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Veil of Execution Secrecy Expands in Several Southern Death-Penalty States

Posted: April 19, 2019

Three southern states have taken action to limit the public’s access to information relating to executions by increasing secrecy surrounding lethal-injection drug suppliers. On April 12, 2019, the Texas Supreme Court reversed an earlier decision that would have disclosed the source of lethal-injection drugs used to carry out executions in Texas in 2014, asserting that disclosure “would create a substantial threat of physical harm to the source’s employees and others.” On April 9, Arkansas Governor Asa Hutchinson signed into law one of the most expansive and punitive execution secrecy laws in the nation, concealing the identity of lethal-injection drug suppliers from the public and criminalizing disclosure of execution-related information. Act 810 exempts lethal-injection records from the state’s Freedom of Information Act and makes the intentional or reckless disclosure of the exempted information a felony. In Louisiana, amidst partisan feuding over the reasons the state has not carried out executions, a bill that would make secret the source of execution drugs was referred to the House Committee on Administration of Criminal Justice on April 8, the first day of the 2019 Louisiana state legislative session. Democratic Governor John Bel Edwards, who voted against a similar bill five years ago while serving as a state legislator, indicated that he would likely sign the measure. Louisiana’s legislature is also considering two bills that would abolish capital punishment.

The Texas Supreme Court decision marked the culmination of several years of litigation over the state’s lethal-injection secrecy policy. A Texas district court and a state court of appeals both ordered disclosure of the drug supplier’s identity, and the Supreme Court initially upheld those lower court rulings. The state asked for a rehearing, arguing that disclosure would have “potentially devastating consequences” to public safety. The rehearing took place after BuzzFeed News revealed through investigative reporting that the state had obtained lethal-injection drugs from Greenpark Compounding Pharmacy, a Houston based compounding pharmacy with a history of safety violations. When the compounder’s identity was revealed, activists peacefully protested outside the pharmacy. Attorney Ari Cuenin, arguing for the state, said that protests, along with alleged threats, had convinced pharmacies not to provide drugs to the state. The state called the pharmacy a “soft target” in an “urban area, whose only defense is its anonymity.”

A number of states have asserted that anti-death-penalty activists have intimidated pharmacies and major pharmaceutical companies into refusing to supply drugs for executions and have argued in legislative debates and in litigation that these alleged threats justify execution secrecy. In its secrecy bill, the Arkansas legislature alleged without evidence that “there is a well-documented guerilla war being waged against the death penalty” and that “[a]nti-death penalty advocates have pressured pharmaceutical companies to refuse to supply the drugs used by states to carry out death sentences.” In fact, calling the use of their medicines in execution contrary to their medical mission, several drug companies have sued Arkansas or filed friend-of-the-court briefs alleging that the state engaged in misrepresentations and subterfuge to improperly obtain their drugs. Independent media and law enforcement investigations have concluded that the alleged threats against drug manufacturers and suppliers have been unfounded or grossly exaggerated. A 2016 BuzzFeed News investigation revealed that FBI records debunked an alleged threat that Texas and Ohio claimed established the need for secrecy. That supposed threat was an email from a university professor who provided his name and phone number and warned an Oklahoma pharmacy to take safety precautions. The email was one of three pieces of evidence, along with a blog post and comments left on the website of a previous supplier, that the Texas court relied on in its decision. “There is no evidence of a history of specific threats to that particular pharmacist or pharmacy because the source's identity has been kept confidential,” the court wrote. “Thus, the question before us in this case is whether the mere fact that the public knows that the Department is receiving lethal injection drugs from some source, whoever it might be, is enough to conclude that a substantial threat of physical harm will come to bear on the source of the drugs if the identifying information is made public.”

 

Second Alabama Prisoner Files Suit to Allow Muslim Chaplain in Execution Chamber

Posted: April 18, 2019

A second Muslim death-row prisoner has filed a federal civil rights lawsuit challenging Alabama’s policy of allowing only a Protestant Christian chaplain in the execution chamber. Charles Burton, Jr. (pictured), converted to Islam 47 years ago. In a complaint filed in the United States District Court for the Middle District of Alabama, Burton, who was sentenced to death in 1992, argues that Alabama’s policy violates the Establishment and Free Exercise Clauses of the First Amendment and the religious freedom amendment of the Alabama state constitution by denying non-Christian prisoners access to religious advisors during executions in circumstances in which spiritual assistance is made available to Protestant Christian prisoners. The Stanford Religious Liberty Clinic and the Alabama federal defenders office are representing Burton in his lawsuit. “In practice, inmates who share the chaplain’s faith may hold his hand and pray with him in their final moments, but that same comfort and prayer is denied to those of other denominations or faiths,” the clinic wrote in a press release announcing the suit. “This violates basic principles of religious equality and human dignity,” the clinic said.

Burton’s challenge was filed after a 5-4 majority of the U.S. Supreme Court lifted a federal appeals court’s stay of execution and allowed Alabama to execute Domineque Ray, another Muslim prisoner who had argued that the state’s refusal to accommodate his request to permit an imam in the execution chamber was religiously discriminatory. Overturning the fact-finding of a federal appeals court, the Court asserted that Ray had filed his claim too late and therefore was not entitled to a stay of execution. The decision in Ray’s case drew significant criticism, and less than two months later, the Court halted the execution of Texas prisoner Patrick Murphy, who raised a strikingly similar claim. Murphy, a Buddhist, challenged Texas’ policy of allowing only Christian or Muslim chaplains, both employed by the Department of Criminal Justice, to be present during executions. Texas responded to the ruling by barring all religious advisors from the execution chamber. To avoid any possibility that Alabama could say he did not timely raise his challenge, Burton filed suit before the state has set an execution date for him.

Burton’s filing emphasizes the importance of religious freedom. Alabama’s actions, the suit alleges, “violate two of the most elementary principles of our constitutional democracy, principles that the law requires to be honored even in prison: to be able to practice one’s religion free from substantial and unjustified governmental burdens and to be free from governmental discrimination based on one’s religion.” In an editorial on April 11, 2019, the Wall Street Journal supported Burton’s claim. “The death penalty ranks among America’s most divisive issues,” the editorial board wrote. “But on one point we suspect advocates and detractors agree: the right of a condemned man to have a minister of his own faith inside the execution chamber at the hour of his death.”

 

Federal Appeals Court Strikes Two Years of Guantánamo Tribunal Decisions in USS Cole Case

Posted: April 17, 2019

A civilian federal appeals court has dealt another blow to the Guantánamo military commission death-penalty proceedings, striking more than two years of decisions in the USS Cole bombing prosecution of Abd Al-Rahim Hussein Muhammed Al-Nashiri because of a military judge’s undisclosed conflict of interest. Al-Nashiri faces capital charges for his alleged role in the suicide bombing attack on the USS Cole in Yemen in October 2000 in which 17 U.S. Navy sailors were killed and another 39 were injured.

A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued a writ of mandamus vacating all orders issued by Colonel Vance Spath (pictured) between November 19, 2015 and his retirement in 2018 because Spath had not disclosed to defense counsel that he had applied for employment with the Department of Justice (DOJ) as an immigration judge while continuing to preside over pretrial proceedings against Al-Nashiri, who is being prosecuted by the DOJ. During the time period in which he was seeking employment with the DOJ, Spath issued numerous oral rulings from the bench and more than 450 written orders. The panel wrote that “[r]equiring Al-Nashiri to proceed under the long shadow of all those orders, even if enforced by a new, impartial military judge, would inflict an irreparable injury unfixable on direct review. Al-Nashiri thus has no adequate remedy for Spath’s conduct other than to scrub Spath’s orders from the case at the earliest opportunity.” The court, which has appellate authority over the Guantánamo U.S. military commissions, also vacated all military appeals decisions by the United States Court of Military Commission Review involving orders issued by Spath.

The long-delayed Guantánamo military commission proceedings against Al-Nashiri have been beset by controversy. Captured in 2002, Al-Nashiri was subjected to 14 years of "physical, psychological and sexual torture" in secret CIA-run detention centers. His lawyers unsuccessfully sought to have him tried in civilian court rather than in a military tribunal as a result of the torture. In October 2017, after Spath refused to allow Al-Nashiri’s defense lawyers to investigate the discovery of eavesdropping devices in a meeting room reserved for attorney-client communications, his entire civilian legal team resigned from the case. Judge Spath then held Brigadier General John Baker, the Chief Defense Counsel for the Military Commissions Defense Organization, in contempt after Baker said he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo and refused to reverse his decision authorizing the defense team to withdraw. The civilian Convening Authority of the Guantánamo tribunals, Harvey Rishikof, then intervened to release Baker from detention. The resignations left Al-Nashiri's defense solely in the hands of a single military lawyer, Navy Lt. Alaric Piette, who had never tried a murder case. Spath repeatedly denied Piette’s request for a continuance until expert death-penalty counsel could be appointed, instead telling Piette to “engage in self help” by attending special training to become “more comfortable handling capital matters.” Then, in February 2018, Spate indefinitely halted all pretrial proceedings in the case, and in July 2018 announced his retirement from military service. A Freedom of Information Act request by reporter Carol Rosenberg discovered that Spath had been seeking to become a DoJ immigration judge during this period.

In vacating Spath’s rulings, the federal appeals court wrote: “We do not take lightly the crimes that Al-Nashiri stands accused of committing. To the contrary, the seriousness of those alleged offenses and the gravity of the penalty they may carry make the need for an unimpeachable adjudicator all the more important.”

 

Supreme Court Denies Review in Case of Death Sentence Tainted by Anti-Gay Bias

Posted: April 16, 2019

The U.S. Supreme Court has declined to review the case of a South Dakota death-row prisoner whose jurors made anti-gay statements and relied on homophobic beliefs in deciding to sentence him to death. On April 15, 2019, the Court without comment denied a petition filed by Charles Rhines (pictured) asking the Court to declare that the constitutional right to an impartial jury applies equally to bias against a defendant’s sexual orientation. In a statement responding to the Court’s decision, Shawn Nolan, one of Rhines’ federal appeals lawyers, said: “As Chief Justice Roberts wrote in an earlier case, ‘[o]ur law punishes people for what they do, not who they are.’ New evidence – which has never been heard by any court – shows that some of the jurors who sentenced Mr. Rhines to death did so because of who he was, not for what he did.” The jurors in Rhines’ case knew that he was gay, and, Nolan said, new statements from jurors in the case “show that some jurors … thought that he would enjoy life in prison with other men and it would not serve as a sufficient punishment. The jurors’ anti-gay bias deprived Mr. Rhines of his right to a fair sentencing process under the Sixth and Fourteenth Amendments.”

Rhines had sought review based on the Supreme Court’s 2017 ruling 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.” He argued that the same constitutional principle should apply to bias based on sexual orientation.

Jurors told Rhines’ attorneys that “[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.” Several civil rights groups urged the Court to hear his case. The NAACP Legal Defense and Educational Fund, American Civil Liberties Union, and seven LGBTQ rights organizations submitted amicus briefs in support of Rhines. 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.” Nolan echoed that idea in his statement on the Supreme Court’s denial, saying, “both racial prejudice and anti-gay prejudice have no place in the criminal justice system. Both undermine public confidence in the fairness of the system, particularly when jurors must decide between life imprisonment and death.”

Despite the 2017 decision allowing consideration of racially biased juror comments, the Court has declined to intervene in two cases this term in which death-row prisoners were sentenced to death by racist jurors. On March 18, the Court denied review in the case of Georgia death-row prisoner Keith Tharpe. One of Tharpe’s jurors signed an affidavit saying “there are two types of black people: 1. Black folks and 2. N[**]gers,” and Tharpe was not in “the 'good' black folks category.” This same juror also said he “wondered if black people even have souls.” On April 1, the Court also declined to hear the case of Julius Jones, an Oklahoma death-row prisoner whose jury included a juror who said, “they should just take the n****r out and shoot him behind the jail.” The Court also received harsh criticism after it vacated a federal appeals court stay of execution and permitted Alabama to execute Domineque Ray, a Muslim prisoner who said Alabama’s refusal to allow his imam in the execution chamber amounted to religious discrimination.

 

Post-Midnight Decision on Alabama Execution Highlights Deeply Divided Supreme Court

Posted: April 15, 2019

In a contentious ruling issued in the early morning hours of April 12, 2019, the U.S. Supreme Court vacated a stay of execution issued by lower federal courts and cleared the way for Alabama to execute Christopher Price (pictured). The Court’s 5-4 decision, issued after 2:00 a.m. Eastern time, came after Alabama had postponed Price’s execution minutes before the midnight Central time expiration of his death warrant, with the lower court stay of execution still in effect. Joined by the three other liberal and moderate justices, Justice Breyer authored a scathing dissent that exposed sharp divisions in the Court over the manner in which it considers execution-related challenges in death-penalty cases.

Scheduled to be executed April 11, Price challenged Alabama’s lethal-injection protocol as unnecessarily torturous and –as required by Supreme Court case law – proposed an alternative method of execution. Price selected nitrogen hypoxia, the alternative method of execution made available in Alabama’s death-penalty statute. The Alabama Attorney General’s office opposed Price’s motion, arguing that lethal gas was not available to Price because he had failed to select it during the 30-day window created when Alabama added lethal gas to its execution statute. The district court agreed and denied Price’s claim, prompting an appeal to the U.S. Court of Appeals for the Eleventh Circuit. The circuit court ruled that once Alabama had codified lethal gas as an alternative method of execution under its statute, it could not claim that gas was unavailable to execute Price. However, the circuit court rejected Price’s stay motion, saying he had failed to meet the additional burden imposed by the U.S. Supreme Court that he prove that execution by nitrogen hypoxia would significantly reduce the risk of unnecessarily severe pain during the execution.

Following the 11th Circuit’s ruling, Price returned to the district court with uncontroverted affidavits from medical experts who said nitrogen gas posed a significantly reduced risk of severe pain compared to the state’s lethal-injection protocol. Based on this evidence, the federal district court granted Price a stay of execution. Later in the day, without ruling on the merits of the district court’s order, the 11th Circuit imposed its own stay of execution to consider jurisdictional issues presented by the district court stay. Alabama then filed an emergency motion in the U.S. Supreme Court seeking to vacate the stay, leading to the overnight ruling by the Court.

In a one-paragraph order vacating the stay, the majority said that Price had not timely selected lethal gas during a 30-day window created when Alabama added lethal gas to its execution statute and then waited until February 2019 to challenge the state’s method of execution. As a result, the majority viewed Price’s lawsuit and pre-execution filings as untimely. Justice Stephen Breyer – joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan – wrote an impassioned dissent. “Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way,” he wrote, “let that person review the … circumstances as they have been presented to our Court this evening.” Breyer highlighted the uncontested evidence presented in the courts below: that Alabama’s lethal injection protocol will likely cause Price “severe pain and needless suffering”; that lethal gas is a readily available method, and that lethal gas is likely less painful than Alabama’s lethal injection protocol. Breyer also criticized the majority’s substitution of its judgment for the district court’s finding that Price had been “proceeding as quickly as possible on this issue since before the execution date was set” and was not attempting “to manipulate the execution.” Breyer expressed deep concern for the majority’s insistence on vacating a stay despite his request to consider the issue at a prescheduled conference to be attended by all the justices that morning. “To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system,” Breyer wrote.

Alabama has not yet set a new execution date.

 

New Hampshire Senate Passes Death-Penalty Repeal With Veto-Proof Majority

Posted: April 12, 2019

In a vote death-penalty opponents praised as “historic,” a veto-proof supermajority of the New Hampshire legislature gave final approval to a bill that would repeal the state’s death penalty statute. By a vote of 17-6, the senators voted on April 11, 2019 to end capital prosecutions in the Granite State, exceeding the two-thirds majority necessary to override an anticipated veto by Governor Chris Sununu. In March, the state House of Representatives passed the same abolition bill, HB 455, by a veto-proof 279-88 supermajority. For the second consecutive year, the bill received bipartisan support, including sponsorship by seven Democratic and six Republican sponsors across both legislative houses. Twelve Democratic and five Republican senators voted in favor of repeal. An identical bill to repeal the death penalty passed the legislature in 2018, but was vetoed by Gov. Chris Sununu, and an attempt to override the veto fell two votes short in the Senate.

The Governor’s office issued a statement after the vote saying that Sununu “continues to stand with crime victims, members of the law enforcement community, and advocates for justice in opposing a repeal of the death penalty.” Repeal advocates quickly responded to that claim, noting that numerous retired prosecutors, members of law enforcement, and relatives of murder victims had testified in favor of repeal. Rep. Renny Cushing (D – Rockingham), whose father and brother-in-law were murdered in two separate incidents, was one of the leading proponents of the bill. Cushing has described the death penalty as a “ritualized killing” that does nothing to compensate for a victim’s family’s loss. “The governor has positioned himself as saying he’s vetoing the repeal of the death penalty because he cares about law enforcement and victims, but he’s refused to meet with murder victims’ family members who oppose the death penalty,” Cushing said. Sen. Ruth Ward (R – Stoddard), whose father was killed when she was 7 years old, spoke briefly before casting her vote: “He never saw us grow up. My mother forgave whoever it was, and I will vote in favor of this bill,” she said.

During the Senate debate, senators mentioned costs, racial inequities, and wrongful convictions among their reasons for supporting repeal. Senator John Reagan (R – Deerfield), a Republican who voted in favor of repeal, told The New York Times that he doesn’t trust the government with capital punishment. "The more and more experience I had with government, I concluded that the general incompetency of government didn’t make them the right people to decide life and death,” he said. The New Hampshire legislative vote reflects emerging bipartisanship in state legislative efforts to repeal the death penalty. “The vote to end New Hampshire’s death penalty included many conservative Republican lawmakers,” said Hannah Cox, national manager of Conservatives Concerned About the Death Penalty. “They join a growing number of GOP state legislators around the country who feel strongly that capital punishment does not comport with their conservative beliefs, such as limited government, fiscal responsibility, and valuing life.” Republican-backed bills to abolish the death penalty or limit its use have been introduced in a number of states this year, including Georgia, Kansas, Kentucky, Louisiana, and Wyoming.

The New Hampshire repeal bill applies only to future crimes, and does not address the fate of Michael Addison, the only person on New Hampshire’s death row. No one has been executed in New Hampshire since 1939. If the bill becomes law, New Hampshire will be the 21st state to abolish capital punishment and the ninth in the past 15 years.

 

Missouri Supreme Court Grants New Sentencing Trial to Man Who Was Sentenced to Death Despite 11 Jurors' Votes for Life

Posted: April 11, 2019

The Missouri Supreme Court has ordered a new sentencing trial for Marvin D. Rice (pictured), a former sheriff’s deputy whose trial judge sentenced him to death despite the votes of 11 of his 12 jurors to sentence him to life. On April 2, 2019, the court vacated the death sentence imposed by St. Charles County Judge Kelly Wayne Parker in 2017 under the state’s controversial “hung jury” sentencing provision. Under that law, the trial judge has authority to independently evaluate the evidence and determine the sentence to be imposed whenever the jury vote for life or death is not unanimous. Rice, a former Dent County deputy sheriff and state correctional officer, was charged with murdering his ex-girlfriend, Annette Durham, during a custody dispute over their son and killing her boyfriend, Steven Strotkamp. The jury convicted Rice of capital murder for killing Durham but was deemed hung when a single juror held out for death. It convicted him of second-degree murder in Strotkamp’s death and agreed to a life sentence for that murder. Parker disregarded the jury’s vote and imposed the death penalty for Durham’s murder.

No state in the United States authorizes a judge to override a jury's recommendation of a life sentence and all three states that previously permitted the practice ended it in the past three years. Missouri law, however, considers a non-unanimous vote a nullity rather than a recommendation, entrusting the sentencing decision to the judge. Rice challenged the constitutionality of the statute under the U.S. Supreme Court’s January 2016 ruling in Hurst v. Florida that “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Rice also argued that the prosecutor’s repeated comments about his decision not to testify at trial violated the Fifth Amendment, which bars the use of a defendant’s silence against him. The Missouri court granted a new sentencing trial on the Fifth Amendment issue, avoiding having to decide the constitutionality of the state statute.

No jury has sentenced anyone to death in Missouri since 2013. However, since that time, Missouri judges have sentenced two defendants to death under the hung jury provision. In addition to Dent, a trial judge sentenced Craig Wood to death in 2018 after his jury split 10-2 in favor of a death sentence. As in Dent’s case, Wood’s lawyers have argued that allowing a judge to impose a death sentence when a jury does not reach a unanimous sentencing decision is unconstitutional. In 2016, the Florida Supreme Court and the Delaware Supreme Court struck down provisions in their death-penalty laws permitting judges to impose death sentences based upon non-unanimous jury recommendations for death. Alabama still permits that practice if ten or more jurors have voted for death.

 

Amnesty International 2018 Global Report: Executions Worldwide Fall to Lowest Level in a Decade

Posted: April 10, 2019

Executions worldwide have fallen to their lowest levels in a decade, according to a new report released April 9, 2019 by Amnesty International. In its annual Global Report: Death Sentences and Executions 2018, the human rights organization says it recorded at least 690 executions in 20 countries in 2018, a 31% decline from the 993 executions it recorded in 23 nations in 2017 and 58% below the 1,634 reported executions in 2015. Five countries accounted for 84% of all recorded executions—Iran (253), Saudi Arabia (148), Vietnam (85), Iraq (52) and Egypt (43). Nonetheless, executions in Iran fell by half in 2018, as the country revised its death-penalty law to bar capital punishment for some drug offenses. Data was unavailable for executions in China—where Amnesty says thousands of undocumented executions likely took place—and North Korea, two countries in which information on death sentences and executions is considered a state secret. The 25 executions in the U.S. were the seventh most of any nation.

Amnesty International’s Secretary General Kumi Naidoo called the global decline in executions “dramatic” and said it “proves that even the most unlikely countries are starting to change their ways and realize the death penalty is not the answer.” Although Thailand carried out its first execution in nearly a decade and Japan, Singapore, and South Sudan reported their highest execution levels in years, Naidoo said these “regressive steps” were countered by the significant reduction in executions “carried out by several of the worst perpetrators.”

The report found that global death-sentencing levels in 2018 were similar to those in 2017. Amnesty recorded at least 2,531 death sentences in 54 countries last year, down 2% from the 2,591 reported in 2017. However, death sentences were down 19% from the reported 3,117 death sentences imposed in 55 countries in 2016. The U.S. ranked 12th in death sentences known to have been imposed. Amnesty reported that at least 19,336 people were known to be on death rows around the world at the end of 2018, a 12% decline from the 21,919 people known to be on death row globally at the end of 2017. Only two nations in the Western hemisphere—the United States and Guyana—imposed any death sentences in 2018, the fewest to do so since Amnesty began tracking global death sentences in 1979. For the tenth consecutive year, the U.S. was the only country in the Americas to carry out any executions.

Amnesty characterized the global death penalty as “firmly in decline,” pointing to Burkina Faso’s abolition of the death penalty for ordinary crimes, moratoria on executions declared in the Gambia and in Malaysia, and the Washington state supreme court’s declaration that the death penalty in that state was unconstitutional. At the end of 2018, Amnesty said, 106 countries had abolished the death penalty in law for all crimes and 142 had abolished it in law or practice. In December, a United Nations General Assembly resolution calling for a global moratorium on the death penalty received the support of a record 121 countries, while only 35 nations opposed the resolution. “Slowly but steadily, global consensus is building towards ending the use of the death penalty,” Naidoo said, “but with more than 19,000 people still languishing on death row worldwide, the struggle is far from over.”

 

Texas Court Stays Execution of Prisoner Whose Lawyer Deliberately Excluded Black Jurors

Posted: April 9, 2019

The Texas Court of Criminal Appeals has stayed the execution of Mark Robertson (pictured), a Dallas death-row prisoner whom Texas had scheduled for execution on April 11, 2019. The court’s April 8 stay order did not specify the reason it halted the execution, but Robertson’s lawyers had filed an appeal seeking review of their claim that his court-appointed trial lawyer, Michael Byck, had “engaged in purposeful discrimination” by deliberately excluding African Americans from serving on his jury. In 1997, Byck testified in a hearing in the case that he had been "more than happy to violate anybody else's rights” in picking a jury and that he had intentionally struck prospective black jurors. He also testified that he had told prosecutors prior to the trial that he “didn't want to have any blacks on the jury” because he believed they would not be sympathetic to Robertson, a white defendant. The Dallas County District Attorney’s office had a long history of racially discriminatory jury selection practices, and Byck testified that he and the prosecutors had agreed to “indulge each other” in their “prejudices.”

Race discrimination in death-penalty jury selection has been an issue for decades. In 1965, the U.S. Supreme Court in Swain v. Alabama, upheld a death sentence imposed by an all-white Alabama jury on a black defendant charged with rape, imposing on the defendant the burden of proving that the prosecutor in a county had systematically removed all black jurors in “case after case … with the result that no Negroes ever serve on petit juries.” In Dallas County, a 1963 office manual instructed prosecutors not to “take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.” In 1986, the Supreme Court ruled in Batson v. Kentucky that Swain had erected an insurmountable evidentiary burden and declared that the removal of even a single prospective juror on the basis of race was unconstitutional. Dallas prosecutors nonetheless continued to discriminatorily strike black jurors, and District Attorney Henry Wade – the county D.A. from 1951 to 1987 – once threatened an assistant prosecutor, “If you ever put another n****r on a jury, you’re fired.” In 2005, in the case of death-row prisoner Thomas Joe Miller-El, the U.S. Supreme Court found that the Dallas D.A.’s office had a “culture of discrimination” that was “suffused with bias against African-Americans.” It twice reversed lower court decisions that had denied Miller-El relief for the racial discrimination in his case and granted Miller-El a new trial.

Jeremy Schepers, one of Robertson’s attorneys, unequivocally condemned Byck’s discriminatory actions. “Mr. Robertson’s trial attorney testified under oath that it was his ‘conscious desire’ to keep African Americans off the jury,” Schepers told the Houston Chronicle. “And, through a variety of methods he succeeded in doing just that. By now there should be no confusion on this matter – racial discrimination in the administration of justice is intolerable. The courts should not hesitate to denounce this unacceptable behavior.” In a motion filed in Robertson’s case, attorney Lydia Brandt urged the court to intercede, rather than allow a death sentence tainted by discrimination to stand. “In the end, Mr. Byck succeeded in his discriminatory plan – Mr. Robertson was tried by an all-white jury,” she wrote. “At best, the State turned a blind eye towards Mr. Byck's discrimination; at worst, they were a willing co-conspirator.”

 

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

Posted: April 8, 2019

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.”

 

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