DPIC News

Texas Set to Execute Robert Pruett for Prison Murder Despite Corruption and Lack of Physical Evidence

Though no physical evidence links him to the crime, Texas is set to execute Robert Pruett (pictured) on October 12 for the 1999 stabbing death of a state correctional officer who was at the center of a prison corruption investigation. Results of a DNA test of the murder weapon in 2015 found DNA that matched neither Pruett nor the victim, Officer Daniel Nagle. According to Pruett’s pending clemency petition, Officer Nagle was working to identify corrupt correctional officers who had been helping prison gangs launder drug money, and his name was discovered on a secret note from an inmate saying that a prison gang wanted him dead. The unidentified DNA, Pruett’s lawyers suggest, may belong “to the person [who] killed Nagle” and that Pruett was framed for the murder. Earlier on the day he was killed, Officer Nagle had given Pruett a disciplinary write-up for eating a sandwich in an unauthorized area. A bloody shank and a torn-up copy of the disciplinary report were found next to the officer’s body. The prosecution's case turned on dubious testimony from prison informants and the testimony of a forensic analyst that linked the tape wrapped around the handle of the shank used to kill Nagle to the prison craft shop in which Pruett’s cellmate worked. The forensic testimony has since been debunked and, according to the clemency petition, a state investigator’s notes disclosed that a key prison witness—Harold Mitchell—had been promised a transfer to a prison close to his family’s home in Virginia if he testified against Pruett and threatened with being charged with Nagle’s murder if he did not. This is the sixth time Pruett has faced an execution warrant. In April 2015, he received a stay of execution to permit DNA testing and the Texas Court of Criminal Appeals granted a stay in August 2016 so the state courts could have more time to review Pruett's new claims relating to the DNA evidence. However, in April 2017, the Texas appeals court ruled that the DNA test results would not have changed the outcome of his trial. The U.S Supreme Court declined to review Pruett’s case on October 2, permitting the execution to proceed. Texas Gov. Greg Abbott, who has presided over 25 executions since taking office in January 2015, has yet to commute any death sentence.

Prosecutors Seeking Death Sentences for Aging Defendants Despite Taxpayer Cost, Likelihood of Dying Before Execution

Two cases in which prosecutors have elected to pursue the death penalty against aging or infirm defendants who will almost certainly never be executed have raised questions about the costs and benefits of capital charges and the arbitrary exercise of prosecutorial discretion. Federal prosecutors in Missouri are seeking the death penalty against 61-year-old Ulysses Jones Jr., a man with terminal renal disease, for the 2006 killing of another prisoner at a federal prison hospital. At the same time, Philadelphia's judicially-appointed interim district attorney, filling the unexpired term of a district attorney convicted of public corruption charges, is pursuing the death penalty against 64-year-old Robert Lark in the retrial of a 1979 murder. Lark won a new trial in 2014, seven years after Philadelphia prosecutors appealed a lower federal court ruling that they had unconstitutionally struck African Americans from serving as jurors in Lark's case because of their race. Jones is currently facing a capital sentencing hearing in the United States District Court for the Western District of Missouri after having been convicted on October 4 of murdering 38-year-old Timothy Baker with a makeshift knife in January 2006 at the U.S. Medical Center for Federal Prisoners in Springfield, Missouri. Jones has been receiving dialysis for the last 30 years, and the medical center, known as Fed Med, houses the nation’s largest dialysis center. Two other prisoners, Wesley Paul Coonce Jr. and Charles Michael Hall, are on federal death row for another murder at Fed Med. Jones's lawyer, Thomas Carver, argues that the capital trial is senseless, both because Jones is already serving a life sentence for two unrelated robberies and murders, and because, if he is sentenced to death, he will likely die before his appeals process is complete, and almost certainly before an execution would be scheduled. "We're talking millions of dollars here," Carver said. Carver believes Jones—whom the defense says has significant intellectual and cognitive impairments—was not indicted until 2010 "because the government was hoping he would die.” In Lark's case, Interim Philadelphia District Attorney Kelley Hodge has decided to seek the death penalty even though Lark's appeals in his case, if he were sentenced to death, would not be completed before Lark was in his late-70s or his 80s, far beyond his expected survival on death row. Marc Bookman, a longtime Philadelphia public defender who now serves as Director of the Atlantic Center for Capital Representation, called the decision to seek death, made "by a prosecutor chosen by Philadelphia judges rather than one chosen by the community[,] ... a needless step backward" for Philadelphia. Quoting Lawrence Krasner—who overwhelmingly won the Democratic nomination for Philadelphia district attorney after campaigning on a promise not to seek the death penalty and is heavily favored in the November general election—Bookman says, “We have to stop lighting money on fire.” Krasner has said that the death penalty “has cost Pennsylvania taxpayers over $1 billion, yet no one on Pennsylvania’s death row has been put to death involuntarily since 1962,” and his Republican opponent, Beth Grossman has publicly "wonder[ed] whether [the death penalty] is at this point even economically feasible.” In February 2015, Pennsylvania Gov. Tom Wolf declared a moratorium on executions, noting that Pennsylvania’s failing death-penalty system forced “the families and loved ones of victims to relive their tragedies” with each reversed death sentence. The only certainty in the current system, he said, “is that the process will be drawn out, expensive, and painful for all involved.”

US Votes Against UN Resolution Condemning Death Penalty for Religious Speech, Sexual Orientation

The United States has voted against an historic resolution passed by the United Nations Human Rights Council condemning the criminalization of and use of the death penalty for apostasy, blasphemy, adultery, and consensual same-sex relations and calling on nations in which the death penalty is legal to ensure that it is not imposed “arbitrarily or in a discriminatory manner.” The resolution also called for an end to the discriminatory use of the death penalty "against persons belonging to racial and ethnic minorities ... and its use against individuals with mental or intellectual disabilities,” those under age 18, and pregnant women. In Geneva, Switzerland, the Human Rights Council on September 29 adopted the resolution by a vote of 27-13, with the U.S. joining Botswana, Burundi, Egypt, Ethiopia, Bangladesh, China, India, Iraq, Japan, Qatar, Saudi Arabia, and the United Arab Emirates in opposition. No other Western democracy opposed the resolution. Renato Sabbadini, Executive Director of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), called the resolution's passage a “monumental moment” signifying recognition by the international community that certain “horrific laws” must end. “It is unconscionable to think that there are hundreds of millions of people living in States where somebody may be executed simply because of whom they love,” he said in a statement.  Ty Cobb, director of Human Rights Campaign Global, the global branch of the U.S.'s largest LGBT rights organization, condemned the U.S. vote against the resolution as "beyond disgraceful." In a statement, he said U.S. representatives had "failed the LGBTQ community by not standing up against the barbaric use of the death penalty to punish individuals in same-sex relationships.” A State Department spokesperson responded to criticism of the U.S.'s vote saying “The United States unequivocally condemns the application of the death penalty for homosexuality, blasphemy, adultery and apostasy." Heather Nauert said that the U.S. was "disappointed" to vote against the resolution, but did so, “[a]s in years past, ... because of broader concerns with the resolution’s approach to condemning the death penalty in all circumstances.” In 2014, the Obama administration abstained from voting on a death penalty resolution, issuing a statement urging “all governments that employ the death penalty to do so in conformity with their international human rights obligations.” The United States ranked seventh in the world in confirmed executions in 2016, according to Amnesty International, behind China, Iran, Saudi Arabia, Iraq, Pakistan, and Egypt.

John Thompson, Death-Row Exoneree and Social Justice Activist, Has Died

Death-row exoneree John Thompson (pictured), described by Innocence Project New Orleans director Emily Maw, as "an amazing force in the world" and a "national legend," died October 3 at a New Orleans-area hospital after suffering a heart attack. Exonerated in 2003, he had survived a corrupt Orleans Parish prosecution, seven death warrants, and an imminent execution by the state of Louisiana for a murder he did not commit. Following his release, Thompson became a national advocate for criminal justice reform and founded Resurrection After Exoneration, a re-entry and support program for released prisoners. Thompson's odyssey towards exoneration began when he was wrongly charged with, and wrongly convicted of, two crimes that took place a few months apart in 1984—a carjacking and the unrelated murder of New Orleans hotel executive Ray Liuzza, Jr. He was wrongly sentenced to death for Liuzza's murder. Just 30 days from an execution date, an investigator in his case discovered a report about exculpatory blood evidence on the carjacking victim's clothes that the state had never revealed. The blood did not belong to Thompson and both the carjacking and murder cases against him soon unraveled.  A former prosecutor revealed that one of the prosecutors who tried Thompson, Gerry Deegan, had confessed on his death bed in 1994 that he intentionally hid the blood evidence. Thompson won a new trial and was acquitted and released in 2003. He had spent 18 years in prison (14 years on death row), and lost his grandmother and father during that time. Thompson was prosecuted by the Orleans Parish Assistant District Attorney's office during the administration of District Attorney Harry Connick, Sr. His lead prosecutor, James Williams—who had a replica electric chair on his desk and framed photographs of the men he had sent to death row on his office wall—told a reporter in 2007, “There was no thrill for me unless there was a chance for the death penalty.” 11 of the 36 men sentenced to death during Connick’s tenure had their convictions overturned as a result of prosecutorial misconduct, and four—including two wrongly prosecuted by Williams—were exonerated. Thompson later won a federal jury verdict for $14 million in 2007 after suing the District Attorney's Office for prosecutorial misconduct, but the U.S. Supreme Court, in a controversial 5-4 decision written by Justice Clarence Thomas, reversed the verdict, ruling that the prosecutors had immunity from liability. In a 2011 op-ed in the New York Times, The Prosecution Rests, but I Can't, Thompson wrote that more than money, justice was at stake. "I don't care about the money," he said. "I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn't do and nearly had me killed are not in jail themselves."

Duane Buck, Whose Death Sentence Was Tainted by Racial Bias, Is Resentenced to Life

Duane Buck (pictured), the Texas death-row prisoner whose controversial racially tainted death sentence was reversed by the U.S Supreme Court in February, has been resentenced to life in prison. In a plea deal entered in a Harris County (Houston) courtroom on October 3, Buck, who is 54, pled guilty to two new counts of attempted murder that each carried terms of 60 years in prison to be served concurrently with two life sentences imposed on his capital murder charges. In a news release, District Attorney Kim Ogg said, "[a]fter reviewing the evidence and the law, I have concluded that, twenty-two years after his conviction, a Harris County jury would likely not return another death penalty conviction in a case that has forever been tainted by the indelible specter of race. Accordingly, in consideration for Buck pleading guilty to two additional counts of attempted murder we have chosen not to pursue the death penalty." After 20 years on death row and numerous appeals in which he was denied relief by the state and federal courts, the U.S. Supreme Court ruled in February that Buck's capital sentencing hearing had been unconstitutionally poisoned by the testimony of a psychologist—presented by his own lawyer—that Buck was more likely to commit future acts of violence because he is black. Saying that the "law punishes people for what they do, not who they are," Chief Justice John Roberts said that the "particularly noxious" stereotyping of Buck as dangerous because he is a black man was toxic testimony that was "deadly" even "in small doses." "No competent defense attorney," Roberts wrote, "would introduce such evidence about his own client.” Because Texas did not provide life without parole as an alternative to the death penalty at the time of Buck's trial in 1995, Ogg insisted on the two additional charges for attempted murder to foreclose the possibility of release when Buck became eligible for parole from the life sentences in 2035. She said the plea deal "can close a chapter in the history of our courts, in that they will never again hear that race is relevant to criminal justice or to the determination of whether a man will live or die. Race is not and never has been evidence."

BOOKS: End of Its Rope—How Killing the Death Penalty Can Revive Criminal Justice

"The death penalty in the United States is at the end of its rope [and] its abolition will be a catalyst for reforming our criminal justice system." So argues University of Virginia Law Professor Brandon L. Garrett in his widely anticipated new book, End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice, which analyzes the reasons behind the steep decline in capital punishment in over the last 25 years. With the help of other researchers at the University of Virginia, Garrett analyzed death-sentencing data from 1990 to 2016, county by county. He found that numerous interrelated factors contributed to the decline: the drop in murders across the country, the creation of institutional capital defender offices that greatly improved the quality of representation, the availability of life without parole as a sentencing option, the cost of the death penalty system, and growing public awareness of exonerations and the risk of wrongly sentencing innocent defendants to death, fueled further by the abolition of capital punishment in some states and the abandonment of capital prosecutions by many counties. Local culture had a profound effect on death sentencing practices: Garrett found that states and counties that most frequently executed people developed what he terms a “muscle memory” for the practice and “imposed far more death sentences just as a function of having done so in the past." But, the converse was also true: when a county stopped sentencing people to death, it was less likely to resume the practice. Garrett found that death sentences have now all but disappeared from rural America, and are now imposed mainly in larger, urban areas. Garrett told the The Marshall Project, "we found a strong county-level pattern of racial bias. Counties with more black residents have more death sentences. And counties with more white victims of murder have more death sentences. Call it a 'white lives matter' effect," he said. In an interview with University of Virginia publicists, Garrett described the death penalty as "a failed experiment." He said states’ recent efforts to reform death-penalty procedures to “save the death penalty from itself” have failed because “the bias, both racial and geographic, is too ingrained. Lawmakers have tried to speed up executions, but have instead seen more delays and botched executions. They have tried to insist on higher-quality proof, and have still seen exonerations of innocent death row inmates." Garrett hopes that as the death penalty wanes, the lessons learned can buttress other efforts to reform America's criminal justice system and to move away from "mass incarceration and harsh punishment more broadly.”

Federal Appeals Court Upholds Alabama Judge's Race-Based Override of Jury's Life Sentence

The U.S. Court of Appeals for the Eleventh Circuit has upheld the death sentence imposed by an Alabama trial judge who disregarded the jury's 10-2 vote in favor of a life sentence and sentenced Bobby Waldrop (pictured) to death because of his race. When he imposed Waldrop's death sentence, Randolph County Circuit Court Judge Dale Segrest, who is white, referred to three prior cases in which he had overriden jury life verdicts and said: "If I had not imposed the death sentence [in this case], I would have sentenced three black people to death and no white people." In an unpublished opinion issued on September 26, the federal appeals court wrote that the judge's action did not constitute a "fundamental miscarriage of justice" that would allow federal court review of Waldrop's race claim in light of the failures by Waldrop's trial lawyer to have objected at the time of trial or raise the issue in his initial state court appeal. The opinion was issued the same day the U.S. Supreme Court stayed Georgia's execution of Keith Tharpe to determine whether to review his claim that his death sentence had been unconstitutionally tainted by the participation of a white juror who referred to him and other African Americans with a racial slur and said he wondered “if black people even have souls.” In 2014, the Eleventh Circuit refused to review a claim presented by Georgia death-row prisoner Kenneth Fults, saying that his claim of racial bias—based on the signed affidavit of a white juror who said  “I don’t know if he ever killed anybody, but that (N-word) got just what should have happened"—had not been properly presented to the state courts. Fults was executed in April 2016 without receiving any review of that claim. Ten months later, the U.S. Supreme Court ruled in Buck v. Davis that "it is inappropriate to allow race to be considered as a factor in our criminal justice system" and that race-based capital sentences “are a disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are." Two of the Eleventh Circuit judges involved in the Fults decision also decided Waldrop's appeal. They ruled that the “miscarriage of justice” doctrine, which permits review of otherwise defaulted claims, applies only when the defendant shows “by clear and convincing evidence that, but for [the alleged] constitutional error, no reasonable juror would have found [him] eligible for the death penalty.” The exception did not apply in his case, they wrote, because the jury verdict convicting Waldrop of murder during a robbery had made him death-eligible, even if the jury had overwhelmingly believed he should not be sentenced to death. The third judge on Waldrop's court panel, Beverly Martin, concurred with the court's interpretation of the law, but wrote: "I am at a loss to ... explain how a person being sentenced to death based on his race could be anything other than a fundamental miscarriage of justice."

U.S. Supreme Court to Hear Louisiana Death Penalty Case Where Lawyer Conceded Guilt Over Client's Objection

The United States Supreme Court will review a Louisiana death-penalty case to answer the question "Is it unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection?" On September 27, the court agreed to hear McCoy v. Louisiana, a case in which defense counsel informed the jury in his opening argument that Robert McCoy (pictured)—who was charged with murdering the son, mother, and stepfather of his estranged wife—had "committed these crimes," even though McCoy had consistently maintained his innocence and repeatedly objected to the defense strategy. The case is one of a number of Louisiana death penalty cases in which defense lawyers have told death penalty juries, against the defendant's wishes, that their clients had committed the killing. In McCoy's case, the prosecution offered a plea deal that McCoy turned down against the advice of his lawyer, Larry English. When English later told McCoy that he intended to concede McCoy's guilt, McCoy objected and tried to fire English two days before the start of the trial. The trial court refused to remove English from the case, and also denied McCoy’s request to represent himself. When English conceded guilt during the opening statement, McCoy interrupted, saying the police had killed the victims. He later took the stand and testified that he had been framed for the murders by a drug trafficking ring headed by law enforcement. McCoy's petition for review was supported with amicus (friend of the court) briefs by the Yale Law School Ethics Bureau and the Louisiana Association of Criminal Defense Lawyers. English had argued that he had admitted guilt as part of his ethical duty to try to save McCoy’s life. The Ethics Bureau, however, argued that conceding McCoy's guilt over his express opposition was an "egregious" violation of the lawyer's ethical duty. It wrote that the rules of ethics "do not allow a lawyer to sell out his client in court against their wishes." The brief of the Louisiana defense lawyers, joined by the Promise of Justice Initiative, said the court's refusal to permit McCoy to obtain new counsel was emblematic of a pattern of decisions undermining the right to meaningful representation in Louisiana death penalty cases. The brief pointed to 12 capital cases in which Louisiana courts resolved disagreements between capital defendants and their lawyers in a manner that was detrimental to the defendant. The brief said that, in four cases since 2000, the Louisiana courts had allowed capital defense counsel to concede guilt over their clients’ express objection. In four other capital cases during that time frame, capital defendants were required to represent themselves to avoid having their lawyer concede guilt. Four other times, invoking the same right to personal autonomy over litigation decisions that they rejected in the prior circumstance, the state courts gave capital defendants who wanted to waive rights final say in doing so. “What can be distilled from Louisiana’s approach is that when a question about a defendant’s autonomy arises, Louisiana appears to resolve the question in favor of expediency, rather than autonomy or dignity,” the brief said. "Rather than a principled and consistent commitment to the autonomy and dignity of capital defendants, the Louisiana Supreme Court has adopted a set of rules that ameliorates always to the benefit of the state, and never to the defendant."

Texas Appeals Court Orders Hearing on False Forensic Testimony, Extends Stay of Execution

After staying Tilon Carter's execution in May to consider allegations that his conviction and death sentence were the product of false or misleading forensic testimony, the Texas Court of Criminal Appeals has now ruled that Carter (pictured) is entitled to an evidentiary hearing on two of his claims. In a September 27 order, the appeals court directed the Tarrant County (Fort Worth) trial court to conduct a hearing on whether Texas "presented false or misleading testimony by the State Medical Examiner," in violation of Carter's right to due process and whether "new scientific evidence, which was unavailable at the time of his trial, contradicts scientific evidence the State relied on at this trial." The order leaves the prior stay of execution in place. Carter was convicted and sentenced to death in November 2006 based upon testimony by Tarrant County Medical Examiner Nizam Peerwani that he had smothered 89-year-old James Tomlin during the course of a robbery. In fact, the autopsy listed Tomlin's cause of death as "smothering with positional asphyxia," which could have been unintentional. Carter's lawyers argued that scientific evidence that was unavailable at the time of trial contradicts Peerwani's testimony, and he presented statements from three forensic pathologists who concluded that the autopsy findings contradict the state's theory that Tomlin was intentionally smothered. Carter's attorney, Raoul Schonemann, wrote in a court filing, “While the experts disagreed on the ultimate cause—whether Mr. Tomlin’s death was caused by positional asphyxiation or a cardiac event—they unanimously agreed that the evidence does not show that Mr. Tomlin’s death was the result of intentional smothering." Carter would not be subject to the death penalty if he did not intentionally kill Tomlin. Carter's lawyers also alleged that his trial counsel had provided ineffective assistance by failing to investigate and present available evidence that Carter had not intentionally killed Tomlin. However, the Court of Criminal Appeals did not grant an evidentiary hearing on that claim.

Supreme Court Stays Execution in Georgia Case Raising Issue of Jury Racism

Three hours after his execution was scheduled to begin, the U.S. Supreme Court stayed the execution of Keith Tharpe (pictured), a Georgia death-row prisoner who sought review of his claim that he was unconstitutionally sentenced to death because a juror whom Tharpe alleged "harbored profound racial animus against African Americans voted to impose the death penalty . . . because of his race.” Over the dissents of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, the Court issued a stay of execution on September 26, pending a final ruling on whether to review a decision of the U.S. Court of Appeals for the Eleventh Circuit that had denied Tharpe permission to appeal the issue. Tharpe, who had been convicted and sentenced to death for the murder of his sister-in-law, had challenged his death sentence after learning that Barney Gattie, a white juror in his case, had said that there were "two types of black people: 1. Black folks and 2. Ni**ers"; described Tharpe as "a ni**er"; doubted "if black people even have souls"; and said if the victim "had been the same type [of black person] Tharpe is, then picking between life of death wouldn't have mattered so much." The Georgia courts had refused to consider his biased-juror challenge, saying that state law prohibitted him from attempting to impeach the jury's verdict. However, after the U.S. Supreme Court ruled earlier this year that overt expressions of racial bias by a juror are not insulated from judicial review, Tharpe argued that he was entitled to have his claim heard and to have a new, fair sentencing hearing. The Eleventh Circuit disagreed, concluding that he had not “made a substantial showing of the denial of a constitutional right” and "had failed to demonstrate that Barney Gattie’s behavior had [a] substantial and injurious effect or influence in determining the jury’s verdict.” When Tharpe again attempted to raise the issue in the Georgia state courts, the Georgia Supreme Court ruled that the Supreme Court decision made no difference and his challenge was barred as "res judicata"—meaning that the issue had alrady been decided against him. His appeal from the state-court decision had just been filed in the U.S. Supreme Court when it stayed his execution based upon the federal litigation. The Court's order specified that the stay "shall terminate automatically" if the Court ultimately decides not to review the issue or if the Court ultimately rules against Tharpe. Under Supreme Court rules, the votes of four Justices are sufficient to decide to hear a prisoner's appeal. However, the votes of five Justices are required to stay an execution, effectively overriding the Court's rules for cases presented during an active death warrant. Brian Kammer, one of Tharpe’s attorneys, expressed gratitude that "the court understands this case merits thoughtful consideration outside the press of an execution warrant.” He said, “We are extremely thankful that the court has seen fit to consider Mr. Tharpe’s claim of juror racial bias in regular order.”

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