Supreme Court Agrees to Hear Texas Case on Representation for Death Row Appeals

On October 29, the U.S. Supreme Court agreed to hear a death penalty case from Texas to determine whether inmates there can raise claims of inadequate trial representation in federal court if they were effectively prevented from raising such a claim in their state appeal by the further failure of their appellate lawyers. Lower courts considering this issue have held that an earlier Supreme Court ruling, Martinez v. Ryan (2012), which provided such a right in an Arizona case, does not apply in Texas because defendants have multiple opportunities to claim their lawyers failed them. The case is Trevino v. Thaler. Carlos Trevino's current lawyers argue that there was a great deal of mitigating evidence that the trial lawyers failed to find and present at trial. The case will probably be argued early next year.

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BOOKS: "The Death Penalty In a Nutshell"

The latest edition of the educational text, The Death Penalty in a Nutshell by Victor Streib, is now available. Prof. Streib presents the substantive and procedural law of capital cases, along with its relevant history, jurisprudence and constitutional applications. Streib also addresses international issues, the complex role of defense counsel, the risk of systemic bias, and the potential execution of innocent defendants. This new edition provides an analysis of emerging trends in the death penalty, including that fewer states have the death penalty on their books, fewer capital offenders are being sentenced to death, and fewer yet are being executed. Victor Streib is currently the Ella and Ernest Fisher Professor of Law at the Ohio Northern University College of Law.

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MENTAL ILLNESS: At 11th Hour, Supreme Court Upholds Stay of Execution for Florida Inmate

On October 23, the U.S. Supreme Court upheld a last-minute federal appeals court stay-of-execution for John Ferguson. Ferguson had been scheduled to be executed earlier that day, but his lawyers filed a series of motions arguing he was mentally incompetent. In September, Florida Governor Rick Scott signed Ferguson’s death warrant for October 16, but allowed time for a mental competency examination. A series of stays and reversals shifted the date to October 18, then to October 23, or later.  Mental health professionals have diagnosed Ferguson as paranoid schizophrenic with a long history of mental illness. Earlier, the ABA released a statement: "The American Bar Association is alarmed that Florida is poised to execute John Ferguson, a man diagnosed as severely mentally ill for more than 40 years, before the constitutionality of his execution is fully evaluated." The Court of Appeals will review whether the Florida Supreme made an unreasonable application of the law or determination of the facts in denying Ferguson's state appeal. Briefs must be filed by November 6. The U.S. Supreme Court had repeatedly denied prior requests for a stay.

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BOOKS: Early Supreme Court Cases on the Death Penalty

A new book by Professor Robert Bohm of the University of Central Florida looks at death-penalty decisions by the U.S. Supreme Court prior to the modern era of capital punishment that began in 1968. In The Past As Prologue, Bohm examines 39 Court decisions, covering issues such as clemency, jury selection, coerced confessions, and effective representation. These early decisions have shaped modern rulings on capital punishment, and the book provides an analysis of these effects. In addition, the cases provide an historical perspective on prior death penalty practices. Bohm is a Professor of Criminal Justice and has published widely in this field and on capital punishment.

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SUPREME COURT: Justices to Consider Whether Death Penalty Appeals Can Continue When Defendant Is Incompetent

On October 9, the U.S. Supreme Court will consider cases from Arizona and Ohio questioning whether death penalty appeals can continue if the defendant is mentally incompetent. Under the Court's prior rulings in Ford v. Wainwright (1986) and in Atkins v. Virginia (2002), capital defendants cannot be executed if they are incompetent or intellectually disabled (mentally retarded). In the upcoming cases, Ryan v. Gonzalez and Tibbals v. Carter, the Court will determine whether mentally incompetent inmates are entitled to a stay of federal habeas proceedings because they cannot assist their counsel. The U.S. Courts of Appeals for the Ninth and Sixth Circuits, respectively, held that the defendants' competency was necessary, thus staying the proceedings indefinitely. The states that asked the Court to review this question asserted that the appeals should go forward, since no new information will be considered. The American Psychiatric Association submitted an amicus brief recommending "that post-conviction proceedings initiated by a capital prisoner should be suspended when a mental disorder or disability prevents the prisoner from understanding his situation or communicating with his counsel, and when such communication would be necessary to the fair adjudication of that prisoner’s legal challenges to his conviction or sentence."

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LAW REVIEWS: "A Modest Proposal: The Aged of Death Row Should Be Deemed Too Old to Execute"

A recent article in the Brooklyn Law Review argues that executing long-serving, elderly death row inmates should be deemed unconstitutional as cruel and unusual punishment.  In A Modest Proposal: The Aged of Death Row Should Be Deemed Too Old to Execute, Professor Elizabeth Rapaport (pictured) of the University of New Mexico School of Law maintains that harsh death row conditions, along with the fragility of the growing number of elderly inmates due to the aging process, result in excess suffering that should render their execution a violation of the Eighth Amendment. Rapaport states, “The long delays between pronouncement of sentence and execution, and the considerable uncertainty about whether any condemned man or woman will be executed in our system of capital punishment, have given rise to a new form of cruelty unknown to our ancestors. Delay is not aberrant but normal. It cannot be purged from the system without doing unacceptable violence to constitutionally mandated due process.”

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Thirty-two Years After Crime, High-Profile Texas Death Case Ends with Life Sentence

On August 1, Delma Banks Jr., one of the longest serving inmates in Texas death-penalty history, received a life sentence and will be eligible for parole in 2024 under a plea agreement with prosecutors. Banks was convicted by an all-white jury of a 1980 murder, but there were no witnesses to the killing and no physical evidence linking Banks to it. The prosecution’s case relied largely on the testimony of two informants, both admitted drug users. In 1999, almost 20 years after the trial, Banks’ lawyers discovered a transcript showing that one of the informants' testimony had been extensively rehearsed and coached and the other had been paid.  In 2004, the U.S. Supreme Court overturned Banks’ death sentence because prosecutors had suppressed crucial evidence and allowed the informants to testify falsely. A new sentencing hearing was scheduled for October before the plea agreement was struck.  Bowie County District Attorney Jerry Rochelle said that the decision was influenced by the victim's family wanting the case to end. Rochelle said, “They were ready for some closure.  After 32 years of dealing with the offense, the death of their son, the original trial, the appeals and the prospect of a new trial, they were ready for it to end.”  George Kendall, attorney for Delma Banks, said, “After 32 years, the State has decided to no longer seek the death penalty in this case. We hope the resolution of this case will bring closure to all concerned.”

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INTELLECTUAL DISABILITIES: Texas Stands Alone in Its Unusual Test of Mental Retardation and Exemption from Execution

Despite the U.S. Supreme Court's ban on the death penalty for defendants with mental retardation, Texas is planning to execute Marvin Wilson on August 7.  Wilson has an IQ of 61 and adaptive functioning levels even lower; the only board-certified expert to evaluate Mr. Wilson concluded he has mental retardation (now known as intellectual disability).  Wilson struggled in school, and dropped out after the 10th grade.  According to experts who assessed his mental health, Wilson continues to be unable to perform even the simplest tasks without assistance.  This intellectual disability typically manifests itself before the age of 18 and is objectively determined by mental health professionals, independent of the crime that put the defendant on death row.  Texas, however, insists that it can layer additional factors onto the test for retardation, factors not used by any other states, not based on scientific criteria, and which do relate to the original crime. This test is based on the “Briseño factors” (named after the Texas court decision that announced them), and allows an execution if (among other factors) the court determines the criminal offense required forethought, planning and complex execution.  The American Association on Intellectual and Developmental Disabilities wrote in their recent brief in Chester v. Thaler, another case involving the Briseño factors that is pending before the Supreme Court: “[The Texas] impressionistic ‘test’ directs fact-finders to use ‘factors’ that are based on false stereotypes about mental retardation that effectively exclude all but the most severely incapacitated.” Attorneys for Wilson have filed a petition with the U.S. Supreme Court, asking it to consider whether the Briseño factors represent an unreasonable application of the Supreme Court’s ruling on mental retardation .

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LAW REVIEWS: Revisiting the Constitutionality of the Death Penalty

A recent law review article by Professors Carol and Jordan Steiker examines two decades of attempts to regulate capital punishment and concludes that this process may have paved the way to a finding that the death penalty is unconstitutional: “[T]he modern American death penalty - with its unprecedented costs, alternatives, and legal regulatory framework - seems newly vulnerable to judicial invalidation. Reform of the death penalty and its abolition might well be on the same path.” The authors point to developments such as the number of exonerations from death row, the emergence of the sentence of life without parole, and the focus in death penalty trials on the sentencing phase as helping to produce a “precipitous and unexpected turnaround” in the number of sentences and executions.

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U.S. Supreme Court: June 29 Marks 40th Anniversary of Furman v. Georgia

June 29, 2012 (Friday) is the 40th anniversary of the U.S. Supreme Court’s decision in Furman v. Georgia, in which the Court found that the lack of standards for imposing the death penalty enabled the penalty to be applied arbitrarily, thus violating the Eighth Amendment’s ban on cruel and unusual punishments. In nine separate opinions, and by a vote of 5 to 4, the Court voided every state’s existing death penalty statute, commuted the sentences of death row inmates around the country, and suspended the death penalty. In his concurrence, Justice Douglas wrote, “[W]e deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12.” Justice Marshall further underscored the death penalty’s arbitrariness in his concurrence: “It also is evident that the burden of capital punishment falls upon the poor, the ignorant, and the underprivileged members of society. It is the poor, and the members of minority groups who are least able to voice their complaints against capital punishment. Their impotence leaves them victims of a sanction that the wealthier, better-represented, just-as-guilty person can escape.”

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