In Act of ‘Christian Forgiveness,’ Tennessee Victim’s Daughter Asks Governor for Mercy for Her Mother’s Killer
A Tennessee murder victim’s daughter is asking Governor Bill Lee to honor their shared faith by sparing the life of her mother’s killer. In what they describe as an “exceptional” clemency plea, lawyers for Tennessee death-row prisoner Don Johnson (pictured) write that Cynthia Vaughn, the daughter of Connie Johnson, has requested a meeting with Gov. Lee to tell him her story of “Christian forgiveness” and ask that he commute Johnson’s sentence to life without parole. The clemency petition describes such a request as extremely rare, saying “[w]e know of only one other case in the history of the State of Tennessee in which the child of the ultimate victim has begged the Governor for mercy for the murderer – and in that case clemency was granted to Gaile Owens.” Johnson’s clemency petition also stresses his remorse and redemption, explaining that he has become an Ordained Elder in the Seventh Day Adventist Church and now ministers to his fellow prisoners. Vaughn and Johnson’s lawyers hope his story of Christian redemption will be of particular interest to Gov. Lee, whose campaign for governor in 2018 repeatedly emphasized his Christian faith.
In a letter to Governor Lee that is excerpted in the petition, Vaughn describes her change of heart about Johnson. For most of her life, she supported his execution, publicly saying, “I want the freak to burn.” However, in 2012, she sought a meeting with Johnson in prison to tell him about the pain he had caused her. “After I was finished telling him about all the years of pain and agony he had caused, I sat down and heard a voice. The voice told me, ‘That’s it, let it go.’ The next thing that came out of my mouth changed my life forever. I looked at him, told him I couldn't keep hating him because it was doing nothing but killing me instead of him, and then I said, ‘I forgive you.’” Forgiving Johnson, she said, has freed her from her anger and allowed her to live her life more fully. “Letting go of anger has let me love more,” she wrote.
Johnson’s religious conversion is the subject of much of the clemency petition and includes numerous testimonials about the positive effect he has had on other prisoners. It also details his personal journey from the routine beatings and psychological abuse he endured from his father and in the juvenile justice system to what the petition characterizes as his religious redemption. "What is most remarkable about Don Johnson’s life story is not that he ended up on death row following a loveless and hate filled childhood, it is that he overcame that childhood to become the man of God he is today," his petition states. Prison ministers and volunteers wrote in support of clemency, describing Johnson’s remorse and his impact on the lives of others. “Don has asked for forgiveness of his sins and crimes he committed years ago and by the grace of God has become a new person in Christ,” wrote Linda Faulk, a prison volunteer who has known him since 2004. “Donnie is no ordinary person and he has unusual perceptivity. I am aware that the prison uses his talents as a counselor and his unit has one of the best behavioral records in the State of Tennessee. Many people rejoice that he has served so well in spite of his environmental circumstances,” said Dr. John L. DuBosque, a visitor and telephone advisor of Johnson’s since 1998. Johnson’s petition concludes with a plea for a grant of mercy by the governor: “Cynthia Vaughn, the person with the greatest claim on his life, deserves to have her forgiveness honored. She should not have her own healing journey ended with an unnecessary and unwanted execution. Don Johnson should not have his journey from the darkness into the light ended in the death chamber.”
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Board Denies Clemency for Texas Man Convicted Under Law of Parties Who Was Not Present When Killing Occurred
The Texas Board of Pardons and Paroles denied clemency for Patrick Murphy (pictured) on March 27, 2019, moving the state one step closer to executing him on March 28 for a murder he neither committed nor intended to commit nor was present when it occurred. Murphy was convicted under the state’s “Law of Parties,” which allows defendants to be sentenced to death based upon the actions and intent of others, if the defendant played even a small role in a crime that resulted in someone’s death. Critics of the law argue that it violates the U.S. Supreme Court’s 1982 constitutional prohibition against executing a person who did not kill or intend that a killing take place and was a minor participant in an offense that resulted in a killing. Murphy was one of the “Texas 7,” a group of prisoners who escaped from prison in 2000. Days after their escape, the men planned to rob a sporting goods store, but Murphy told the group’s leader, George Rivas, that he did not want to participate in the robbery. Murphy waited outside the store in a truck, radioed the others when he saw police arriving, and drove away from the store to a nearby apartment complex. After he left, Officer Aubrey Hawkins was killed in a shootout with the other men.
In 1982, in Enmund v. Florida, the U.S. Supreme Court wrote that “the death penalty … is an excessive penalty for the robber who, as such, does not take human life.” The Court ruled that the focus of a capital punishment trial must be on the culpability of the defendant for his own acts, “not on that of those who committed the robbery and shot the victims.” Murphy’s court-appointed trial lawyer failed to object to the capital charges against him and his state-appointed post-conviction lawyer failed to raise trial counsel’s ineffectiveness, barring the issue from federal review. Murphy’s current lawyers asked the Texas Court of Criminal Appeals to reopen his case to consider the issue, but the court denied that request on March 25. They also sought clemency from the Texas Board of Pardons and Paroles. However, the Board rejected that request and an alternative request for a temporary reprieve until the state legislature acts on pending legislation that would eliminate the death penalty for people convicted under the law of parties. In a statement, his attorneys David Dow and Jeff Newberry said, “It is unconscionable that Patrick Murphy may be executed for a murder he did not commit that resulted from a robbery in which he did not participate, at the exact moment when lawmakers are considering whether anyone possibly convicted under Section 7.02(b) of the Texas Penal Code should be eligible for the death penalty.” Following the Board’s action, Murphy’s lawyer’s submitted a request for a one-time 30-day reprieve from Governor Greg Abbott “so that he is not executed before additional legislation is passed that would [make] clear convictions obtained in trials identical to his are not eligible for a sentence of death.” While that bill would not be retroactive to Murphy’s case, his lawyers wrote, there is “a substantial possibility” that if the bill passes, the state courts “would hold Mr. Murphy’s death sentence is unconstitutional.”
Murphy also has filed motions in the Texas Court of Criminal Appeals and the U.S. District Court for the Southern District of Texas in which his attorneys argue that Texas is violating the Establishment Clause of the First Amendment by refusing to allow Murphy’s Buddhist spiritual advisor to be present in the execution chamber instead of a Christian or Muslim chaplain. The Texas Department of Criminal Justice employs Christian and Muslim chaplains, who are allowed to be present in the execution chamber, but does not allow chaplains of other faiths, saying that they present a security risk because they are not employees. “A law or policy that is not neutral between religions, like TDCJ’s policy, is inherently suspect and strict scrutiny must be applied when determining whether the policy violates the First Amendment’s Establishment Clause,” Murphy’s attorneys wrote. A similar claim was raised before the Alabama execution of Domineque Ray, a Muslim prisoner who was not allowed to have his imam present at his execution. The state court denied his motion on March 25 and the federal court followed suit on March 27, both saying his claim was untimely filed. [UPDATE: On March 28, 2019, the U.S. Supreme Court granted Murphy a stay of execution “pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.”]
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California Governor Announces Moratorium on Executions
California Governor Gavin Newsom on March 13, 2019 declared a moratorium on executions in the state with the nation’s largest death row. Newsom implemented the moratorium through an executive order granting reprieves to the 737 prisoners currently on California’s death row. He also announced that he was withdrawing the state’s execution protocol—the administrative plan by which executions are carried out—and was closing down the state’s execution chamber. In his executive order imposing the moratorium, Newsom said, “I will not oversee the execution of any person while Governor.”
With the governor’s announcement, California joins Colorado, Oregon, and Pennsylvania as states in which governors have imposed moratoria on executions, meaning that more than one-third (34.1%) of all death-row prisoners in the U.S. are now incarcerated in states in which governors have said no executions will occur. As a result of legal challenges to the state’s execution protocol and appeals challenging the constitutionality of the state’s death-penalty system, California has not carried out an execution since 2006. “Our death penalty system has been, by all measures, a failure,” Newsom said in a statement accompanying his moratorium declaration. “It has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation. It has provided no public safety benefit or value as a deterrent. It has wasted billions of taxpayer dollars. But most of all, the death penalty is absolute. It’s irreversible and irreparable in the event of human error.”
Despite the large number of death sentences in California, the state has conducted only 13 executions since reintroducing the death penalty in 1978. A 2011 study estimated the state had spent more than $4 billion on death penalty trials, appeals, and incarceration, and estimated an annual savings of $170 million if the death penalty were abolished. In his executive order, the governor said that the cost has since risen to $5 billion. In his remarks at the news conference, Newsom said that 164 wrongly convicted prisoners have already been exonerated from U.S. death rows since 1973, and an estimated 30 innocent prisoners may be among those still sentenced to death in California. In 2012 and 2016, voters narrowly rejected referenda that would have abolished capital punishment. In 2016, a voter referendum intended to speed up executions by limiting appeals passed by a two-percentage point margin. That measure, Proposition 66, was upheld but curtailed by a 2017 California Supreme Court decision.
Governor Newsom follows the lead of governors in three other Western U.S. states who have imposed moratoria on executions in the last decade. Governors John Kitzhaber of Oregon (November 2011), John Hickenlooper of Colorado (May 2013), and Jay Inslee of Washington (January 2014) halted executions in their states, and Kate Brown of Oregon announced in February 2015 that she would extend the existing moratorium. Washington’s supreme court struck down the death penalty in October 2018 on grounds of geographic arbitrariness and racial bias, making it the 20th state to abolish the death penalty. Legislators in Colorado and Oregon are considering bills to abolish or seriously restrict the death penalty, and a Republican-backed bill to repeal the death penalty passed the Wyoming state House and a Senate committee earlier this year before failing in a vote before the full Senate. No state west of Texas carried out any executions in 2018, and those states collectively imposed the fewest new death sentences since California brought back capital punishment in 1978. Newsom said “[t]he intentional killing of another person is wrong” and that his moratorium was a first step towards the ultimate goal of ending the death penalty in California.
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Colorado Governor Likely to Commute Death Sentences if State Abolishes Death Penalty
Colorado Governor Jared Polis (pictured) has said he will “strongly consider” commuting the death sentences of the three men on the state’s death row if the state abolishes the death penalty. In a February 7, 2019 interview on Colorado Public Radio, Polis told Colorado Matters host Ryan Warner, “if the legislature sends us a bill to eliminate the death penalty in Colorado, I would sign that bill … [and] I would certainly take that as a strong indication that those who are currently on death row should have their sentences commuted to life in prison.” Polis, who voiced his opposition to the death penalty during his 2018 campaign for governor, reiterated his views during the Colorado Matters interview. “I think it’s not cost effective, I think it’s not an effective deterrent,” he said. “If the State Republicans and Democrats were to say, and I were to sign a bill that said we no longer have the death penalty in Colorado, whether it's formally in the bill or not,” the Governor said, “then I would strongly consider making sure that penalty that is no longer on the books in Colorado is not carried out for anybody who's in that process.”
Colorado’s previous governor, John Hickenlooper, imposed a moratorium on executions in 2013. Hickenlooper said he initially had supported the death penalty, but changed his views when he learned more about the issue: “My whole life I was in favor of the death penalty. But then you get all this information: it costs 10 times, maybe 15 times more money to execute someone than to put someone in prison for life without parole. There’s no deterrence to having capital punishment. And I don’t know about you, but when I get new facts, I’ll change my opinion. I didn’t know all of this stuff.” Former prosecutor and state representative Doug Friednash, who sponsored a bill to expand Colorado’s death penalty to include multiple murders committed during a single criminal episode, has undergone a similar evolution. In a February 1 op-ed in the The Denver Post, Friednash called on the legislature to repeal its capital punishment law. “Twenty-five years ago, as a freshman House Democrat, I sponsored legislation to expand the death penalty,” Friednash wrote. “I was wrong.” The law he supported was used to prosecute James Holmes, who killed 12 people in a shooting at an Aurora movie theater in 2012, and Dexter Lewis, who stabbed five people to death in a Denver bar. Juries sentenced both to life. Holmes’ case, he says, illustrates some of the problems with the death penalty – the law failed to deter Holmes and his capital trial, which resulted in a life sentence, cost taxpayers approximately $5 million. Holmes was tried in Colorado’s 18th Judicial District, where defendants are "four times more likely to face a death prosecution than elsewhere in the state.” All three of the state’s death-row prisoners are Black men who were tried in that district. Friednash concludes, “It’s time to close this chapter in Colorado’s history books. The Colorado legislature should abolish the death penalty this session. And then Gov. Jared Polis should commute the death sentences of our three death-row inmates to life without the possibility of parole.”
In a February 9 editorial, the Boulder Daily Camera also urged the legislature to abolish the death penalty. Citing the lack of deterrent effect and the high cost of capital punishment, the paper wrote: “If the worth of a public policy is its ability to achieve policy objectives, then capital punishment is a failure.” The editorial also noted “great economic, geographic, and racial disparities” in Colorado’s imposition of the death penalty. “The location of the county line in relation to a crime,” it said, “should not determine whether a defendant lives or dies, and neither should the skin color of the accused.” And in conclusion, it pointed to former Governor Bill Ritter’s 2011 posthumous pardon of Joe Arridy, who was wrongfully executed by Colorado in 1939 despite what Ritter called “an overwhelming body of evidence” that Arridy was innocent. “The state-sanctioned killing of an innocent person is more morally repugnant than the execution of a guilty one could be morally just,” the editorial board wrote. “For this reason alone — given that innocent people almost certainly die under a regime of capital punishment — Colorado should abolish the death penalty.”
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Lawyers Seek Clemency for Tennessee Death-Row Prisoner Dying of End-Stage Cancer
Charles Wright (pictured), a prisoner on Tennessee’s death row, may die of cancer before the October 10, 2019 execution date that the state has set for him. His attorneys and supporters, including a former U.S. Congressman, are seeking clemency so Wright can spend his final days with his family. Wright has prostate cancer that has spread to his bones, and was recently moved from Tennessee’s death-row facility to a prison infirmary. He is asking the governor to either reduce his sentence to time served or to life without parole, allowing him to apply for a medical furlough, a special release that can be granted to terminally ill prisoners, but not to those on death row.
In September 2018, former Congressman Bob Clement wrote to then-Governor Bill Haslam, asking Haslam to grant clemency to Wright. “It is clear to me that Charles is not among the ‘worst of the worst’ for whom the ultimate punishment is to be reserved,” Clement wrote. “He was a product of his environment and the deprivation in which he — I will not say ‘was raised’ as the fact is, Charles and his siblings basically raised themselves. He turned to drugs early in his teenage years — he was fourteen or fifteen when an older drug dealer put a heroin needle in Charles’ arm. Charles does not absolve himself of his responsibility for making wrong choices.” Clement’s father, Frank Clement, served as governor of Tennessee in the 1960s, and commuted all the state’s death sentences in 1965, after the legislature defeated an abolition bill by one vote.
In court filings, Wright’s attorneys also raised issues of arbitrariness and racial bias. Wright, who is Black, was convicted and sentenced to death for a drug-related double-homicide in 1985. According to his attorneys, capital cases in the 1980s were infected with racial bias, and Wright’s case exemplifies the arbitrariness of Tennessee’s death penalty. While Wright was sentenced to death, many other drug-related murders have resulted in life sentences, even when there were more than two victims. A 2018 study of Tennessee's death-penalty system called it “a cruel lottery” and found that the best indicators of whether a case would result in a death sentence were arbitrary factors such as where the murder occurred, the race of the defendant, the quality of the defense, and the views of the prosecutors and judges assigned to the case.
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Supreme Court Lets Death Sentence Stand for Prisoner Whose Attorney Presented No Mitigating Evidence
Over a sharp dissent by three justices, the United States Supreme Court has let stand the death sentence imposed on a Georgia prisoner who was suffering from dementia, brain damage, and borderline intellectual functioning, but whose trial lawyer failed to present any mitigating evidence. On January 7, 2019, the Supreme Court denied the petition for writ of certiorari filed on behalf of death-row prisoner Donnie Cleveland Lance seeking the Court’s review of the Georgia Supreme Court's denial of relief in his case. Justice Sonia Sotomayor – joined by Justices Ruth Bader Ginsburg and Elena Kagan – dissented, writing that “the Court’s refusal to intervene permits an egregious breakdown of basic procedural safeguards to go unremedied.”
Lance was sentenced to death by a Georgia court for the 1997 murder of his ex-wife and her boyfriend. Lance’s trial lawyer – a solo practitioner who was convinced he could persuade the jury of Lance’s innocence – asked the trial court to appoint a second lawyer to handle any potential penalty phase. The court denied that request and also denied a defense motion for funds to retain expert witnesses to challenge the range of experts hired by the prosecution in the case. After the court denied his motions, Lance’s lawyer conducted no penalty-phase investigation and did nothing to prepare for the penalty phase. Following Lance’s conviction, counsel made no penalty-phase opening statement, called no witnesses, and presented no mitigating evidence. In his cursory closing argument, counsel asked the jury to think of Lance’s family and to not seek vengeance.
New counsel represented Lance in his state post-conviction proceedings and presented extensive evidence of Lance’s serious cognitive impairments. Four mental health experts agreed that Lance had brain damage in his frontal lobe, that his IQ was on the borderline for intellectual disability, and that he suffered from clinical dementia. While the three defense experts agreed that Lance’s brain damage significantly impaired his ability to control his impulses and conform his conduct to the law, the state’s expert disagreed about the extent of his impairment. The trial court overturned Lance’s death sentence, ruling that counsel had provided ineffective representation. However, the Georgia Supreme Court reversed, holding that while counsel’s performance was deficient, the presentation of mitigating evidence would have been futile given the facts of the murder. On federal habeas corpus review, the Georgia federal courts ruled that the Georgia Supreme Court had not unreasonably applied Supreme Court precedent when it upheld Lance’s death sentence.
The three-justice dissent from the U.S. Supreme Court’s decision not to intervene argued that the Georgia Supreme Court decision was “an objectively unreasonable application” of U.S. Supreme Court precedent and had “mischaracterized or omitted key facts and improperly weighed the evidence.” The evidence of Lance’s “‘serious’ and ‘significant’” mental impairments, Justice Sotomayor wrote, “reasonably could have affected at least one juror’s assessment of whether Lance deserved to die for his crimes, and Lance should have been given a chance to make the case for his life.” Instead, she said, “Lance may well be executed without any adequately informed jury having decided his fate.”
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