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Texas Executes Juan Castillo Without a Hearing on His Claims of Innocence and Ineffective Representation

Texas executed Juan Castillo (pictured) on May 16, 2018, after its state courts stayed his execution to address whether his conviction and death sentence for a botched robbery and murder had been a product of false testimony, but then denied him an evidentiary hearing necessary to prove that claim. No physical evidence implicated Castillo in the murder, and he consistently asserted his innocence. To convict him, Bexar County prosecutors presented testimony from several admitted perpetrators who had been given favorable plea deals, corroborated by the testimony of prison informant, Gerardo Gutierrez, who claimed that Castillo had confessed to him. But in 2013, Gutierrez recanted, admitting in a sworn affidavit that he had lied "to try to help myself." With Castillo facing a December 2017 execution date, the Texas Court of Criminal Appeals granted him a stay on November 28, and directed the trial court to resolve his claim that prosecutors had violated his rights by presenting false or perjured testimony from Gutierrez. Two days later, on November 30, the Bexar County District Attorney's office submitted proposed findings of fact and a proposed order to deny Castillo's petition without a hearing. The next day, on December 1, Judge Maria Teresa Herr adopted the prosecution's proposed findings and order verbatim—changing only the signature line on the order—without permitting Castillo's lawyers to submit proposed findings or to respond to the prosecution's submission. The Texas Court of Criminal Appeals upheld the ruling, and with Texas prosecutors arguing that defects in the state-court process were not a basis for federal review because prisoners "ha[ve] no due process right to collateral proceedings," the U.S. Supreme Court declined to intervene. Castillo also asked the Texas Board of Pardons and Paroles and Governor Greg Abbott to stop his execution. Greg Zlotnick, who represented Castillo in his clemency proceedings, argued that the treatment of Castillo's case by the courts "had been marked by unfair and arbitrary decisions" and the courts had "rubber-stamped" the denial of Castillo's latest petition "with no regard for his opportunity to be heard." Zlotnick argued that Castillo’s trial lawyers "failed to actively investigate the case, speak with witnesses, question police, request additional evidence from law enforcement and district attorney offices, and properly plead legal claims in the courts" and that the post-conviction courts had denied without a hearing Castillo's "common-sense request for DNA testing on physical evidence that could have pointed to another perpetrator." Trial counsel's performance was so bad, Zlotnick said, that "Mr. Castillo even felt compelled to represent himself at sentencing." After the pardons board denied the clemency application, the Texas Defender Service (TDS)—which became involved in the case close to the execution date—sought a 30-day reprieve from Governor Abbott to further develop evidence in the case. In a May 15 letter to the governor, executive director Amanda Marzullo wrote that TDS had discovered additional evidence that contradicted the testimony given at Castillo’s trial, including a video of a woman telling police—contrary to her prior statements—that Castillo had never told her he was the triggerman. Abbott did not act on that request. Castillo was the eleventh person executed in the United States in 2018, and the sixth in Texas.


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Pressed on Execution Practices, Nebraska Obstructs Release of Information

As legislators and the media have pressed Nebraska for information on its secretive execution practices, the executive branch has responded—the state's leading newspapers say—with obfuscation and with a lawsuit that has created a state constitutional crisis. After adopting a new execution policy that the Lincoln Journal Star reported "was written in a single draft without input from the governor, attorney general, Corrections director, outside experts or other state officials," the state Department of Correctional Services has drawn harsh criticism and multiple lawsuits for refusing to disclose information about its execution process to lawmakers, the media, advocacy groups, and prisoners. And after the state legislature issued a subpoena that would require Director Scott Frakes (pictured) to testify about the Department's latest efforts to obtain execution drugs and to respond to allegations that it has not complied with federal drug laws on the handling of controlled substances, state Attorney General Doug Peterson sued the legislature to block Frakes from testifying. The Department's most recent refusals to release information—after having lost $54,400 in taxpayer money in a failed attempt to illegally import execution drugs from India—prompted lawsuits from legal advocacy groups, lawmakers, and prisoners demanding protocol transparency. Senator Ernie Chambers, a long-time opponent of capital punishment, filed a formal complaint with the legislature's Executive Board alleging, among other things, that the state's execution protocol violates federal requirements for handling controlled substances and that its refusal to provide information on the lethal-injection drugs violates the Nebraska Public Records Act. In an editorial, the Omaha World-Herald wrote: "The Nebraska news media and members of the Legislature have raised legitimate questions on that score. They’ve asked the state Department of Correctional Services for information involving its purchase of death penalty drugs and its planned procedure for carrying out an execution, to ensure the applicable laws and procedures were all followed. So far, the department has refused to provide answers. Its message, instead, has been: Just trust us. That’s not good enough." A Journal Star editorial criticized executive branch officials for "hypocritically refus[ing]" to subject themselves to public scrutiny. "We don’t know where the state obtained its lethal injection drugs," the editors wrote."We don’t know how the four-drug cocktail was tested. All we have ... is Corrections’ word that they were done in accordance with the law. Given the state’s costly failed attempts to illegally buy execution drugs overseas, that alone is not good enough." The editorial board said accountability means more than just punishing those convicted of murder. "Accountability must also extend to the state officials responsible for implementing and carrying out capital punishment. ... Before Nebraska can hold convicted killers accountable, it first must do so for itself – something it’s shown more interest in obfuscating than pursuing." The Omaha World-Herald encapsulated the issue as follows: "Is the state following the law in all respects regarding the death penalty, or isn’t it? State officials should stop trying to sidestep this central issue. For the sake of the public interest and respect for the law, they need to answer that question in full."


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Aging of Death Row Raises Humanitarian and Practical Concerns, As Alabama Executes 83-Year Old Prisoner

Death row is aging and increasingly infirm and, as a series of recent death warrants suggest, that phenomenon is raising legal, practical, and humanitarian concerns. One year after executing 75-year-old Thomas ArthurAlabama on April 19 executed 83-year-old Walter Moody (pictured, left), the oldest person and only octogenarian put to death in the United States since executions resumed in 1977. Attempts to execute prisoners debilitated by physical and cognitive impairments exacerbated by aging have proven problematic and inhumane. After canceling his previously scheduled cancer surgery to issue a death warrant, Alabama failed for 2 1/2 hours to set an intravenous line to execute gravely ill 61-year-old Doyle Hamm on February 22. His lawyer moved to bar the state from trying a second time, describing the failed attempt as "torture." Ohio tried and failed to execute terminally ill 69-year-old Alva Campbell (pictured, center) in November 2017. He then died of his terminal illness on March 3. And in late January 2018, the U.S. Supreme Court halted Alabama's scheduled execution of 67-year-old Vernon Madison (pictured, right), who is legally blind, incontinent, and unable to walk independently, and suffers from vascular dementia caused by strokes that have left him with no memory of the offense for which he was sentenced to death. The Court on February 26 agreed to review his claim that his illness leaves him mentally incompetent to be executed. A Washington Post review of Department of Justice data reported that the percentage of death-row prisoners aged sixty or older has more than doubled this century, up from 5.8 percent of U.S. death rows in 2007 to 12.2 percent in 2013. The aging of the row has also affected executions. An Associated Press review of the Death Penalty Information Center execution database found that the median age of an executed prisoner in the U.S. rose from 34 to 46 between 1983 and 2017. A DPIC analysis of U.S. execution data found that only two of the 933 prisoners executed in the United States between 1977 and 2004 were aged 65 or older. That total was matched in a single 35-day period this year between March 15 and April 19, when Georgia executed 67-year-old Carlton Gary and Alabama executed Mr. Moody. In 23 years of executions between 1977 and the close of the 20th century, ten prisoners aged 60 or older were executed. Thirty-six have already been executed this decade, 13 since 2015 alone. The aging of death row raises humanitarian issues, separate and apart from the risk of botched executions. Speaking to Associated Press, DPIC Executive Director Robert Dunham noted that, while many of the prisoners facing execution have been convicted of terrible crimes, the public is "torn between wanting to punish [them] severely and the belief it is beneath us as a nation to kill a frail person who is already dying. It’s a challenge to our morality and our sense of humanity,” Dunham said. The attempts to execute the infirm also have attracted international attention and approbation. When Alabama sought to execute Madison, David O'Sullivan, the European Union's Ambassador to the United States, wrote "an urgent humanitarian appeal" to Alabama Governor Kay Ivey not to execute him. The Ambassador's letter reminded Alabama that "[t]he execution of persons suffering from any mental illness or having an intellectual disability is in contradiction to the minimum standards of human rights, as set forth in several international human rights instruments." When Ohio sought to execute Campbell, his lawyer, assistant federal defender David Stebbins, predicted that the execution could become a “spectacle” if prison staff were unable to find a suitable vein. “All of this in an attempt to execute an old and frail man who is no longer a threat to anyone,” Stebbins said. In a statement that applies to more and more prisoners facing death warrants, Madison’s lawyer, Bryan Stevenson of the Equal Justice Initiative, summed up the issue: “Killing a fragile man suffering from dementia," he said, "is unnecessary and cruel.”


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Alva Campbell, Terminally Ill Prisoner Who Survived Botched Execution Attempt, Dies on Ohio Death Row

Alva Campbell (pictured), the terminally ill death-row prisoner who survived a botched execution attempt by the state of Ohio on November 15, 2017, has died. Campbell, 69, was afflicted with lung cancer, chronic obstructive pulmonary disease, respiratory failure, prostate cancer, and severe pneumonia; he relied on a colostomy bag, needed oxygen treatments four times a day, and required a walker for even limited mobility. He was found unresponsive in his cell at Chillicothe Correctional Institution in Ross County in the predawn hours of March 3 and was pronounced dead at a local hospital at 5:24 a.m. Ohio corrections personnel were aware prior to the failed execution attempt that Campbell was gravely ill and physically debilitated. Campbell’s lawyers unsuccessfully argued in court that Campbell's medical condition had compromised his veins, making IV access problematic and creating the risk that any lethal-injection execution would be unconstitutionally torturous. Lead counsel, assistant federal public defender David Stebbins, warned that the execution could become a “spectacle” if prison staff were unable to find a suitable vein. Calling Campbell “an old and frail man who is no longer a threat to anyone,” Stebbins said that "[k]illing Alva Campbell is simply not necessary.” Ohio's attempt to put Campbell to death was delayed for nearly an hour as executioners assessed his veins. Witnesses then watched for another half hour as prison personnel used an ultraviolet light to probe Campbell's arm for a vein, repeatedly sticking his arms and legs. Columbus Dispatch reporter Marty Schladen, a media witness to the execution attempt, reported that when he was stuck in the leg, “Campbell threw his head back and appeared to cry out in pain.” After failing four times to find a suitable vein in which to set an intravenous execution line, Ohio called off the execution and Governor John Kasich granted Campbell a temporary reprieve and rescheduled his execution for June 2019. The botched execution attempt was the fourth time in twelve years that executioners in Ohio had prolonged difficulty in setting an execution IV, and the second time in which an execution attempt was halted. The failure highlights the growing problem states face in attempting to execute an aging and increasingly infirm death-row population.

On February 22, 2018, Alabama attempted to execute Doyle Hamm, a 60-year-old death-row prisoner with terminal cranial and lymphatic cancer that his lawyer had warned rendered his veins unusable for lethal injection. In a failed execution that media reports described as “horribly botched,” executioners repeatedly punctured Hamm’s legs and groin in unsuccessful attempts, spanning more than two-and-a-half hours, to set an IV line. Four days later, the U.S. Supreme Court stayed the execution of Vernon Madison, a 67-year-old Alabama death-row prisoner with vascular dementia caused by strokes that have left him legally blind, incontinent, unable to walk independently, and with no memory of the offense for which he was sentenced to death. Alabama is scheduled to execute 83-year-old Walter Leroy Moody on April 19.


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Three Controversial Executions Turn Into A Commutation, An Execution, and an Execution Failure

Three states—Alabama, Florida, and Texas—prepared to carry out controversial executions on Thursday, February 22, all scheduled for 7 PM Eastern time, but by the end of the night, two had been halted. Less than an hour before his scheduled execution, and after having said a final good-bye to his anguished father, Texas death-row prisoner Thomas "Bart" Whitaker (pictured, left) learned that Governor Greg Abbott had commuted his death sentence to life in prison. Minutes later, Florida executed Eric Branch (pictured, center), despite undisputed evidence that he had been unconstitutionally sentenced to death. He was pronounced dead at 7:05 p.m. And nearing midnight Central time, two-and-one-half hours after a divided U.S. Supreme Court had given Alabama the go-ahead to execute terminally ill Doyle Hamm (pictured, right) corrections commissioner Jeff Dunn called off the execution saying prison personnel did not have "sufficient time" to find a suitable vein in which to place the intravenous execution line before the death warrant expired. For Texas, it was the first time in more than a decade and only the third time since the death penalty was reinstated in 1976, that any governor had granted clemency to a condemned prisoner. The Texas commutation came after a unanimous recommendation by the parole board, support from the only living victim, Whitaker's father, and various state lawmakers. In explaining his grant of clemency—the first time Gov. Abbott had commuted any death sentence—the Governor cited the fact that Whitaker's codefendant, the triggerperson, did not get the death penalty, the victim "passionately opposed the execution," and Whitaker had waived any possibility of parole and would spend the remainder of his life in prison. The final-hour commutation was relayed to Whitaker in the holding cell next to the death chamber, as he was preparing to be executed. Florida executed Eric Branch despite the fact that a judge sentenced him death after two of his jurors had voted for life and the jury had been told not to record the findings that would make Branch eligible for the death penalty. Both of those practices have now been found unconstitutional. In Hurst v. Florida, decided in 2016, the U.S. Supreme Court reiterated that a capital defendant's right to a jury trial includes the right to have a jury find all facts necessary for the state to impose the death penalty, and later that year, the Florida Supreme Court declared that the Sixth Amendment and the Florida constitution require jury sentencing verdicts to be unanimous. Alabama had been warned that, because of his terminal cancer and prior history of drug use, Doyle Hamm's veins were not accessible and therefore an attempt to execute him via intravenous injection would be cruel and unusual. After the U.S. Supreme Court issued a temporary stay at 6:00pm CT, followed by a full denial of a stay with dissents from Justices Breyer, Ginsburg, and Sotomayor around 9:00pm CT, Alabama started preparing to carry out Hamm's execution. After more than two-and-a-half hours, the state called it off. At a news conference immediately thereafter, Commissioner Dunn repeatedly asserted the state had followed its execution protocol, and said "I wouldn’t characterize what we had tonight as a problem.” Dunn was unable to describe what the state had been doing during the time that Hamm was being prepared for the lethal injection and dismissed questions about failed attempts to set the IV lines saying he was not qualified to answer medical questions. He said he could not tell reporters how long the medical personnel had attempted to establish IV access because "I am not back there with the staff." Alabama keeps its protocol secret, making it impossible to verify the state's assertions. Hamm's attorney Bernard Harcourt, who—like all witnesses—was not permitted to view the IV insertion portion of the execution, speculated that prison personnel could not find a vein and called the process "[s]imply unconscionable." On the morning of February 23, Harcourt filed an emergency motion saying that Hamm had "endured over two-and-a-half hours of attempted venous access" and seeking a hearing to "establish exactly what happened" during that time frame. The federal district court scheduled a hearing on the issue for Monday, February 26.


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Ohio Governor Grants Reprieve to Raymond Tibbetts Following Juror’s Call for Mercy

Ohio Governor John Kasich (pictured, left) has granted a reprieve to Raymond Tibbetts (pictured, right), temporarily halting his execution to permit the Ohio Parole Board to consider a juror's plea for mercy in the case. In a February 8 letter to parole board Chairman Andre Imbrogno, the Governor requested that the Board convene a hearing to consider concerns about the case raised by Ross Geiger, one of the Tibbetts jurors. To facilitate that review, Kasich issued a temporary reprieve of Tibbetts’s execution, rescheduling it from February 13 to October 17, 2018, “unless further reprieve or clemency is granted.” On January 30, Kasich received a letter from Geiger alerting the Governor to Geiger’s “deep concerns about the trial and the way it transpired.” Geiger said the jury had never been given critical information from witnesses and institutional records that detailed Tibbetts's brutal upbringing, abandonment, and abuse in the foster care system and that “prosecutors got it wrong if not lied” to the jury about Tibbetts’s siblings having overcome that abuse to live normal lives. Geiger told the Governor “that the system was and seems to be today very flawed in this case.” He said, “if I had known all the facts, if the prosecutors had been honest and forthcoming about the horrors [Tibbetts] and his siblings experienced in the foster care system, and if we had an accurate understanding of the effects of Mr. Tibbetts’ severe drug and alcohol addiction and his improper opioid prescription, I would have voted for life without parole over death.” In the Governor’s letter to the Board, Kasich wrote: “Mr. Geiger claims that had he known then all of the information presented at Inmate Tibbetts’ 2017 clemency hearing, including the testimony of Inmate Tibbett’s sister, he would not have voted to recommend death back in 1997. Since this letter was received by me after the board's hearing and vote on Inmate Tibbetts’ case, I would like the board to review his case in light of this new information.” In a statement, Tibbetts’s attorney, Erin Barnhart, said that Geiger’s letter provided “incontrovertible proof that Mr. Tibbetts never would have ended up on death row had the system functioned properly” in his case. She praised Kasich for “act[ing] in the interests of fairness and justice” and said the Governor “has done our State a great service today by ensuring that careful consideration is given” to the new information from Geiger. Barnhart said the defense was “confident” that after considering Geiger's concerns, “the Board and the Governor will agree that clemency is appropriate to correct the failures in the legal process in this case.”


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U.S. Supreme Court Stays Alabama Execution to Consider Vernon Madison's Competency to Be Executed

The United States Supreme Court has stayed the execution of Vernon Madison to consider for a second time questions related to his competency to be executed. In a 6-3 vote, with Justices Thomas, Alito, and Gorsuch dissenting, the Court halted Alabama's scheduled January 25 execution of Madison "pending the disposition of the petition for a writ of certiorari" he had filed seeking review of his competency to be executed. That petition was based upon new evidence of his deteriorating mental condition and that the doctor whose opinion state courts had relied upon in finding him competent had been addicted to drugs, was forging prescriptions, and was subsequently arrested. Madison—who has no memory of the crime he committed as a result of a succession of strokes that have caused dementia—has been challenging his competency to be executed for more than two years. In May 2016, the U.S. Court of Appeals for the Eleventh Circuit granted Madison a stay of execution to consider his competency claim, and the Supreme Court deadlocked at 4-4 on whether to vacate that stay. The Eleventh Circuit subsequently ruled in March 2017 that Madison was incompetent to be executed, saying that the Alabama state courts had acted unreasonably in finding him competent. The U.S. Supreme Court overturned that decision in November 2017, reinstating the state-court ruling and clearing the way for Alabama to issue the latest death warrant. After the Supreme Court's ruling, Madison's attorneys returned to the state courts with the new evidence. The state court, once again, denied him relief, leading to Madison's request to the Supreme Court for a stay. The stay will provide the Court time to review two separate petitions filed by Madison's lawyers. The first affords the Court the opportunity to address whether the Eighth Amendment permits "the State to execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense." The second petition challenges the constitutionality of Madison's death sentence itself. Madison was sentenced to death by an Alabama trial judge despite the jury's recommendation that he receive a life sentence. Since the time of his sentence, Alabama has repealed the portion of its law permitting "judicial override" of a jury's life recommendation, and no state now authorizes that practice. Madison's execution date has attracted international attention because of his severely impaired mental condition. On January 24, David O'Sullivan, the European Union's Ambassador to the United States, wrote to Alabama Governor Kay Ivey with "an urgent humanitarian appeal" for her to reconsider the state's decision to execute Madison, citing "his major neurocognitive disorder." The letter "note[d] with concern that there is undisputed evidence that Mr. Madison has suffered multiple strokes, including a thalamic stroke resulting in encephalomalacia, that have damaged multiple parts of his brain, including those responsible for memory." It also reminded Alabama that "[t]he execution of persons suffering from any mental illness or having an intellectual disability is in contradiction to the minimum standards of human rights, as set forth in several international human rights instruments." Madison's lead counsel, Bryan Stevenson, said that he was "thrilled" by the Court's decision to grant a stay and that "[k]illing a fragile man suffering from dementia is unnecessary and cruel."


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Condemned Alabama Prisoner Seeks Stay Based on Mental Incompetency and Arrest of Court-Appointed Expert

Lawyers for 67-year-old Vernon Madison (pictured), a death-row prisoner whose diagnosis of "irreversible and progressive" vascular dementia has left him with no memory of the crime for which he was sentenced to death, have filed a motion to stay his January 25 execution in Alabama. In a petition for writ of certiorari and motion for stay of execution filed January 18 in the U.S. Supreme Court, Madison's lawyers argue that the courts wrongly found Madison competent to be executed based upon the opinion of a drug-addicted psychologist who has been suspended from practice and arrested on felony charges of forging prescriptions for controlled substances. The petition says a series of strokes has left Madison with no memory of the murder for which he was sentenced to death, an IQ within the range of those with intellectual disability, and unable to recall the alphabet beyond the letter G. Madison is also legally blind, incontinent, and unable to walk independently. The U.S. Supreme Court had cleared the way for Madison’s execution in a November 2017 opinion, overturning an earlier federal appeals court’s ruling that Alabama's state courts had unreasonably found Madison competent to be executed. The Supreme Court noted that, at that time, its review of the case was limited by federal habeas law, which the court said required it to defer to the Alabama court ruling. The court expressed no view "outside of the [federal habeas] context" whether Madison was competent to be executed. In their current appeal, Madison's lawyers presented unrebutted new evidence challenging the opinions offered by Dr. Karl Kirkland, the court-appointed psychologist on whom the state court had relied in finding Madison to be competent. The appeal argued that Kirkland's opinions were not credible because "he was suffering from a substance abuse disorder, using forged prescriptions to obtain controlled substances just four days after the hearing in this case and was ultimately charged with four felonies and suspended from the practice of psychology." After a brief hearing in a Mobile County court, the judge denied relief in a single sentence, saying that Madison "did not provide a substantial threshold showing of insanity." Because no appeal was available in the Alabama court system, Madison brought his appeal directly to the Supreme Court. This time, his appeal notes, the Court is not constrained by the federal habeas statute. Justices Sotomayor and Breyer both issued separate concurring opinions in November, with Justice Sotomayor pointing out that "whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense" is a question that has yet to be addressed by the Court, and Justice Breyer expressing his belief that the Court should take up the question of the constitutionality of the death penalty rather than develop law specific to older, infirm death-row prisoners. In 1994, the sentencing jury in Madison's case recommended that he be sentenced to life without parole, but the trial judge overrode the jury's recommendation and sentenced Madison to death. In 2017, Alabama abolished the practice of judicial override.


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