Recently Cleared Tennessee Inmate Added to List of Exonerations

Gussie Vann of Tennessee has been added to the list of those exonerated from death row following the dismissal of all charges against him in September 2011.  Vann becomes the 139th former death row inmate exonerated since 1973. Vann was originally convicted and sentenced to death in 1994 for a sexual assault and murder of his own daughter, Necia Vann, in 1992. However, in 2008 following state post-conviction review, Circuit Court Senior Judge Donald P. Harris held that Vann was entitled to a new trial because his defense attorneys failed to hire forensic experts to challenge the state’s allegations of sexual abuse.  (Vann v. State, Order, Post-conviction No. 99-312, 10th Judicial Dist., McMinn Cty., May 28, 2008). Judge Harris wrote that this failure led to Vann being convicted on “inaccurate, exaggerated and speculative medical testimony."  (Id. Memorandum, at 23).   At the post-conviction hearing, forensic experts contradicted the state’s earlier testimony and said there were no signs of recent sexual abuse on the victim. Judge Harris described the failings of Vann’s original attorneys as “not only prejudicial, but disastrous.” (Id.)  The state elected not to appeal this ruling, though it did try to find grounds for a conviction on a lesser offense. Ultimately all charges were dropped by the state on September 22, 2011.

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DPIC RESOURCES: New State Pages Now Available

DPIC is pleased to announce the completion of our State Information Pages for all 50 states and the District of Columbia.  These state profiles provide historical and current information on the death penalty for each state, including famous cases, past legislative actions, and links to key organizations and state officials.  For frequently updated information, such as execution totals, the size of death row, or the number of exonerations, see our State-by-State Database.  Readers are encouraged to send additional information, pictures, and links to organizations in their state.  You can reach the State Information Pages through the "State by State" button at the top of every page on our website or under the "Resources" tab in our main menu.

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NEW RESOURCES: States Ranked by Executions Per Death Sentence

DPIC has updated its Executions Per Death Death Sentence page to reflect data through 2010.  This page lists states in order of the percentage of death sentences resulting in an execution since the death penalty was reinstated in 1976.  If every death sentence resulted in an execution, the state would be at 100%, or a rate of 1.00.  Using this ratio of executions per death sentence, the first five states are Virginia (.725), Texas (.498), Utah (.368), Missouri (.347), and Delaware (.311).  Of those states that have carried out at least one execution, the five states with the lowest rate of execution are Pennsylvania (.008), California (.015), Idaho (.025), Oregon (.028), and Tennessee (.035).  Four states with the death penalty during this time period had no executions: Kansas, New Hampshire, New Jersey, and New York.  The latter two have abandoned the death penalty.  Nationally, about 15% of death sentences have resulted in an execution (a rate of .150).  Another measure of state execution rates is executions per capita (population).  Under this standard, Oklahoma and Texas are the leading states.

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Update on Lethal Injection Issue

In a clear national trend, seven states (Alabama, Arizona, Mississippi, Ohio, Oklahoma, Texas, and South Carolina) have used pentobarbital instead of sodium thiopental in their executions in 2011. The most recent such execution was that of Donald Beaty in Arizona on May 25, following a temporary stay as the state made a sudden switch to the new drug.  Ohio is the only one of the seven states to use pentobarbital as the sole drug in its lethal-injection process.  At least five states (Alabama, Georgia, Kentucky, Tennessee, and South Carolina) that acquired sodium thiopental through an overseas source have had the drug seized by the U.S. Drug Enforcement Administration.  In addition, Arizona was instructed by the DEA not to use its foreign sodium thiopental just prior to the May 25 execution. Arkansas and California also have supplies of sodium thiopental originally obtained from a supplier in Great Britain.  In Nebraska, questions about its supply of sodium thiopental--obtained from a company in India--has postponed the execution of Carey Dean Moore.  South Dakota's sodium thiopental was also reportedly obtained from India.  Other states like Georgia, Louisiana, and Virginia have indicated they intend to switch to pentobarbital in future executions.

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LETHAL INJECTION: Latest Foreign Supplier of Drugs for U.S. Executions Refuses to Continue

When the sole U.S. supplier of a drug used by all death penalty states announced it was halting production earlier this year, many states turned to sources overseas.  In particular, Nebraska obtained a large quantity of the drug--sodium thiopental--from a company in Mumbai, India.  Now that company has announced it will no longer supply the drug for use in lethal injections.  In a statement released to the media, Kayem Pharmaceutical Pvt. Ltd. said, "In view of the sensitivity involved with sale of our thiopental sodium to various jails/prisons in USA and as alleged to be used for the purpose of lethal injection, we voluntary declare that we as Indian Pharma Dealer who cherish the Ethos of Hinduism (A believer even in non-livings as the creation of God) refrain ourselves in selling this drug where the purpose is purely for Lethal Injection and its misuse."  Earlier this year, the sole U.S. manufacturer of the same drug, Hospira Inc., similarly announced that it wanted no part in supplying drugs for executions. Nebraska death row inmate Carey Moore is challenging the legality of the state’s purchase of the drug.  According to a motion filed with the Nebraska Supreme Court, there is no evidence that Kayem Pharmaceutical is registered with the Drug Enforcement Administration (DEA) or is authorized to deliver drugs to the U.S. There is also evidence that Nebraska received a generic form of the drug, contrary to the state's execution protocol.

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REPRESENTATION: Tennessee Inmate Faces Execution Because of Lawyer's Failures

A forthcoming article in the ABA Journal reveals the tragic admissions of failure by a well-known defense lawyer that led to a death sentence and potential execution of Abu-Ali Abdur'Rahman (pictured) in Tennessee.  Lionel Barrett, who represented Abdur'Rahman in 1987, now takes full responsibility for his lack of attention to critical details and for having his client end up on death row. Looking back on the case 24 years later, Barrett said, "It was the perfect storm. Everything I could have done wrong, I did … Abu-Ali is on death row because of me. I failed him."  Barrett was widely recognized as one of the best criminal defense attorneys in Tennessee, but he was overworked and burned out, and his financial troubles compelled him to accept more cases than he could handle. A series of interoffice memos regarding Abdur'Rahman's case reveals that Barrett was not adequately prepared to try the case. He failed to file important motions that would have granted him more time and resources to prepare for the case, and by the time proceedings began, Barrett had not talked to a single eyewitness, conducted any of his own investigations or explored evidence of his client's mental illness. He also never ordered testing on key pieces of evidence, including a coat owned by the defendant that allegedly had blood stains from the victims. It later turned out that the stains were paint from Abdur'Rahman's work, and Barrett unknowingly allowed this critical piece of exculpatory evidence to become the most convincing evidence of guilt.

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Anesthesiologists Raise Concerns About New Drug for Lethal Injections

A nationwide shortage of sodium thiopental, a key drug used in executions around the country, has forced states to consider alternative drugs for their lethal injections. Tennessee, where 86 inmates are facing execution and sodium thiopental is in short supply, is considering using pentobarbital instead. Oklahoma has already executed three inmates using the new drug as part of a 3-drug protocol. The use of pentobarbital, however, has drawn concerns from some anesthesiologists who said the drug has not been used to put patients to sleep and has not been tested for executions. Dr. David Varlotta, who is on the board of directors of the American Society of Anesthesiologists, noted that there are significant differences between the two drugs, and said pentobarbital "is not used in a clinical setting for clinical anesthesia." Dr. David Waisel, an anesthesiologist and Harvard Medical School professor, said, "Sodium thiopental has been used millions of times, for 90% of operations, for 30 years. Pentobarbital has almost never been used for induction of anesthesia. If you look at the literature, there's one report from the '40s, maybe 2. We're experimenting, and we're taking a huge risk here just for the big desire to make sure we're killing people."

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Lawsuit Challenges FDA's Inaction on Lethal Injection Drugs in Many States

On February 2, the national law firm of Sidley Austin LLP filed a suit against the Food and Drug Administration (FDA) in federal court on behalf of six death row inmates from Arizona, California, and Tennessee.  The suit seeks to compel the FDA to bar the importation or use of unapproved sodium thiopental, a drug used by most states in lethal injections, but no longer available in the U.S.  The plaintiff's brief states that, following a nationwide shortage of sodium thiopental in 2010, the FDA illegally allowed prison officials to obtain the lethal injection drug from sources outside of the U.S., while refusing to investigate the safety and purity of the imported drugs.  The inmates are represented by Bradford A. Berenson, a former associate counsel to President George W. Bush and a partner at Sidley.  In a statement released by the law firm, Berenson said, "The law requires FDA to ensure that only safe, effective drugs are brought into the United States. When the agency allowed states to import unapproved sodium thiopental, it abdicated its responsibilities and violated federal law."  Berenson, a supporter of the death penalty, also said that the lawsuit is "not about halting executions but rather about ensuring that illegal drugs are not used in carrying out otherwise lawful sentences."  Read full press release from Sidley Austin LLP and read Complaint filed against FDA.

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CLEMENCY: Governors in Missouri and Tennessee Grant Clemency to Inmates Facing Imminent Execution

On consecutive days, Governor Jay Nixon of Missouri and Governor Phil Bredesen of Tennessee granted clemencies to death row inmates facing imminent execution in their respective states. In Missouri, Gov. Nixon commuted the death sentence of Richard Clay, who was scheduled for execution on January 12. In Tennessee, Gov. Bredesen granted clemency to Edward Jerome Harbison, thus averting his execution on February 15. Both inmates now face life in prison without parole. Clay and his supporters maintained that he was innocent of a 1994 murder-for-hire murder.  In a statement released by the governor's office, Nixon said that Clay's "involvement in this crime is clear," but chose to exercise his executive authority after “having looked at this matter in its entirety and after significant thought and counsel.” In Tennessee, Harbison was charged with a murder that occurred in 1983. He initially confessed to the crime but later claimed he was coerced after authorities threatened to arrest his girlfriend and put her children into foster care. Of the commutation, Gov. Bredesen said, "It's obviously a heinous crime, but when I compare it to others I don't think it rose to the level of a death penalty crime."  Gov. Nixon was elected in 2008, having served as Attorney General while Clay was being prosecuted.  Gov. Bredesen is leaving office.

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