OP-ED: "Capital Punishment and Human Fallibility"

A recent op-ed in the Wall Street Journal by Barry Scheck, co-director of the Innocence Project, highlighs flaws in Texas’s death penalty system that led to the execution of Claude Jones (pictured). Then-governor George Bush rejected Jones’s application for a reprieve.  Bush was not informed that the reprieve would allow time for DNA tests to be performed on a strand of hair that was found at the crime scene. This hair had been attributed to Jones at his trial and was the only piece of evidence tying him to the crime scene. Following six years of litigation, DNA testing was finally performed on the hair, and results showed it belonged to the victim, not Jones. Scheck asserts that if this test had been done in 2000, when Jones was facing execution, Jones would have likely been spared and the conviction reversed. The hair “match” was the key evidence cited in a 3-2 decision made by the Texas Court of Criminal Appeals upholding Jones’s death sentence. Scheck calls for a critical look into the death penalty in America, quoting George Will that “capital punishment, like the rest of the criminal justice system, is a government program, so skepticism is in order.” Democrat and Republican Senators are introducing a bill, already approved by the House, that would establish a National Criminal Justice Reform Commission to help prevent wrongful convictions like the case of Claude Jones. Read full op-ed below.

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CLEMENCY: Ohio Governor Grants Fifth Clemency

Ohio Governor Ted Strickland granted clemency to Sidney Cornwell, reducing this sentence to life without parole.  Cornwell faced execution on November 16 for a 1996 gang-related shooting in Youngstown. Attorneys for Cornwell argued that he grew up in an abusive environment and that he suffered from a genetic condition that contributed to his violent tendencies. The attorneys also said that Cornwell's death sentence was disproportionate to sentences handed out for similar killings in Mahoning County, and that the jury did not have the option of giving him a life sentence without the possibility of parole. Cynthia Mausser, chairwoman of the state parole board, and the only member who favored clemency for Cornwell said of the evidence presented at the clemency hearing, "I cannot conclude that it would have made no difference to the outcome of the penalty phase, as it seems reasonably probable that a juror may have viewed Cornwell and the other mitigation evidence presented in a more positive light. This evidence is significant enough to question the reliability of the outcome of the penalty phase and conclude that the exercise of executive clemency is warranted." Governor Strickland granted clemency in two other cases this year: Richard Nields and Kevin Keith.  He also commuted John Spirko's death sentence in 2008 and Jeffrey Hill's sentence in 2009.

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Another Texas Execution Thrown in Doubt by New DNA Tests

Recent DNA tests raise serious doubts about the conviction of a man executed in Texas in 2000.  The tests revealed that a strand of hair found at the scene of a liquor-store shooting did not belong to Claude Jones, as was originally implied by the prosecution.  Instead, the hair belonged to the victim.  Jones was executed for the murder of the store's owner. The strand of hair was the only piece of physical evidence that placed Jones at the scene of the crime, and this revelation raises the question of whether Texas executed the wrong person for the murder. Before his execution in 2000, Jones’s lawyers filed petitions for a stay with both a district court and with the Texas Court of Criminal Appeals, requesting that the strand of hair be submitted for DNA testing. The necessary DNA technology had not been developed at the time the crime in 1989, but was available in 2000. Both courts, along with then-Governor George W. Bush, denied Jones a stay of execution.  Apparently, Gov. Bush was not even informed by his clemency advisors about the request for the DNA test.  Barry Scheck, co-founder of the Innocence Project, said “The DNA results prove that testimony about the hair sample on which this entire case rests was just wrong. Unreliable forensic science and a completely inadequate post-conviction review process cost Claude Jones his life.”

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MULTIMEDIA: PBS Frontline to Air Documentary on Norfolk Four

Frontline’s documentary, The Confessions, investigates the conviction of four Navy sailors for the rape and murder of a woman in Norfolk, Virginia in 1997. The documentary highlights some of the high-pressure police interrogation techniques, including the threat of the death penalty, sleep deprivation, and intimidation, that led each of the “Norfolk Four” defendants to confess, despite a lack of evidence linking them to the crime. The case raises significant questions about the actions of state officials, who relied primarily on the sailors’ contradictory confessions for their convictions, and disregarded DNA evidence that pointed to a lone assailant. The four sailors are now out of prison (one has served his sentence and the other three were granted conditional pardons by former Virginia Gov. Tim Kaine), and the person who probably committed the murder has since confessed to the crime while serving prison time for another rape. The Confession is scheduled to air on Tuesday, November 9.

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Sentencing Judge Second-Guesses Death Sentence In Light of New Evidence

On October 20, attorneys for Jeffrey Landrigan filed a clemency petition with the Arizona Board of Executive Clemency calling on the Board to recommend the commutation of Landrigan’s death sentence largely because of errors by his trial attorneys. Landrigan’s original attorneys failed to present mitigating evidence at the sentencing hearing, which could have included evidence of brain damage and severe abuse. Judge Cheryl Hendrix, the judge who imposed Landrigan’s death sentence, recently signed a declaration admitting that, if she knew about Landrigan’s background and brain damage, she would not have sentenced him to death. Judge Hendrix wrote, “Had the trial counsel presented any of the mitigating information I have received [since the sentencing trial] – which was available at the time of sentencing – Mr. Landrigan would not have been sentenced to death.” UPDATE: A U.S. District Court Judge has stayed Landrigan's execution, forbidding the use of sodium thiopental in the lethal injection because the state has not adequately assured the court of the drug's efficacy.  The U.S. Court of Appeals for the Ninth Circuit upheld the stay. (Oct. 26, 2010). FURTHER UPDATE: The U.S. Supreme Court (5-4) lifted the stay of execution and Landrigan was executed late on Oct. 26.

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Virginia Governor Denies Clemency to Woman with Low IQ

On September 17, Governor Robert McDonnell announced that he would not grant clemency to Teresa Lewis, who is scheduled to be executed in Virginia on September 23.  Requests for a commutation of her death sentence had come from thousands of individuals, from mental health groups, the European Union and novelist John Grisham.  Many had pointed to the fact that two co-defendants in the murders that sent Lewis to death row had received life sentences, even though they actually carried out the killings.  Information that became available after Lewis's trial showed that she has an IQ of 72, near the level of intellectual disability that would have rendered her death sentence unconstitutional.  She also suffered from a dependent personality disorder.  A letter from one of the co-defendants in prison indicated that he had manipulated Lewis into going along with the murder of her husband.  Lewis still has a petition pending before the U.S. Supreme Court, and her attorneys have indicated they will ask the governor to reconsider his decision.

(M. Glod & A. Kumar, "McDonnell won't call off execution," Washington Post, Sept. 18, 2010; DPIC sources).  See Clemency and Women. Supporters for Teresa Lewis have posted a short video about her.

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NEW VOICES: John Grisham Asks-- Why is Teresa Lewis on Death Row?

Acclaimed author John Grisham recently published an op-ed in the Washington Post questioning why Teresa Lewis is facing the death penalty when both her co-defendants, two men who actually committed the killings, were given life-without-parole sentences.  According to Grisham, the judge who sentenced Lewis to death mistakenly believed that she was the “mastermind” behind the killings. However, it has now been revealed that her IQ of 72 makes her borderline intellectually disabled, that she suffered from a dependent personality disorder and other addictions, and that she lacked the basic skills necessary to organize a conspiracy to commit murder for hire. Grisham wrote, “In this case, as in so many capital cases, the imposition of a death sentence had little do with fairness. Like other death sentences, it depended more upon the assignment of judge and prosecutor, the location of the crime, the quality of the defense counsel, the speed with which a co-defendant struck a deal, the quality of each side's experts and other such factors. In Virginia, the law is hardly consistent." Read full op-ed below.

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Death Row Chaplain is Certain: "This Woman Doesn't Deserve to Die"

Teresa Lewis is scheduled to be executed on September 23 in Virginia, the first woman to be executed in that state in a century.  But Lynn Litchfield, the former prison chaplain who came to know Lewis over six years, has said she "doesn't deserve to die."  Litchfield recently wrote in Newsweek Magazine that Lewis "has an IQ of 72" and that "one of the the two men who carried out the killings admitt[ed] that it was he, not she, who masterminded the murders" of her husband and adult stepson. Ms. Lewis has taken full responsibility for her role in the crime. The men who actually carried out the killings were given life sentences, while Lewis pleaded guilty and received a death sentence. The former chaplain's complete column in Newsweek's "My Turn" is below.

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CLEMENCY: Gov. Strickland Commutes Kevin Keith's Sentence to Life Without Parole

On September 2, Ohio Governor Ted Strickland (pictured) granted clemency to Kevin Keith, commuting his death sentence to life without parole. Keith, who was convicted of killing three people, has always maintained his innocence, and some evidence pointed to another suspect. Gov. Strickland’s commutation statement addressed his concerns regarding Keith’s case: “Mr. Keith’s conviction relied upon the linking of certain eyewitness testimony with certain forensic evidence about which important questions have been raised. I also find the absence of a full investigation of other credible suspects troubling.” The governor acknowledged that Keith might well be guilty and that the Ohio Parole Board had recommended against clemency, but he could not allow an execution with the doubts that persisted.  The governor left open the possibility that future developments might require additional relief for Mr. Keith.  Attorneys for Keith applauded Gov. Strickland’s actions, but said they will continue to petition for a new trial to address newly discovered evidence, evidence withheld by the State, and new science behind eyewitness identification, all of which, they claim, point to Mr. Keith's innocence.

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Statement from Attorneys for Kevin Keith

Statement from Attorneys for Kevin Keith in Response to Today's Parole Board Recommendation Against Clemency

The Governor’s ultimate responsibility is to ensure that no human being is executed in Ohio absent absolute certainty.  In Kevin Keith’s case, too many questions remain unanswered, and his execution should not proceed as planned.

The Parole Board's own recitation of facts and brief findings cannot avoid facts pointing to the existence of doubt about Mr. Keith's guilt.  For example, the Parole Board found that the lineup used to identify Mr. Keith for this crime was "arguably suggestive," and recognized that the "science of measuring the extent to which an event is 'encoded' into memory is imprecise."  The Parole Board also noted the there was no "biological evidence linking Keith to the crime."  Unfortunately, however, the Parole Board gave "considerable deference" to the jury and courts in making its recommendation.  But it is undisputed that no court or jury has ever considered the entirety of the new evidence that raises serious questions about Mr. Keith’s guilt.  
Mr. Keith and his attorneys have not had the opportunity to fully utilize this new evidence to defend against the State’s theory, and Mr. Keith and his attorneys have not had the opportunity to challenge State witnesses through the crucible of cross-examination regarding the numerous inconsistencies in their testimony revealed by this discovery of new evidence. Under these circumstances, the Governor cannot be absolutely certain – as he must be – that Mr. Keith is guilty of this crime and deserves the most final of punishments: execution.

We urge the Governor to review the facts of the case on his own, without deferring to courts that have not completely reviewed the evidence before us today.  For example, the Governor should consider that, absent questionable "eyewitness" testimony, there is nothing connecting Mr. Keith to this crime.  Indeed, the chief eyewitness against Mr. Keith initially told four people -- in a coherent and stable state -- that he could not identify the shooter because the shooter was wearing a mask.  Another survivor initially excluded Mr. Keith as the shooter entirely, noting that the shooter did not have certain physical features possessed by Mr. Keith.  Thereafter, Mr. Keith’s face was projected prominently in a highly suggestive photo line-up to these witnesses that would run afoul of the very procedures recognized as unreliable and inaccurate and corrected by reform legislation signed by the Governor.  And after Mr. Keith's arrest, still other witnesses who had indicated that the shooter was wearing a mask or could not be identified suddenly were "re-interviewed" by police and pointed to Mr. Keith.  What's more, by the time of the clemency hearing, eyewitness descriptions has further changed -- some now stating that the shooter was not wearing a mask at all.  
Moreover, brand new evidence -- never heard by a jury -- shows that another man admitted he was paid to commit the crime for which Mr. Keith stands to be executed.  And still other evidence shows Mr. Keith has a strong alibi for the time of the crime, supported by four witnesses.  These circumstances do not present an absolute certainty of guilt.

That is why prominent individuals and nonpartisan organizations – including more than 30 former state and federal judges and prosecutors, the Ohio Innocence Project, the National Innocence Network (comprised of 61 innocence projects and legal organizations), more than 100 Ohio faith leaders and organizations, 13 leading eyewitness and memory experts, law enforcement, death row exonerees, and thousands of citizens across Ohio and the U.S. -- support clemency for Mr. Keith.

The Parole Board’s recommendation to Governor Strickland is advisory and non-binding, and we urge the Governor to grant Mr. Keith clemency.
Rachel Troutman, Assistant State Public Defender
Andrew King, Assistant State Public Defender
Tyson Fleming, Assistant State Public Defender
John Q. Lewis, Partner, Jones Day
David Mills, The Mills Law Office LLC
August 19, 2010

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