INNOCENCE: State Supreme Court Takes Lead on Eyewitness Identification Errors

One of the principal causes of wrongful convictions in death penalty cases and other felonies is mistaken eyewitness testimony.  On July 19, the New Jersey Supreme Court issued instructions designed to help jurors better evaluate the reliability of eyewitness identifications. A judge is now required to tell jurors before deliberations begin that stress levels, distance, or poor lighting can affect an eyewitness’s ability to make an accurate identification. The new instructions also warn that factors such as the time between the commission of a crime and an identification of a suspect, and the behavior of a police officer during a lineup, can also influence a witness.  In cases involving cross-racial identifications, judges are required to tell jurors that “research has shown that people may have greater difficulty in accurately identifying members of a different race.” The instructions, which take effect in September, address problems raised in last year’s state Supreme Court ruling that concluded the traditional test for the reliability of eyewitness testimony should be revised. The instructions are expected to be influential as other states look to revise their approach to this problem. Barry Scheck, co-director of the Innocence Project in New York, called the instructions critically important. "It changes the way evidence is presented by prosecutors and the way lawyers defend. The whole system will improve,” Scheck said.

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Arkansas Supreme Court Holds Lethal Injection Law Unconstitutional

Arkansas state sealOn June 22, the Arkansas Supreme Court struck down the state’s lethal injection law as unconstitutional because it delegated too much authority to the Department of Corrections. In a 5-2 decision, the court sided with 10 death row inmates who argued that, under Arkansas's constitution, only the Legislature can set execution policy, and that legislators violated the state's separation of powers doctrine when it voted to give that authority to the prison system in the Method of Execution Act of 2009. The ruling does not invalidate Arkansas’s death penalty but does leave the state without a lawful way to carry out executions until a new law is passed.  Associate Justice Jim Gunter, writing for the majority, said that the law governing executions failed to include reasonable guidelines for executive branch agencies to follow when deciding on an execution protocol: "The statute provides no guidance and no general policy with regard to the procedures for the (Arkansas Department of Corrections) to implement lethal injections.” There are currently 40 prisoners on Arkansas’s death row. The last execution carried out in the state was in 2005.

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RACE: After Judge Finds Statewide Racial Bias in Jury Selection, North Carolina Legislators Move to Repeal Racial Justice Act

On June 13, the North Carolina House of Representatives approved a bill to essentially overturn the state's Racial Justice Act (RJA), a groundbreaking law that allowed a finding of racial bias in sentencing or jury selection based on sophisticated statistical studies. If passed into law, the new bill would require courts to revert to the older and more problematic process of finding direct racial bias by the prosecution or jury against an individual defendant in order to reverse a death sentence.  The new bill also limits any statistics used to the county or prosecutorial district where the trial occurred, instead of from across the state. Earlier in 2012 in the case of Marcus Robinson, Judge Gregory Weeks conducted the first evidentiary hearing under the existing Racial Justice Act and found system-wide racial bias in the state.  He resentenced Robinson to life imprisonment without parole. Judge Weeks concluded that the defendant “introduced a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina. The evidence, largely unrebutted by the State, requires relief in this case and should serve as a clear signal of the need for reform in capital jury selection proceedings in the future.” Rep. Rick Glazier, one of the key architects of the RJA, called the proposed legislation "extremely flawed,” and added, “This bill simply pays lip service to the notion that we have bias in our criminal justice system - and then simply eviscerates the only way left to prove it.”

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NEW VOICES: Connecticut Supreme Court Justice Says Death Penalty 'Incompatible with Standards of Human Decency'

On May 29, the Connecticut Supreme Court overturned the death sentence of Eduardo Santiagoone of eleven men who remained on the state's death row despite the recent abolition of the death penalty for future crimes.  Justice Lubbie Harper, Jr., (pictured) agreed with the majority’s reasoning and conclusions about Santiago, but also came to the conclusion that the state's death penalty as applied to those still on death row is unconstitutional.  Justice Harper wrote, “It is clear to me both that capital punishment violates our state’s constitutional prohibition against cruel and unusual punishment and that this punishment is systematically plagued by an unacceptable risk of arbitrary and racially discriminatory imposition that undermines the fairness and integrity of Connecticut’s criminal justice system as a whole.” He concluded, “Upon review of both the objective evidence of prevailing norms of human decency, as well as other relevant social and legal factors, I cannot but conclude that capital punishment is incompatible with evolving standards of human decency in our society.”

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INNOCENCE: Op-Ed--"You Can't Fix the Death Penalty"

In a June 1 op-ed in the Los Angeles Times, Columbia University law professor James Liebman (pictured) pointed to his recent investigation of a likely innocent man executed in Texas to illustrate the danger of a "cheaper and quicker" death penalty.  Such proposals for reform are “a terrible and dangerous idea,” Liebman said.  Based on his research into the prosecution of Carlos DeLuna, who was executed in 1989, DeLuna’s case “flew through the courts.”  He was arrested and executed within six years, which is half of the national average for capital cases. More than two decades later, an extensive investigation of the case led Prof. Liebman to conclude that DeLuna was almost certainly innocent. “Only a more careful - and consequently longer and more expensive prosecution and appeals process might have prevented the tragedy,” he wrote. He further concluded, “The flaws in the system that condemned DeLuna — faulty eyewitness testimony, poor legal representation and evidence withheld from the defense — continue to put innocent people at risk of execution…. DeLuna's case disproves the myth that we can save the death penalty by generating more 'quick and dirty' executions. The death penalty is broken. At great effort and expense, states such as California have tried every measure to fix it, but they have failed. The only solution is to end it.”

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RECENT LEGISLATION: Governor's Signature Makes Connecticut Fifth State in Five Years to End Death Penalty

On April 25, 2012, Connecticut Governor Dannel Malloy (pictured) signed into law a bill that replaces the death penalty with life without parole. At that time, Connecticut became the fifth state in five years, and the 17th overall, to do away with capital punishment. Governor Malloy, who once supported the death penalty, offered the following statement: “My position on the appropriateness of the death penalty in our criminal justice system evolved over a long period of time. As a young man, I was a death penalty supporter. Then I spent years as a prosecutor and pursued dangerous felons in court, including murderers. In the trenches of a criminal courtroom, I learned firsthand that our system of justice is very imperfect. While it’s a good system designed with the highest ideals of our democratic society in mind, like most of human experience, it is subject to the fallibility of those who participate in it. I saw people who were poorly served by their counsel. I saw people wrongly accused or mistakenly identified. I saw discrimination. In bearing witness to those things, I came to believe that doing away with the death penalty was the only way to ensure it would not be unfairly imposed."  See more of the governor's statement below.

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Death Penalty Repeal Initiative Qualifies for Ballot in California

On April 23, the SAFE California Act, an initiative to replace California’s death penalty with a sentence of life without parole, qualified for the November 2012 ballot by presenting an ample number of qualified signatures. The initiative garnered almost 800,000 signatures for the measure that would repeal the death penalty and make capital crimes punishable by life in prison without parole. The initiative would also require inmates to work in prison to help pay restitution to the families of victims, and would send $30 million annually for three years to local law enforcement agencies to help solve murder and rape cases. Ron Briggs, who sponsored the 1978 initiative that expanded the death penalty in California, recently expressed support for repeal of the law. In a recent op-ed in the Los Angeles Times, Briggs endorsed the SAFE California campaign, saying “I still believe that society must be protected from the most heinous criminals, and that they don't deserve to ever again be free. But I'd like to see them serve their terms with the general prison population, where they could be required to work and pay restitution into the victims' compensation fund. There are few 'do-overs' in life, especially in politics. With the death penalty, though, 34 years later I have an opportunity to set things right.”

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RACE: North Carolina Judge Overturns Death Sentence Under Racial Justice Act

On April 20, North Carolina Superior Court Judge Gregory Weeks issued an historic ruling under the state's Racial Justice Act finding intentional bias by the state in selecting juries for death penalty cases.  In what may be the first ruling of its kind in the country, the court held that “race was a materially, practically and statistically significant factor in the decision to exercise peremptory challenges during jury selection by prosecutors” at the time of Marcus Robinson’s (pictured) trial. Robinson’s death sentence was reduced to life without parole. Earlier this year, lawyers for Robinson presented statistical studies showing that race played an improper role in jury selection in capital cases across the state. The evidence included findings from a study conducted by law professors at Michigan State University that concluded that qualified black jurors were struck from juries at more than twice the rate of qualified white jurors in the state’s 173 capital cases between 1990-2010. Judge Weeks said that the disparity was strong enough “as to support an inference of intentional discrimination.” Many other North Carolina inmates have also challenged their death sentences on similar grounds.

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EDITORIALS: New York Times Recommends All States to Follow Connecticut's Lead

A recent editorial in the New York Times called Connecticut's decision to repeal the death penalty part of "a growing movement against capital punishment." The editorial attributed the trend away from the death penalty to new research that shows "gross injustice in its application and enormous costs in continuing to impose it." The problem of arbitrariness recently came to light in Connecticut, where "a powerful, comprehensive study provided evidence that state death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime." The Times also cited racial bias, inadequate representation, and wrongful convictions as problems inherent to the death penalty, saying that "the system cannot be fixed. It is practically impossible to rid the legal process of biases driven by race, class and politics." Ultimately, the paper concluded, it would be better to abolish the death penalty entirely.  Read the full editorial below.

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RECENT LEGISLATION: Death Penalty Repeal Passes Second Connecticut House, Awaits Governor's Signature

On April 11, the Connecticut House of Representatives passed (86-62) a bill to abolish the death penalty for future crimes. The same bill passed the Connecticut Senate on April 5. Governor Dannel Malloy has pledged to sign the bill, which will make Connecticut the 17th state to abolish the death penalty, and the 5th to do so in the last 5 years. In a statement released after the House vote, Gov. Malloy said, "When I sign this bill, Connecticut will join 16 other states and almost every other industrialized nation in moving toward what I believe is better public policy." During the lengthy debate on the bill, legislators discussed issues of cost, deterrence, and innocence, as well as their moral convictions on the issue. Rep. Auden Grogins (D-Bridgeport) said, "The law is costly, can be arbitrarily applied and does not produce accurate results. It is not unusual for the legal process, from the beginning to the end, to take 20 years." Rep. Terry Backer (D-Stratford) voiced concerns about wrongful convictions, saying, "We have an imperfect system and there are many mistakes we make as government. Unfortunately, when we are wrong in these cases, there is no way to put them back on track."

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