Kentucky Joins States With No Executions for at Least Ten Years
On November 21, 2018, Kentucky marked 10 years since its last execution, becoming the eleventh current death-penalty state that has not carried out an execution in more than a decade. Another 20 states have legislatively or judicially abolished their death-penalty laws, bringing the number of states that do not actively use the death penalty to 31. On the day before Kentucky reached its 10-year milestone, a lawsuit filed in federal court highlighted some of the greatest dangers of capital punishment in the Commonwealth. On November 20, Nickie Miller—a military veteran and cancer patient who spent two years in jail facing a possible death sentence before murder charges against him were dropped in 2017—filed a lawsuit against Montgomery County, Kentucky and local and state law enforcement officials alleging that they had conspired to frame him for murder.
Miller’s complaint names six people involved in his investigation and prosecution as defendants: Montgomery County Sheriff Fred Shortridge, Assistant Commonwealth Attorney Keith Craycraft, Detectives Ralph Charles Jr. and Mark Collier, county jailer Eric Jones, and Kentucky State Police Polygraph Examiner John Fyffe. The complaint alleges that the defendants fabricated and destroyed evidence, testified falsely, and coerced a woman into falsely implicating Miller by threatening to take her children unless she provided the statement they wanted. It specifically claims that Fyffe and the sheriff’s officers “conspired to take [Miller’s] liberty by knowingly initiating false charges based on evidence that the Defendants fabricated.” According to the complaint, the alleged misconduct “had a profound impact” on Miller’s health, denying him “proper medical treatment [for his cancer], including chemotherapy, while incarcerated.” “The defendants succeeded in manipulating the justice system for several years, including falsely accusing Mr. Miller of capital murder and seeking the death penalty against a clearly innocent man,” defense investigator Joshua Powell said. “Mr. Miller has suffered tremendous damage, mental suffering, cancer recurrence and loss of a normal life, all caused by the defendants’ misconduct.”
Kentucky has imposed 97 death sentences since reinstating the death penalty in 1975. More than half (49) of those convictions or sentences have been overturned, including the conviction of Larry Osborne, who was exonerated in 2002. Two of the three men executed in Kentucky waived some or all of their appeals, “essentially committing legal suicide,” said Damon Preston, a Public Advocate at the Kentucky Department of Public Advocacy. Preston also said that Kentucky’s death penalty system deprives families of closure: “It’s hard to see how the family would get resolution when the cases go on for so long. But the reason cases go on for so long is because the death penalty in Kentucky doesn’t work. If a defendant is sentenced to life without parole, that defendant gets an appeal to the Kentucky Supreme Court and then the case is essentially over.” Executions in Kentucky have been under a judicial hold since 2010, as a result of challenges to the lethal-injection protocol. The Attorney General’s Office is scheduled to file its brief in the lethal-injection case on November 30, but additional hearings and briefing are expected before the court issues a ruling in the case.
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On Fifteenth Anniversary of Witness to Innocence, Prominent Exonerees Seek Abolition of the Death Penalty
As Witness to Innocence (WTI), an organization of U.S. death-row exonerees and their families, prepared to mark its 15th anniversary on November 15, 2018, two of the country’s most prominent exonerees—WTI’s acting director, Kirk Bloodsworth (pictured, left), and its board chair, Kwame Ajamu (pictured, right)—called for an end to the death penalty in the United States. In an op-ed in the Philadelphia Inquirer, the two exonerees told the stories of their wrongful convictions and death sentences and highlighted the problem of wrongful capital convictions across the U.S.
After having spent eight years in prison in Maryland, Bloodsworth became the first capitally-convicted person in the world to be exonerated by DNA evidence. Prosecutors had withheld exculpatory evidence in his case and police had used unreliable interrogation techniques and a commercial “identi-kit” in getting two young boys to misidentify Bloodsworth as the person who raped and murdered a young girl. Kwame Ajamu spent 28 years in prison in Ohio, including three on death row, because police coerced a 13-year-old boy to falsely identify him, his brother, and one of their friends. It took 39 years before he was finally exonerated.
Ajamu’s and Bloodsworth’s op-ed also draws attention to the stories of the other 162 wrongfully convicted and death-sentenced men and women who have been exonerated in the U.S. since 1973. "Based on the empirical data and our own life experiences, we believe it is time to end capital punishment across the U.S.," they write. "Some people support capital punishment in theory, but in practice, it is too broken to be fixed. We need to get the death penalty right every time, and we don't. If it can happen to us, it can happen to anyone."
In connection with the anniversary, WTI also live-streamed a news conference themed From Death Row to Life, Liberty, & the Pursuit of Justice. The event featured more than twenty death-row exonerees, Philadelphia District Attorney Larry Krasner, Innocence Project co-founder Barry Scheck, death-penalty activist Sister Helen Prejean, DPIC Executive Director Robert Dunham, and others. In conjunction with the anniversary. WTI also announced the launching of a new project, Accuracy & Justice Workshops, which are intended to bring exonerees and criminal justice professionals together to work on reducing wrongful convictions. As part of that project, WTI will be conducting a series of training workshops with prosecutors from the Philadelphia District Attorney’s office in December.
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“Often Forgotten” in the Wake of Exonerations, Wrongful Convictions Harm Murder Victims’ Families, Too
In a feature article in Politico, Lara Bazelon, an associate professor at the University of San Francisco School of Law and author of the new book, Rectify: The Power of Restorative Justice After Wrongful Conviction, describes an exoneration as “an earthquake [that] leaves upheaval and ruin in its wake.” Exonerees, she writes, “suffer horribly—both physically and mentally—in prison” and are revictimized following their release, “leav[ing] prison with no ready access to services or a support system that can help them re-acclimate to society.” But wrongful convictions that lead to exonerations have other, “often forgotten” victims, too: the family members of the crime victim. Victims’ family members, Bazelon writes, are “forced to relive the worst experience of their lives with the knowledge that the actual perpetrator was never caught, or caught far too late, after victimizing more people.”
Bazelon’s article highlights the experience of these family members, telling the story of Christy Sheppard (pictured), whose cousin, Debbie Lee Carter, was murdered in Oklahoma when Christy was eight years old. Ron Williamson and Dennis Fritz were convicted of the murder; Williamson was sentenced to death and Fritz to life without parole. Eleven years later, when Williamson and Fritz were exonerated, it shook Sheppard and her family. The tremors from that wrongful conviction transformed the family’s perception of the criminal justice system and turned Sheppard into an advocate for criminal justice reform. In 2013, Sheppard participated in a panel discussion at the annual conference of the Innocence Project. There, she appeared with Jennifer Thompson, a rape survivor who had misidentified her rapist, then later co-authored a book with the man who had been wrongfully convicted of her attack. Sheppard said that Thompson voiced the same sense of “re-victimization and not being included” that she and her family had felt. After the conference, Sheppard came to view the experiences of exonerees and crime victims as “completely different but also the same. ...We have all been lied to, mistreated, and not counted.”
Sheppard later wrote an op-ed about the innocence claims of another Oklahoma death-row prisoner, Richard Glossip. “[The victim] and his family deserve justice,” she wrote, “but justice won’t be served if Glossip is put to death and we find out too late that he is innocent of this crime.” She was one of eleven members of the Oklahoma Death Penalty Review Commission, and the only member who was neither a lawyer nor a politician. As a member of the commission, she sought to challenge the idea that the death penalty was the only way for her family to be given justice. She has since spoken about her experiences on local and national media, testified before the Ohio Senate in support of a bill to ban the execution of people with mental illness, and campaigned for death penalty repeal in Nebraska. “I know these cases are not about the truth,” Sheppard told Bazelon. “It is politics; it is a game where people are moved around and played. It is not fair and it is not balanced.”
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Clemente Aguirre Exonerated From Florida's Death Row After DNA Implicates Prosecution Witness
With newly discovered confessions and DNA evidence pointing to the prosecution’s chief witness as the actual killer, prosecutors dropped all charges against Clemente Javier Aguirre (pictured, center, at his exoneration) in a Seminole County, Florida courtroom on November 5, 2018. The dismissal of the charges made Aguirre the 164th wrongfully convicted death-row prisoner to be exonerated in the United States since 1973 and the 28th in Florida. The announcement that prosecutors were dropping all charges against Aguirre came after jury selection for his retrial had already begun. The Florida Supreme Court unanimously overturned his conviction in 2016. “Mr. Aguirre was nearly executed for a crime he didn’t commit,” said Joshua Dubin, one of Aguirre's attorneys. “While we are overjoyed that his ordeal is finally over, the case of Clemente Aguirre should serve as a chilling cautionary tale about how dangerous it is when there is a rush to judgment in a capital case.”
Aguirre was convicted and sentenced to death in 2006 for the murder of two neighbors: an elderly woman and her adult daughter. He steadfastly maintained his innocence, saying he had discovered the women only after they had been killed. He did not report the murders to authorities, he said, because he was an undocumented immigrant and feared deportation. Evidence has increasingly pointed to the victims' daughter and granddaughter, Samantha Williams, as the likely perpetrator, and an affidavit filed last week undermined Williams's alibi. DNA testing had revealed Williams's blood in several locations at the crime scene but had found none of Aguirre’s blood. Williams also has reportedly confessed to the crime on at least five occasions. A sworn affidavit from the wife of Mark Van Sandt, Williams’s boyfriend at the time of the crime and her key alibi witness, says that Van Sandt told his wife he saw Williams crawling out of his bedroom window on the night of the murders. Prosecutors said that they dropped charges “based upon new evidence that materially affects the credibility of a critical State witness.”
Aguirre is an undocumented immigrant from Honduras, and his attorneys say they plan to file an asylum application on his behalf. Joshua Dubin said in a statement: “If there were ever a person that deserved a chance to become a United States citizen, it is Clemente Aguirre. He has been fully exonerated, so we are going to be asking the immigration judge to set a bond and allow Clemente to be released while his application for asylum proceeds.” Aguirre is the third foreign national to be exonerated in the last year. Gabriel Solache was exonerated in Illinois on December 21, 2017 and Vicente Benavides was released on April 19, 2018 after nearly 26 years on California's death row. Both Solache and Benavides are Mexican nationals. While there has been one exoneration for about every nine executions in the U.S. overall, there has been one exoneration of a foreign national for every 6.17 executions of a foreign national, suggesting that foreign nationals may be more likely to face wrongful convictions and death sentences than U.S. citizens.
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Supreme Court to Review Mississippi Death-Penalty Case in Which Prosecutor Systematically Excluded Black Jurors
The U.S. Supreme Court has agreed to review whether a prosecutor with a long history of racially discriminatory jury-selection practices unconstitutionally struck black jurors in the trial of Mississippi death-row prisoner Curtis Giovanni Flowers (pictured). On November 2, 2018, the Court granted certiorari in the Flowers’s case on the question of “[w]hether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky,” the landmark 1986 Supreme Court decision barring the use of discretionary strikes to remove jurors on the basis of race.
Flowers has been tried six times for a notorious 1996 quadruple murder in Winona, Mississippi. He was prosecuted each time by Doug Evans, the District Attorney in Mississippi's Fifth Circuit Court District since 1992. Flowers was convicted by all-white or nearly all-white juries based on questionable circumstantial evidence and the testimony of a jailhouse informant (who has since recanted) that Flowers had confessed to the murders. Court pleadings and the American Public Media (APM) podcast series, In the Dark, have cast doubt upon much of the evidence in the case, and a prominent pathologist who examined the autopsy reports and crime scene photograph has disputed the prosecution’s theory that the murder was committed by a single perpetrator.
In the Dark conducted a study of jury selection in the Fifth Circuit Court District during the 26-year period from 1992 to 2017 in which Evans was District Attorney, analyzing prosecutorial strikes or acceptances of more than 6,700 jurors in 225 trials. APM found that throughout Evans's tenure, prosecutors struck prospective black jurors at nearly 4½ times the rate of white prospective jurors. In Flowers’s case, Evans struck nearly all of the African-American jurors in each trial. In his first three trials, the Mississippi Supreme Court overturned Flowers’s convictions because of prosecutorial misconduct, with courts finding that Evans had violated Batson in two of those trials. The fourth and fifth trials ended in mistrials. In the sixth trial, in June 2010, Evans accepted the first qualified African-American potential juror and then struck the five remaining African Americans in the jury pool. Flowers challenged the prosecution’s jury strikes on appeal, but the Mississippi Supreme Court, over the dissents of three justices, rejected his claim. In June 2016, the United States Supreme Court vacated the state court’s ruling and returned the case to the Mississippi Supreme Court to reconsider the issue in light of the Court’s decision one month earlier in Foster v. Chatman, finding that prosecutors in a Georgia capital case had unconstitutionally stricken jurors because they were black. However, over the dissents of three justices, the Mississippi Supreme Court again affirmed, writing that the prior adjudications that Evans had already twice violated Batson “do not undermine Evans’ race neutral reasons” for striking black jurors in the sixth trial and that “the historical evidence of past discrimination ... does not alter our analysis.” The U.S. Supreme Court has not yet set a date for oral argument in the case.
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As Capital Retrial Begins, Former Judge Says Defendant Should Not Be Convicted
As Seminole County prosecutors seek the death penalty against Clemente Javier Aguirre-Jarquin a second time despite substantial evidence implicating another suspect, the Florida judge who initially sentenced Aguirre-Jarquin to death now says he should not be convicted. Retired Judge O.H. Eaton (pictured), who presided over Aguirre-Jarquin’s double-murder trial in 2006, said he now believes that the case is a “poster child” for the flaws in the death penalty system. “The evidence I heard during the trial [in 2006] substantiated the verdict,” Eaton told the Orlando Sentinel. “The evidence I’ve heard now does not. ... If I knew then what I know now, I probably would have ordered the jury’s verdict overturned.”
Aguirre-Jarquin, an undocumented Honduran immigrant, was convicted of murdering his next-door neighbors, Cheryl Williams and her mother Carol Bareis, who were stabbed more than 130 times. Eaton imposed death sentences for both murders, based on non-unanimous 7-5 and 9-3 jury recommendations for death. Aguirre-Jarquin’s post-conviction lawyers later discovered that the mentally ill daughter and granddaughter of the victims, Samantha Williams—who had provided eyewitness testimony against Aguirre-Jarquin—had confessed to at least five different people that she had killed her relatives. She told one person: “I’m crazy, I’m evil and I killed my grandmother and my mother.” DNA results from blood evidence at the crime scene also implicated Williams. The Innocence Project, which assisted in Aguirre-Jarquin’s post-conviction representation, found that “[n]one of the DNA found on the 84 items that were tested matched Aguirre,” but was a match to Williams and the two victims. Eight bloodstains from Williams were found in four different rooms, each, the Innocence Project said, ”inches away from the victims’ blood." Based on this evidence, the Florida Supreme Court in 2016 unanimously overturned Aguirre-Jarquin's conviction. Seminole County prosecutors nonetheless decided to retry Aguirre-Jarquin, simultaneously arguing that Williams’s mental health problems make her confessions unreliable, but relying upon her testimony against Aguirre-Jarquin in his 2006 trial. They also argue that Aguirre-Jarquin—who says he went to his neighbors’ home to get beer, found their bodies, and tried to revive them—attempted to hide clothing with the victims’ blood on it, and did not call police after discovering his neighbors had been killed. Aguirre-Jarquin said he did not call the police because he feared deportation because of his undocumented status.
Florida has more death-row exonerations than any other state, with 27. Ninety percent of those exonerations came in cases in which one or more jurors had recommended a life sentence.
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Nebraska County Raises Property Taxes, Seeks State Bailout to Pay Wrongful Conviction Compensation
A Nebraska county has raised property taxes on its residents and asked the state legislature for a bailout to help pay a $28.1 million civil judgment it owes to six men and women wrongly convicted of rape and murder after having been threatened with the death penalty. The so-called “Beatrice Six” (pictured) successfully sued Gage County for official misconduct that led to their wrongful convictions in the 1985 rape and murder of Helen Wilson. The large damages award exceeds Gage County's entire annual budget by $1 million. This year, Gage County Supervisors passed a property tax increase of 11.76 cents per $100 of valuation—the maximum increase allowed without putting the issue to voters. The tax increase is expected to generate about $3.8 million next year, but county leaders worry about its impact on residents and have announced plans to ask lawmakers and Governor Pete Ricketts for state funding or a loan to help pay the civil judgment. Greg Lauby, a former attorney who organized residents to seek solutions to the problem, said, “If we continue on the path we’re on with no assistance from the state, it will drive at least some farmers to bankruptcy. We have homeowners who are struggling to put food on their table and clothe their children, and that’s an amount that will make a difference.”
Five of the Beatrice Six exonerees—James Dean, Kathy Gonzalez, Debra Shelden, Ada JoAnn Taylor, and Tom Winslow—agreed to plea bargains or pled no contest after prosecutors threatened them with the death penalty. A sixth, Joseph E. White, maintained his innocence, but was convicted at trial based on false testimony about his alleged involvement in the crime. The six were exonerated by DNA evidence in 2008 after spending a combined 70 years in prison. The damages were awarded by a federal jury in 2016, just months before Nebraska voters passed a referendum to overturn the legislature's 2015 abolition of the death penalty and reinstate capital punishment. The county is responsible for the payment because prosecutors are immune from liability for wrongful convictions, and the sheriff involved in the case died in 2012. State Senator Ernie Chambers—one of the leaders of the death-penalty repeal efforts—said he opposes a state bailout. “This was strictly a county matter,” Chambers said. “They made their bed, now they have to sleep in it.” He added that, despite widespread coverage of the exonerations, Gage County voters overwhelmingly supported the reinstatement of the death penalty in 2016. “They haven’t learned a thing,” he said. Ultimately, as the McCook (Nebraska) Gazette wrote in an October 8, 2018 editorial, “[t]he Beatrice Six case and others like it spotlight the need to elect ethical and competent sheriffs and county attorneys and hold them accountable.”
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Federal Judge Expresses Frustration at Procedural Constraints in Possible Innocence Case
In a case highlighting congressional limitations on the federal judiciary's ability to redress miscarriages of justice, a Texas federal judge has denied relief to a death-row prisoner who the court believes was denied a fair trial and may well be innocent. U.S. District Judge Keith P. Ellison (pictured) wrote on September 26, 2018, that he “would almost certainly have granted” a new trial to Robert Will, but the “constraints” imposed by 1990’s-era amendments to federal habeas corpus law left the court “powerless to address” what he called “the troubling possibility of [Will’s] actual innocence.” Ellison’s ruling urged the U.S. Court of Appeals for the Fifth Circuit to address Will’s claims, saying that his decision was a “technical ruling” that should not “obscure the extraordinarily significant issues that the Court of Appeals – unlike this Court – can properly consider.” In a trial in a Houston courtroom packed with uniformed police officers, Will was convicted and sentenced to death for the December 1999 murder of Harris County Sheriff's Deputy Barrett Hill. Investigators found no gunshot residue on Will and a footprint at the crime scene didn’t match his; Will claims that he was handcuffed when Deputy Hill was shot. Five witnesses later came forward with information that Will’s co-defendant had confessed to the crime, and additional evidence came to light during the habeas corpus proceedings that raised questions about a prosecution witness. However, Will’s state post-conviction lawyer, whose conduct Ellison said “appears to have been severely compromised by serious health conditions,” failed to investigate and raise those issues. Will’s case is also one of numerous Harris County death-penalty cases in which state judges adopted word for word the fact-findings proposed by the prosecution. Ellison said that, but for the limits on habeas review, he “would almost certainly have granted relief” on Will’s claim that “the presence of numerous uniformed law enforcement officers at his trial created an unconstitutionally coercive environment for the jury.” Ellison added: “The Court is particularly sensitive to the absence of any direct evidence of Will’s guilt, and the number of witnesses who aver that another man confessed to the underlying murder. ... The Court very much wishes it could take up all of these issues without the constraints of habeas review. With fewer constraints, the Court of Appeals can perhaps give these issues the time and attention that they merit. Nevertheless, this Court lacks jurisdiction to explore the troubling concerns that plague Will’s capital conviction.” Patrick McCann, former president of the Harris County Criminal Lawyers Association, said that Will’s case demonstrates that “[e]verything in the state procedure is inadequate and has been inadequate for the last three decades.” He called the requirement that federal judges defer to state court decisions “an absolute joke.” Ellison’s comments echo those of retired Ninth Circuit Judge Alex Kozinski who wrote in 2015 that Congress’s amendments to the habeas corpus law “abruptly dismantled” federal judicial review as a “safety-valve” against injustice and “pretty much shut out the federal courts from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred.” Instead, he wrote, federal courts “now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”
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North Carolina Bar Files Ethics Complaint Against Lawyer Accused of Fleecing Intellectually Disabled Death-Row Exonerees
Florida lawyer Patrick Megaro is facing an official complaint by the North Carolina State Bar for allegedly defrauding death-row exonerees Henry McCollum (pictured, right) and Leon Brown (pictured, left), and taking a third of the compensation granted to the two men. Half-brothers McCollum and Brown were exonerated in 2014 after spending 30 years in prison, some on death row, for the rape and murder of an 11-year-old girl. Both men are intellectually disabled, a factor that made them more vulnerable to wrongful conviction, and, the Bar complaint says, vulnerable to exploitation by Megaro. After McCollum and Brown were exonerated and formally pardoned by Governor Pat McCrory, they sought compensation from North Carolina for their wrongful convictions and incarceration. Megaro became McCollum's and Brown's lawyer in March 2015, after two women who claimed to be advocating on behalf of the brothers persuaded them to fire the lawyers who had been representing them in their compensation action and to hire Megaro's firm instead. The brothers received compensation awards of $750,000, but Megaro—who the complaint says did virtually no work on their exonerations or compensation cases—took $250,000 in fees from each man. Within seven months, McCollum was out of money and taking out high-interest loans that Megaro arranged and approved. Megaro also negotiated a proposed settlement of the brothers' wrongful prosecution lawsuit in which he was to receive $400,000 of a $1 million payment. The complaint alleges that Megaro committed 16 ethical violations, including lying to judges, double-billing his clients, and engaging in fraud by signing for loans with a 42% interest rate. It also alleges that he violated his duty to act competently when he failed to determine the police department's insurance policy limits before agreeing to settle the brothers' wrongful prosecution case. McCollum expressed his disappointment with Megaro, saying, "He took money that he should have never took. I could have that money right now." According to the Marshall Project, "Wednesday’s complaint begins a legal process similar to a civil lawsuit that will likely culminate in a public trial of the charges, with three members of the state’s Disciplinary Hearing Commission sitting as judge and jury." Megaro—whose law partner derided the disciplinary action as "a political prosecution"—could face disbarment if he is found guilty.
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Texas Schedules Back-to-Back Executions of Prisoners Who Claim Innocence
Texas has scheduled executions on consecutive nights of two prisoners who have long asserted their innocence. Troy Clark (pictured, left), who is scheduled to be executed on September 26, 2018, was convicted and sentenced to death based on the changing statements of a former girlfriend who could have faced the death penalty under the Texas law of parties but was tried as an accomplice and sentenced to 20 years in prison. Daniel Acker (pictured, right), scheduled to be executed September 27, was convicted and sentenced to death based upon since recanted forensic testimony that he had strangled his girlfriend. Clark was convicted of the 1998 kidnapping and murder of Christina Muse in Tyler Texas, and prosecutors have also accused him two other methamphetamine-related murders. He has no legal challenges pending and his clemency petition was turned down by the Texas Board of Pardons and Paroles on September 24. Clark alleges that he was set up by his girlfriend, who initially told police that another murder victim was responsible for Muse’s death and then later gave police a statement saying she had killed Muse out of jealousy and that Clark was not involved. Clark also argued in an unsuccessful habeas corpus petition that his court-appointed counsel at trial and in the post-conviction process failed to investigate and present mitigating evidence—including mental health evidence related to fetal alcohol syndrome—that he says could have persuaded the jury to spare his life. Acker, who also maintains his innocence, was convicted of strangling his girlfriend, Marquetta George, and dumping her body. He does not deny involvement in her death, but alleges that she jumped out of his moving car during an argument and died accidentally, likely having been struck and killed by a passing car. Acker's attorneys have filed appeals saying that his trial was tainted by the court's exclusion of evidence, and the inclusion of “false,” “misleading,” and erroneous forensic testimony. The prosecution changed its explanation for George’s death after a state medical examiner admitted in a 2011 evidentiary hearing that she had not been strangled. Instead, the prosecution argued for the first time that Acker pushed George from the truck. “He didn’t have the physical ability to strangle her while he was driving,” Acker’s attorney said, and had no motive to kill George. The Texas pardons board has also denied Acker’s application for clemency. On September 21, he filed a petition for review and a motion to stay his execution in the U.S. Supreme Court, arguing that due process is violated when “a State has repudiated a false theory of criminal liability on which it based a death sentence, but intends to carry out that sentence based on a new theory of liability” that was never presented to the jury. Texas has already executed eight people in 2018.
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