Supreme Court Declines to Take Case of Federal Death Row Inmate With Mental Retardation

The U.S. Supreme Court has declined to hear the appeal of Bruce Webster, an inmate on the federal death row with evidence that he is intellectually disabed.  In 2002, the Supreme Court ruled in Atkins v. Virginia that the execution of a person with intellectual disabilities (mental retardation) would be unconstitutional. Webster's evidence indicates that three federal doctors determined he had an intellectual disability when he applied for disability benefits in 1993, a year before he committed the murder that resulted in his death sentence. However, a 1996 law prohibits federal courts from considering new evidence discovered late in the appeals process unless it would prove the defendant’s innocence. In April, the U.S. Court of Appeals for the Fifth Circuit ruled that Webster had exhausted his appeals and his recent evidence of intellectual disability could not be considered, even though it would bar his execution if allowed in. Judge Jacques Wiener, writing for the court, expressed dismay at the restraint of the law, stating, “We today have no choice but to condone just such an unconstitutional punishment.”  (A comparable situation would be the belated discovery that an inmate was a juvenile at the time of his crime--another bar to execution, but perhaps producing a different result.)

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OP-ED: America's Death Penalty "Broken Beyond Repair"

An op-ed by Bob Herbert of the New York Times highlights issues raised by former Supreme Court Justice John Paul Stevens that changed his mind on the death penalty in the U.S. Herbert cites information collected by the Death Penalty Information Center and points to shoddy defense and state misconduct in the deliberate withholding of evidence as prominent abuses in the system. “Executions have been upheld in cases in which defense lawyers slept through crucial proceedings. Alcoholic, drug-addicted and incompetent lawyers — as well as lawyers who had been suspended or otherwise disciplined for misconduct — have been assigned to indigent defendants.”  According to Herbert, “The egregious problems identified by Justice Stevens (and other prominent Americans who have changed their minds in recent years about capital punishment) have always been the case. The awful evidence has always been right there for all to see, but mostly it has been ignored. The death penalty in the United States has never been anything but an abomination — a grotesque, uncivilized, overwhelmingly racist affront to the very idea of justice.” Read full op-ed below.

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Supreme Court to Hear DNA Testing Case on October 13

On October 13, the U.S. Supreme Court will hear arguments in Skinner v. Switzer. Hank Skinner was convicted of murdering his girlfriend and her two sons in 1993 in their Texas home. He has always maintained his innocence, and there is untested DNA evidence that may prove someone else committed the crime.  Some DNA testing was conducted before trial, placing Skinner in the house where his girlfriend lived, a fact he does not dispute.  Although Texas has a law allowing some post-conviction DNA testing, Gray County District Attorney Lynn Switzer has refused to surrender the untested items, claiming that Skinner's appeal has come too late. Almost all such cases are settled in state court, but because of Texas's refusal to allow the testing before his execution, Skinner is asking the Supreme Court to rule that his legal challenge can be heard under the federal civil rights law, rather than as part of his ordinary appeal.  The lower federal courts are split on this issue, with most circuits allowing such a challenge. This preliminary issue of whether Skinner has an avenue to pursue the testing is a narrow one, but without the testing he could be executed soon.

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Supreme Court Considers Prosecutorial Immunity for Withholding Evidence in Death Penalty Case

On October 6, the U.S. Supreme Court heard arguments in Connick v. Thompson. John Thompson, who was released from death row in 2003 after newly discovered evidence undermined his murder conviction, sued the New Orleans District Attorney’s office for failing to train its attorneys about their legal obligation to turn over evidence that could help defendants prove their innocence. Thompson’s lawyers discovered that prosecutors deliberately covered up inconsistencies in eyewitness statements and withheld police lab reports regarding Thompson. He was awarded $14 million.  Thompson was a month away from execution before the evidence was uncovered. According to a USA TODAY investigation of 201 federal cases since 1997 where prosecutorial misconduct was found, not a single federal prosecutor was disbarred as a result and only one was prosecuted. He was acquitted..

Former solicitor general Paul Clement, along with other former Justice Department officials, noted in a brief supporting the monetary award that "prosecutors face no threat of legal consequences for depriving criminal defendants of their rights" in cases where they have withheld exculpatory evidence. Without allowing defendants the ability to sue, Clement said, "the question really does become whether there's any deterrent for a violation."

(B. Heath and K. McCoy, "Prosecuting offices' immunity tested," USA Today, October 6, 2010). See InnocenceProsecutorial Misconduct, and U.S. Supreme Court.

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Retired Supreme Court Justice Regrets 1976 Vote Upholding the Death Penalty

In an October 2010 interview on National Public Radio, then newly-retired Supreme Court Justice John Paul Stevens said he particularly regretted one vote during his 35 years on the high court—his 1976 vote to uphold the death penalty in Gregg v. Georgia. Stevens remarked, "I thought at the time . . . that if the universe of defendants eligible for the death penalty is sufficiently narrow so that you can be confident that the defendant really merits that severe punishment, that the death penalty was appropriate." But, he added, over the years, "the Court constantly expanded the cases eligible for the death penalty, so that the underlying premise for my vote has disappeared, in a sense." Justice Stevens also said that the court has made death penalty procedures more sympathetic to prosecutors: “I really think that the death penalty today is vastly different from the death penalty that we thought we were authorizing.”

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SUPREME COURT: Arguments Set in Three Death Penalty Cases in the Coming Term

The U.S. Supreme Court has set oral-argument dates in three death penalty-related cases for the upcoming 2010-2011 term. The Court begins its new term on Monday, October 4.  On October 6, the Court will hear Connick v. Thompson.  This case challenges an award of $14 million to John Thompson, who had been sentenced to death in New Orleans but was later acquitted of all charges. Lower courts had found that the district attorney's office failed to train its lawyers about so-called Brady violations, which led to Thompson's wrongful conviction and death sentence in 1985. The current Orleans Parish District Attorney appealed the ruling to the Supreme Court, asserting that upholding the award "exposes district attorney's offices to vicarious liability for a wide range of prosecutorial misconduct."  On October 13, the Court will hear Skinner v. Switzer to determine whether a Texas death row inmate's (Hank Skinner) request for DNA testing can be considered as a civil rights claim rather than as part of his death penalty appeal. Lower federal courts have been split on this issue.  Skinner has always maintained his innocence, but death penalty appeals are tightly restricted in raising new evidence.  Finally, on November 9, the high court will hear Cullen v. Pinholster, reviewing a Ninth Circuit decision overturning Pinholster's death sentence because of ineffectiveness of counsel. The appeals court said his lawyer should have presented evidence of Pinholster's mental illness that might have persuaded the jury to opt for a lesser sentence. The Court may choose new death penalty cases for review in the coming weeks.

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NEW VOICES: Former Bush Solicitor General Sides with Former Death Row Inmate in Case Before Supreme Court

Paul Clement (pictured), former Solicitor General under President George W. Bush, along with a group of former Justice Department prosecutors and civil rights officials, is asking the U.S. Supreme Court for time to argue on behalf of a former death row inmate in a case addressing prosecutorial misconduct. Lawyers for John Thompson claimed that the New Orleans district attorney's office systematically withheld important evidence that would have exonerated Thompson of an armed robbery and murder. Thompson was eventually acquitted and freed after 18 years in prison, mostly on death row in Louisiana. In October, the Supreme Court will consider whether cities can be held liable for a single violation of Brady v. Maryland (1963), the decision that requires prosecutors to disclose exculpatory evidence to criminal defendants. J. Gordon Cooney Jr, Thompson’s lawyer, said he welcomes the help from Clement and the group of Justice Department officials. According to Cooney, the range of officials, both Republican and Democratic, “reflects that this is not an issue that divides neatly along lines you would think of in a stereotypical way,” and that the group “understands that there needs to be accountab[ility] for conduct that nearly cost a man his life.”

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Federal Judge Sets High Standard of Proof and Rejects Troy Davis's Innocence Claim

On August 24, U.S. District Court Judge William T. Moore Jr. rejected Troy Davis’s petition to overturn his conviction for killing a police officer in 1989 in Georgia. Judge Moore chose a high standard of proof that Davis would have to meet to establish his innocence claim:  Davis needed to prove by "clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." Judge Moore did conclude that it would be unconstitutional to execute "those who can make a truly persuasive demonstration of innocence."  This holding has only been assumed for the sake of argument by the U.S. Supreme Court.  He also acknowledged that "the State's case may not be ironclad."  Davis, who has spent nearly two decades on death row, has attracted support from many human rights groups because a number of key prosecution witnesses recanted their trial testimony, and other witnesses have come forward implicating another suspect. Last year, the Supreme Court issued an historical ruling allowing Davis to present evidence that had been uncovered since his trial. It is possible that Judge Moore's ruling will now return to the Supreme Court for further review. Read Judge Moore's ruling: Part I and Part II.

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Briefs Filed in Troy Davis Case in Georgia

Briefs from both parties in the Troy Davis case were filed in the U.S. District Court in Savannah, Georgia, on July 7, 2010.  The federal judge considering the possible innocence of Davis, a death row inmate from Georgia who has been granted a stay of execution from the U.S. Supreme Court, requested the briefs following an evidentiary hearing on June 23 reviewing new evidence that had arisen since Davis's original trial.  A ruling is expected in the near future and further action by the U.S. Supreme Court may follow. The briefs may be found here: Defendant's brief and Attorney General's brief. (Posted by DPIC, July 8, 2010).

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U.S. Supreme Court Orders Reconsideration of Georgia Death Sentence Because of Inadequate Representation

On June 29, the U.S. Supreme Court returned a death penalty case to the Georgia Supreme Court to reconsider whether the failures of the defendant's lawyer probably affected the sentence he received. Demarcus Sears was sentenced to death in 1993 for the murder of a woman in Cobb County.  Sears' attorneys attempted to convince jurors to spare his life by saying that he came from a stable and loving family who would be devastated if he received the death penalty. However, the defense lawyers failed to conduct an adequate investigation of Sears' childhood. They neglected to show that his parents had been in a physically abusive relationship, that he was sexually abused and inappropriately disciplined. By the time Sears reached high school, he was “described as severely learning disabled and as severely behaviorally handicapped.” One expert determined he was among the "most impaired individuals in the population" as a result of significant frontal lobe brain damage. Although a lower court in Georgia found the defense attorneys conduct to be faulty, it concluded that the mitigating evidence that was not presented would not have made a difference.  The U.S. Supreme Court held that the evidence "might well have helped the jury understand Sears and his horrendous acts ...." The Court granted certiorari, vacated the judgment below, and ordered Georgia to reconsider the possible prejudice to Sears from the ineffective representation rendered by his lawyers, especially in light of other Supreme Court decisions where attorneys failed to conduct a thorough investigation.

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