STUDIES: Eyewitness Identification Comes Under Supreme Court and Scientific Scrutiny

The U.S. Supreme Court recently considered Perry v. New Hampshire, a case questioning the validity of eyewitness testimony when the identification was made under unreliable circumstances.  At the same time, years of scientific study on the accuracy of human memory are pointing to the need for reform in the use of eyewitness evidence in criminal cases.  Barbara Tversky, a psychology professor at Columbia University, whose experiments on memory were reported in the journal Cognitive Psychology, noted, “Memory is weak in eyewitness situations because it’s overloaded.  An event happens so fast, and when the police question you, you probably weren’t concentrating on the details they’re asking about.”  About 75% of DNA-based exonerations have come in cases where eyewitnesses have made mistakes.  Scientists suggest that witness testimony should be viewed more like trace evidence, with the same fragility and vulnerability to contamination.  Strong emotions felt by victims of a crime is one such possible area of contamination. Gary Wells, a psychology professor at Iowa State University, found that the accuracy of lineups improves when the possible suspects are presented to witnesses in sequence, rather than all at once, as in the traditional lineup. The downfall of side-by-side lineups, Dr. Wells said, is that “if the real perpetrator is not in there, there is still someone who looks more like him than the others.” The Supreme Court of New Jersey recently promulgated new rules for dealing with the problems of eyewitness identification.

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EDITORIALS: "An Intolerable Burden of Proof"

An editorial in the New York Times criticized a recent ruling by the U.S. Court of Appeals for the Eleventh Circuit, upholding the heavy burden Georgia places on offenders with intellectual disabilities.  In order to be exempt from the death penalty, defendants must prove "beyond a reasonable doubt" that they are mentally retarded.  The U.S. Supreme Court held in 2002 that such defendants cannot receive the death penalty, but the Court left the procedures for determining this status to the states.  According to the editorial, Georgia is the only state requiring this extremely difficult standard of proof.  They called on the U.S. Supreme Court to strike down Georgia's law. The editorial concluded, “[W]hen the court ruled that the Eighth Amendment prohibits execution of the mentally retarded, it made plain that states cannot weaken that protection with an unfair procedural standard. In this and other ways, Georgia’s death penalty subverts the Constitution and is further evidence that capital punishment should be abolished.”  Read full editorial below.

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BOOKS: "Cruel and Unusual: The Supreme Court and Capital Punishment"

A classic book about the death penalty has recently been re-published and is now available in paperback and electronic form.  Cruel and Unusual: The Supreme Court and Capital Punishment was written by Michael Meltsner, currently a professor at Northeastern University School of Law, and one of the key architects at the NAACP Legal Defense Fund behind the challenge that led to Furman v. Georgia in 1972. This Supreme Court decision resulted in overturning every death penalty law and every death sentence in the country.  The book traces the history of that case and fits it into other significant events in the 1960s and early 1970s.  In a new Foreward to the book, Dr. Evan Mandery, an Associate Professor at the John Jay College of Criminal Justice, writes, “This is the best and most important [book ever written about the death penalty in America.] . . .  Every serious scholar who wants to advance an argument about capital punishment in the United States - whether it is abolitionist or in favor of the death penalty, or merely a tactical assessment--cites this book.”

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LAW REVIEWS: "Executing Those Who Do Not Kill"

A new article to be published in the American Criminal Law Review explores the constitutionality of the death penalty for those convicted of felony murder, i.e., those who participated in a serious crime in which a death occurred, but were not directly responsible for the death.  The article is by Joseph Trigilio and Tracy Casadio, both Deputy Federal Public Defenders in California and is titled "Executing Those Who Do Not Kill."  The authors argue that the U.S. Supreme Court's decision in Tison v. Arizona (1987) should be overturned.  Tison allows the death penalty for certain non-triggermen if the defendant was a major participant in the underlying felony and acted with a reckless disregard for human life.  According to the law review, the analysis in Tison has been overturned in other cases,  Tison leads a trilogy of cases, including Stanford v. Kentucky and Penry v. Lynaugh, that represent a sharp break from a tradition of careful scrutiny on proportionality that considers both objective and subjective criteria in determining whether a certain category of defendants is constitutionally eligible for a death sentence.”  Both Stanford and Penry have been overturned, and the authors maintain that, “under the proportionality analysis articulated in Atkins v. Virginia, Roper v. Simmons, and Kennedy v. Louisiana, the contemporary 'standards of decency' require a further narrowing of death penalty eligibility for those who do not kill nor intend to kill.”  The article concludes, “In 2009, the Court cemented the new proportionality paradigm in Kennedy, expressly basing its analysis on the framework of Roper, Atkins, Coker, and Enmund. In so doing, the Court abandoned Tison’s analytical framework as no longer authoritative. The time has come to overturn Tison and to bar the execution of felony-murder accomplices who neither kill nor intend to kill.”

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U.S. Supreme Court Allows Racially Biased Testimony to Stand in Texas Case; Restores Capital Conviction in Ohio

On November 7, the U.S. Supreme Court declined to grant review to Texas inmate Duane Buck.  Buck sought a new sentencing trial because of testimony suggesting he posed a greater danger to society because he is black.  During his trial, psychologist Dr. Walter Quijano told the court that Buck’s race increased the likelihood of his future dangerousness.  Three of the Justices on the Court (Alito, Scalia and Breyer), which had granted Buck a stay just before his scheduled execution on September 15, said his case was different from other similar cases where relief was granted because it was Buck’s defense attorney who was responsible for eliciting the offensive testimony.   Justices Sotomayor and Kagan dissented, stating, “Today the court denies review of a death sentence marred by racial overtones. . . . Buck did not argue that his race made him less dangerous, and the prosecutor had no need to revisit the issue. But she did, in a question specifically designed to persuade the jury that Buck’s race made him more dangerous and that, in part on this basis, he should be sentenced to death.”  (See more on this case below.)

On the same day, the Supreme Court reinstated the death sentence of Archie Dixon in Ohio.  Last year, the U.S. Court of Appeals for the Sixth Circuit overturned Dixon’s conviction after finding that his confession to a murder was invalid due to police coercion.  The Court granted certiorari and reversed this decision, noting that federal courts must give great deference to state court findings, and writing in an unsigned opinion that "there is no evidence that any of Dixon's statements was the product of actual coercion." (Bobby v. Dixon, No.10-1540).

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TIME ON DEATH ROW: Justice Breyer Points to Constitutional Problems

For some Supreme Court Justices and international courts, the extensive time that many inmates spend on U.S. death rows has raised concerns about cruel and unusual punishment.  In a recent dissent regarding the execution of Manuel Valle in Florida, Justice Stephen Breyer argued that Valle should not be executed because the 33 years he already spent on death row amounted to a violation of the Eighth Amendment.  In an earlier dissent in 1999, Justice Breyer noted that the Constitution did not foresee such delays, “Our Constitution was written at a time when delay between sentencing and execution could be measured in days or weeks, not decades.”  Justice Breyer’s concerns are in line with leading international legal opinion regarding the debilitating isolation common to death row.  Foreign courts have ruled that living for decades while facing execution is a form of psychological torment.  Sarah H. Cleveland, a Columbia law professor and former State Department official, said, “Although concerns about the human impact of excessive time spent on death row have received little attention in this country, the ‘death row phenomenon’ — including lengthy time on death row — has been recognized as inhuman punishment and illegal throughout Europe since the 1980s.”  In a 1993 opinion, the British Judicial Committee of the Privy Council wrote, “There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years.” Justice Breyer concluded that a death penalty system that cannot be administered without long delays points to “the difficulty of reconciling the imposition of the death penalty as currently administered with procedures necessary to assure that the wrong person is not executed.”  While on the Court, Justice John Paul Stevens also expressed concerns about the cruelty of extended time on death row. 

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BOOKS: "Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment"

A forthcoming book by John D. Bessler, "Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment," discusses the history of the Eighth Amendment and the country's founders’ views on capital punishment. While the conventional wisdom is that the founders were avid death penalty supporters, Bessler's examination shows they had conflicting and ambivalent views on the subject. Bessler analyzes the U.S. Supreme Court’s Eighth Amendment case law and argues that the death penalty should probably be held unconstitutional. Sister Helen Prejean, noted activist and author of Dead Man Walking, described Bessler's book as: “A searing indictment of capital punishment, this pioneering history of the Cruel and Unusual Punishments Clause is destined to reframe America’s death penalty debate. As a definitive account of the Eighth Amendment’s origins and the Founding Fathers’ own ambivalent views on executions, it will forever change our perceptions of cruelty and penal reform in the founding era." John Bessler is an associate professor at the University of Baltimore School of Law and an adjunct professor at the Georgetown University Law Center.

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SUPREME COURT: Alabama Man Facing Execution Because Attorneys Left Without Filing Appeal

In one of the first cases of the new term, the U.S. Supreme Court on October 4 will hear from attorneys for death-row inmate Cory Maples of Alabama, whose appeal was rejected by lower courts because his lawyers quit and missed a critical filing deadline in his state appeal.  Copies of an Alabama court ruling in his case were sent to a volunteer New York law firm handling his appeals but were returned unopened to the court because the attorneys representing Maples had left the firm. Maples did not find out about the ruling or the fact that his attorneys had left until the deadline to file his state appeal had expired.  Gregory Garre, Maples' new attorney and former solicitor general under President George W. Bush, told the Court in a brief that the case "raises the shocking prospect that a man may be executed without any federal court review of serious constitutional claims due to a series of events for which all agree he was blameless.”  Alabama's Solicitor General, John C. Neiman Jr., replied that, "Maples is unquestionably guilty of murdering two people, and his conviction is now 15 years old.  He has received some sort of judicial review of every claim he has made."  Maples was trying to challenge the competency of his original trial lawyers, who were inexperienced and offered only $1,000 each to prepare for his trial.  They presented only 1 hour of testimony in his defense, and told the jury that they "may appear to be stumbling around in the dark."  The case is Maples v. Thomas, No. 10-63.

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U.S. Supreme Court Halts Execution For Third Time in a Year

Desert Storm veteran Cleve Foster (pictured), who faced execution in Texas for the third time this year for a murder nearly a decade ago, was granted another stay by the U.S. Supreme Court on September 20.  The Supreme Court stopped Foster's execution twice before in 2011.  In January, six hours before his scheduled execution, the Justices granted a reprieve to allow them more time to consider his appeal.  In April, the Court again halted his execution when his lawyers sought a rehearing, claiming that Foster was innocent and had ineffective legal assistance at his trial and during the early stages of his appeal. They later lifted the stay.  Foster has always maintained that his friend was responsible for the murder. The friend also received the death penalty for the crime but died of cancer before he was executed.  Duane Buck, who was scheduled to be executed in Texas on Sept. 15, received a reprieve similar to Foster's from the Supreme Court.  On September 21, Lawrence Brewer is facing execution in Texas for dragging a man to death in Jasper more than 13 years ago.  Some of the victim's family members oppose the execution.  Also on Sept. 21, Troy Davis is scheduled to be executed at 7 pm EDT in Georgia.

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Only Texas Inmate Not Resentenced After Admittedly Racially Biased Testimony Faces Execution

Texas inmate Duane Buck (pictured) is one of seven death row inmates whose death sentences were tainted by improper racial testimony presented at their trials. In 2000, then-Texas Attorney General John Cornyn (now Senator) confessed the state's error to the U.S. Supreme Court, noting that seven cases had been tainted by improper prosecution testimony. "It is inappropriate to allow race to be considered as a factor in our criminal justice system," Cornyn said. "The people of Texas want and deserve a system that affords the same fairness to everyone.”  Six inmates received new sentencing trials, but Buck did not. All seven trials involved testimony by psychologist Walter Quijano, who told juries that defendants were more likely to commit future crimes if they were black or Hispanic. The potential for future dangerousness is a key factor in juries' sentencing decisions in Texas. The prosecutor at Buck's sentencing trial asked Quijano: "The race factor, black, increases the future dangerousness for various complicated reasons; is that correct?" "Yes," Quijano said. Originally, Quijano had been called by the defense and testified that he did not believe Buck would be dangerous in the future.

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