Beth Kissileff (pictured), a writer and the wife of a rabbi who survived the shooting rampage that killed eleven worshippers at Pittsburgh’s Tree of Life synagogue, has asked the U.S. Department of Justice not to seek the death penalty against the man charged with committing those murders. In an opinion article for the Religion News Service, Kissileff wrote that she and her husband, Rabbi Jonathan Perlman of Pittsburgh’s New Light Congregation, engaged federal prosecutors and a social worker who had come to discuss the trial of the white supremacist accused of the act of domestic terrorism in “a discussion of Jewish concepts of justice.” Three members of the New Light Congregation were among those murdered in the synagogue. Rabbi Perlman, Kissileff wrote, told the prosecution team: “Our Bible has many laws about why people should be put to death. … But our sages and rabbis decided that after biblical times these deaths mean death at the hands of heaven, not a human court.” She writes, “if as religious people we believe that life is sacred, how can we be permitted to take a life, even the life of someone who has committed horrible actions?”
Kissileff bases her conclusion that a sentence of life without parole for the synagogue shooting is more appropriate than death both on Jewish teachings against the death penalty and on her hope that the killer might yet change his white supremacist beliefs. She wrote in an article for The Jerusalem Post that “[w]hen Jews are killed just for being Jewish, we commemorate them with the words ‘Hashem yikom damam,’ may God avenge their blood. This formulation absents us from the equation since it expresses that it is God’s responsibility, not ours, to seek ultimate justice. As humans, we are incapable of meting out true justice when a monstrous crime has been committed.” She explains that, although the Torah calls for a death sentence for some crimes, Jewish tradition teaches that death sentences should be very rare, if they are allowed at all. She writes that “a Jewish court is considered bloodthirsty if it allows the death penalty to be carried out [even] once every 70 years.”
Though recognizing that repentance is rare, Kissileff said nonetheless “[t]here is always a chance for redemption. Calling for the death penalty means there is no possibility for the shooter to repent, to change or to improve. I would rather not foreclose that possibility of change, slim as it may be, by putting someone to death.” She recounted the cases of white nationalists Derek Black, who renounced his hatred of Jews after being invited to Shabbat dinners by Jewish students at his college, and Arno Michaelis, a former skinhead leader who later co-authored a book on forgiveness with a man whose father was among the seven congregants murdered in a hate attack on a Sikh temple in Wisconsin. Referring to these examples, Kissileff said “[n]either [man] might have been expected to change their beliefs, and yet they have.”
Kissileff’s articles describe the legacy of those who were killed in the Pittsburgh attack and how the shooting has inspired others to become more involved in the synagogue and to learn more about their Jewish faith: “Creating more knowledge of what Judaism and Jewish values are, and encouraging more Jews to commit to them, is the most profound way to avenge their blood.” She writes that, “rather than seeking the shooter’s death,” a better response for Jews would be “strengthening other Jews and Jewish life in Pittsburgh and around the world. Doing so will mean that Jews, not forces of evil, have the ultimate victory.” She concludes: “The most important vengeance for the murder of 11 Jews or 6 million is for the Jewish people to live and the Torah to live, not for their killer to die.”
Two prosecutors with different philosophical perspectives on capital punishment have called on their respective states to abolish capital punishment. Boulder County, Colorado, District Attorney Michael Dougherty (pictured, left), who opposes capital punishment in principle, and former Washoe County, Nevada, homicide prosecutor Thomas E. Viloria (pictured, right), who has successfully obtained four death verdicts, have added their voices to support efforts to repeal the death penalty in their states. Though approaching the issue with different ideologies, both prosecutors agreed that the death penalty should be eliminated because of its high cost, its ineffectiveness as a crime deterrent, and its potentially detrimental effects on victims’ families.
In comments to legislators on March 4, Dougherty said, “I’m strongly opposed to the death penalty, and it should be abolished in Colorado. … I don't believe any state or country should put its citizens to death.” The high costs in time and resources can’t be justified, he also stated, particularly in a jurisdiction such as Boulder in which juries don’t believe it should be imposed. “I talk to victims' families about it,” Dougherty said, “and one of the things we always focus on in these conversations, is it is up to the jury to decide on a sentence, and a Boulder jury would have to reach a unanimous verdict finding the death penalty sentence is morally just. As Boulder district attorney, I will not simply ignore the law that allows for use of the death penalty, but I must weigh a prosecutor’s ethical obligation to only pursue charges that can be proven beyond a reasonable doubt. I don’t believe a Boulder jury would reach a unanimous verdict finding a death sentence is justified.” Dougherty also expressed qualms about using the threat of death to obtain plea deals. “I have significant ethical concerns if people were ever to use the death penalty to motivate a guilty plea to a lesser sentence,” he said. “I would never want any prosecutor to say that a defendant has to accept life without parole in order to avoid the death penalty.”
Viloria has also come to oppose capital punishment, but he took a very different route in reaching that conclusion. In an op-ed for the Reno Gazette Journal, Viloria wrote about his experiences prosecuting five death-penalty cases and obtaining death sentences in four. “In each of the cases I prosecuted, the victim’s family members believed the death penalty would help close their emotional wounds,” Viloria said. “Yet because none of those inmates have been executed many years later, family members haven’t received that promised closure.” He said “[d]eath penalty cases rightfully demand greater scrutiny, so murder victim family members often suffer more trauma than murder victim families in non-death penalty cases. They must endure more media coverage, court appearances, and appeals, plus, often times, a reversal of the death sentence.” Viloria also pointed to systemic problems in the administration of capital punishment, writing that the death penalty “is often unevenly and unfairly applied, partly because it is sought at the sole discretion of a particular prosecutor or prosecutorial administration. It is extremely costly to taxpayers and, because the state has no drug supply to administer an execution, it is uncertain if Nevada can even carry out the death penalty.” Viloria urged the Nevada legislators to conduct a hearing on the abolition bill “so lawmakers can decide the very serious issue of whether to maintain our broken death penalty system.”
Legislatures in Nevada and Colorado are both considering bills that would abolish the death penalty. Colorado’s bill, SB 19-182, passed the Senate Judiciary Committee by a 3-2 vote on March 6, 2019. Nevada’s bill, AB 149, has not yet received a hearing.
NEW PODCAST: The Race Study that Convinced the Court to Declare Washington’s Death Penalty UnconstitutionalPosted: March 14, 2019
In October 2018, the Washington Supreme Court unanimously struck down the state’s death penalty, finding that it had been “imposed in an arbitrary and racially biased manner.” In reaching its decision in State v. Gregory, the court relied upon a study of twenty-five years of Washington State capital prosecutions that demonstrated that Washington juries were 4.5 times more likely to impose a death sentence on a black defendant than on a white defendant in a similar case. The authors of that study, Dr. Katherine Beckett (pictured, left) and Dr. Heather Evans (pictured, right), join DPIC’s Managing Director Anne Holsinger in the latest episode of our podcast, Discussions with DPIC, to discuss their research and its impact on the court’s decision to strike down the state’s death penalty. Beckett and Evans describe the factors they examined at various stages of capital sentencing, the major results of their study, and the role social science research plays in policymaking.
One of the most dramatic findings of the Washington study was that racial bias was rampant in the state’s capital sentencing outcomes even though there was no statistical evidence of racial discrimination in prosecutorial decisions on whether to seek the death penalty. “The research literature has identified a number of factors that contribute to bias in decision-making outcomes by juries,” Beckett explained. “We know, for example, that implicit bias is pervasive and affects perception and decision-making. … The death-qualification process is also a contributing factor, so we know that people who are in favor of the death penalty are more likely to exhibit implicit and possibly explicit bias. By excluding people who don’t feel comfortable or are philosophically opposed to the death penalty, we amplify the implicit bias that exists in the general population.” They noted that “substantial changes” would have to be made to the process of jury selection in capital cases in order to reduce the effects of implicit bias.
Although their study profoundly influenced capital litigation in Washington, Beckett and Evans said the information that allowed them to prove discrimination in sentencing may not be available in some other states. Under Washington’s death-penalty statute, the state supreme court was required to conduct proportionality review to determine whether a sentence was disproportionate to others imposed in similar circumstances. As a result, the state courts kept thorough records of the facts of murder convictions that are not necessarily available in other states. The researchers also noted that because the Washington Supreme Court decision was ultimately based on state constitutional law, other state courts might reach a different conclusion even if defendants could show similar patterns of bias in their state sentencing practices. With those caveats, Beckett and Evans believe that courts in other death-penalty states could benefit from similar studies. They noted that the Washington Supreme Court engaged “thoughtfully” and “deeply” with their research and found it heartening that “facts and evidence and rigorous research could be included in a deliberation of how to achieve more equity in the criminal justice system.”
California Governor Gavin Newsom on March 13, 2019 declared a moratorium on executions in the state with the nation’s largest death row. Newsom implemented the moratorium through an executive order granting reprieves to the 737 prisoners currently on California’s death row. He also announced that he was withdrawing the state’s execution protocol—the administrative plan by which executions are carried out—and was closing down the state’s execution chamber. In his executive order imposing the moratorium, Newsom said, “I will not oversee the execution of any person while Governor.”
With the governor’s announcement, California joins Colorado, Oregon, and Pennsylvania as states in which governors have imposed moratoria on executions, meaning that more than one-third (34.1%) of all death-row prisoners in the U.S. are now incarcerated in states in which governors have said no executions will occur. As a result of legal challenges to the state’s execution protocol and appeals challenging the constitutionality of the state’s death-penalty system, California has not carried out an execution since 2006. “Our death penalty system has been, by all measures, a failure,” Newsom said in a statement accompanying his moratorium declaration. “It has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation. It has provided no public safety benefit or value as a deterrent. It has wasted billions of taxpayer dollars. But most of all, the death penalty is absolute. It’s irreversible and irreparable in the event of human error.”
Despite the large number of death sentences in California, the state has conducted only 13 executions since reintroducing the death penalty in 1978. A 2011 study estimated the state had spent more than $4 billion on death penalty trials, appeals, and incarceration, and estimated an annual savings of $170 million if the death penalty were abolished. In his executive order, the governor said that the cost has since risen to $5 billion. In his remarks at the news conference, Newsom said that 164 wrongly convicted prisoners have already been exonerated from U.S. death rows since 1973, and an estimated 30 innocent prisoners may be among those still sentenced to death in California. In 2012 and 2016, voters narrowly rejected referenda that would have abolished capital punishment. In 2016, a voter referendum intended to speed up executions by limiting appeals passed by a two-percentage point margin. That measure, Proposition 66, was upheld but curtailed by a 2017 California Supreme Court decision.
Governor Newsom follows the lead of governors in three other Western U.S. states who have imposed moratoria on executions in the last decade. Governors John Kitzhaber of Oregon (November 2011), John Hickenlooper of Colorado (May 2013), and Jay Inslee of Washington (January 2014) halted executions in their states, and Kate Brown of Oregon announced in February 2015 that she would extend the existing moratorium. Washington’s supreme court struck down the death penalty in October 2018 on grounds of geographic arbitrariness and racial bias, making it the 20th state to abolish the death penalty. Legislators in Colorado and Oregon are considering bills to abolish or seriously restrict the death penalty, and a Republican-backed bill to repeal the death penalty passed the Wyoming state House and a Senate committee earlier this year before failing in a vote before the full Senate. No state west of Texas carried out any executions in 2018, and those states collectively imposed the fewest new death sentences since California brought back capital punishment in 1978. Newsom said “[t]he intentional killing of another person is wrong” and that his moratorium was a first step towards the ultimate goal of ending the death penalty in California.
Prosecutors in separate capital cases in Indiana, Florida, and Texas have dropped pursuit of the death penalty in order to end notoriously lengthy delays and facilitate healing for the victims’ families. On March 8, 2019, St. Joseph County, Indiana prosecutors agreed to a plea deal instead of a third death-penalty trial for Wayne Kubsch (pictured) at the request of the victims’ family. Kubsch was initially sentenced to death in 2000 and received the death penalty a second time in 2005, but both times his triple-murder convictions was overturned. In announcing the plea agreement, St. Joseph County Prosecutor Kenneth Cotter said “[t[he family actually asked us to take the death penalty off. They wanted to remember their loved ones, not remember him every time he came back with another appeal.” Kubsch pled guilty and was sentenced to life without parole, agreeing to waive his right to appeal his sentence. “I'm 75 years old. I'll soon be 76. And we decided that the best thing would be life in prison, because that way we don't have all the appeals. We don't have all this to go through and the kids don't have to deal with this constantly,” said Diane Mauk, the mother of victim Beth Kubsch. Chief Deputy Prosecutor Eric Tamashasky said, "For the family, this gives them the closure that they’ve so desperately needed for 20 years.”
Prosecutors also decided to drop the death penalty to end lengthy pre-trial delays in cases in Florida and Texas. After eight years of proceedings in what news reports described as Hillsborough County’s “longest-running murder case that has yet to see trial,” Florida state attorneys announced on February 4 that they would no longer seek the death penalty against Michael Keetly. Keetly had been in pretrial detention for nearly 3,000 days. Keetly’s attorney, Lyann Goudie, said she had recently presented mitigating evidence to the prosecutors in an effort to persuade prosecutors that they were unlikely to obtain a unanimous vote for death, and had challenged the ballistic evidence and eyewitness identification the prosecution intended to present at trial. Following the prosecution’s decision, the case is now scheduled to go to trial in June. Todric Deon McDonald was charged with two counts of capital murder in McLennan County, Texas, more than four years ago. In 2018, with the case facing additional delays to permit the defense to prepare for a potential penalty phase, the victims’ families told prosecutors they supported withdrawing the death penalty if it meant the case would proceed to trial as scheduled. The prosecutors dropped the death penalty in August 2018 and jury selection began on February 11, 2019, after McDonald had spent 1,733 days in jail. McDonald was convicted three days later and sentenced to life without parole.
A death-penalty trial requires extensive pretrial preparation, because defense attorneys have to conduct an in-depth investigation into their client’s life history and mental health to present mitigating evidence in the event their client is convicted. The longer pretrial period is one of many reasons why death-penalty trials are significantly more expensive than trials in which a death sentence is not an option. There is also a lengthy appeals process if a defendant is sentenced to death, and at that point, the most likely outcome is that the conviction or death sentence will be reversed.
After controversial executions raised questions of government competence or misconduct, legislatures in two states have responded with bills taking sharply different approaches to the questions of government accountability and public oversight. Following an execution in which Nebraska Department of Corrections officials closed the curtain on fourteen crucial minutes of the execution of Carey Dean Moore, the Nebraska Senate Judiciary Committee heard testimony on March 7, 2019 on a bill that would mandate that two legislators witness an execution and require that eyewitnesses be permitted to observe the entirety of an execution from the moment the condemned prisoner enters the execution chamber to the time death is declared or the execution is called off. By contrast, an Arkansas state senator has responded to a lawsuit by pharmaceutical companies challenging widespread improprieties in the state’s procurement of execution drugs with a proposal that the state adopt the most extreme and punitive drug-secrecy law in the country.
In her statement to the Judiciary Committee, Nebraska State Sen. Patty Pansing Brooks of Lincoln (pictured, left), who sponsored Legislative Bill 238, said legislation was necessary to redress the “profound” lack of transparency in the state’s execution process. “This bill is not about whether the death penalty is right or wrong,” she said, “it’s about whether we have proper government accountability and transparency in carrying out this grave and somber event.” Corrections Director Scott Frakes, whom committee members criticized for failing to appear personally to respond to questions about the Moore execution, sent a letter to the committee opposing the bill. Omitting reference to the periods of the execution in which the execution-IV line was inserted and the curtain was dropped, Frakes claimed that “[w]itnesses observe the entire execution process." Referring legislators to the Death Penalty Information Center’s November 2018 report on execution secrecy in the United States, DPIC Executive Director Robert Dunham told the committee of numerous incidents in which eyewitness observations could have resolved serious questions about problematic executions. Dunham told the committee that in a government by and for the people, the state “shouldn't hide important information from the people.”
In Arkansas, a bill introduced in the state senate sought to further conceal the state’s controversial execution practices. On March 6, the Senate Judiciary Committee approved a bill sponsored by State Sen. Bart Hester (pictured, right), that would broadly exclude from public disclosure any documents, records, or information that could lead to the discovery of the state’s sources of execution drug or the identification of drug manufacturers or distributors. The bill also would make reckless disclosure of such information a felony. Arkansas’s conduct in procuring execution drugs, which led drug distributor McKesson Medical-Surgical to sue the state alleging that Arkansas had deliberately misled the company to believe that the drug purchase was for legitimate medical purposes, raised questions concerning the need for transparency in the execution process. Those questions were heightened following evidence of additional problems during executions with those drugs. After Arkansas state courts ruled that the state’s prisons must disclose portions of the pharmaceutical drug and packaging labels for the drugs it intended to use in executions, the Department of Corrections said it was suspending its search for new supplies of execution drugs until the legislature adopted even broader secrecy laws.
Hester downplayed the importance of transparency concerns, calling a March 8 meeting of a legislative Freedom of Information Act Task Force “a waste of my time.” Refusing to attend the meeting, Hester said “[a]nything that they have to say on it I don't think has value.” In an email to the Associated Press, Dunham said, “If a state wanted to break the law and breach contracts with impunity and hide its misconduct from the public, [the Arkansas bill] is the type of bad-government law it would pass.”
By an overwhelming 279-88 margin, a veto-proof majority of the New Hampshire House of Representatives voted on March 7, 2019 to repeal the state’s death penalty. Demonstrating strong bipartisan support that garnered the backing of 56 more legislators than an identical repeal bill received in April 2018, the vote ended speculation as to how the reconstituted chamber would respond to repeal. 93 of the 400 representatives in the state house who participated in the vote in 2018 did not seek reelection, and more than one-third of the representatives had never before voted on a death-penalty issue. The bill now advances to the State Senate, where 16 of the 30 senators elected in November 2018 have said they support repeal, also a veto-proof majority. A death penalty repeal bill has been considered by the Granite State’s lawmakers every session over the last two decades and was passed by the state’s House and Senate in April 2018. However, Governor Sununu vetoed that bill in June, and the Senate fell two votes shy of the two-thirds supermajority needed to override the veto.
More than 100 witnesses testified at public hearings conducted by the House Criminal Justice and Public Safety Committee in February, with more than 90 advocating for repeal. Representative Renny Cushing, the committee’s chairman and the prime sponsor of the bill, said, “We had a very powerful, public hearing ... with all the reasons to oppose the death penalty presented in a really clear fashion.” Cushing, whose father and brother-in-law were murdered in two different incidents, has been a death-penalty abolitionist for more than two decades. The death penalty “does nothing to bring back our loved ones,” he said. “All it does is widen the circle of violence.” Republican Representative David Welch, who supported the death penalty in the last 16 legislative sessions, said his wife’s recent death made him rethink capital punishment. “The grief I’ve experienced since then has been horrible and it has not diminished,” he said. “An inmate on death row has loved ones that care for him in spite of what he has done. The victim’s family goes through grief similar to what I went through. When that inmate is put to death, there’s another family going through that grief. Both families are innocent, and they both went through the same thing.” Freshman Democratic Representative Safiya Wazir, whose family fled Afghanistan when she was a child, argued that the United States should not be among the “terrible list of states that use the death penalty” – like Iran, Iraq, and Saudi Arabia. Discussing the state’s “Live Free or Die” motto, she said, “Let’s put the emphasis on living. New Hampshire is better than this.”
The prospective repeal bill would not affect the only prisoner currently on New Hampshire’s death row, Michael Addison. The state has not executed anyone since 1939.
A new study of fourteen years of Pennsylvania murder convictions has documented a sharp decline in county prosecutors’ use of capital punishment across the Commonwealth. After examining the court files of 4,184 murder convictions from 2004 to 2017, the Allentown Morning Call found that Pennsylvania prosecutors sought the death penalty at more than triple the rate (3.3) at the start of the study period than they did fourteen years later — a drop of more than 70%. In 2004, the paper reported, prosecutors sought the death penalty in 123 of 309 (39.8%) murder cases that ultimately resulted in a conviction. In 2017, they sought it in 33 of 271 cases (12.2%). While there were some year-to-year fluctuations in death-penalty usage over the 14-year period, the pattern showed a clear long-term downward trend. Though most (59) of Pennsylvania’s 67 counties had at least one capital prosecution, the change was largely driven by the steep decline in the pursuit of the death penalty in Philadelphia. The city, which had 88 prisoners on its death row in January 2013 — the third highest of any city or county in the country — dropped from seeking death in more than half of all murder convictions (69 out of 134) in 2004 to 15% of the cases (16 out of 106) in 2017. The Morning Call reported that of the more than 1,100 case files of capital prosecutions it reviewed, 56 resulted in death sentences during the study period. The rest ended in plea bargains or sentences other than death.
The decline in capital prosecutions accompanies a twenty-year hiatus in executions in Pennsylvania during which the state and federal courts have overturned nearly 200 Pennsylvania capital convictions or death sentences, and a drop in public support for the death penalty. A 2015 poll by Public Policy Polling reported that 54% of Pennsylvania respondents said they preferred some form of life sentence as the punishment for murder, as compared to 42% who said they preferred the death penalty. Death sentences have also plummeted by nearly 90%. According to statistics from the Pennsylvania Department of Corrections, the state imposed an average of 15.8 death sentences per year in the five-year period from 1989-1993. But by 2004-2008, the average had fallen to 5.2 death sentences per year, and it dropped to only 1.8 death sentences per year from 2014-2018.
Prosecutors “are scrutinizing these decisions much more than ever before,” said Berks County District Attorney John T. Adams, former president of the Pennsylvania District Attorneys Association. “All of us are very cognizant of the fact that there’s a lot that we as prosecutors are asked to do as far as seeking the death penalty.” Marc Bookman, co-director of the Atlantic Center for Capital Representation, which advises lawyers who are handling death-penalty trials, said, “Mostly it is just a recognition that it is a failed public policy. We’re seeing it more and more coming from elected officials, saying it is a failed public policy.” Governor Tom Wolf imposed a moratorium on executions in 2015, and said he intends to extend that moratorium until the legislature addresses problems identified by the Pennsylvania Task Force and Advisory Committee on Capital Punishment. “He looks forward to working with the General Assembly on their plans to address the report and its recommendations for legislative changes, all of which he believes should be debated and considered,” the governor’s spokesperson said in a statement.
For the first time in more than a decade, a jury in Wake County, North Carolina has sentenced a defendant to death. On March 4, 2019, a capital sentencing jury voted to impose the death penalty upon Seaga Edward Gillard, convicted of the double murder of a pregnant prostitute and her boyfriend, who was assisting her in her business. It was the county’s tenth death-penalty trial since 2008, but juries had rejected a death sentence in each of the previous nine cases. Prosecutors portrayed the Caribbean-born Gillard as a man who preyed on sex workers and told the jury that the case was about securing “maximum justice.”
The sentence bucks a trend in North Carolina, where the use of the death penalty has declined significantly over the last decade. Just 14 death sentences have been imposed in the state from 2009-2018 – more than a 90% decline off the peak of 241 death sentences imposed from 1991-2000 – and North Carolina has not carried out an execution since 2006. However, Wake County has continued to be an outlier in the state. The ten Wake County prisoners on North Carolina's death row at the end of 2012 placed the county among the 2% of counties that accounted for 56% of all prisoners on U.S. death rows. Gretchen Engel, executive director of North Carolina’s Center for Death Penalty Litigation criticized the prosecution as wasteful and discriminatory. “Since taking over as Wake district attorney, Lorrin Freeman has pursued the death penalty more than any other prosecutor in North Carolina, costing taxpayers millions of dollars,” Engel said. “That is a poor investment, even in this case.”
Wake County has had four capital trials since Freeman’s election in 2014, with another capital case in jury selection. Eight of the ten prisoners on the county’s death row are Black, one is Latino, and just one is white, and eight of the ten defendants tried capitally since 2008 have been Black. “All it shows is that, if you try ten death penalty cases in a row and exclude from the jury all the people who oppose the death penalty, you can find a jury that will sentence a person to death despite the death penalty's documented unfairness,” Engel said. Although Engel said Gillard committed a serious crime for which he should be punished, she questioned whether his crime was “the worst of the worst.” In March 2016, Wake County jurors sentenced Nathan Holden to life for the double-murder of his ex-wife's parents and attempted murder of his ex-wife. In January 2018, in a crime Freeman had called “everybody’s worst nightmare,” a jury also sentenced Donovan Jevonte Richardson to two life sentences for a home break-in that ended in a double murder. “Wake County jurors have refused to impose the death penalty in other double homicide cases and even in a case in which the defendant was convicted of murdering five people,” Engel said. “All today's verdict shows is what we already knew: That the death penalty is imposed arbitrarily, and disproportionately on black men.”
Whose interests does a lawyer represent, the capital defendant whose life is at stake or the abusive father paying for his defense? Alabama death-row prisoner Nicholas Acklin (pictured) is seeking U.S. Supreme Court review of that issue because he alleges that the lawyer who represented him at trial had a financial conflict of interest that affected the way he represented Acklin in the penalty phase of his capital trial. Nick Acklin’s father, Theodis Acklin, paid for the legal services of Behrouz Rahmati to represent his son in the 1998 death-penalty trial. Two days before trial, as Rahmati belatedly investigated his client’s background, he learned from Nick’s mother, Velma, that Theodis had physically abused her, Nick, and Nick’s brothers, holding them at gunpoint and threatening to kill them. Rahmati asked Theodis to testify about the abuse, believing that the mitigating factor could help persuade the jury to spare Nick’s life. Theodis then gave Rahmati an ultimatum: “You tell Nick if he wants to go down this road, I’m done with him” and “done helping with this case.” Rahmati told the jury nothing about the child abuse, instead presenting testimony from Theodis that Nick had been raised in a “Christian home” with “good values.” The jury then voted 10-2 to recommend a death sentence, and the trial court imposed the death penalty, reasoning that, unlike “most killers” who are the products of abusive childhoods, Nick had chosen to reject the good values with which he had been raised.
Acklin’s petition for Supreme Court review is supported by friend-of-the-court briefs filed by four legal ethics scholars and by former Alabama appeals court judges and presidents of the Alabama State Bar. The brief of the legal ethics professors urges the Court to overturn Acklin’s death sentence, saying that Rahmati “labored under an acute and obvious conflict of interest” that violated ethics norms and rules of professional responsibility applicable in every jurisdiction in the United States. Once Theodis threatened to withdraw funding, the scholars wrote, Rahmati had a clear conflict: “He could serve his client’s interest by making the best argument possible against the imposition of the death penalty, or he could protect his own interests by avoiding antagonizing the paymaster.” At that point, they wrote, “ethics rules unanimously required Rahmati to secure an alternative fee arrangement or obtain Acklin’s informed consent to the conflict, or else seek to end the representation. None of these things occurred.” Instead, without providing Acklin the advice of conflict-free counsel, Rahmati had Nick sign a “waiver” stating that he did not want to raise the abuse issue during his trial.
The former judges and bar presidents—including Alabama Supreme Court Chief Justice Ernest Hornsby, Justice Ralph Cook, and Alabama Court of Criminal Appeals Presiding Judge William Bowen—wrote that “The obligation of loyalty is at its most acute in a death penalty case, where its disregard may cost one’s client his life.” Rahmati’s conduct, they wrote, was an “utter abandonment of his client’s interests” that was exacerbated by counsel’s incompetence. “Any reasonable mitigation investigation would have revealed childhood abuse by Acklin’s father months before trial,” they wrote, when “counsel could have avoided the conflict by not becoming financially beholden to Acklin’s abuser.” Counsel also violated the duty of candor to the court, the judges and bar presidents wrote, “by knowingly presenting false and misleading testimony [that] the trial court expressly relied upon … in sentencing Acklin to death, while counsel stood silent.”
Nick Acklin’s lawyers have asked the U.S. Supreme Court to overturn his death sentence and clarify the rules regarding attorney conflicts of interest. In 2013, an Alabama trial judge held an evidentiary hearing, ultimately rejecting Acklin’s claim. The legal ethics scholars’ brief called that decision a “departure from precedent and prevailing ethics norms.” The former judges urged the Supreme Court to intercede, saying Acklin’s execution under these circumstances would be unjust to him and would also damage “our system of justice itself.”