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Federal Appeals Court Upholds Alabama Judge's Race-Based Override of Jury's Life Sentence

The U.S. Court of Appeals for the Eleventh Circuit has upheld the death sentence imposed by an Alabama trial judge who disregarded the jury's 10-2 vote in favor of a life sentence and sentenced Bobby Waldrop (pictured) to death because of his race. When he imposed Waldrop's death sentence, Randolph County Circuit Court Judge Dale Segrest, who is white, referred to three prior cases in which he had overriden jury life verdicts and said: "If I had not imposed the death sentence [in this case], I would have sentenced three black people to death and no white people." In an unpublished opinion issued on September 26, the federal appeals court wrote that the judge's action did not constitute a "fundamental miscarriage of justice" that would allow federal court review of Waldrop's race claim in light of the failures by Waldrop's trial lawyer to have objected at the time of trial or raise the issue in his initial state court appeal. The opinion was issued the same day the U.S. Supreme Court stayed Georgia's execution of Keith Tharpe to determine whether to review his claim that his death sentence had been unconstitutionally tainted by the participation of a white juror who referred to him and other African Americans with a racial slur and said he wondered “if black people even have souls.” In 2014, the Eleventh Circuit refused to review a claim presented by Georgia death-row prisoner Kenneth Fults, saying that his claim of racial bias—based on the signed affidavit of a white juror who said  “I don’t know if he ever killed anybody, but that (N-word) got just what should have happened"—had not been properly presented to the state courts. Fults was executed in April 2016 without receiving any review of that claim. Ten months later, the U.S. Supreme Court ruled in Buck v. Davis that "it is inappropriate to allow race to be considered as a factor in our criminal justice system" and that race-based capital sentences “are a disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are." Two of the Eleventh Circuit judges involved in the Fults decision also decided Waldrop's appeal. They ruled that the “miscarriage of justice” doctrine, which permits review of otherwise defaulted claims, applies only when the defendant shows “by clear and convincing evidence that, but for [the alleged] constitutional error, no reasonable juror would have found [him] eligible for the death penalty.” The exception did not apply in his case, they wrote, because the jury verdict convicting Waldrop of murder during a robbery had made him death-eligible, even if the jury had overwhelmingly believed he should not be sentenced to death. The third judge on Waldrop's court panel, Beverly Martin, concurred with the court's interpretation of the law, but wrote: "I am at a loss to ... explain how a person being sentenced to death based on his race could be anything other than a fundamental miscarriage of justice."


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Supreme Court Stays Execution in Georgia Case Raising Issue of Jury Racism

Three hours after his execution was scheduled to begin, the U.S. Supreme Court stayed the execution of Keith Tharpe (pictured), a Georgia death-row prisoner who sought review of his claim that he was unconstitutionally sentenced to death because a juror whom Tharpe alleged "harbored profound racial animus against African Americans voted to impose the death penalty . . . because of his race.” Over the dissents of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, the Court issued a stay of execution on September 26, pending a final ruling on whether to review a decision of the U.S. Court of Appeals for the Eleventh Circuit that had denied Tharpe permission to appeal the issue. Tharpe, who had been convicted and sentenced to death for the murder of his sister-in-law, had challenged his death sentence after learning that Barney Gattie, a white juror in his case, had said that there were "two types of black people: 1. Black folks and 2. Ni**ers"; described Tharpe as "a ni**er"; doubted "if black people even have souls"; and said if the victim "had been the same type [of black person] Tharpe is, then picking between life of death wouldn't have mattered so much." The Georgia courts had refused to consider his biased-juror challenge, saying that state law prohibitted him from attempting to impeach the jury's verdict. However, after the U.S. Supreme Court ruled earlier this year that overt expressions of racial bias by a juror are not insulated from judicial review, Tharpe argued that he was entitled to have his claim heard and to have a new, fair sentencing hearing. The Eleventh Circuit disagreed, concluding that he had not “made a substantial showing of the denial of a constitutional right” and "had failed to demonstrate that Barney Gattie’s behavior had [a] substantial and injurious effect or influence in determining the jury’s verdict.” When Tharpe again attempted to raise the issue in the Georgia state courts, the Georgia Supreme Court ruled that the Supreme Court decision made no difference and his challenge was barred as "res judicata"—meaning that the issue had alrady been decided against him. His appeal from the state-court decision had just been filed in the U.S. Supreme Court when it stayed his execution based upon the federal litigation. The Court's order specified that the stay "shall terminate automatically" if the Court ultimately decides not to review the issue or if the Court ultimately rules against Tharpe. Under Supreme Court rules, the votes of four Justices are sufficient to decide to hear a prisoner's appeal. However, the votes of five Justices are required to stay an execution, effectively overriding the Court's rules for cases presented during an active death warrant. Brian Kammer, one of Tharpe’s attorneys, expressed gratitude that "the court understands this case merits thoughtful consideration outside the press of an execution warrant.” He said, “We are extremely thankful that the court has seen fit to consider Mr. Tharpe’s claim of juror racial bias in regular order.”


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Court Finds Prosecutorial Misconduct, but Allows Colorado Death Sentence to Stand

An Arapahoe County judge has denied the appeal of Colorado death-row prisoner Sir Mario Owens (pictured), despite finding that prosecutors withheld evidence and failed to disclose money, gifts, and favors they provided informants in exchange for their testimony. In a 1,343-page Order and Opinion issued on September 14, Senior Judge Christopher Munch found that county prosecutors had presented false evidence from two of their most critical witnesses and unconstitutionally withheld more than 20 separate pieces of evidence that could have helped the defense challenge the testimony of seven prosecution witnesses, but said a defendant "must establish more than helpfulness to sustain a claim of constitutional error." The ruling followed the controversial removal from the case of Senior Judge Gerald Rafferty, as the judge was preparing his decision after having presided over the case for more than a decade. Rafferty had ordered the prosecution to produce hundreds of pages of records and granted 37 weeks of hearings on what he had characterized as prosecutors’ “deliberate choice” to withhold evidence from the defense. Owens was sentenced to death in June 2008 for the 2005 shooting death of Javad Marshall-Fields (the son of a Colarado state representative) and Fields's fiancé, Vivian Wolfe. A co-defendant, Robert Ray, was separately tried and sentenced to death. The case against Owens was largely circumstantial. As described by news reports in The Colorado Independent, there was "no definitive physical evidence, no confession, and no eyewitnesses who identified Owens in a case prosecutors built almost entirely on the testimony of informant witnesses to whom the DA’s office gave plea bargains, funds, or both in return for their cooperation against Owens."  Owens alleged that the prosecution had withheld evidence from the defense that they had secured the testimony of cooperating informants by making thousands of dollars of cash payments and providing undisclosed favors in unrelated criminal cases. The Denver Post reported that one witness had been "promised and later given a district attorney’s office car" and another "received $3,400 in benefits, including cash for Christmas presents in the months prior to testifying on behalf of the prosecution." The Colorado Independent's review of court records reported that "one of the main witnesses [had been] threatened with being charged for the murders Owens was accused of and with receiving two life sentences" if he didn’t cooperate. Another witness had been granted an undisclosed suspended jail sentence conditioned upon cooperating with prosecutors in Owens’s case. "People working for the prosecution would appear at informant witnesses’ court hearings and ask for lesser sentences on the condition that they testify against Owens," the paper wrote, and "informants who had been convicted of crimes were allowed to violate probation and commit future crimes without consequences as long as they cooperated." Owens's appeal has attracted attention because it was the first in Colorado's "unitary review" process that had been billed as speeding up capital appeals. Instead, it has substantially increased the length of appeals. It also raised questions of transparency because of the extraordinary levels of secrecy throughout the proceedings. Court files were sealed and a gag order prevented the parties from speaking about the case for seven years, until the order was lifted in 2013. Numerous case exhibits remain under seal. Owens's lawyers issued a written statement saying “We disagree with the court’s conclusion that none of this matters and can be tolerated in Colorado in any case, never mind a capital one. This is a sad day for ... the Colorado criminal justice system.”


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Capitally Charged, Alabama Man Imprisoned 10 Years Without Trial

In a racially charged case raising questions of prosecutorial overcharging, inadequate representation, and questionable jury practices, Kharon Davis (pictured), an African-American man charged with capital murder in Dothan, Alabama, has been imprisoned for 10 years without trial. Davis—who has consistently maintained his innocence and whose prior offense was driving without a license—was 22 years old when he and two others were arrested for the shooting death of a man from whom they were purchasing marijuana. After refusing a plea deal, Davis’s case has gone through two judges, three prosecutors, four sets of defense lawyers, and nine scheduled trial dates, and he has been placed in segregation in the county jail for minor infractions, faced restrictions on his ability to review legal documents, and been denied visits by his mother. A New York Times report described the pre-trial delays as “among the most protracted” the paper could find, and George Washington University law professor and constitutional consultant Jonathan Turley said “It is impossible to look at [the case] and not find it deeply, deeply troubling.” Houston County’s District Attorney Doug Valeska’s decision to seek the death penalty reignited questions of the county’s overuse of the death penalty. Despite a population of only 103,000, its 17-person death row makes Houston County one of the most prolific death-sentencing counties in the country. The county’s prosecutorial and law enforcement practices have also come under scrutiny: a number of capital cases have been overturned for racially biased jury selection, presenting improper evidence, and improper comments to juries. In 2015, Valeska also was accused of covering up evidence that a group of Dothan police officers with ties to white supremacist groups had been planting drugs on young black men. Davis’s case has been rife with questionable activity. His first lawyer, Benjamin Meredith, was the father of one of the investigating officers in the case and cross-examined his son in the preliminary hearing. That conflict was not disclosed for four years, after a new judge was appointed in the case, when Valeska brought it to the attention of the court. In those four years, Meredith had filed only two motions on Davis’s behalf. In that same time, Davis’s co-defendant, Lorenzo Staley, who told police where to find the gun used in the murder, went to trial in 2009 and was acquitted. A second co-defendant, Kevin McCloud—a childhood friend of Davis’s who had no criminal record—had pled guilty and agreed to testify against Davis to avoid the death penalty, although McCloud later said in a letter that Valeska had asked him to “get on the stand and lie” about Davis’s involvement in the case. The case was further delayed when, looking through the court record of Staley’s trial, new defense counsel discovered a gunshot residue kit that prosecutors had failed to disclose. A new district attorney who had once represented one of the co-defendants was elected in February 2017, requiring the case to be transferred to the attorney general’s office. At that point, the prosecution dropped the death penalty from the case. Finally, on September 19, the trial was again held up amid allegations that some members of the newly empaneled jury of 11 whites and one black may have had improper contact with people connected to the case.


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For Second Time in Two Years, Georgia Prepares to Execute Black Prisoner Whom White Juror Called N-Word

For the second time in as many years, Georgia is preparing to execute an intellectually disabled African-American man, despite evidence that the death verdict in his case may have been tainted by a white juror's profound racial bias. Lawyers for Keith Leroy Tharpe (pictured), whose IQ has been measured in the 60s and whom Georgia has scheduled to be executed on September 26, say the courts should reconsider his case in light of the racial slurs a white juror made about him. They say new U.S. Supreme Court decisions clearly prohibit death sentences based on race and permit defendants to inquire into racist statements by jurors. While preparing his appeal, Tharpe's lawyers interviewed jurors from his case, including one who openly referred to Tharpe with the N-word while saying the victim, Tharpe's sister-in-law, had come from a family of "'good' black folks." The juror's affidavit also said that, if the victim "had been the type Tharpe is, then picking between life or death for Tharpe wouldn't have mattered so much." Under questioning by prosecutors, the juror, who is white, testified that he had been drinking on the day Tharpe's defense team had initially interviewed him and on a second day on which they asked him to sign a statement that they had prepared based upon the prior interview. The juror denied that he had intended his use of the N-word in a racist way and contended that race had not affected his deliberations. The state's lawyers successfully argued that the court should not reconsider Tharpe's legal challenge based upon the evidence of racial bias—which prosecutors characterized as "racially insensitive offhand remarks"—because the jurors statements did not constitute an "extraordinary circumstance" and Georgia law did not permit inquiry into the content of the jury's deliberations. They further argued that there was no evidence that the jury's sentencing deliberations had been tainted by racial animus. In April 2016, Georgia executed Kenneth Fults, another African-American prisoner, despite strikingly similar evidence that he was intellectually disabled and that his sentence may have been the product of racial animus. In Fults' case, a white juror submitted a written affidavit saying, “I don’t know if he ever killed anybody, but that (N-word) got just what should have happened. Once he pled guilty, I knew I would vote for the death penalty because that’s what that (N-word) deserved.” The Georgia state and federal courts deemed the issue procedurally defaulted and denied relief to Fultz, and the U.S. Supreme Court declined to review the issue and denied Fults a stay of execution. Subsequently, the Supreme Court overturned a death sentence in a Texas case, Buck v. Davis, in which a defense psychologist had testified that Buck was more likely to commit future acts of violence because he is Black. Chief Justice John Roberts declared "[s]ome toxins can be deadly in small doses," calling the testimony a "particularly noxious strain of racial prejudice." "[T]he law punishes people for what they do, not who they are," he wrote. Then, in March 2017, the Court ruled in Peña-Rodriguez v. Colorado that when clear evidence of racial bias during deliberations emerges after trial, the defendant's right to a verdict free of racial bias overcomes state rules insulating jury deliberations from judicial review. Justice Kennedy wrote, "discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice." Despite these decisions, a federal judge on September 5 declined to reopen Tharpe's case.


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REPORT: Most of the 26 Prisoners Facing Execution in Ohio Through 2020 Severely Abused, Impaired, or Mentally Ill

Almost all of the 26 men scheduled for execution in Ohio over the next three years suffer from mental, emotional, or cognitive impairments or limitations that raise questions as to whether they should have been sentenced to death, according to a new report released August 30 by Harvard's Fair Punishment Project. While the U.S. Constitution requires that the death penalty be reserved for the worst crimes and the worst offenders, the report—Prisoners on Ohio's Execution List Defined by Intellectual Impairment, Mental Illness, Trauma, and Young Age—says that, instead, these prisoners "are among the most impaired and traumatized among us." The report says Ronald Phillips, whom Ohio executed July 26, was "19 at the time he committed his crime, had the intellectual functioning of a juvenile, had a father who sexually abused him, and grew up a victim of and a witness to unspeakable physical abuse – information his trial lawyers never learned or presented to a jury." It says at least 17 of the 26 other condemned prisoners Ohio seeks to execute between September 2017 and September 2020 experienced serious childhood trauma, including "physical abuse, sexual abuse, neglect, and exposure to serious violence"; at least 11 have evidence of "intellectual disability, borderline intellectual disability, or a cognitive impairment, including brain injury"; and at least 6 "appear to suffer from a mental illness." Jessica Brand, the Project's Legal Director, describes what has happened in these cases as a "horrible trifecta" in which "people who are the most impaired received some poor representation at some time in their cases and then are facing the most severe penalty possible." The Ohio Alliance for a Mental Illness Exemption from the death penalty, which is supporting an Ohio bill seeking to ban the use of capital punishment against the severely mentally ill, issued a press statement in which they noted that two of the prisoners are so mentally ill that they should be categorically exempted from the death penalty. A Death Penalty Information Center review of Ohio’s 2017-2020 scheduled executions shows that more than 60% of the execution warrants are directed at prisoners who were sentenced to death before Ohio had adopted its life-without-parole sentencing option and jurors had to weigh the death penalty against the risk that a prisoner would be released back into society. Mirroring trends repeated across the country, death sentences fell dramatically in Ohio when the state amended its death-penalty law to make life without parole available as a sentencing alternative. Death sentences dropped by 2/3rds in the state over the next decade, from an average of 12.7 per year to 4.3. The data suggests that juries would likely have treated evidence of intellectual disability, mental illness, or behavioral problems arising from chronic abuse and trauma very differently if they had assurances that the defendants would not later be released if sentenced to life.     


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Florida Supreme Court Upholds Removal of Prosecutor From Death-Eligible Cases

The Florida Supreme Court has upheld Governor Rick Scott’s (pictured, left) removal of Orange and Osceola County State Attorney Aramis Ayala (pictured, right) as prosecutor in more than two dozen murder cases because of her official policy not to seek to seek the death penalty. Over two dissents, the seven-member Court held that Scott had acted “well within the bounds of the Governor’s broad authority” when he replaced Ayala with Lake County State Attorney and death-penalty proponent Brad King in cases that could be eligible for the death penalty under Florida law. On March 16, Ayala—the first African American elected as a Florida state attorney—announced that her office would not pursue the death penalty in any homicide cases, saying the use of capital punishment was “not in the best interests of this community or in the best interests of justice." That day, Governor Scott issued an executive order removing her from the case of Markeith Loyd, charged in the killing of an Orlando police officer, and appointing King to prosecute the case. He has since issued executive orders removing Ayala and appointing King in at least 26 other murder cases. Against a backdrop of racial discrimination, Ayala—supported by the Florida Legislative Black Caucus and a group of lawyers, legal experts, and retired judges—argued that Scott’s action was a power grab that threatened the autonomy of locally elected prosecutors to exercise their discretion in charging and sentencing practices. The court flatly rejected that argument, saying that “adopting a blanket policy against the imposition of the death penalty is in effect refusing to exercise discretion and tantamount to a functional veto” of Florida’s death-penalty law. The two women on the court, Justice Barbara Pariente, joined by Justice Peggy A. Quince, dissented. Justice Pariente wrote: “This case is about the independence of duly elected State Attorneys to make lawful decisions within their respective jurisdictions as to sentencing and allocation of their offices’ resources, free from interference by a Governor who disagrees with their decisions.” Ayala’s decision “not seek a sentence that produces years of appeals and endless constitutional challenges and implicates decades of significant jurisprudential developments,” she wrote “was well within the scheme created by the Legislature and within the scope of decisions State Attorneys make every day on how to allocate their offices’ limited resources.” Governor Scott hailed the decision as “a great victory.” Shortly afterwards, Ayala issued a statement saying she respects the ruling and announcing the formation of a death penalty review panel that will evaluate first-degree murder cases and recommend whether to seek the death penalty. “With implementation of this Panel,” the statement said, “it is my expectation that going forward all first-degree murder cases that occur in my jurisdiction will remain in my office and be evaluated and prosecuted accordingly."


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50 Years After Historic Confirmation to Supreme Court, Thurgood Marshall's Legacy Continues To Shape Future

Fifty years ago today, Thurgood Marshall (pictured) was confirmed as the nation’s first African-American Supreme Court Justice. Marshall’s legacy is indelibly linked to his historic victory in 1954 as counsel in Brown v. Board of Education, breaking down the barriers of "separate but equal" segregated public education. But he is equally associated with his representation of capital defendants in racially charged cases in the Jim Crow South and his longstanding belief—first articulated in a concurring opinion in the Court's landmark 1972 decision in Furman v. Georgia striking down all existing death-penalty statutes—that "the death penalty is an excessive and unnecessary punishment that violates the Eighth Amendment." A grandson of slaves and a survivor of an attempted lynching by Tennessee police officers, Marshall devoted his life to ensuring that all people, irrespective of race, enjoyed the rights of full citizenship and the equal protection of the law. This inexorably drew him to the issues of lynching and capital punishment. Seven days after the Baltimore native received his law license in October 1933, a 23-year-old intellectually disabled black man, George Armwood, who had been in custody accused of the attempted assault and rape of an elderly white woman, was lynched in nearby Somerset County, Maryland. Marshall was one of ten lawyers to petition the governor seeking anti-lynching legislation and call for an investigation into state police involvement in the lynching. Marshall won his first Supreme Court case in 1940, arguing Chambers v. Florida, which established that coerced confessions obtained by police through duress and violence are inadmissible at trial. That year, he founded the NAACP Legal Defense and Educational Fund and served as its first Director-Counsel, representing numerous black defendants charged with crimes in Southern courts. In 1941, Marshall represented W.D. Lyons, an illiterate 21-year-old black sharecropper beaten into confessing to murdering a white family and burning down their home. Enduring racial epithets from an initially hostile white community, Marshall subjected the police who had framed Lyons to withering cross-examination and showed that they had obviously lied on the stand. Lyons was convicted and—after the U.S. Supreme Court denied his appeal—executed, but historians say the case awakened Marshall to the ability of lawyers to empower oppressed communities. Later, Marshall won retrials for three young African-American men who had been falsely accused of raping a 17-year-old white woman in Lake County, Florida. Two of the "Groveland Four" (a fourth young man charged in the case had been lynched by a white mob after escaping from custody) were wrongly sentenced to death; one of them was murdered and the other shot several times by a sheriff while being transported to their retrial. The surviving defendant was convicted and resentenced to death, but received a last-minute commutation. The third defendant—who was 16 at the time—received a life sentence. In April 2017, the Florida legislature issued an apology for the killings and wrongful convictions and asked Governor Rick Scott to issue posthumous pardons for the four. In November 1946, Marshall nearly was murdered. Tennessee law enforcement intercepted his car and placed him in the back of an unmarked car after he had won an acquittal for one of 25 black man charged with riot and attempted murder in the wake of local racial violence. They drove him down isolated roads and, Marshall later said, "were taking me down to the river where all of the white people were waiting to do a little bit of lynching." A white lawyer and a white journalist saw the abduction and followed the unmarked car, foiling the lynching. The Legal Defense Fund won acquittals in 23 of the 25 Tennessee riot cases. Marshall wrote in his concurrence in Furman that "[i]t is evident ... that the burden of capital punishment falls upon the poor, the ignorant and the underprivileged members of society." He firmly believed that the public would do away with the punishment if they understood the facts of how the death penalty actually was applied. The question for him in Furman was "not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available.”


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Florida Death-Penalty Practices, Mark Asay Execution Draw Criticism From Human Rights Groups, Johnson & Johnson

As Florida prepared to execute Mark Asay (pictured) on August 24, the state’s death-penalty practices came under fire from human rights groups, criminal justice reformers, and one of the world’s largest pharmaceutical companies. Asay was executed despite the Florida Supreme Court’s recognition that his death sentence—imposed by a judge after three jurors had voted for life—was unconstitutionally imposed and that the court mistakenly believed both of Asay’s victims were black when it upheld his death sentence for what it believed to have been two racially motivated killings. Asay's execution also drew criticism from Johnson & Johnson, the world’s largest pharmaceutical company. Its pharmaceutical division, Janssen Pharmaceuticals, condemned the state’s proposed use of the drug etomidate, which the company invented a half-century ago exclusively for medical use. Asay’s execution has been described as a twist on Florida’s racially disproportionate use of capital punishment. His execution made him the first white defendant since the state brought back capital punishment in the 1970s to be put to death for the murder of any black victim. In December 2016, African-American Florida Supreme Court Justice James Perry—in dissenting from the court’s decision to lift a stay of execution for Asay—described this “sad statistic” as a “reflection of the bitter reality that the death penalty is applied in a biased and discriminatory fashion, even today.” To date, all 57 white prisoners executed in Florida in the modern era were condemned for killing at least one white or Latino victim. In that same time period, Florida has executed 28 black death-row prisoners, with more than 70% condemned for the interracial murder of at least one white victim. On August 21, Amnesty International issued a new report, USA: Death in Florida, saying that the Asay execution and Governor Rick Scott’s decision to remove Orlando State Attorney Aramis Ayala from 27 homicide prosecutions provided “a moment to reflect upon an often overlooked aspect of Florida’s history—that it was a leader in lynching in the South and slow to eradicate this phenomenon in the 20th century.” The Amnesty report noted that Ayala, the first African American to be elected as a Florida state attorney, had cited systemic racial discrimination as one of the flaws in capital punishment that led to her decision that pursuing the death sentences in first-degree murder prosecutions was “not in the best interests of the community” or “the best interests of justice.” It also highlighted her replacement, Brad King, a white prosecutor whose “well-established” support for the death penalty, Amnesty said, included “act[ing] as lobbyist-in-chief for the Florida prosecutorial community” in legislative efforts to oppose requiring unanimous jury recommendations for death. Asay’s execution was the first ever in which a state has used the injectable sedative etomidate. As part of its three-drug process, Florida then administered rocuronium bromide as a paralytic drug and potassium acetate to stop the heart. In a statement issued on August 21, Janssen said: “Janssen discovers and develops medical innovations to save and enhance lives. … We do not condone the use of our medicines in lethal injections for capital punishment." The human rights organization, Reprieve, issued a statement saying that “Governor Scott should listen to clear and unequivocal statements from Johnson & Johnson and others calling time on this dangerous misuse of medicines, and stay the execution of Mark Asay.” The state and federal courts denied Asay's applications to stay his execution and he was put to death on August 24.


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Merck CEO Ken Frazier: Application of Death Penalty Not "Fair and Consistent"

Merck Chief Executive Officer Kenneth C. Frazier (pictured) resigned from the president’s American Manufacturing Council on August 14, saying “[a]s CEO of Merck and as a matter of personal conscience, I feel a responsibility to take a stand against intolerance and extremism.” In a statement posted on Merck’s Twitter account, Frazier said: "Our country's strength stems from its diversity and the contributions made by men and women of different faiths, races, sexual orientations and political beliefs. America's leaders must honor our fundamental values by clearly rejecting expressions of hatred, bigotry and group supremacy, which run counter to the American ideal that all people are created equal." It was not the first time that Frazier, the only African-American CEO of a major pharmaceutical company, has spoken out on matters of social justice. Following his successful pro bono representation of James Willie "Bo" Cochran, a black, Alabama death-row prisoner wrongly convicted of the murder of a white grocery store manager, Frazier wrote that the case showed him that "there can be no fair and consistent application of the death penalty under the current system." Frazier undertook Cochran's representation while a partner at the Philadelphia law firm, Drinker, Biddle & Reath, and remained on the case after joining Merck. Cochran won a new trial after Frazier and his team showed that, in two prior trials, the prosecutor had systematically removed 31 of the 35 potential black jurors because he believed they were less "reliable" and more likely to acquit black defendants. Frazier initially doubted Cochran's proclamation of innocence: witnesses inside the store described the suspect as a black man and, as police converged on the scene, heard a gunshot coming from a nearby trailer park, less than one mile from where Cochran was found with a gun and cash. But Frazier discovered during the post-conviction proceedings that there was no physical evidence against his client, the only bullet recovered near the scene did not match Cochran's gun, and the fatal bullet could not be tested because police had cut it out of the victim's body and removed it before delivering the body to the medical examiner. "He was convicted," explains Frazier, "despite evidence suggesting an accidental police shooting and cover-up." Even though the state only had circumstantial evidence against him, Cochran was tried three separate times for the killing (the first time, there was a mistrial, and the second time his conviction was reversed on appeal). "Although some maintain the criminal justice system is color-blind," Frazier wrote, "the reality is that race plays a substantial role in the judicial process." In Cochran's retrial, a jury that Frazier says "was not selected primarily on the basis of race" acquitted him in less than an hour. 


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