Mid-Year Review: Executions, New Death Sentences Remain Near Historic Lows in First Half of 2017
As we reach the mid-point of the year, executions and new death sentences are on pace to remain near historic lows in 2017, continuing the long-term historic decline in capital punishment across the United States. As of June 30, six states have carried out 13 executions, with 30 other executions that had been scheduled for that period halted by judicial stays or injunctions, gubernatorial reprieves or commutation, or rescheduled. By contrast, at the midpoint of 2016, five states had carried out 14 executions, and 25 other executions had been halted. 12 executions are currently scheduled for the rest of 2017, with 8 others already halted, and several more death warrants are expected to be issued. Depending on whether Ohio carries out the five executions pending between now and December, DPIC anticipates a slight increase in executions in the U.S. from 2016's 26-year low. However, even with the spate of four executions carried out in Arkansas from April 20-27—that state's first executions since 2005—there will likely be fewer executions in 2017 than in any other year since 1990. New death sentences also remain near historically low levels. DPIC has confirmed at least 16 new death sentences so far in 2017, a pace very close to the record-low 31 new death sentences imposed in 2016. Florida's abandonment of non-unanimous jury recommendations of death and Alabama's repeal of judicial override of jury recommendations for life are expected to substantially reduce the number of new death sentences in those states. The death sentences of nearly 100 Florida death-row prisoners have been overturned as a result of the state supreme court's declaration than non-unanimous death sentences are unconstitutional, and courts in Delaware and Connecticut have continued emptying those state's death rows after their death penalty statutes were declared unconstitutional. Three people have been exonerated from death row in 2017—Isaiah McCoy in Delaware, Rodricus Crawford in Louisiana, and Ralph Daniel Wright, Jr. in Florida—bringing the number of death-row exonerations in the U.S. since 1973 to 159. There have also been three grants of clemency in the first half of 2017, bringing the national total since 1976 to 283. President Barack Obama granted clemency to federal death-row prisoner Abelardo Arboleda Ortiz and military death-row prisoner Dwight Loving, and Virginia Governor Terry McAuliffe granted clemency to Ivan Teleguz. All three are now serving sentences of life without parole. The U.S. Supreme Court has issued three significant decisions in 2017 in favor of death-row prisoners. On February 22, in Buck v. Davis, the Court granted relief to Duane Buck due to racially biased testimony on the issue of future dangerousness. A month later, in Moore v. Texas, the Court unanimously struck down Texas' outlier practice for determining intellectual disability in capital cases. In McWilliams v. Dunn, the Court found on June 19 that James McWilliams' constitutional rights were violated when Alabama failed to provide him assistance of an independent mental-health expert. The Court ruled against Texas death-row prisoner Erick Davila on June 26.
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Nevada Death-Row Prisoner Released on Plea Deal After Medical Evidence Suggests No Crime Occurred
Ha'im Al Matin Sharif (pictured), formerly known as Charles Robins, has been released from Nevada's death row, nearly 30 years after he was convicted of killing his girlfriend's 11-month-old daughter, after medical evidence revealed that the baby died from infantile scurvy, rather than from physical abuse. Prosecutors agreed to amend the charges against Sharif and release him on time served after a prosecution doctor confirmed that Brittany Smith actually died of Barlow's disease, a form of scurvy affecting infants. The child's autopsy showed broken bones and hemorrhages, a local medical examiner listed the cause of death as blunt force trauma, and Las Vegas police accused Sharif of torturing her. “I was confused as to the nature of the injuries they described, because I had done nothing,” Sharif said. The child's mother initially told police that Sharif was not abusive, but then testified against him. She later recanted her testimony and told Sharif's appellate attorney that police had coerced her into providing false testimony implicating Sharif by threatening to take her other children away. During Sharif's appeals, medical experts who reviewed the baby's X-rays to rule out disease as the cause of death said the injuries were likely caused by scurvy. The Nevada Supreme Court ordered that the case be sent back to the trial court, writing, "We are satisfied that Robins has presented specific factual allegations that, if true, would show that it is more likely than not that no reasonable juror would have convicted him of first-degree murder and child abuse beyond a reasonable doubt or found the single aggravating circumstance used to make him death eligible." Prosecutors agreed to a deal in which Sharif would plead guilty to second-degree murder and be sentenced to time served. Although Sharif continues to maintain his innocence, he agreed to the reduction in charges to obtain his immediate release. Sharif's case is the latest in a growing number of cases in which men and women have been wrongly sentenced to death based upon erroneous forensic testimony that they had murdered a child, when the children had actually died from natural or accidental causes. Rodricus Crawford was exonerated in Louisiana in 2017 on evidence that his one-year-old son died of pneumonia and sepsis, not suffocation. Sabrina Butler was just 17 years old when her infant son died. She spent five years on death row in Mississippi before she was acquitted at a retrial, where she presented evidence that her child died of a hereditary kidney condition. Others have been condemned for the deaths of their children in cases that junk-science testimony misattributed to arson: Texas executed Cameron Todd Willingham in 2004 based on faulty fire testimony; in 2006, after more than 15 years on Pennsylvania's death row, Dennis Counterman agreed to enter a no-contest plea to third-degree murder and was released.
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BOOKS: "Exonerated" Tells the Story of the Innocence Movement
Exonerated: A History of the Innocence Movement, by Robert J. Norris, describes the rise of the "innocence movement," the lawyers, investigators, journalists, lawmakers, and organizations that have worked to uncover wrongful convictions, educate the public about the problem, and reform the criminal justice system to prevent future mistakes. For the book, Norris interviewed 37 key leaders on the issue, including Innocence Project co-founders Barry Scheck and Peter Neufeld, and Rob Warden, co-founder of Northwestern University's Center on Wrongful Convictions. He also researched major cases, such as the exoneration of Kirk Bloodsworth, the first wrongly death-sentenced person to be exonerated by DNA evidence, and reviewed studies on innocence. Exonerated explores how separate scientific, legal, and cultural developments coalesced, leading to a broader understanding of how technology—particularly DNA testing—and more reliable investigative techniques could exonerate the innocent and combat the risks of wrongful convictions. And the book explains how this greater understanding of wrongful convictions was a catalyst in transforming public attitudes about capital punishment. Richard A. Leo, author of The Wrong Guys: Murder, False Confessions and the Norfolk Four, said, "Exonerated is the definitive account of how the innocence movement transformed public views about the everyday fallibility of the American criminal justice system in the late 20th century, and why preventing the wrongful convictions of the factually innocent remains more important than ever in the 21st century.” 159 men and women who were wrongly convicted and sentenced to death in the United States have been exonerated in the 45 years since the U.S. Supreme Court's decision in Furman v. Georgia overturned existing death-penalty laws in 1972.
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Death Sentence Commuted, Kevin Keith Presses Innocence Claim in Ohio Appeals Court
An Ohio appeals court heard argument on June 6 on whether to grant a new trial to former death-row prisoner Kevin Keith (pictured), whose death sentence was commuted to life without parole by Ohio Governor Ted Strickland in 2010 amid concerns that he may be innocent. Keith, who has consistently maintained his innocence of the three 1994 murders for which he was sentenced to death, presented argument to the Ohio Court of Appeals for the 3rd District based on newly discovered evidence that the state forensic analyst whose controversial tire-track analysis linked him to the crimes had an undisclosed record of misconduct. Forensic analyst G. Michele Yezzo testified at Keith's trial that a license plate imprint of the numbers 043 left in a snow bank at the crime scene matched Keith's girlfriend's car, and that, by looking at a tire brochure, she could conclude that tire tracks also matched the car. No other forensic evidence linked Keith to the crime. In addition, a seven-year-old survivor who was shown a photo array of suspects excluded Keith's photo and told the police that it was her "Daddy's friend, Bruce" who shot them, and several alibi witnesses testified that Keith was more than 30 minutes away when the shootings took place. An alternate suspect who drove a car fitting eyewitness descriptions of the getaway car and that had a 043 in its license plate number also had a brother named Bruce. During the June 6 argument, Keith's lawyer, Rachel Troutman, told the Court of Appeals, "That expert [Yezzo] was known to the state — though not to Mr. Keith — as someone who will stretch the truth to satisfy a department. Since the trial her forensic conclusions have proven faulty." Yezzo's personnel file said her analysis was untrustworthy, co-workers thought she suffered from a "severe mental imbalance," she used racial slurs in describing a minority co-worker, and supervisors and colleagues noted her "findings and conclusions regarding the truth may be suspect." Prosecutors said they expected the court's decision, which can be appealed to the Ohio Supreme Court, to be issued within a period of several weeks to several months.
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Alabama Governor Signs Law Shortening Death-Penalty Appeals
On Friday, May 26, Alabama Governor Kay Ivey (pictured) signed into law a statute denominated the "Fair Justice Act," which is designed to shorten the state death-penalty appeals process. The law constricts the amount of time death-row prisoners have to file appeals, imposes time limits for judges to rule on appeals, and requires prisoners to pursue their direct appeal and post-conviction appeal simultaneously, including raising claims of appellate counsel's ineffectiveness while appellate counsel is still handling the case. Governor Ivey characterized the law—which will apply to all defendants sentenced to death on or after August 1, 2017—as "strik[ing] an important balance between protecting the rights of a defendant and the state's interest in allowing justice to be achieved effectively and swiftly." Alabama Attorney General, Steve Marshall, said the statute "streamlines the appellate process" but "does not diminish the thoroughness of appellate review of death penalty cases." Critics of the law, however, say that is precisely what it does. Linda Klein, the President of the American Bar Association—which calls for fair process in the administration of capital punishment but takes no position on the death penalty itself—said that the new law "unduly limit[s] counsel’s ability to conduct that critical post-conviction investigation" and will "make Alabama an outlier on how appeals and post-conviction cases are handled." Birmingham civil-rights attorney Lisa Borden said Alabama capital cases typically suffer from a lack of “detailed investigation" into what the issues in the case actually are and if the state curtails the time for post-conviction investigation, "you are going to have people whose valid claims, whose important claims [are] cut off forever and people are going to die.” She said, "If Alabama really wants to fix the process[, it should] . . . provide competent representation and resources to people from the beginning." The National Registry of Exonerations has found that more than half of all murder exonerations involved prosecutorial failures to disclose exculpatory evidence, and that official misconduct was present in 87% of death-row exonerations of black defendants and 67% of death-row exonerations of white defendants. The study also showed that it took an average of four years longer to exonerate an innocent black defendant wrongly convicted of murder and sentenced to death than a wrongly convicted white death-row prisoner. Anthony Ray Hinton, an innocent African-American man who spent nearly 30 years on Alabama's death row for a crime he did not commit, has said that if he were convicted under the Fair Justice Act, "I would have been executed despite my innocence." Hinton says it took more than 14 years before he was able to obtain the competent representation and expert assistance necessary to prove his innocence.
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Alabama Prisoner Facing Eighth Execution Date Claims Innocence, Challenges Execution Procedures
Tommy Arthur (pictured), an Alabama death-row prisoner whose 35-year journey through the court system has frustrated both proponents and opponents of the death penalty, is scheduled to be executed on May 25, 2017, the eighth time Alabama has set an execution date in his case. Arthur—whose conviction and death sentence has twice been overturned by the courts and was sentenced to death by his trial judge based upon a non-unanimous jury sentencing recommendation—has steadfastly maintained his innocence in the 1982 murder of Troy Wicker. Most recently, an evenly divided U.S. Supreme Court issued a stay of execution four hours after Arthur's execution was set to begin on November 3, 2016, so the Court could consider whether to review Arthur's challenge to Alabama's use of the controversial drug midazolam and his request to be executed by firing squad. The Court ultimately declined to review both that claim and Arthur's separate challenge to the constitutionality of Alabama's non-unanimous sentencing practices. Arthur has repeatedly raised innocence claims, seeking new forensic testing of evidence from his case. Judy Wicker, the wife of Troy Wicker, who was charged with hiring Arthur to kill her husband, testified at her trial that her husband had been murdered by a burglar who beat and raped her. After Ms. Wicker's conviction, she changed her testimony when a prosecutor, who had previously represented her at a parole hearing, offered her early release if she testified against Arthur. The rape kit taken from Ms. Wicker at the time of the murder was lost or destroyed without being tested for DNA and, according to Arthur's current lawyer, Suhana Han, “[n]either a fingerprint or a weapon, nor any other physical evidence connects Arthur to the murder of Troy Wicker.” Hairs found near the victim have also never been tested with modern DNA technology. Arthur has also argued that his trial counsel was ineffective, and continues to litigate issues relating to Alabama's lethal injection protocol. He currently has an emergency motion pending before the U.S. Court of Appeals for the 11th Circuit, challenging the state's planned use of midazolam, a drug that has been linked to many problematic executions, including that of Ron Smith in Alabama in December 2016. He has also challenged the state's refusal to disclose records related to the Smith execution, which his lawyers say may provide critical evidence for his lethal-injection challenge. The Alabama Court of Criminal Appeals issued a preliminary ruling in Arthur's favor on a separate issue on May 23, reversing a Montgomery Circuit judge's order rejecting Arthur's claim that the legislature, rather than the Department of Corrections, should determine the state's execution method. But that procedural ruling will not delay his execution. His motion stated, "The role of the legislature is particularly critical given the controversial nature of the ADOC's current midazolam-based execution protocol. ...The choice of the first drug (midazolam) to be used is critical, because without an effective anesthetic, the second and third drugs would cause unbearable pain. But the drug the ADOC chose (in secret), midazolam, is not used in medical practice as a general anesthetic; rather, it is an anti-anxiety sedative in the same drug family as Valium and Xanax, and its use in lethal injection has been extremely problematic." [UPDATE: Alabama executed Thomas Arthur near midnight on May 25. He was pronounced dead at 12:15 a.m. on May 26. Media witnesses reported no visible indicators that the drugs had failed.]
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Two Philadelphia Detectives, Three Wrongful Capital Prosecutions
On May 13, 2017, James "Jimmy" Dennis (pictured, center, with some of his defense team) was released from prison after more than 25 years on Pennsylvania's death row. His release marked the culmination of three unrelated wrongful capital prosecutions in Philadelphia in the early-1990s, with the common thread a pattern of misconduct by the same two Philadelphia homicide detectives. Dennis, Anthony Wright, and Percy St. George were all capitally charged for murder in cases investigated by Detectives Manuel Santiago and Frank Jastrzembski. Dennis was convicted and sentenced to death, Wright was convicted and sentenced to life without parole when his death penalty jury could not agree on a sentence, and capital charges against St. George were dismissed before he went to trial. Misconduct in Wright and Dennis' trials led courts to overturn their convictions decades later. The detectives' misconduct came to light in the St. George case when one supposed eyewitness told St. George's attorneys that he had identified St. George only because "[Santiago] told me that I could get locked up, so I was scared, because I had never been locked up before." As other questionable conduct was discovered, Detectives Santiago and Jastrzembski invoked their Fifth Amendment right against self-incrimination and the charges against St. George were dropped. Wright was initially convicted of rape and murder based upon an unrecorded fabricated confession that Santiago purported to have taken and clothing matching those Wright supposedly had admitted to have worn during the crime. Jastrembski claimed to have found those clothes hidden under Wright’s bed. DNA testing later established that the clothes had actually been worn by the victim, not Wright, suggesting that police had fabricated the confession and planted the clothing to incriminate Wright. Jastrembski and Santiago were also implicated in misconduct in Dennis' case, suppressing evidence that Dennis was not the killer. The two detectives had been asked to follow up on a statement a county prisoner named William Frazier had given to police saying that a friend of his had confessed to committing the murder with two other men. The detectives spoke to one of the three potential suspects, who fit the description offered by another eyewitness, but contradicted the prosecution's case against Dennis. That information was withheld from Dennis' defense. Jastrembski also claimed to have seized clothes from Dennis' house that fit the description of the clothes eyewitnesses said the killer had worn, but told the state post-conviction court that the clothes had since been thrown in the trash by cleaners. Even after courts overturned Wright's and Dennis' convictions, the Philadelphia District Attorney's Office continued to pursue charges against them. Even after Wright was acquitted in August 2016, a prosecution spokesperson continued to assert that "the evidence was sufficient to prove Anthony Wright participated in the murder of Louise Talley." In December 2016, facing a capital retrial, Dennis made the difficult decision to plead no contest to lesser charges. He was resentenced to time served, but his release was delayed as he awaited parole on unrelated charges. The Innocence Project and a Philadelphia civil rights law firm have filed a lawsuit against the city and 11 police officers, including Detectives Santiago and Jastrzembski, alleging a pervasive pattern of unconstitutional misconduct, including in the cases of Wright, Dennis, and St. George.
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Florida Supreme Court Orders Exoneration of Ralph Daniel Wright, Jr.
The Florida Supreme Court has directed that Ralph Daniel Wright, Jr. (pictured) be acquitted of the murder charges for which he was sentenced to death in 2014, making him the 159th person exonerated from death row in the United States since 1973. On May 11, 2017, the court unanimously vacated Wright's convictions for the murders of his ex-girlfriend and their son, ruling that the "purely circumstantial" evidence against him was insufficient to convict. A majority of the court joined a concurring opinion by Justice Charles Canady holding that "no rational trier of fact could have found ... beyond a reasonable doubt" that Wright was the killer. Prosecutors accused Wright of murdering Paula O'Conner—a white woman with whom he had an affair—and their 15-month-old son Alijah supposedly to "avoid a child support obligation and ... maintain a 'bachelor lifestyle.'" The court noted that "none of the evidence presented at trial directly tied Wright to the murders" and that the victim's young-adult daughter, who had a volatile relationship with the victim, also had a financial motive, having received more than $500,000 in life insurance benefits as a result of her mother's and half-brother's deaths. Much of the state's case relied on the presence of a black military glove in the home of the murder victims. While Wright, a member of the Air Force, had access to that type of glove, "the State could not prove that Wright ever wore the glove, that he left it on Paula’s couch, that it came from MacDill [the base where Wright was stationed], or that it was even used in the murders." DNA tests by the Florida Department of Law Enforcement reported the results as inconclusive, but independent analysis by the DNA Diagnostic Center and Bode, the private labs hired by the defense and prosecution, respectively, excluded Wright as a contributor of the DNA found on the glove. The DNA analysis did not test for the presence of the victim's daughter, whom police did not investigate. Wright was convicted of the murders, and the trial court sentenced him to death after a bare 7-5 majority of the jury voted to recommend the death penalty. The Florida Supreme Court later declared death sentences based upon non-unanimous jury recommendations to be unconstitutional. Wright is the 27th person to be exonerated from death row in Florida. Nineteen of the 21 exoneration cases from Florida in which the jury vote is known have involved a non-unanimous jury recommendation of a death sentence or a judicial override of a jury recommendation of life.
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Former Prosecutor on Trial on Charges that His Misconduct Led to Wrongful Execution of Cameron Willingham
John Jackson, the former Navarro County, Texas prosecutor and judge, is on trial for ethics violations in the 1992 capital trial of Cameron Todd Willingham (pictured), which many believe led to the execution of an innocent man. Willingham was convicted of arson and murder and sentenced to death in connection with the house fire that killed his three young daughters. Texas executed him in 2004. Willingham's conviction and execution rested on two key pieces of testimony: arson testimony—since discredited as junk science—claiming that burn patterns in the house established that an accelerant had been used in starting the fire, and a statement by prison informant Johnny Webb claiming that Willingham had confessed to him while the two men were both in the county jail awaiting trial. In July 2014, The Innocence Project filed a complaint against Jackson with the Texas State Bar stating that the prosecutor had “violated core principles of the legal profession, and did so with terrible consequences ... the execution of an innocent man.” The Project argued that Jackson should face sanctions for falsifying official records, withholding evidence from the defense, suborning perjury and obstructing justice. Based on those allegations, the Texas State Bar brought ethics charges against Jackson, who faces a rare public trial for that misconduct. In that trial, attorneys for the Texas State Bar allege that Jackson coerced Webb to testify, offered Webb a reduced sentence on an aggravated robbery charge, did not disclose the deal to Willingham's defense, and knowingly elicited false testimony from Webb claiming that he had not been offered any benefit for his testimony. Correspondence between Jackson and Webb shows that Jackson petitioned state officials on Webb's behalf and eventually used a legal process intended for correcting clerical errors to reduce Webb's robbery sentence. Webb has described in interviews and depositions how Jackson convinced him to falsely testify against Willingham. Webb recounted one conversation with Jackson in which “He said, well, let’s go over [what] I think needs to happen. He says I’ve got this guy Willingham who did this. We know he did it. We know he’s guilty. We just can’t prove it." Of Webb's robbery charge, Jackson allegedly told Webb, "even if you’re convicted now, I can get it off of you later." The Intercept reports that, since 2013, roughly 10 prosecutors have been sanctioned in cases brought by the Texas State Bar, and only three prosecutors have opted, as Jackson has, to have their cases heard in public by a jury, rather than in private by a panel of lawyers. [UPDATE: On May 11, 2017, a Navarro County jury voted 11-1 that Jackson had not committed misconduct in the Willingham case.]
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BOOKS: "The Trials of Walter Ogrod" Chronicles Pennsylvania Possible Innocence Case
Walter Ogrod was convicted and sentenced to death in Philadelphia in 1996 for the 1988 murder of a 4-year-old girl, whose body was found in a discarded television box. Ogrod, who is developmentally disabled, has long maintained his innocence, but despite significant irregularities in the case and amidst allegations of official misconduct, local prosecutors have fought efforts to obtain DNA testing of the physical evidence and to investigate the role a discredited prison informant played in implicating Ogrod. A new book, "The Trials of Walter Ogrod," by Tom Lowenstein chronicles the crime, the trial, and the failures of the criminal justice system in Ogrod's case. The book tells how a Philadelphia homicide detective interrogated the intellectually limited Ogrod for more than 14 hours before Ogrod signed a 16-page confession that was written by the detective and that was filled with emotionally-laden language Ogrod—with an autism spectrum disorder—would not have used. Ogrod's court proceedings have been controversial from the outset. The jury in Ogrod's 1993 trial voted to acquit, but as the verdict was being read, one juror called out that he had changed his mind, causing a mistrial. Before the second trial, Ogrod was placed with a prison cellmate named John Hall, a snitch so notorious for producing confessions that he was nicknamed "The Monsignor." Hall claimed that Ogrod had confessed to him, giving a story that was completely different from the written confession extracted by detectives and used in the first trial. Hall also introduced Ogrod to a second informant, who received leniency in his own case after claiming Ogrod had made a confession similar to the story Hall had reported. Ogrod did not match witness descriptions of the likely perpetrator and no physical evidence linked him to the crime, but a jury convicted him in a retrial in 1996 based upon the informant testimony. A year later, Hall was discredited after being caught fabricating a confession in another high profile Philadelphia murder case. Ogrod's lawyers have sought DNA testing of fingernail scrapings taken from the victim, but prosecutors and courts have blocked their efforts. Philadelphia is in the midst of a campaign for District Attorney, and Lowenstein believes the next person elected to that office should take another look at Ogrod's case and several others like it, in which prosecutors used jailhouse snitches and high-pressure interrogations to obtain convictions. "What I would like to see is the next DA in Philadelphia do a thorough review of death-penalty and life-imprisonment cases from the 1990s," he said. "There was a systemic problem with how that DA’s office was prosecuting people."
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