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Judge Finds Federal Death Penalty Arbitrary and Unreliable, But Leaves Constitutionality for Supreme Court to Decide

After a two-week long "extensive hearing regarding the unreliability and arbitrariness of the death penalty system, the excessive delay involved in executions, and the growing decline in the use of the death penalty," U.S. District Court Judge Geoffrey Crawford (pictured) ruled in the case of U.S. v. Donald Fell that the Federal Death Penalty Act ("FDPA") "falls short of the [constitutional] standard . . . for identifying defendants who meet objective criteria for imposition of the death penalty," but nonetheless allowed Fell's capital trial to move forward. Fell, who is awaiting retrial by federal prosecutors in Vermont, had filed a motion asking the judge to find the death penalty unconstitutional under the Fifth and Eighth Amendments. Judge Crawford wrote that, like the state statutes enacted after the U.S. Supreme Court declared the death penalty unconstitutional in 1972 in Furman v. Georgia, "the FDPA operates in an arbitrary manner in which chance and bias play leading roles." But while the court's order contained detailed findings suggesting the death penalty is arbitrarily and unreliably imposed, it stopped short of declaring the death penalty unconstitutional. "A federal trial judge is without authority to rewrite the law so as to overrule the majority position at the Supreme Court," Judge Crawford wrote. "Changing forty years of decisional law raises questions that can only be settled by the Supreme Court itself." Judge Crawford found significant problems in numerous aspects of capital proceedings. He found that instead of redressing questions of bias, death penalty jury selection procedures are "a substantial part of the problem" and create as "inherent jury bias" by selecting "jury populations which stack the deck against defendants" in both the guilt/innocence and penalty phases of the trial. He found that "the death penalty continues to be imposed in an arbitrary manner," noting that where the "crime occurs is the strongest predictor of whether a death sentence will result" and "whether the murder victim is white" is also a signficant predictor. Judge Crawford explained that "the arbitrary qualities of the death penalty are most clearly visible through the narrative comparison of crimes which do and those which do not receive death sentences." There is, he said, no principled way to distinguish between which is which.


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Missouri is Disproportionately Producing Federal Death Sentences Amidst Pattern of Inadequate Representation

Federal capital defendants are disproportionately sentenced to death in Missouri compared to other states, with 14.5% of the 62 prisoners currently on federal death row having been prosecuted in Missouri's federal district courts. By contrast, a DPIC analysis of FBI Uniform Crime Reporting Statistics shows that Missouri accounted for only 2.26% of murders in the United States between 1988, when the current federal death penalty statute was adopted, and 2012. Not surprisingly, an article in The Guardian by David Rose reports that, since the 1990s, the chances that a defendant will be sentenced to death in a Missouri federal court are significantly greater than in other federal jurisdictions. Rose suggests that the questionable performance of defense counsel and repeated failures to investigate and present mitigating evidence relating to the backgrounds and life histories of Missouri federal capital defendants has significantly contributed to that disparity. Though federal funding for defense attorneys is more generous than state funding, Rose says the federal death penalty system shows evidence of the same failures in representation that so often appear in state death penalty cases. Four of the nine prisoners sentenced to death in Missouri were represented by the same lawyer, Frederick Duchardt. In the three cases of Duchardt's clients that have reached the appeals stage, all three raised claims of ineffective assistance of counsel. In each case, Duchardt failed to employ a mitigation specialist, in violation of American Bar Association guidelines. Mitigation specialists investigate a client's background to find evidence that may convince a jury to impose a sentence less than death. Duchardt's clients all suffered serious abuse during their childhoods. One had an IQ of 68, placing him on the threshold of intellectual disability. Another had been diagnosed with psychosis, bipolar disorder, and post-traumatic stress disorder. None of these issues were presented to the jury, a decision Duchardt later claimed was "strategic," but which his client's appeal attorneys argue was a result of failure to prepare or investigate. Professor Sean O'Brien of the University of Missouri Law School, described the appointment of counsel for indigent defendants as a "lottery," saying, "Many defendants lose that lottery, and they get a lawyer more worried more about pleasing the court and the prosecutor than about fighting for the client. Those are the ones who die. When one lawyer produces nearly half the federal death sentences in a state, there’s a problem."


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Judge Grants Dylann Roof's Request to Represent Himself in Federal Death Penalty Trial

U.S. District Court Judge Richard M. Gergel granted a request on November 28 from Dylann Roof (pictured), the 22-year-old charged with the murders of  nine members of the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, to represent himself in his federal capital trial. Judge Gergel described Roof's decision as “strategically unwise,” but said, “It is a decision you have the right to make.” A criminal defendant's right to self-representation was established by the Supreme Court in 1975 in Farretta v. California, a non-capital case where the Court held that a defendant may waive his right to counsel provided such waiver is knowing, voluntarily, and intelligent. In Roof's trial, the judge had temporarily halted jury selection in the trial on November 7, when Roof's attorneys requested a determination of Roof's mental competency to stand trial. After a two-day hearing, which was closed to the public because statements Roof made to a psychologist might taint the trial, Judge Gergel found Roof fit to stand trial. Jury selection is set to begin on November 28th, with 516 potential jurors reporting to the courthouse for questioning. After Roof's federal trial, the state of South Carolina also plans to try him. He faces a death sentence in both trials. While the Supreme Court has not addressed whether a capital defendant may waive his right to counsel, death penalty experts have argued that such defendants should not be allowed to represent themselves, because of the complexity of capital cases and the finality of the sentence. Cornell Law Professor John Blume wrote, "when it comes to a criminal defendant facing society's ultimate punishment, the defendant's more symbolic interests in dignity and autonomy are outweighed by the criminal justice system's interests, as well as society as a whole's interests, in accuracy and fairness." Last year, a Kansas judge permitted White Supremacist Frazier Glenn Cross to represent himself in a case in which he was charged with murders at a Kansas City Jewish Community Center. His lawyers had intended to present a mental health defense to the murders. After a controversial trial punctuated by outbursts by the defendant, the jury sentenced Cross to death.


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Court Hearing Under Way on Constitutionality of Federal Death Penalty

A court hearing is under way in the capital trial of Donald Fell in a Vermont federal district court challenging the constitutionality of the federal death penalty. This week, death penalty experts testified for the defense about systemic problems Fell's lawyers say may render the federal death penalty unconstitutional. Fell was sentenced to death in 2006, but was granted a new trial because of juror misconduct. The hearing began on July 11 and is scheduled to continue until July 22. Judge Geoffrey W. Crawford, who is presiding over the hearing and is set to preside over Fell's second trial in 2017, said the hearing will, "create a rich, factual record for higher courts with broader authority to rule on the big questions." On Monday, Craig Haney, a psychology professor at the University of California Santa Cruz, discussed research on the effects of solitary confinement, the conditions under which Fell has been held on death row. "According to the National Commission on Correctional Health Care, anything greater than 15 days is inhumane, cruel and degrading treatment," Haney said. On Tuesday, Michael Radelet, a sociology professor at the University of Colorado, testified about the decline of the death penalty both in use and in public opinion, saying, "Attitudes toward the death penalty have changed more rapidly than any other social issue other than gay marriage." Radelet testified that research has disclosed no evidence that the death penalty deters murder or affects overall murder rates. He also emphasized the prevalence and causes of the 156 wrongful capital convictions as a major problem with capital punishment. “Last year six people were released, most having served 25 years. In 2014, seven were released from death row as innocent. One had been in for 30 years," he said. "The number one cause of error is prejudicial prosecutorial testimony. Prosecutorial misconduct, false confessions, fraudulent forensics.”


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Judge Finds Ronell Wilson Has Intellectual Disability, Removes His Federal Death Sentence

United States District Court Judge Nicholas Garaufis (pictured) ruled on March 15 that federal death row inmate Ronell Wilson is ineligible for the death penalty because he has intellectual disability. In 2002, the U.S. Supreme Court held in Atkins v. Virginia that the death penalty constituted cruel and unusual punishment when applied to people diagnosed with intellectual disability, then known as mental retardation. Wilson was first sentenced to death in New York federal district court in 2007, but his death sentence was overturned because of prosecutorial misconduct. Before his second sentencing proceeding in 2013, Wilson's lawyers argued that he had an intellectual disability that made him ineligible for the death penalty. The district court rejected that claim on the grounds that Wilson's IQ scores "indicated sufficient intellectual functioning," and Wilson received a second death sentence. In light of the U.S. Supreme Court's 2014 decision in Hall v. Florida, the U.S. Court of Appeals for the Second Circuit ordered the district court to reconsider Wilson's intellectual disability claim. Hall held that applying a bright-line IQ score to reject a claim of intellectual disability was inconsistent with accepted standards for diagnosing intellectual disability and violated the 8th Amendment. The Court said, "When a defendant's IQ test score falls within the test's acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits." Applying the appropriate diagnostic criteria, Judge Garaufis found that "Wilson has demonstrated significant deficits in adaptive functioning, and he therefore meets the legal standard for proving intellectual disability. Accordingly, Wilson is ineligible to receive the death sentence that has been imposed on him." [UPDATE: On June 26, 2017, federal prosecutors announced that they would not appeal the ruling declaring Ronell Wilson ineligible for the death penalty.]


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Judge Orders Evidentiary Hearing On Constitutionality of Federal Death Penalty

U.S. District Court Judge Geoffrey Crawford has ordered an evidentiary hearing on Donald Fell's (pictured) challenge to the constitutionality of the federal death penalty. In court filings seeking to bar federal prosecutors from seeking death against him in a pending retrial, Fell has argued that the federal death penalty constitutes cruel and unusual punishment in violation of the Fifth and Eighth Amendments to the U.S. Constitution. Among other grounds, he has asserted that the death penalty no longer comports with contemporaneous U.S. values and that there are significant racial and geographic disparities in the manner in which the federal death penalty has been applied. Fell was sentenced to death in Vermont on federal murder charges, a sentence he could not have received in state court because Vermont does not have the death penalty. His conviction was overturned because of juror misconduct, and he is facing a retrial in 2017. In the order calling for a hearing, Judge Crawford wrote, "Preliminarily, and with an open mind about the arguments recently made by both sides, the court is looking at the constitutional challenge to the death penalty." He said that, despite efforts in the 1970s to remedy constitutional problems, "40 years later the question of a systemic violation of the Eighth Amendment remains."


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