DPIC News

Upcoming Supreme Court Cases Could Clarify Standard Requiring Disclosure of Exculpatory Evidence

Prosecutorial misconduct, including withholding evidence favorable to the defense, is the most common cause of wrongful convictions in death penalty cases, but prosecutors frequently fail to disclose this evidence, narrowly interpreting the U.S. Supreme Court's 1963 decision in Brady v. Maryland calling for its disclosure. On March 29, the Court will hear two consolidated cases—Turner v. United States and Overton v. United States—that raise questions under Brady as to when courts should grant defendants a new trial when prosecutors fail to disclose exculpatory evidence to the defense. While the Court may narrowly address Brady's application to these two cases, attorney and legal commentator Bidish Sarma argues that Turner-Overton presents an opportunity for the Court to "clarify principles and curtail the confusion that permeates lower courts’ opinions." Prosecutors currently argue that they may consider the materiality of evidence that favors the defense when they decide whether to disclose that evidence. Others say all evidence favorable to the defense must be disclosed, irrespective of materiality. Withholding favorable evidence from the defense appears to work—a study by the VERITAS Initiative of Santa Clara University School of Law and the National Association of Criminal Defense Lawyers found that courts upheld convictions in 86 percent of the cases in which they found that prosecutors had suppressed exculpatory evidence. An amicus brief by the Texas Public Policy Foundation, FreedomWorks, Cause of Action Institute, and American Legislative Exchange Council urges the Court to make it clear that prosecutors must turn over all evidence favorable to the defense, saying, "[r]equiring production of all favorable evidence solves the problem that prosecutors face in administering the current materiality standard." A recent study by the National Registry of Exonerations found that more than half of all murder exonerations involved Brady violations. According to that study, official misconduct was more common in cases involving black defendants (76%) than white defendants (63%). That disparity grew in capital cases, where 87% of death-row exonerations of black defendants involved official misconduct, compared to 67% of death-row exonerations of white defendants. A DPIC analysis of recent death-row exonerations found that police or prosecutorial misconduct was a major factor in 16 of the last 18 exonerations. DPIC's review of the National Registry's 2016 exoneration data also found that every one of the 13 murder exonerations in which prosecutors had sought or threatened to impose the death penalty involved either official misconduct or perjured testimony/false accusation, and eleven (84.6%) of them involved both. 

STUDIES: Rarity of Executions Makes California Jurors Less Likely to Impose Death Sentences

A study published in The Yale Law Journal provides new evidence that, as public opinion continues to shift away from the death penalty, juries empaneled in capital cases may become even less representative of the community and even more prone to convict. The studyconducted by Professors Brandon Garrett (University of Virginia), Daniel Krauss (Claremont-McKenna College), and Nicholas Scurich (University of California Irvine)—found that with increased public opposition to the death penalty, more prospective jurors may be excluded from serving on capital juries because of their views against the death penalty. The researchers surveyed people reporting for jury duty in Orange County, California about their views on the death penalty itself and on the impact of the rarity of executions in California. Orange County is one of the ten most prolific death-sentencing counties in the United States and was one of just 16 U.S. counties that imposed five or more death sentences from 2010 to 2015. But despite those facts, about one-third (32%) of those surveyed said they would automatically vote for life without parole in the sentencing phase of a death penalty case. This view would make them excludable from a capital jury in a process known as death qualification, a result that the authors said, "raises new constitutional questions concerning [death qualification's] effect on the ability to secure a fair cross-section of the community in the jury venire." The researchers also found that nearly one in four jurors (24%) said that, as a result of their concerns about the death penalty, they would "refuse to vote for murder in the first degree merely to avoid reaching the death penalty issue." These so-called "nullifiers" would also be excludable from the jury, producing a jury that would be more prone than the overall population to find the defendant guilty. But at the same time that death qualification "excludes far higher percentages of the population than ever before," the researchers found that it "also has become an even less predictable prosecution tool, because even many stated death penalty proponents now harbor serious doubts about the death penalty." Finally, researchers asked the jurors whether the fact that California has not carried out an execution since 2006 would make them more likely or less likely to impose a death sentence. 67% of those surveyed said it made them less likely to vote for death. The authors urge further research into jury attitudes about the death penalty and conclude, "These findings have implications for how we should think about punishment as well as the Eighth Amendment in the area of the death penalty, but also far more broadly. Perhaps unusual punishments appear cruel or unsupported due to their rarity in practice."

Inventor of Midazolam Opposes Its Use in Executions

As U.S. pharmaceutical companies have removed medicines from the market to prevent states from obtaining them for executions, states have turned to alternatives, like the sedative midazolam. Dr. Armin Walser, who was part of the team that invented the drug in the 1970s, is dismayed at that development. “I didn’t make it for the purpose” of executing prisoners, Dr. Walser told The New York Times. “I am not a friend of the death penalty or execution.” For most of midazolam's history, the medicine was used only for its intended purpose: as a sedative in procedures like colonoscopies and cardiac catheterizations. Since 2009, however, six states have used it to carry out a total of 20 executions. Midazolam's use in executions has been marked by controversy because, critics argue, it is a sedative, not an anesthetic, and does not adequately anesthetize the condemned prisoner before painful execution drugs are administered. Megan McCracken, a specialist in lethal injection litigation with the University of California-Berkeley law school said, “Time and time again when you see executions with midazolam, you see, at best, surprises and, at worst, very bad executions.” Midazolam was used in the botched executions of Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Ronald Smith in Alabama. In January 2017, a federal magistrate judge barred Ohio from using midazolam in executions, saying that its use presented a substantial and objectively intolerable risk of serious pain and suffering during executions. As a result of litigation challenging Arizona's lethal injection protocol in the wake of Wood's execution, that state agreed that it would never again use midazolam. The manufacturer of the drug has said it “did not supply midazolam for death penalty use and would not knowingly provide any of our medicines for this purpose," leaving states to turn to alternative suppliers if they want to continue using midazolam in executions. Walser said that, when he learned about midazolam's use in executions, "I didn't feel good about it."

Florida Legislature Passes Bill Eliminating Non-Unanimous Jury Recommendations for Death Penalty

A Florida bill that would require the jury to make a unanimous recommendation for death before a judge may impose a death sentence will head to Governor Rick Scott for final approval, after both houses of the Florida legislature passed it by overwhelming margins. Senate Bill 280 passed unanimously (37-0) on March 9, and the corresponding House Bill 527 passed by a 112-3 vote on March 10. If signed by the governor, the bill will bring Florida into compliance with the Florida Supreme Court's rulings in Hurst v. State and Perry v. State in 2016. Hurst struck down Florida's prior capital sentencing statute, which had allowed judges to impose the death penalty if a majority of jurors recommended death or to override a jury's recommendation of life. Perry struck down an amended version of the statute, which had permitted judges to impose a death sentence if 10 or more jurors recommended death. The Florida Supreme Court also ruled that the unanimity requirement would apply to death-row prisoners whose direct appeals had been decided after the United States Supreme Court's June 2002 decision in Ring v. Arizona, which held that capital defendants had a right to a jury determination of all facts necessary to impose the death penalty. That decision is expected to overturn approximately 200 death sentences, while permitting a similar number of prisoners whose direct appeals had already been completed to be executed despite constitutional violations in their cases. Until recently, three states—Florida, Alabama, and Delaware—permitted judges to impose death sentences on the basis of non-unanimous jury recommendations for death. Non-unanimous cases accounted for more than 20% of all death sentences in the U.S. from 2010-2015 and disproportionately contributed to death-row exonerations. In 2016, the Delaware Supreme Court struck down its state's death penalty statute, holding that death sentences based upon non-unanimous jury recommendations for death were unconstitutional. The change to Florida's law would leave Alabama as the only remaining state in which a judge may impose a death sentence based upon a non-unanimous jury recommendation. 

LAW REVIEWS: Predictions of Future Dangerousness Contribute to Arbitrary Sentencing Decisions

In a new article for the Lewis & Clark Law Review, author Carla Edmondson argues that the future dangerousness inquiry that is implicit in capital setencing determinations "is a fundamentally flawed question that leads to arbitrary and capricious death sentences" and because of the "persistent influence of future dangerousness ... renders the death penalty incompatible with the prohibitions of the Eighth and Fourteenth Amendments on cruel and unusual punishment." Edmonson's article, Nothing is Certain but Death: Why Future Dangerousness Mandates the Abolition of the Death Penalty, reviews the pervasive influence of future dangerousness in capital sentencing decisions throughout the U.S., either as a statutory aggravating factor, or as a permissable line of argument that prosecutors may use to encourage a jury to impose a death sentence. Edmondson argues that the practice of considering future dangerousness "impermissibly asks jurors to function as fortune tellers, basing their sentencing determination on the likelihood of some future, unascertained event." The article examines the history of the future dangerousness question, its use in various states, and empirical evidence documenting its inaccuracy, randomness, and powerful impact. Edmonson cites seminal studies conducted in Texas and Oregon, two states in which capital sentencing juries are required to find that defendants pose a continuing threat to society before they may impose the death penalty. Those studies, she writes, demonstrate both the unreliability of expert testimony on future dangerousness and the inaccuracy of jury determinations on the subject. Experts in psychology have long argued that predictions of future dangerousness are junk science, and their use in capital sentencing proceedings continues to create serious constitutional concerns. On February 22, 2017, the U.S. Supreme Court overturned the death sentence imposed in Texas on Duane Buck (pictured), whose trial was tainted by racial bias when the defense's own psychologist testified that Buck posed a future danger because he was black. On August 19, 2016, the Texas Court of Criminal Appeals stayed the execution of Jeffery Wood to permit him to litigate claims that the future dangerousness predictions of the state's expert—who had been expelled from state and national professional associations for his unscientific and unethical future dangerousness predictions in the past—constituted false scientific evidence whose use violated due process. "Often based on unreliable and prejudicial evidence, predictions of future dangerousness undermine the efficacy of any imposed sentence," Edmondson argues. "Its unavoidable influence on life-or-death decisions, and the irremediableness of the problems associated with inaccurate predictions of future behavior, demonstrates why any system of capital punishment is unconstitutional and cannot be applied consistent with the Eight Amendment’s prohibition on cruel and unusual punishment."

As Supreme Court Denies Stay of Execution, Justice Breyer Urges Consideration of Death Row Conditions

On March 7, the United States Supreme Court denied a stay of execution for Texas death-row prisoner Rolando Ruiz, declining to consider his claim that the more than 20 years he had been incarcerated on death row, mostly in solitary confinement, violated the Eighth Amendment prohibition against cruel and unusual punishment. Ruiz's lawyers had urged the Court to consider this issue, writing, "At this point, a quarter-century has elapsed since Mr. Ruiz committed a contract murder in 1992, two days after he turned twenty years old. Mr. Ruiz has lived for over two decades under a death sentence, spent almost twenty years in solitary confinement, received two eleventh-hour stays of execution, and has received four different execution dates.” Justice Stephen Breyer (pictured) agreed, saying, "Mr. Ruiz argues that his execution 'violates the Eighth Amendment' because it 'follow[s] lengthy [death row] incarceration in traumatic conditions,' principally his 'permanent solitary confinement.' I believe his claim is a strong one, and we should consider it." Breyer dissented from the Court's denial of a stay, citing the Court's "serious objections" to extended solitary confinement, which date back as far as 1890, when the Court, "speaking of a period of only four weeks of imprisonment prior to execution, said that a prisoner’s uncertainty before execution is 'one of the most horrible feelings to which he can be subjected.'" He also quoted fellow Justice Anthony Kennedy, who in 2015 urged the court to consider the constitutionality of extended solitary confinement. Justice Breyer and former Justice John Paul Stevens have repeatedly questioned the constitutionality of prolonged incarceration under death-row conditions, but the Court has never reviewed the issue. Long stays on death row are increasingly common: the Fair Punishment Project estimates about 40% of death row inmates have spent more than 20 years on death row. These delays, Breyer noted in Ruiz's case, are "attributable to the State or the lower courts." Ruiz was the fifth prisoner executed in the U.S. in 2017 and the third in Texas. Prior to his execution, he expressed his remorse to the victim's family, saying, “Words cannot begin to express how sorry I am and the hurt I have caused you and your family. May this bring you peace and forgiveness.”

Reports Find Record Number of Exonerations in 2016, Blacks More Likely to be Wrongfully Convicted

Companion reports released on March 7 by the National Registry of Exonerations found record numbers of exonerations and wrongful convictions involving official misconduct in 2016, and striking evidence of racial bias both in the wrongful convictions themselves and in the time it took the judicial process to exonerate the wrongfully incarcerated. The Registry's report, Exonerations in 2016, found a record 166 exonerations in 2016, with 54 defendants exonerated of homicide. A DPIC review of the Registry's data revealed that the death penalty played a role in nearly a quarter of the homicide exonerations. In at least six of the wrongful homicide convictions, prosecutors had sought the death penalty at trial; in another, an innocent defendant had pled guilty to avoid the death penalty; and at least six additional exonerations were the product of witnesses having falsely implicated innocent defendants after police had threatened the witness or a loved one with the death penalty unless the witness cooperated with the investigation. The Registry's companion report, Race and Wrongful Convictions in the United States, analyzes exonerations for murder, sexual assault, and drug crimes since 1989. The report found that black people are seven times more likely to be wrongfully convicted of murder than white people and that African Americans imprisoned for murder are more likely to be innocent if they were convicted of killing white victims. Police officers were more likely to have committed misconduct in the cases in which black defendants were exonerated of murder than in exonerations of white murder defendants. In addition, justice was delayed in exonerations of black murder defendants, who, on average, waited three years longer than whites before being released from prison. An analysis of the DPIC death-row exoneration database corroborates the National Registry's conclusions: 16 of the last 18 death-row exonerations had police or prosecutorial misconduct as their primary cause. 18 of the exonerees in the last 25 misconduct-related death-row exonerations are black. While 68.8% of wrongly convicted non-black death-row exonerees were exonerated in 10 years or less, it took the judicial system 11 years or more to exonerate 57.3% of the wrongly convicted black death-row exonerees. 84.6% of all cases in which exoneration took 26 years or more involved black defendants.

Jury in Wake County, North Carolina Returns 8th Consecutive Life Verdict in a Capital Trial

A Wake County, North Carolina jury voted to spare Nathan Holden's life on March 3, marking the eighth consecutive capital sentencing trial in the county in which juries had opted to sentence a defendant to life without parole instead of the death penalty. No jury in Wake County has imposed a death sentence since 2007. Prosecutors had sought the death penalty against Holden for murdering his ex-wife's parents and attempting to kill her. The jury convicted Holden of two counts of first-degree murder but, after being presented evidence of 39 mitigating circumstances—including that he suffered from Posttraumatic Stress Disorder as a result of chronic childhood abuse—jurors chose to sentence him to life. Although the ten Wake County prisoners on North Carolina's death row placed the county among the 2% of counties that accounted for 56% of all prisoners on U.S. death rows as of 2013, Wake District Attorney Lorrin Freeman said after jurors returned the sixth consecutive life sentence in February 2016 that it might be time to rethink whether to pursue the death penalty in future cases. Wake County's experience has been typical of North Carolina, and the nation as a whole. The state has averaged fewer than two death sentences per year since 2011, with no new death sentences in 2012 and 2015. In 2016, only one of the five capital trials in the state resulted in a death sentence. By contrast, the state sent between 20 to 30 people per year to death row in the 1990s. The United States has seen a similar drop in death sentences, imposing a total of only 30 new death sentences last year, down from a peak of 315 in 1996 (see graph, click to enlarge). North Carolina's last execution was in 2006.

Florida, Alabama Consider Legislation on Exoneree Compensation

As the Florida legislature considers a bill that would change Florida's "Clean Hands" policy, which denies compensation for wrongful convictions if the defendant had a prior felony record, Alabama lawmakers are deciding whether to grant compensation to Anthony Ray Hinton (pictured), who was exonerated in 2015 after spending nearly 30 years on death row. In Florida, death row exoneree Herman Lindsey told the Senate Criminal Justice Committee about his having been denied compensation because of prior unrelated felony convictions. He spoke about the difficulty he has faced finding housing or a job because the arrest for murder is still on his record. He said the "Clean Hands" Provision is, "basically saying, ‘we can take anybody that has a criminal record and say let’s falsely incarcerate him and when he found it wasn’t really him, we can actually put him out on the streets and we don’t actually even have to worry about it.’ I didn’t receive any apology. I didn’t receive any compensation.” The proposed bill would allow compensation for some exonerees who have prior nonviolent felony convictions. Sen. Jeff Brandes (R-St. Petersburg), a supporter of the bill, said, “If the state and the people of the state get it wrong, it shouldn’t matter what individuals have done in their past.” Lindsey said only four of Florida's 26 death-row exonerees have received compensation under the Clean Hands Act. “Now, perhaps, this might open the door for 10." Meanwhile, the Alabama Committee on Compensation for Wrongful Incarceration is considering an application to grant $1.5 million in compensation to Anthony Ray Hinton. The amount is based on the 30 years Hinton was wrongfully incarcerated. Two Assistant Attorneys General have written conflicting letters to the committee, with one stating, "I have found no information that indicates that Mr. Hinton's application is disqualified by any of the eligibility exceptions," while the other claims, "The fact that thirty years later different ballistic experts are unable to say conclusively that this gun fired the fatal shots, without the benefit of the original test fired projectiles used by the original examiners, is not evidence of innocence." Sen. Paul Bussman (R-Cullman) has introduced a bill to compensate Hinton $1.5 million, to be paid over a three-year period. He criticized the notion that a wrongly convicted person should be denied compensation when the state lacks evidence to convict, saying, "We can't convict someone in the court of public opinion. ... It has to be in a court of law."

Exoneree Urges Dallas Prosecutor to Drop Death Penalty Against Veteran With PTSD

Texas capital murder exoneree Christopher Scott (pictured) has urged Dallas County's new District Attorney, Faith Johnson, to drop the death penalty from murder charges pending against Erbie Bowser. Bowser, who is black, is a seriously mentally ill Marine veteran who was discharged from military service after having been diagnosed with Post-Traumatic Stress Disorder. He faces four capital charges in the killings of his girlfriend, his estranged wife, and their daughters. When police found him, he was reportedly reciting his name, rank, and serial number, and the medical staff at the hospital to which he was taken him described him as delusional. In a guest column for the Dallas News, Scott—who served 12 years of a life sentence for a murder he did not commit—writes that the Dallas DA's office "has failed the African-American community for generations," and says that "[t]he Bowser case offers an opportunity for Johnson to change the way her office has historically treated African Americans accused of committing capital crimes." He notes that in 2013, the Dallas District Attorney's office "agreed not to seek the death penalty in a nearly identical case involving a white defendant, William Palmer[, who had] stabbed his wife and both her parents to death while his wife's sister and her six-year-old hid in a closet." Dallas has long been criticized for its history of racial bias in enforcing its criminal laws, including bias in jury selection and the application of the death penalty. During the 30-year administration of Henry Wade, the office produced a training manual instructing prosecutors to exclude people of color from juries, and in a death penalty decision in 2005, the U.S. Supreme Court found that black people in Dallas County had been "almost categorically ... excluded from jury service." The racially disproportionate use of the death penalty has continued in subsequent prosecutorial administrations. A report from the Fair Punishment Project identified Dallas is one of only 16 U.S. counties that imposed five or more death sentences between 2010 and 2015; seven of the eight people sentenced to death in that period were black. Johnson, whom Wade hired in 1982, is the first African-American woman to serve as District Attorney and Bowser's case is considered a barometer of the path she will follow in capital prosecutions. In addition to the issue of racial fairness, Bowser's case presents serious questions about the appropriateness of the death penalty for defendants with severe mental illness, and in particular, veterans with PTSD. Bowser has a history of hallucinations and psychosis stretching back to his adolescence, and reportedly was on more than a dozen medications, including sedatives and antipsychotics, at the time of his arrest. So far this year, seven states have proposed legislation to exempt people with serious mental illness, including PTSD, from the death penalty. 

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