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POLL: By 2:1 margin, Black South Carolinians Support Sentencing Church Shooter to Life Without Parole

A recent poll conducted by the University of South Carolina reveals deep racial divisions in the state over the death penalty and over the appropriateness of applying it in the case of Dylann Roof, the white defendant who faces state and federal capital charges in the race-based killings of nine black members of Emanuel AME Church in Charleston. According to the poll, 64.9% of African Americans in South Carolina oppose the death penalty, while 69.4% of white South Carolinians say they support it. Blacks were also more than twice as likely to support a sentence of life without parole for the church killings than to support the death penalty. Nearly two-thirds of black South Carolinians (64.7%) said that Roof should be sentenced to life without parole if convicted of the nine killings, while less than a third (30.9%) favored the death penalty. 4.4% said they did not know what sentence should be imposed. The views of white South Carolinians were diametrically opposite, with 64.6% saying they think Roof should be sentenced to death if convicted and 29.9% prefering life without parole. 5.6% of whites said they did not know which sentence should be imposed. Monique Lyle, who conducted the poll, said the results reflect consistent opposition to the death penalty among most black South Carolinians. Kylon Middleton, senior pastor of Mount Zion AME Church in Charleston, said the black community's opposition to capital punishment is tied to racial bias in the criminal justice system, adding, "We have been brutalized in this country, therefore, we can empathize with anyone … who would receive ultimate judgment." A recent study of South Carolina's death penalty found significant racial disparities in death sentences. For example, the study found that although 48% of South Carolina murder victims are black males, those cases account for only 8% of the state's death sentences. Earlier studies also found striking evidence of geographic and racial arbitrariness in South Carolina's application of capital punishment. The new poll also found profound differences in the views of South Carolinians as to how they believed African Americans were treated in the U.S. criminal justice system. 82.3% of blacks say that the justice system is biased against blacks. 59.5% of whites say it treats blacks fairly and 3.9% say it is biased in favor of blacks.


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Supreme Court To Hear Texas Death Penalty Cases Dealing with Racial Bias, Intellectual Disability

On June 6, the U.S. Supreme Court granted writs of certiorari in two Texas death penalty cases, and will review the constitutionality of those death sentences during its next term. The two cases are Buck v. Stephens, in which Duane Buck was sentenced to death after a psychologist testified at his penalty trial that the fact that Buck is African-American increases the likelihood that he presents a future danger to society; and Moore v. Texas, a challenge to Texas' unscientific test for determining whether a defendant is intellectually disabled and therefore exempt from execution. Texas, through its then-Attorney General John Cornyn, had conceded that seven death row prisoners, including Buck, had been unfairly sentenced to death after juries in their cases had been exposed to expert mental health testimony improperly linking race and future dangerousness. The other defendants whose trials were tainted by such testimony were granted new sentencing hearings, but Buck's case did not reach the courts until Cornyn had become a U.S. Senator, and the new Attorney General (now Governor), Greg Abbott, opposed granting Buck a new sentencing hearing. The Court granted review on one of two issues presented in Bobby James Moore's petition for certiorari, whether a state may reject current medical standards in determining intellectual disability. It initially appeared to have granted review of a second issue as well, whether Moore's "extraordinarily long" confinement on death row violates the Eighth Amendment ban on cruel and unusual punishment. However, in an updated order, the Court clarified that it was limiting its review to only the intellectual dsability question. Moore was sentenced to death more than 35 years ago, and has been diagnosed as intellectually disabled by medical professionals. The Texas Court of Criminal Appeals rejected his intellectual disability claim in 2015 because he failed to meet Texas' “Briseño factors,” a set of unscientific criteria based on the fictional character of Lennie Smalls from the novel "Of Mice and Men." 


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Texas Court Stays Execution of Man Convicted with Hypnotically Refreshed Testimony

The Texas Court of Criminal Appeals has granted a stay of execution to Charles Flores (pictured) to permit him to litigate a claim that prosecutors unconstitutionally convicted and sentenced him to death by using unreliable hypnotically refreshed testimony. Texas had scheduled Flores' execution for June 2. Flores, who is Latino, was convicted in 1999 of murdering a 64-year-old white woman in suburban Dallas, and was sentenced to death. Prosecutors presented no physical evidence linking Flores to the murder, and the sole witness who claimed to have seen him at the scene was hypnotized by police before identifying him. She initially told police she had seen two men in a car outside of the victim's home, identifying the driver, Richard Childs, in a police lineup and describing the passenger as a white man with shoulder-length dark hair. However, when she appeared in court 13 months later after having seen photographs of Flores in news reports about the murder, she told prosecutors that she now recognized Flores as the second man. According to an affidavit Flores submitted from psychology professor Steven Lynn, research has linked "hypnotic refreshment" with the creation of false memories. “Clearly, the techniques that were used to refresh [the witness's] memory would be eschewed today by anyone at all familiar with the extant research on hypnosis and memory,” Lynn wrote. The Flores conviction and death sentence are also tainted with issues of race. Police charged both Childs and Flores with the murder. Childs, who is white, confessed to shooting the victim, pled guilty, and was sentenced to a term of 35 years with parole eligibility after 17 years. He was released on parole in April 2016. Flores, though admitting his involvement in the drug trade, professed his innocence of the murder and was tried and convicted. After his court-appointed lawyers failed to present any witnesses on his behalf in the penalty trial, the jury sentenced him to death. "So the white guy who was the trigger guy is out on parole, and the Hispanic guy, who was not the trigger man, is about to be put to death,” Greg Gardner, Flores' current lawyer, told The Texas Tribune in an interview before the stay was issued. “It really is just a mystery.” 178 of the 246 people on Texas's death row as of May 2016 are black or Latino. 


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Supreme Court Rules Georgia Prosecutors Struck Death Penalty Jurors Because They Were Black, Grants New Trial

On May 23, the U.S. Supreme Court overturned the conviction and death sentence of Timothy Foster (pictured) because Georgia prosecutors improperly exercised their discretionary jury strikes on the basis of race to exclude African American jurors. The vote was 7-1, with Justice Thomas the lone dissenter. Foster is now entitled to a new trial. Foster, who is black, was sentenced to death by an all-white jury after prosecutors used their peremptory challenges to remove every black prospective juror from the jury pool. Foster's trial lawyer challenged those strikes under the 1986 Supreme Court decision Batson v. Kentucky, which banned the practice of striking jurors on the basis of race, but the trial court credited the race-neutral reasons for the strikes that prosecutors offered at the time. Years later, Foster obtained the prosecutors' jury selection notes, which showed that prosecutors had highlighted the names of each of the black prospective jurors in green on four different copies of the jury list; circled the word “BLACK” next to the “Race” question on the juror questionnaires of five black prospective jurors; identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; and ranked the black prospective jurors against one another in case “it comes down to having to pick one of the black jurors.” Foster filed another Batson claim in the state courts after having discovered these notes, but the Georgia Supreme Court rejected it, saying the issue had already been adjudicated. The U.S. Supreme Court said that the Georgia Supreme Court's decision was "clearly erroneous." "Foster established purposeful discrimination in the State’s strikes of two black prospective jurors," the Court said. "Evidence that a prosecutor’s reasons for striking a black prospective juror apply equally to an otherwise similar nonblack prospective juror who is allowed to serve tends to suggest purposeful discrimination." Among the reasons given by prosecutors for striking one black juror, Marilyn Garrett, included her age and the fact that she was divorced, but they allowed three out of four divorced white jurors to serve, and also allowed service by white jurors of similar age to Garrett. Stephen Bright, an attorney for Foster, said, "The decision in this case will not end discrimination in jury selection. Justice Thurgood Marshall said in Batson v. Kentucky that it would end only with the elimination of peremptory strikes. The choice going forward is between the elimination or reduction of peremptory strikes or continued discrimination. Jury strikes motivated by race cannot be tolerated. The exclusion of black citizens from jury service results in juries that do not represent their communities and undermines the credibility and legitimacy of the criminal justice system.”


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On 100th Anniversary of Notorious Waco Lynching, Research Shows Link Between Lynching and Capital Punishment

100 years ago, Jesse Washington, a 17-year-old black farmhand accused of murdering his white female employer was lynched on the steps of the Waco, Texas courthouse (pictured), moments after Washington's trial ended and only seven days after the murder had occurred. The gruesome lynching took place in front of law enforcement personnel and 15,000 spectators, none of whom intervened to end the violence. Washington, whom reports indicate may have been intellectually disabled, initially denied involvement in the murder, but then purportedly confessed to police. A mob of 500 vigilantes searched the county prison in an unsuccessful attempt to find Washington, whom the sheriff had moved to other counties for his safety. An estimated 2,500 people—many carrying guns and threatening to lynch Washington—packed the courtroom during the short trial. As the jury read the guilty verdict and before the judge could record its death sentence, a man reportedly yelled, “Get the n****r,” and the crowd descended on Washington, carrying him out of the courthouse with a chain around his neck, while others attacked him with bricks and knives. The incident became a turning point in anti-lynching efforts and contributed to the prominence of the NAACP. Ignored for decades, Washington's lynching recently gained local attention and prompted a condemnation by the Waco City Council and McLennan County commissioners in 2006. Studies have shown that counties that historically have had high numbers of lynchings continue to have higher levels of homicide, police violence against racial minorities, disproportionate sentencing of black defendants, and more frequent use of capital punishment. A 2005 study in the American Sociological Review found that the number of death sentences, and especially the number of death sentences for black defendants, was higher in states with histories of lynching. “What the lynching proved about our community was that African-American men and women were not viewed as humans or equal citizens,” Peaches Henry, president of the Waco NAACP said. “While they no longer hang people upon trees, we do see situations where African-American lives are not valued.” McLennan County, where Washington was lynched, ranks among the 2% of U.S. counties that are responsible for more than half of all death sentences in the United States. 


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Alabama Prepares to Execute 65-Year-Old Mentally Ill Prisoner Disabled by Several Strokes

UPDATE: The U.S. Court of Appeals for the Eleventh Circuit stayed Madison's execution, ordering oral argument on his competency claim. Previously: Alabama is preparing to execute Vernon Madison (pictured) on May 12, as his lawyers continue to press their claim that the 65-year-old prisoner is incompetent to be executed. Defense lawyers say Madison, whom a trial judge sentenced to death despite the jury's recommendation of a life sentence, suffers from mental illness and has additional cognitive impairments, retrograde amnesia, and dementia as a result of strokes in May 2015 and January 2016. The strokes also have caused a significant drop in Madison's IQ, which now tests at 72, within the range the U.S. Supreme Court has recognized as supporting a diagnosis of intellectual disability. In addition, the strokes have left Madison legally blind. In its 1986 decision in Ford v. Wainwright, the Supreme Court ruled it unconstitutional for states to execute mentally incompetent prisoners, whom it defined as people who do not understand their punishment or why they are to be executed. Madison's lawyers have unsuccessfully argued in Alabama's state and federal courts that, because of his mental impairments, he is unable to understand why the state will execute him. An Alabama trial judge ruled earlier this month that Madison is competent, and the court denied his motion for a stay of execution. On May 6, he presented his competency claim to the federal district court, which denied relief on May 10. Madison's lawyers have appealed that ruling. Madison has been on death row for more than 30 years. His conviction for the murder of a white police officer has been overturned twice, once because prosecutors intentionally excluded black jurors from serving on the case and once because the prosecution presented improper testimony from an expert witness. Last week, the U.S. Supreme Court vacated a decision of the Alabama Court of Criminal Appeals upholding a death sentence imposed on Alabama death row prisoner Bart Johnson, and directed the state court to reconsider the constitutionality of Alabama's death-sentencing procedures. Madison's lawyers have sought review of his case in light of Johnson and are also seeking a stay of execution to permit him to litigate the constitutionality of the state's judicial override provisions. 


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30 Years After Landmark Case, Exclusion of Black Jurors Continues to Plague Death Penalty

Thirty years after the U.S. Supreme Court's 1986 decision in Batson v. Kentucky prohibited the intentional exclusion of prospective jurors on the basis of race, discrimination in capital jury selection continues to plague the administration of the death penalty across the country. In articles for The Huffington Post and Slate, Angel S. Harris, assistant counsel at the NAACP Legal Defense and Educational Fund, and Robert Smith, a senior fellow at Harvard Law School's Charles Hamilton Houston Institute for Race and Justice, link the continuing exclusion of black jurors in death penalty cases to the legacy of lynching in America. "While Black men are no longer lynched before all-white crowds gathered on the courthouse lawn," as was one of Harris' relatives in Florida, "Black men are all-too-often condemned to death by all-white juries that are produced by prosecutors’ deliberate exclusion of people of color, particularly Black people, from jury service," she wrote. In his Slate article, Smith describes the persistence of race-based use of discretionary strikes by prosecutors in numerous jurisdictions, and notes that "[t]he mix of prosecutorial impropriety and the exclusion of black jurors has always been a potent combination for injecting racial bias into death penalty cases." He and Harris point to studies in Caddo Parish, Louisiana, and Houston County, Alabama showing systemically discriminatory use of discretionary strikes to remove black jurors from service in death penalty cases, recent cases in which the Nevada Supreme Court found racially discriminatory jury selection in Clark County, as well as race-based jury selection practices in such cities as Dallas and Philadelphia. These practices, Smith says, expose "the inextricable ties between race and the death penalty." The successful exclusion of jurors of color also produces less reliable verdicts, Harris says, pointing to studies showing that because, "compared to diverse juries, all-white juries spend less time deliberating, make more errors, rely on implicit biases and consider fewer alternative perspectives." The U.S. Supreme Court is currently considering Foster v. Chatman (defendant Timothy Foster is pictured), a Georgia death penalty case in which prosecutors struck all the black jurors after highlighting and marking their names on the jury list and ranking them against each other in case "it comes down to having to pick one of the black jurors." Prosecutors then argued to the all-white jury to sentence Foster to death to “deter other people out there in the projects.” 


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Two Capital Cases Involving Innocence Claims Resolved Decades After Conviction

This week, two decades-old cases involving men with innocence claims reached final resolution: Louisiana inmate Gary Tyler (pictured) was released after 42 years in prison and Paul Gatling was exonerated in New York more than 50 years after his wrongful conviction. Both men had once faced the death penalty. Tyler was convicted and sentenced to death for the fatal shooting of a 13-year-old white boy in 1974 during a riot over school integration. A white mob had attacked a bus filled with black students, including Tyler. After the shooting, Tyler was arrested on a charge of disturbing the peace for talking back to a sheriff's deputy. The bus and students were searched, but no weapon was found. Police later claimed to have found a gun on the bus during a later search. That gun turned out to have been stolen from a firing range used by the sheriff's department. Tyler was convicted and sentenced to death by an all-white jury when he was 17 years old. His death sentence was overturned after the U.S. Supreme Court ruled Louisiana's mandatory death penalty statute unconstitutional in 1976, and his life sentence was recently overturned after the Supreme Court barred mandatory life sentences for juvenile offenders. Tyler was released on April 29, after the district attorney's office agreed to vacate his murder conviction, allow him to plead guilty to manslaughter, and receive the maximum sentence of 21 years, less than half the time he had already served. Mary Howell, one of Tyler's attorneys, said, "This has been a long and difficult journey for all concerned. I feel confident that Gary will continue the important work he began years ago while in prison, to make a real difference in helping to mentor young people faced with difficult challenges in their lives." On May 2, 81-year-old Paul Gatling was exonerated. Brooklyn prosecutors charged Gatling with capital murder in 1963 despite the fact that he did not fit the description of the killer and no physical evidence linked him to the killing. He pled guilty to second-degree murder after his lawyer told him he would get the death penalty if the case went to trial. Governor Nelson Rockefeller commuted Gatling's sentence in 1974 and he was released from prison, but he continued to seek exoneration, in part, because his conviction prevented him from voting. Brooklyn District Attorney Ken Thompson, whose Conviction Review Unit reinvestigated the case, said, "Paul Gatling repeatedly proclaimed his innocence even as he faced the death penalty back in the 60s. He was pressured to plead guilty and, sadly, did not receive a fair trial.... We're here because Mr. Gatling would not let go of his demand to be deemed innocent." 


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STUDIES: Louisiana Death Penalty Staggeringly Error-Prone, Racially Biased

More than 80% of the 241 death sentences imposed in Louisiana since 1976 have been reversed on appeal, and one death row prisoner has been exonerated for every three executions in the state, according to a new study by University of North Carolina-Chapel Hill Professor Frank Baumgartner and statistician Tim Lyman. The study, to be published in the Southern University Law Center’s Journal of Race, Gender and Poverty, also reveals dramatic racial disparities in both the trial and appellate stages of Louisiana death penalty proceedings. The study notes that 155 of the state's 241 death sentences have reached a final resolution: either a reversal or an execution. Of these death sentences, there have been 28 executions (18.1%) and 127 reversals (81.9%) — including 9 exonerations — giving Louisiana a reversal rate nine percentage points higher than the 72.7% average for death penalty cases nationwide. The researchers also found stark racial disparities in Louisiana's death penalty related both to the race of the victim and to the race of the defendant. Cases involving white victims were six times more likely to result in death sentences than cases involving black victims, and black male defendants charged with killing white female victims were 30 times more likely to be sentenced to death than were black male defendants charged with killing black male victims. The study also found that appellate courts were less likely to overturn death sentences in cases involving white victims than those involving black victims, compounding the racial disparities already present in the sentencing stage of the case. As a consequence, a defendant charged with killing a white victim was 14 times more likely to be executed than if the victim was black. The last time Louisiana carried out the death penalty against a white person for a crime involving a black person was in 1752, when the defendant was executed for damaging the property of another white man by stabbing two female slaves. The authors explained, "Race-of-victim effects are powerful at each stage of the death penalty system, accumulating as we move from the original sentence through to execution." Baumgartner said of his findings, “We have to look the death penalty in the eye and understand how it truly does function. Not how we wished it functioned but how it really does function. And every time we do that, it really is disturbing.” (Click image to enlarge, image by The New Orleans Advocate.)


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LAW REVIEW: North Carolina Lacks Constitutionally-Sufficient Proportionality Review

A law review article by Brooks Emanuel (pictured), a Law Fellow at the Equal Justice Initiative, argues that North Carolina's capital punishment statute violates the Eighth and Fourteenth Amendments to the U.S. Constitution because it lacks a meaningful appellate mechanism to prevent the arbitrary and discriminatory application of the death penalty. Citing extensive historical evidence, Emanuel argues that "racial discrimination in North Carolina death sentences was pervasive" in the years leading up to the U.S. Supreme Court's 1972 decision in Furman v. Georgia, which declared existing death penalty statutes unconstitutional. After Furman, North Carolina adopted comparative proportionality review as its primary appellate protection against systemic arbitrariness and discrimination. However, Emanuel says, racially disproportionate capital sentencing continues to be endemic in the state. Examining the North Carolina Supreme Court's proportionality cases, Emanuel argues that the court has failed to provide meaningful proportionality review: "First, the court often does not appear to fulfill its mandate to consider 'similar cases,' instead relying too heavily on the very small group of cases in which death was previously found disproportionate. Second, the review’s lack of transparency is itself unconstitutional in its violation of defendants’ rights to due process." Emanuel argues that evidence from recent Racial Justice Act cases and from its fundamentally flawed proportionality review show that North Carolina has failed to prevent discriminatory sentencing and that systemic arbitrariness and racial disparity persist. Although the U.S. Supreme Court ruled in Pulley v. Harris that a state is not constitutionally compelled to provide comparative proportionality review so long as some mechanism exists for meaningful appellate review, Emanuel notes that North Carolina has selected proportionality review to perform that function and it has failed to do so. For those reasons, he concludes, North Carolina's death penalty is unconstitutional.


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