Delaware Supreme Court Overturns Third Death Sentence in Two Years Due to Prosecutorial Misconduct
For the third time in two years, the Delaware Supreme Court has reversed the conviction of a death row inmate because his trial was tainted by prosecutorial misconduct. On December 14, the court ordered a retrial for Chauncey Starling, who was convicted in 2003 of killing two people in a Wilmington barber shop, in part because prosecutors had failed to disclose that they had dropped charges against a key witness for violating his parole. Instead, prosecutors informed defense counsel that those charges were still pending. Earlier this year, the court overturned the conviction of Isaiah McCoy because of misconduct by a deputy attorney general, who was later suspended from practicing law as a result of seven ethical violations in the case. In 2014, Jermaine Wright was granted a new trial because prosecutors and police withheld exculpatory evidence about possible alternate suspects in a case in which no forensic or eyewitness evidence linked Wright to the crime. No physical evidence linked Starling to the barbershop murders, as well. The court ruled that the misconduct, in combination with two prejudicial failures by defense counse, had denied Starling a fair trial. The court wrote, "Like all citizens, [Starling] is entitled to a fair trial that adheres to the procedural requirements with effective representation. Because those procedural requirements were not met, and counsel defending him was ineffective, we are compelled to reverse and remand for a new trial and proceedings not inconsistent with this opinion."
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STUDIES: Requiring Jury Unanimity Would Decrease U.S. Death Sentences by 21%
The U.S. Supreme Court heard oral argument on October 13 in Hurst v. Florida, a case challenging provisions in Florida's death penalty statute that do not require jurors to unanimously agree to the facts that could subject a defendant to a death sentence or to reach unanimity before recommending that the judge sentence a defendant to death. Florida is one of just three states that does not require a unanimous jury verdict when sentencing someone to death. A study by the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School found that requiring jury unanimity in Florida, Alabama, and Delaware would have caused a dramatic drop in death sentences over the last 5 years. Overall, the three states would have returned 26 death sentences since 2010, instead of 117 - a 77% drop - and Florida would have imposed 70% fewer death verdicts. The three states that do not require unanimity in death sentencing have produced a disproportionate share of the nation's death sentences, accounting for 28% of all U.S. death sentences since 2010. Had these states followed the sentencing system used by every other death penalty state, the total number of death sentences imposed in the United States would have decreased by 21%. (Click image for full infographic.)
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Federal Judge: Delaware Execution "Highlights Profound Failings in Our Judicial Process"
U.S. District Court Judge Gregory M. Sleet has criticized the lack of judicial review provided by the state and federal courts prior to Delaware's 2012 execution of Shannon Johnson, saying Johnson's execution "highlights profound failings in our judicial process." In an article in the American Bar Association's Criminal Justice magazine, Judge Sleet - who was Chief Judge at the time of the case - called "[t]he Johnson case, and its result, ... by far the most troubling I have encountered." Johnson confessed to the crime and sought execution by waiving his appeals. Johnson's state court lawyer then advocated in support of his wish to be executed and opposed efforts by lawyers for Johnson's relatives to obtain review of his mental state. Questions about Johnson's mental competence and the state's process for determining competence were never reviewed by any court. Sleet stayed the execution twice, expressing concerns about flaws in the state competency proceedings, but the stays were lifted by the federal Court of Appeals for the Third Circuit. "[T]he case was and remains disturbing to me because, in the unnecessary haste to execute Johnson before his execution certificate expired — a haste arguably exacerbated by the State and the Third Circuit – I believe that the judiciary's fundamental role of ensuring due process, as realized through an adversarial process, was sacrificed or, at the very least, undermined," Sleet wrote. Sleet argued that Johnson's case illustrates larger problems in the death penalty system. "[I]f one of the goals of our adversarial process is, as I believe it to be, to 'preserve the integrity of society itself,' we must face the fact that, in so far as the administration of the death penalty is concerned, the process is broken," he said.
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Delaware Prosecutor Suspended for Misconduct in Capital Trial
The Supreme Court of Delaware voted unanimously on July 27 to suspend former Deputy Attorney General R. David Favata as a result of his misconduct during a recent capital trial. With a single dissent as to the length of the suspension, the Court banned Favata from the practice of law for six months and one day for intentional misconduct during the capital trial of Isaiah McCoy. Earlier this year, the state Supreme Court overturned McCoy's conviction and death sentence and ordered a new trial because of Favata's misconduct. The court found that Favata had committed seven distinct ethical violations in McCoy's case, including vouching for the testimony of a key government witness, repeatedly belittling McCoy as he attempted to represent himself at trial, and lying to the judge about attempting to intimidate McCoy. At one point, Favata objected to defense questioning of the victim's girlfriend and during the objection told the jury that McCoy had "shot her boyfriend." During a break in the proceedings, Favata commented in front of McCoy about a mafia code of silence, and said he would put a detective back on the stand to tell everyone that McCoy was a snitch. After McCoy raised the matter with the court, Favata lied about making these comments, prompting a court officer to pass a note to the judge saying that McCoy was telling the truth. Favata also repeatedly disparaged McCoy's attempt to represent himself, saying "The trouble with dealing with somebody with a limited education and no legal education is he doesn't clearly understand what he's reading." The prosecutor also demeaned McCoy by telling him to "start acting lke a man" and criticizing his attire, saying "You can dress him up. He’s still a murderer.” The case was the second time since 2014 that Delaware courts granted a new trial for prosecutorial misconduct in a capital case. In May 2014, Jermaine Wright won a new trial after 21 years on death row when prosecutors and police withheld exculpatory evidence about possible alternate suspects in a case in which no forensic or eyewitness evidence linked Wright to the crime.
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Delaware Governor Announces Support for Death Penalty Repeal
Calling the death penalty "an instrument of imperfect justice," Governor Jack Markell (pictured) of Delaware announced on May 7 that he will sign the death penalty repeal bill under consideration in the state legislature if the bill reaches his desk. The Delaware Senate passed repeal in April by a vote of 11-9. The House Judiciary Committee is expected to hold a hearing soon. Markell had not previously taken a stance on abolishing the death penalty. Upon announcing his decision, he said, "This is not an easy issue. My thinking has changed and I just wanted to give it very careful consideration." The Governor cited recent exonerations and flawed testimony in capital cases as reasons why he believes repeal should pass. "I know this is a really difficult issue for members of the General Assembly," the governor said. "I hope that after considering the arguments as I have, they will reach the same conclusion that I have." Recent studies of Delaware's death penalty have revealed significant racial disparities in capital sentencing in the state. More than three-quarters of Delaware's death-row inmates are black or Latino. No state with more than one death-sentenced defendant has a higher percentage of racial minorities on its death row.
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NEW VOICES: Warden Says Death Penalty Imposes "Immeasurable Burden" on Correctional Officers
Former prison warden, Frank Thompson, has urged repeal of Delaware's death penalty. In an op-ed for The News Journal of Delaware, the former warden, who has personally overseen two executions, describes "the immeasurable burden that th[e execution] process places on correctional officers" and the trauma experienced by correctional officers who must carry out executions. Thompson says, "Many of us who have taken part in this process live with nightmares, especially those of us who have participated in executions that did not go smoothly. Correctional officers who carry out execution can suffer from post-traumatic stress, drug and alcohol addiction, and depression." He explains that capital punishment does nothing to "increase the safety of prison staff or inmates." "Every warden in America knows the established protocols that effectively keep prisons safe for corrections staff and inmates," he says. "These include programs to treat inmates with alcohol and drug dependency or mental illnesses, appropriate inmate-to-staff ratios for the proper supervision of prisoners, adequate activities and work programs, and effective classification systems that provide guidance on how to properly house and program inmates...I am not aware of and have not heard of a single prison administrator who would trade any of these programs or resources in order to keep the death penalty." Thompson concludes by calling on the Delaware legislature to "repeal its death penalty and lead the way on smarter crime prevention policy by reinvesting the millions of dollars that the state currently spends on capital punishment into programs that will actually improve public safety." Read the full op-ed below.
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American Bar Association Calls for Unanimous Juries and Greater Transparency in Execution Process
On February 9, the House of Delegates of the American Bar Association unanimously passed two resolutions calling for unanimous juries in capital sentencing and greater transparency in lethal injection procedures. Resolution 108A stated: "Before a court can impose a sentence of death, a jury must unanimously recommend or vote to impose that sentence," and, "The jury in such cases must also unanimously agree on the existence of any fact that is a prerequisite for eligibility for the death penalty and on the specific aggravating factors that have each been proven beyond a reasonable doubt." Currently, some states, including Florida, Alabama, and Delaware, allow a jury to recommend a death sentence without unanimity. Resolution 108B called for all death penalty jurisdictions "to promulgate execution protocols in an open and transparent manner and require public review and comment prior to final adoption of any execution protocol, and require disclosure to the public by all relevant agencies of all relevant information regarding execution procedures." As lethal injection drug restrictions have caused states to seek out new sources of drugs, many states have adopted secrecy policies surrounding their lethal injection process.
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