaplains who are employed by their corrections departments to be in the execution chamber. Alabama only employed Christian chaplains and Texas employed only Christian and Muslim chaplains. The Court voted 5-4 to allow Ray’s execution to proceed, but halted Murphy’s March 28 execution with only two dissents.

The Court was widely criticized after Ray’s execution, leading some to theorize that the justices who changed their votes did so in response to concerns about the Court’s reputation. David French, writing for the conservative National Review, wrote of the Ray decision, "The state's obligation is to protect and facilitate the free exercise of a person's faith, not to seek reasons to deny him consolation at the moment of his death.” Liberal Yale Law professor Stephen Carter wrote, “In my 30 years of writing about religious freedom, I can't recall a case as outrageous.” Of the different decision made in Murphy’s case, law professor Ilya Somin wrote that the justices “belatedly realized they had made a mistake; and not just any mistake, but one that inflicted real damage on their and the court’s reputations. … Presented with a chance to ‘correct’ their error and signal that they will not tolerate religious discrimination in death penalty administration, they were willing to bend over backwards to seize the opportunity, and not let it slip away.” Attorney Deepak Gupta, who has argued before the Court, said, “This is how the Supreme Court tries to erase a very recent and obvious moral error without admitting error. Is the Alabama case materially different? They don’t say.” Spencer Hahn, who represented Ray, said he hopes his client helped draw attention to religious discrimination in the death penalty. “I’d like to think Mr. Ray’s death was not in vain,” he said.

Utah Supreme Court Grants Death-Row Prisoner Hearing on “Damning Revelations” of Police Misconduct

Citing “damning revelations” that police and prosecutors have used bribes and threats to secure testimony in a three-decades-old capital case, the Utah Supreme Court has ordered a Utah County court to conduct a hearing to determine whether death-row prisoner Douglas Stewart Carter should receive a new trial. Carter has spent 33 years on Utah’s death row. Although police found fingerprints and blood at the crime scene, no physical evidence tied Carter to the crime.  

Carter, who is African American, was convicted of the murder of a white woman, Eva Olesen, based upon the testimony of two witnesses, Epifanio and Lucia Tovar, who told the jury that he had bragged to them about killing Oleson during a home invasion, that he also said he had intended to rape her, and that he had laughed about her death. Prosecutors also presented a statement Carter had made to police confessing to the murder, but Carter has long claimed that statement had been coerced. Shortly after the trial, the court said, the Tovars “vanished.” After Carter overturned his death sentence on appeal, prosecutors told the court in 1992 that they could not locate the Tovars to testify at Carter’s resentencing. At the resentencing, the trial court permitted the prosecution to read the jury the Tovars’ testimony from Carter’s first trial, and he was again sentenced to death. Through what the appeals court described as “a coincidence,” Carter’s defense team was able to find the Tovars in 2011. When his lawyers spoke with them, the Tovars—who were in the country illegally— confessed that Provo police had threatened them with deportation, the removal of their son, and prison if they did not implicate Carter, pressured them to make false statements, and then gave them gifts and paid for their rent and groceries once they agreed to cooperate. In a sworn statement, the Tovars also said that police had explicitly instructed them to lie under oath about the payments.

Despite this evidence, the trial court had denied Carter’s petition for a new trial without a hearing. The appeals court reversed. In its decision, the court wrote that, in the absence of physical evidence implicating Carter, the Tovars’ testimony was “crucial” to the prosecution’s case. Writing for the court, Justice Deno Himonas said: “Carter has a colorable claim that the Tovars’ testimony evolved over time to become more damaging to Carter in an attempt to please the people who had provided them with rent money and threatened them with deportation and separation if they did not cooperate.” The court said that the Tovars’ sworn statements created “a genuine dispute of material fact as to whether the outcome of the trial would have been different but for the absence of the evidence,” and ordered the trial court to grant Carter a hearing at which he may attempt to prove his claim.

Discriminatory Use of Death Penalty Against Gays Raises Concerns Globally and in the U.S.

As human rights activists raise alarms about a new law in Brunei that would punish homosexuality by death by stoning, the U.S. Supreme Court considers whether to hear a case in which jurors who exhibited anti-gay bigotry sentenced a gay defendant to death. Charles Rhines (pictured), a South Dakota death-row prisoner, is asking the U.S. Supreme Court to review his case, after a lower federal court denied him the opportunity to present juror statements showing that homophobic prejudice played a role in his death sentence. Leading civil rights organizations, including the NAACP Legal Defense and Educational Fund, American Civil Liberties Union, and Human Rights Campaign, have asked the Court to hear the case. Meanwhile, on April 3, 2019, Brunei will institute new laws that will make homosexual sex punishable by death. Brunei’s action has drawn a sharp rebuke from United Nations officials, international human rights groups, and activists—including actor George Clooney and musician Elton John, who are calling for a boycott of properties owned by the Sultan of Brunei.

Charles Rhines filed a petition in the U.S. Supreme Court in February 2019 seeking review of his case after a split panel of the U.S. Court of Appeals for the Eighth Circuit voted 2-1 not to hear his appeal. The civil rights organizations filed supporting briefs on March 25 and the Court is scheduled to consider Rhines’ petition on April 12. At Rhines’ trial, prosecution witnesses testified that he was gay and, according to jurors, “[t]here was lots of discussion of homosexuality” during sentencing deliberations. “There was a lot of disgust. … There were lots of folks who were like, ‘Ew, I can’t believe that.’” In a 2016 sworn statement, juror Frances Cersosimo reported that one juror said, “If he’s gay, we’d be sending him where he wants to go” by sentencing Rhines to life in an all-male prison. Juror Harry Keeney said in a sworn statement, “We also knew he was a homosexual and thought he shouldn’t be able to spend his life with men in prison.” South Dakota prosecutors have asked the Supreme Court to refuse to consider the civil rights groups’ briefs, calling the federal defenders office representing Rhines “an extremist organization” and saying the petition should “not become a cause célèbre for making Rhines of all people a false prophet of homosexual rights.”

In 2017, the Court held in Peña-Rodriguez v. Colorado that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires ... the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” Rhines’ lawyers are advocating that the Court extend that ruling to include juror bias against a defendant’s sexual orientation. In an amicus brief, the NAACP Legal Defense Fund wrote, “Just as the Constitution does not permit a person to be sentenced to die because of his race, it should not permit a person to be sentenced to die because of his sexual orientation.” A brief submitted by seven LGBTQ rights organizations said, “[b]ias based on sexual orientation in jury deliberations reinforces historical prejudice against lesbian, gay, and bisexual people and undermines the integrity of our judicial system.”

Anti-LGBTQ use of the death penalty came under renewed international scrutiny as Brunei prepares to put a new law in place that would make adultery and homosexual sex punishable by death by stoning. U.N. High Commissioner for Human Rights Michelle Bachelet called the law “cruel and inhuman,” “draconian,” and “a serious setback for human rights protections.” Actor and activist George Clooney urged a boycott of hotels owned by Brunei’s monarch, Sultan Hassanal Bolkiah. In an op-ed for Deadline, Clooney wrote, “every single time we stay at or take meetings at or dine at any of [the Sultan’s] nine hotels we are putting money directly into the pockets of men who choose to stone and whip to death their own citizens for being gay or accused of adultery.” Musician Elton John joined Clooney’s call for boycotts, saying, “Discrimination on the basis of sexuality is plain wrong and has no place in any society.” “I believe that love is love and being able to love as we choose is a basic human right,” John said.

Badly Divided Supreme Court Denies Execution Challenge by Prisoner With Rare Disease

In a divisive 5-4 decision that exposed rancor and deep rifts among the justices, the U.S. Supreme Court has given Missouri the go-ahead to execute a prisoner whose blood-filled tumors in his head, neck, and mouth could burst if the state carries out his execution by its chosen method. Russell Bucklew (pictured), who suffers from the rare medical condition, cavernous hemangioma, had argued that Missouri’s lethal injection procedures would subject him to unnecessarily torturous and excruciating pain caused by the combination of suffocation and drowning in his own blood. Writing for the Court majority, Justice Neil Gorsuch rejected Bucklew’s claim, saying that the constitution prohibits only executions that intensify the sentence of death with “superadd[ed] … terror, pain, or disgrace.” “The Eighth Amendment,” he wrote, “does not guarantee a prisoner a painless death.” Gorsuch said a death-row prisoner could not prove superadded pain without proposing an available alternative execution method and that Bucklew had failed to do so. The four dissenters sharply criticized the decision for ignoring evidence that Bucklew would be subjected to excruciating pain, for creating impossible burdens on prisoners to avoid a torturous execution, and for sacrificing constitutional values for expediency in death penalty cases.

In a non-binding portion of the opinion, Justice Gorsuch suggested that challenges to lethal injection are often “tools to interpose unjustified delay” and wrote that “[l]ast-minute stays should be the extreme exception, not the norm.” Justice Clarence Thomas concurred separately reiterating his belief that “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain. … Because there is no evidence that Missouri designed its protocol to inflict pain on anyone, let alone Russell Bucklew, I would end the inquiry there,” he wrote. Justice Brett Kavanaugh also concurred, emphasizing that the alternative method proposed by the death row prisoner “need not be authorized under current state law.” Kavanaugh suggested death by firing squad as an example of a potentially available alternative method.

Justices Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, dissented. Justice Breyer’s lead dissent criticized the majority’s treatment of the evidence Bucklew had presented in support of his Eighth Amendment claim. That evidence, Breyer wrote, establishes that “executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering” and “violates the clear command of the Eighth Amendment.” He also argued that a prisoner who is challenging the cruelty of a particular execution method based solely on his or her unique medical circumstances should not be required to identify an alternative method of execution, but that Bucklew nevertheless had adequately raised nitrogen hypoxia as an alternative. Finally, in a part of the dissent expressing only his own opinion, Breyer argued that the majority’s approach to redressing execution delays by “curtailing the constitutional guarantees afforded to prisoners” is inappropriate. Instead, he suggested, the delays necessary to ensure that the capital punishment is fairly imposed and properly carried out may be evidence that “there simply is no constitutional way to implement the death penalty.”

In a separate dissent, Justice Sotomayor called the Court’s approach to lethal-injection challenges “misguided,” writing that, “[a]s I have maintained ever since the Court started down this wayward path in [2015], there is no sound basis in the Constitution for requiring condemned inmates to identify an available means for their own executions.” Calling the majority’s comments about last-minute stays “not only inessential but also wholly irrelevant to its resolution of any issue” before the Court, Sotomayor cautioned that “[i]f a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.”

California Justices Criticize “Dysfunctional” Death Penalty as Poll Shows Public Overwhelmingly Prefers Life Sentence

Within two weeks of California Governor Gavin Newsom’s announcement that he was halting executions in the state, the decision to issue the moratorium has been bolstered from two unrelated and independent sources. A statewide poll underway at the time of Newson’s moratorium announcement and released by the Public Policy Institute of California (PPIC) on March 27, 2019 found that by a record 2:1 margin, Californians preferred life without possibility of parole over the death penalty as the punishment for first-degree murder. Then on March 28, in the first post-moratorium death-penalty decision issued by the California Supreme Court, two justices sharply criticized the state’s death-penalty system as “dysfunctional,” “expensive,” and unworkable.  

PPIC had just started its annual multi-topic poll on Californians and their government when Governor Newsom announced the moratorium on executions, and the Policy Institute added a question about the death penalty to the poll. PPIC found that, among all adults, 62% said life in prison with no possibility of parole (LWOP) should be the punishment for those who commit first-degree murder, while 31% preferred the death penalty. Among likely voters, 58% preferred LWOP versus 38% who favored the death penalty. Over the last 19 years, the percentage of Californians who prefer LWOP has risen from 47% to this year’s record high, while support for the death penalty has fallen from 49% to this year’s record low. Democrats (76%-21%) and Independents (56%-36%) overwhelmingly preferred LWOP, while Republicans preferred the death penalty by 64%-32%. In the 2016 election, California voters defeated a referendum to abolish capital punishment and narrowly passed Proposition 66, a referendum that claimed it would speed up executions. “This is a case where public opinion continues to shift, and shift support away from the death penalty,” said Mark Baldassare, president of the Public Policy Institute of California. “The campaigns in 2012 and 2016 were very effective in bringing up examples of horrible crimes that were committed, and it raised questions in people’s minds about whether they were prepared to make that decision. Voters are always more willing to vote ‘no’ than ‘yes,’” he said.

In People v. Potts, the first death-penalty opinion released since Gov. Newsom’s announcement, two justices on the California Supreme Court issued a scathing rebuke to California’s death-penalty system. Justice Goodwin Liu, joined by Justice Mariano-Florentino Cuéllar, agreed with the court that, under the law, Thomas Potts’ death sentence should be upheld, but criticized the state’s death penalty as “an expensive and dysfunctional system that does not deliver justice or closure in a timely manner, if at all.” Liu wrote: “A death sentence in California has only a remote possibility of ever being carried out. As leaders of the judiciary have long observed, the death penalty presents serious challenges for the fair and efficient administration of justice. For decades, those challenges have not been meaningfully addressed.” The Potts case, the justices said, demonstrates the futility of California’s death penalty. Potts was convicted and sentenced to death in 1998. “Now, 21 years later, we affirm the judgment on direct appeal, but there is more litigation to come in the form of habeas corpus petitions in state and federal courts. This timeline is typical of our capital cases.” The justices called Proposition 66 an unworkable proposal that “promised more than the system can deliver.”  

Florida Man Exonerated 42 Years After Wrongful Conviction and Death Sentence

Forty-two years after he and his nephew were wrongfully convicted of murder in Florida and he was sentenced to death, Clifford Williams, Jr. (pictured) has been exonerated. Submitting a report from its Conviction Integrity Unit that found “no credible evidence of guilt and … credible evidence of innocence,” Duval County prosecutors asked a Jacksonville trial court to dismiss all charges against Williams, now 76 years old, and his nephew, Nathan Myers, now 61. Williams is the 165th former death-row prisoner to be exonerated in the United States since 1973.

Williams and Myers were tried and convicted in 1976 for the murder of Jeanette Williams and the wounding of her girlfriend, Nina Marshall. Marshall told police that two men had entered their bedroom at night and fired shots from the foot of the bed. She identified Williams and Myers as the shooters. However, the physical evidence — never presented by defense counsel — revealed that the bullets had been fired from outside, through the bedroom window, and had come from a single gun. Defense counsel also ignored forty alibi witnesses whom Williams and Myers had indicated would be able to testify that they had been next door at a birthday party at the time the shooting occurred. The defense presented no witnesses. The first trial resulted in a mistrial. In the second trial, which lasted two days, prosecutors argued, without presenting any supporting evidence, that the men committed the murder because Jeannette Williams supposedly owed them a $50 drug debt. The jury convicted Williams and Myers but recommended that they be sentenced to life. Judge Cliff Shepard — a notoriously harsh trial judge — overrode the jury’s sentencing recommendation for Williams and sentenced him to death. Shepard accepted the life recommendation for 18-year-old Myers.

Prosecutors began reinvestigating the case after newly elected State Attorney Melissa Nelson created the first Conviction Integrity Unit in the state in 2018. The unit issued its report, authored by Conviction Integrity Review Director Shelley Thibodeau, in February. The report noted that no physical evidence linked Williams or Myers to the shooting and that “the physical and scientific evidence actually contradicts [Marshall’s] testimony about what happened.” The report also found that another man, Nathaniel Lawson, had confessed to several people that he had committed the killings and that a 1976 police report noted his presence near the crime scene around the time of the murder. Thibodeau concluded that "[t]he culmination of all the evidence, most of which the jury never heard or saw, leaves no abiding confidence in the convictions or the guilt of the defendants.”  

Williams had been trying unsuccessfully for years to get anyone interested in the case, and responded emotionally after the hearing. “My mother died while I was on death row,” he told Florida Times-Union reporter Andrew Pantazi. Through tears, he said, “I just wanted to get out and see my kids. There wasn’t nobody but them.”

Twenty-nine wrongfully convicted death-row prisoners have been exonerated in Florida, the most in the nation. In 21 of the 23 Florida exonerations for which the jury’s sentencing vote is known, judges imposed the death penalty by overriding a jury recommendation for life or following a non-unanimous jury recommendation for death. Florida now requires a unanimous jury recommendation before a judge can impose a death sentence.

Judges in Idaho, Nebraska Order States to Release Execution-Related Records

Judges in Idaho and Nebraska have ordered prison officials to release execution-related records the states had sought to keep secret. Finding that the Idaho Department of Correction (IDOC) acted frivolously and in bad faith in its prior response to a public records request, a state court judge ruled on March 21 that officials at IDOC must release documents related to the state’s death-penalty and execution processes. In Nebraska, a federal district court judge ruled on March 15 that the state must provide information to lawyers representing Arkansas death-row prisoners relating to how Nebraska obtained the fentanyl used in executing Carey Dean Moore in August 2018.

In the Idaho lawsuit, Fourth District Judge Lynn Norton chastised IDOC for its bad faith in barely responding to a public records request for execution-related documents submitted by University of Idaho professor Aliza Cover. Judge Norton ruled that the Department must release documents that will include the state’s source of execution drugs it used in its last execution and ordered that IDOC pay court and attorney’s fees for Cover.

Cover had sought copies of receipts, purchase orders, and other information related to the drugs Idaho used in its last two executions in 2011 and 2012 and those it expects to use in future executions. The department disclosed only a copy of the state’s execution policy manual, claiming that the remaining documents were exempt from public review. Cover, who studies the death penalty and its application, sued. IDOC redacted dozens of items from execution records, including not only the names of prison staff who participated in executions, but their handwriting, and the names of people only tangentially involved in executions, such as clergy who counsel death-row prisoners and hairdressers who give prisoners their final haircuts. The state claimed, without evidence, that the redactions were necessary to protect those individuals from protest, harassment, or violence. Similar claims of threats against execution team members in other states have been found to be unsubstantiated. Idaho officials also withheld information on the source of execution drugs used in the past, claiming that suppliers would no longer provide the drugs if their identities were revealed.

Norton’s ruling will force the IDOC to release a receipt for lethal-injection drugs from a compounding pharmacy that were used in Richard Albert Leavitt’s 2012 execution, the most recent execution in Idaho. IDOC will be able to withhold information about the drugs from Paul Ezra Rhoades’s 2011 lethal-injection execution because the source may still be supplying drugs used in lethal injections.

In the Nebraska case, U.S. District Court Senior Judge Laurie Smith Camp gave the Nebraska Department of Correctional Services until April 12 to turn over documents detailing its efforts to obtain its execution drugs, but allowed the state to redact information concerning the identity of the pharmacy that supplied the drugs because the company had “made a business decision to decline any future sales of chemicals to any state, including Nebraska.” Arkansas prisoners who are challenging that state’s use of the drug midazolam in executions were seeking the information to meet the obligation imposed by the U.S. Supreme Court that they prove that an alternative drug was available. The court required Nebraska to disclose records related to how the state identified the pharmacy and persuaded it to supply fentanyl to Nebraska.

Many states attempt to shroud their execution processes and practices in secrecy. “When the state keeps secret basic information about the death penalty, the public cannot ensure that it is carried out humanely or constitutionally,” Cover said.

Board Denies Clemency for Texas Man Convicted Under Law of Parties Who Was Not Present When Killing Occurred

The Texas Board of Pardons and Paroles denied clemency for Patrick Murphy (pictured) on March 27, 2019, moving the state one step closer to executing him on March 28 for a murder he neither committed nor intended to commit nor was present when it occurred. Murphy was convicted under the state’s “Law of Parties,” which allows defendants to be sentenced to death based upon the actions and intent of others, if the defendant played even a small role in a crime that resulted in someone’s death. Critics of the law argue that it violates the U.S. Supreme Court’s 1982 constitutional prohibition against executing a person who did not kill or intend that a killing take place and was a minor participant in an offense that resulted in a killing. Murphy was one of the “Texas 7,” a group of prisoners who escaped from prison in 2000. Days after their escape, the men planned to rob a sporting goods store, but Murphy told the group’s leader, George Rivas, that he did not want to participate in the robbery. Murphy waited outside the store in a truck, radioed the others when he saw police arriving, and drove away from the store to a nearby apartment complex. After he left, Officer Aubrey Hawkins was killed in a shootout with the other men.

In 1982, in Enmund v. Florida, the U.S. Supreme Court wrote that “the death penalty … is an excessive penalty for the robber who, as such, does not take human life.” The Court ruled that the focus of a capital punishment trial must be on the culpability of the defendant for his own acts, “not on that of those who committed the robbery and shot the victims.” Murphy’s court-appointed trial lawyer failed to object to the capital charges against him and his state-appointed post-conviction lawyer failed to raise trial counsel’s ineffectiveness, barring the issue from federal review. Murphy’s current lawyers asked the Texas Court of Criminal Appeals to reopen his case to consider the issue, but the court denied that request on March 25. They also sought clemency from the Texas Board of Pardons and Paroles. However, the Board rejected that request and an alternative request for a temporary reprieve until the state legislature acts on pending legislation that would eliminate the death penalty for people convicted under the law of parties. In a statement, his attorneys David Dow and Jeff Newberry said, “It is unconscionable that Patrick Murphy may be executed for a murder he did not commit that resulted from a robbery in which he did not participate, at the exact moment when lawmakers are considering whether anyone possibly convicted under Section 7.02(b) of the Texas Penal Code should be eligible for the death penalty.” Following the Board’s action, Murphy’s lawyer’s submitted a request for a one-time 30-day reprieve from Governor Greg Abbott “so that he is not executed before additional legislation is passed that would [make] clear convictions obtained in trials identical to his are not eligible for a sentence of death.” While that bill would not be retroactive to Murphy’s case, his lawyers wrote, there is “a substantial possibility” that if the bill passes, the state courts “would hold Mr. Murphy’s death sentence is unconstitutional.”

Murphy also has filed motions in the Texas Court of Criminal Appeals and the U.S. District Court for the Southern District of Texas in which his attorneys argue that Texas is violating the Establishment Clause of the First Amendment by refusing to allow Murphy’s Buddhist spiritual advisor to be present in the execution chamber instead of a Christian or Muslim chaplain. The Texas Department of Criminal Justice employs Christian and Muslim chaplains, who are allowed to be present in the execution chamber, but does not allow chaplains of other faiths, saying that they present a security risk because they are not employees. “A law or policy that is not neutral between religions, like TDCJ’s policy, is inherently suspect and strict scrutiny must be applied when determining whether the policy violates the First Amendment’s Establishment Clause,” Murphy’s attorneys wrote. A similar claim was raised before the Alabama execution of Domineque Ray, a Muslim prisoner who was not allowed to have his imam present at his execution. The state court denied his motion on March 25 and the federal court followed suit on March 27, both saying his claim was untimely filed. [UPDATE: On March 28, 2019, the U.S. Supreme Court granted Murphy a stay of execution “pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.”]

Researcher—Capital Sentencing Evidence Shows Death Penalty Race Bias is Real

For decades, studies have shown persistent racial disparities in the administration of capital punishment. Saying “death sentences are unevenly and unfairly applied based on race,” California Governor Gavin Newsom on March 13, 2019 imposed a moratorium on executions in the state with the nation’s largest death row. Responding to the governor’s moratorium In an op-ed for the Los Angeles Times, Stanford psychology professor Jennifer Eberhardt—one of the leading researchers on social science and race—says race discrimination in the death penalty “is real” and that the research supports the governor’s claim. “In a state that is only 6% black, more than one-third of defendants sentenced to death in California are black,” Eberhardt said. California, like other death-penalty states, also shows evidence of bias in favor of white victims. Defendants who kill white victims are much more likely to be sentenced to death than those who kill black victims.

“But the truth is more complicated, and more insidious, than a simple black/white divide,” Eberhardt explains. Her groundbreaking 2006 study of two decades of death sentences in Philadelphia found bias operating at the subconscious level based upon an African American’s physical appearance. “When black men are judged by juries in capital cases, their sentences can hinge on just how black they are perceived to be,” Eberhardt writes. “Those with darker skin, wider noses and thicker lips are subject to far harsher sentencing than lighter-skinned blacks with less prominent, so-called black features.” In the study period between 1979 and 1999, black defendants with stereotypically African features were much more likely to be sentenced to death than black defendants with less stereotypical features (see image), but only if the victim was white. In the study of Philadelphia capital convictions, “Of the men rated low in stereotypical features, only 24% had been sentenced to death. But more than 57% of the “highly stereotypical” black defendants were sentenced to die for their crimes.” “Those strong distinctions signal that our perspectives, our criminal justice process and our institutions are influenced by primitive racial narratives that link people of African descent to darkness and evil,” she says.

Eberhardt’s op-ed describes how racial bias has become ingrained in the criminal justice system. “Research has shown that highlighting racial differences in the justice system actually leads members of the broader public to be more supportive of punitive policies, including the death penalty. When the implicit narrative of black ‘wickedness’ is not challenged, it can seem to perfectly explain the disparities in outcomes,” she says. In addition, unlike any other equal protection challenge under the U.S. Constitution, the U.S. Supreme Court’s 1987 decision in McCleskey v. Kemp barred defendants from using statistical evidence as circumstantial evidence of racial bias, instead requiring proof of “particularized discrimination” — that is, direct evidence of intentional discrimination in their case. “The ruling came under heavy criticism from legal scholars and civil rights activists, concerned that it made institutional racial bias constitutional, and simply part of the status quo,” Eberhardt writes, and was the one ruling Justice Lewis Powell, the author of the 5-4 decision, said he regretted in his time on the Court.

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