Tennessee Executes Mentally Ill and Sexually Abused Prisoner by Electrocution
Tennessee executed David Earl Miller (pictured at age 24) in the state’s electric chair on December 6, 2018, after Governor Bill Haslam denied his application for clemency and the U.S. Supreme Court refused to address the denials of his challenges to the constitutionality of Tennessee’s execution methods. Miller, a 61-year-old man with a significant history of mental illness who experienced extensive sexual and physical abuse as a child, opted to be executed by electric chair after the Tennessee Supreme Court denied other prisoners’ challenges to a three-drug lethal-injection process that Miller and his lawyers believed would result in an extended torturous death.
The Tennessee prisoners challenged the state’s three-drug lethal-injection process, seeking to replace it with execution with a single barbiturate, pentobarbital. Miller presented evidence that the three-drug protocol would result in approximately 18 minutes of unnecessary pain and suffering. He submitted an affidavit from one of the nation’s leading anesthesiologists that Billy Ray Irick “was aware and sensate” during his lethal-injection execution on October 11, 2018 “and would have experienced the feeling of choking, drowning in his own fluids, suffocating, being buried alive, and the burning sensation caused by the injection of the potassium chloride.” The prisoners’ challenge was rejected because Miller—prevented from obtaining critical information by Tennessee’s execution secrecy law—was unable to show that pentobarbital was readily available to the state. Miller elected to be executed in the electric chair, but argued that his choice of electrocution instead of lethal injection was coerced and that both methods were unconstitutionally cruel and unusual. The lower courts ruled that Miller had waived his challenge to constitutionality of the electric chair by choosing it over lethal injection, and the U.S. Supreme Court refused to intervene. In dissent, Justice Sonia Sotomayor wrote that “electrocution can be a dreadful way to die,” but there was “credible scientific evidence that lethal injection as currently practiced in Tennessee may well be even worse.” It was “perverse,” she said, to require prisoners to prove that an alternative method was available to kill them. “Such madness should not continue.”
Miller was charged with murdering his intellectually-disabled girlfriend, Lee Standifer, in May 1981. He was 24 years old at the time. Miller’s attorneys submitted an 89-page clemency petition to Tennessee Governor Bill Haslam detailing Miller’s upbringing and childhood abuse, including an instance in which Miller’s stepfather “knocked [Miller] out of a chair, hit him with a board, threw him into a refrigerator with such force it dented the refrigerator and bloodied [Miller’s] head, dragged him through the house by his hair, and twice ran [Miller’s] head through the wall.” Miller’s mother, who drank heavily while he was in utero, sexually abused Miller and forced him to have sex with her on at least three occasions. The document also noted that Miller attempted suicide two times before age ten. Governor Haslam denied the petition with a one-sentence statement: “After careful consideration of David Earl Miller’s clemency request, I am declining to intervene in this case.”
Following the execution, Miller’s lawyer Steve Kissinger said: “If any of you have been reading what we've been submitting to the governor, what we have been sending to the courts for the last 20 years you'll know that he cared deeply for Lee Standifer and she would be alive today if it weren't for a sadistic stepfather and a mother who violated every trust that a son should have. I came up here promising to tell you what we did here today, but I think maybe what I should be doing is ask you all that question. What is it that we did here today?”
Miller is the second death-row prisoner to be executed by electrocution in Tennessee this year. Edmund Zagorski, executed by electrocution on November 1, 2018, was the first. Miller’s last words were “beats being on death row.”
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A Veterans Day Review: Recent Cases Highlight Concerns About Veterans and the Death Penalty
As Americans become increasingly aware of the role of combat trauma in the development of Post-Traumatic Stress Disorder (PTSD) and other mental health disorders, the shift in public perceptions towards veterans suffering from these disorders has played out in the courts in recent death penalty cases. In 2018, at least four military veterans facing death sentences have instead been sentenced to life in prison, and another two veterans won relief in their death-penalty cases. One military veteran has been executed so far this year.
In January, retired Marine Corps Lieutenant General John Castellaw (pictured) wrote in support of exempting mentally ill veterans from capital punishment, saying, "we can do better at recognizing the invisible wounds that some of our veterans still carry while ensuring they get the treatment that they deserve and that we owe them for their sacrifice. ...[W]e can do better by staying tough on crime but becoming smarter on sentencing those whose actions are impacted by severe mental illness." Prosecutors and juries in Indiana, Florida, Colorado, and Virginia have considered the military service and service-related disorders of murder defendants and determined that life sentences were more appropriate than the death penalty. In the Virginia trial of Iraq war veteran Ronald Hamilton, his attorneys presented evidence that he had been a model soldier who had saved the life of a fellow serviceman, but faced PTSD-related disorders and a deteriorating family life when he returned home. At Glen Law Galloway's trial in Colorado, Denver public defender Daniel King presented four days of testimony about Galloway’s character and background, including how the former Army veteran “snapped” following the collapse of his relationship with his girlfriend. King argued, “Mr. Galloway is not just the worst thing that he’s done. He’s committed many acts of kindness, friendship, service, love and duty.” In May, prosecutors withdrew the death penalty in exchange for guilty pleas in two unrelated cases involving military veterans Darren Vann in Indiana and Esteban Santiago in Florida. Santiago faced federal charges for a mass shooting, but prosecutors agreed to a plea deal because Santiago, an Iraq war veteran, suffers from schizophrenia and auditory hallucinations, had unsuccessfully sought treatment and assistance from the Veterans Administration, and had been committed to a mental hospital because of the seriousness of his mental illness.
Two death-sentenced prisoners were granted relief this year as a result of failures by their defense counsel to investigate and present mitigating evidence related to their military service and their service-related mental health disorders. Andrew Witt, an air force veteran who had been on U.S. military death row, received a life sentence after a court found his attorneys ineffective for failing to present mitigating evidence that he had suffered a traumatic brain injury. Robert Fisher's death sentence was reversed by a Pennsylvania federal court in part because his lawyer did not investigate or present evidence related to his service in Vietnam. Fisher was a Purple Heart recipient who struggled with brain damage, drug abuse, and mental health problems after his service.
On July 18, Ohio executed Robert Van Hook, an honorably discharged veteran who was suffering from long-term effects of physical and sexual abuse as a child and untreated mental health issues at the time of the offense. Van Hook had been unable to obtain care for his mental health and addiction issues from veterans service agencies after his discharge.
A 2015 report by the Death Penalty Information Center, Battle Scars: Military Veterans and the Death Penalty, estimated that approximately 300 veterans are on death row across the United States, many suffering from mental illness caused or exacerbated by their military service.
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Arkansas Supreme Court Strikes Down State's Death-Penalty Mental Competency Law
A divided Arkansas Supreme Court has struck down the state’s death-penalty mental competency law, holding that statutory provisions giving the state’s prison director exclusive authority to determine a death-row prisoner’s competency to be executed violate due process. The 4-3 rulings on November 1, 2018 were a victory for two mentally ill death-row prisoners, Bruce Ward (pictured, left) and Jack Greene (pictured, right), who had come within days of execution in 2017. The appeals court directed the Arkansas trial courts to conduct hearings to determine the men’s mental status and their competency to be executed.
Ward, who has been diagnosed with paranoid schizophrenia, was scheduled to be executed on Monday, April 17, 2017. A Pulaski County trial court had denied his motion for a hearing to determine his competency to be executed, saying it had no legal authority to rule on the issue. The state supreme court stayed Ward's execution on April 14 to decide whether counsel should be permitted to litigate Ward’s competency to be executed. Greene suffers from psychotic delusions and, according to court pleadings, believes that his attorneys and prison officials are conspiring to torture him. His delusions include that “his spinal cord has been removed and his central nervous system has been destroyed,” in response to which, his lawyers say, Greene “constantly twist[s] his body and stuff[s] his ear and nose with toilet paper to cope with the pain.” Arkansas had scheduled his execution for November 9, but the Arkansas Supreme Court granted a stay on November 7 to resolve whether the state's mechanism to determine competency was constitutional.
The court’s two rulings determined that Arkansas’s competency law violated the two prisoners’ rights to due process under both the United States and Arkansas constitutions. The statute, Chief Justice John Kemp wrote, failed to “provide for an evidentiary hearing that comports with the fundamental principles of due process,” as set forth in the U.S. Supreme Court’s competency decisions in Ford v. Wainwright and Panetti v. Quarterman. John C. Williams, a federal public defender representing the inmates, told Associated Press that the defense was “pleased the court held the statute unconstitutional, and we look forward to litigating our clients’ competence.”
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Texas Court Stays Execution of Mentally Ill Prisoner with Schizophrenia
The Texas Court of Criminal Appeals on October 19, 2018 stayed the execution of Kwame Rockwell (pictured), a severely mentally ill death-row prisoner suffering from schizophrenia, who had been scheduled to die on October 24. The court found that Rockwell had raised “substantial doubt that he is not competent to be executed” and reversed a ruling by the Tarrant County District Court that had rejected Rockwell’s competency claim without an evidentiary hearing and without providing funds for him to obtain a competency evaluation. The appeals court ordered the trial court to appoint “at least two mental-health experts” to evaluate Rockwell’s competency. On October 16, Rockwell’s lawyers had appealed the Tarrant County order arguing that the trial court had abused its discretion in rejecting his competency claim The appeal argued that Rockwell “does not understand he is to be executed,” “has no understanding that he was convicted of capital murder and sentenced to death,” and “does not comprehend that he has been incarcerated on death row since 2012 or even that he is presently incarcerated in a Texas prison.”
The U.S. Supreme Court ruled in Ford v. Wainwright (1986) that the Eighth Amendment prohibits the execution of prisoners who have become “insane”—which the Court defined as being “unaware of the punishment they are about to suffer and why they are to suffer it.” In 2007, in the Texas case of Panetti v. Quarterman, the Court explained that a prisoner whose delusions prevent him from having a “rational understanding” of these circumstances is incompetent to be executed. A neuropsychologist who examined Rockwell in July reported that Rockwell said he saw snakes and demons that were inside of him, appeared to be hearing voices, and, in response to a question about his name, said “my name is God.” The doctor’s affidavit said Rockwell “does not understand or appreciate where he is, the nature of his charges, why he is in prison, or the nature of his punishment.” Rockwell’s lawyers also presented the court with evidence of his significant family history of psychotic illness, including twelve family members across three generations of his family with mental illness diagnoses, and Rockwell’s own mental illness in childhood and as an adult. Citing prison records, the appeal states: “Rockwell has consistently experienced intense hallucinations and auditory delusions, despite spending the majority of his sentence on four or more antipsychotic medications concurrently. He is haunted by snakes and demons. No medications have been able to eliminate his hallucinations or delusions.”
The U.S. Supreme Court has never categorically excluded people with serious mental illness from being sentenced to death or executed. A 2014 poll found that Americans by a two-to-one margin oppose executing people with mental illness. Several states have recently considered, but not adopted, legislation to bar the death penalty for people with severe mental illnesses. Rockwell’s trial lawyer did not present to the jury mitigating evidence of Rockwell’s schizophrenia or his family’s history of psychotic mental illness. Nonetheless, the Texas state and federal courts denied Rockwell’s claim that he had been provided ineffective representation at sentencing. In an opinion piece for Pacific Standard written before the Texas Court of Appeals granted the stay, David M. Perry compared the courts’ treatment of Rockwell’s case with the recent stay of execution granted to fellow Texas prisoner Juan Segundo. Segundo was granted a stay so the Tarrant County court could reconsider his claim of intellectual disability after the Supreme Court had ruled that the standard Texas had previously applied unconstitutionally risked that some people with intellectual disability would still be executed. “America still doesn't have clear protections for people with severe mental illness,” Perry explains. “These two cases in Texas remind us of the unfortunate diagnostic limitations that protect only some people with disabilities from the death penalty.”
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Law Review: Junk Mental Health Science and the Texas Death Penalty
Junk science is “enabling and perpetuating grave miscarriages of justice” in Texas death-penalty cases. So concludes Professor James Acker in his article, Snake Oil With A Bite: The Lethal Veneer of Science and Texas’s Death Penalty, published in the latest issue of the Albany Law Review. Acker’s article highlights the heightened risks of injustice from pseudo-science and junk science in capital cases in Texas, one of the few states that conditions death eligibility upon a finding of the defendant’s future dangerousness. Acker writes that, “at virtually every ... stage of the state’s capital punishment process,” Texas prosecutors “have alternately enlisted expert witnesses and scientists who have helped move accused and convicted offenders progressively closer to the execution chamber, and ignored or discounted scientific norms and developments inconsistent with securing and carrying out capital sentences. All too often, the determinations made in support of death sentences are of dubious reliability—including opinions and conclusions based on what many would agree to qualify as junk science—thus greatly enhancing the risk of miscarriages of justice ....”
Acker’s article discusses Texas’s long history of abusing expert testimony in support of execution, starting with the case of Estelle v. Smith, in which Dr. James Grigson — later nicknamed “Dr. Death” — evaluated Ernest Smith for his competency to stand trial, did not notify counsel of the evaluation, failed to advise Smith of his right to remain silent, and then testified in the penalty phase “that Smith was a severe sociopath, that his condition could not be treated, and that he ‘is going to go ahead and commit other similar or same criminal acts if given the opportunity to do so.’” The U.S. Supreme Court overturned Smith’s death sentence in 1981 for violations of his right to counsel and his constitutional privilege against compelled self-incrimination. Two years later, in Barefoot v. Estelle, the Court permitted the use of psychiatric predictions of future dangerousness, despite warnings by the American Psychiatric Association that such testimony was speculative and highly unreliable. Grigson went on to testify in 167 capital cases, repeatedly responding to hypothetical questions posed by prosecutors (even after he was expelled from state and national professional associations because of this practice) that defendants whose institutional records he had never reviewed and whom he had never evaluated were certain to commit future acts of violence. Texas has also misused expert mental health testimony in capital cases to falsely argue that capital defendants posed an increased threat to society because of their race or ethnicity, Acker writes. He describes the testimony of Dr. Walter Quijano, a clinical psychologist who testified in seven cases that defendants were more likely to pose a danger to society because they were black or Latino. The Texas Attorney General’s office ultimately conceded error in all but one of those cases. Duane Buck’s case, however, reached the Supreme Court, where Chief Justice Robert condemned Quijano’s testimony as “powerful racial stereotyping.”
The Texas courts also systemically disregarded scientific standards or otherwise abused expert mental health testimony in determinations of intellectual disability and competency to be executed, Acker says. In the case of Moore v. Texas, the Supreme Court declared Texas’s approach to intellectual disability to be unconstitutional and ordered a reconsideration of Bobby Moore’s intellectual disability claim. With the prosecution, the defense, and multiple mental health groups all agreeing that Moore is intellectually disabled, the Texas Court of Criminal Appeals nevertheless upheld his death sentence. Finally, Acker writes, the state’s approach to competency has been an outlier, deeming Scott Panetti — who had been “hospitalized more than a dozen times [for mental illness and] been diagnosed as suffering from schizophrenia, bipolar disorder, auditory hallucinations, and delusions of persecution and grandeur” — competent to stand trial, to represent himself, and to be executed. Texas “has alternatively coopted, disregarded, and subverted science and prevailing disciplinary norms of the mental health professions,” Acker concludes. “The death penalty in Texas, imbued with powerful symbolism and political significance, has succeeded not only in condemning offenders, but also the principled teachings of science. ... Science and politics are a deadly mixture, in the nature of snake oil with a bite.”
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Justices Appear to Favor Prisoner with Dementia in Case Seeking to Block Alabama Execution
The U.S. Supreme Court heard argument in Madison v. Alabama on October 2, 2018 on whether an Alabama death-row prisoner who has vascular dementia, brain damage, cognitive deficits, and memory loss from two near-fatal strokes is competent to be executed. During oral argument, Bryan Stevenson (pictured), the executive director of the Equal Justice Initiative, told the justices that, as a result of severe and progressively worsening dementia, Vernon Madison lacks a rational understanding of why Alabama intends to put him to death and is therefore incompetent to be executed. A majority of the justices appeared sympathetic to Madison's position, including Chief Justice John Roberts who is now regarded as the swing vote in death-penalty cases. The issues before the Court narrowed significantly as a result of concessions made by both sides at the argument. Madison's pleadings had argued that the Court's decisions in 1986 in Ford v. Wainwright and 2007 in Panetti v. Quarterman on competency to be executed applied beyond the limited circumstances of insanity and delusional mental illness at issue in those cases. "For purposes of retribution, there is no moral or constitutional distinction between a person who cannot 'recogni[ze] … the severity of the offence as a result of delusions and a person who is unable to do so as a result of dementia, cognitive decline, and memory deficits," his lawyers wrote. Alabama Deputy Attorney General Thomas Govan conceded that incompetency caused by severe dementia could also qualify. Stevenson, on the other hand, conceded in response to questioning by Justices Samuel Alito and Elena Kagan that merely having no memory of committing the offense does not make a prisoner incompetent to be executed. Rather, Stevenson said, the memory loss must be the product of a medical or physical condition that also affects the prisoner's understanding of why he or she is to be executed. Stevenson said Madison's severe vascular dementia has left him with no memory of having killed a police officer who responded to a domestic disturbance in 1985. An MRI has shown that Madison has suffered substantial brain damage, and psychological testing has documented significant cognitive decline accompanied by IQ-loss that now places him in the borderline range of intellectual functioning. Madison's dementia has also left him disoriented as to date and time and without the ability to rationally comprehend his legal situation. He is legally blind, Stevenson said, has slurred speech, cannot recite the alphabet past the letter G or retain basic information, cannot walk without assistance, and continually soils himself because he does not know how to use the toilet in his five-by-eight cell. Madison's physical disabilities, Stevenson said, provide evidence illustrating the extent to which Madison's vascular dementia has affected all aspects of his life. Stevenson argued that Alabama's courts improperly rejected Madison's evidence of incompetency, focusing only on whether his impairments were caused by insanity, psychosis, or delusions. Govan asserted in response that by reciting the correct legal standard from Ford and Panetti and making reference to the testimony concerning Madison's impairments, Alabama had in fact considered that evidence. He further disputed whether Madison is incompetent at all, stating that Alabama would find him competent to stand trial in his current condition. Stevenson closed the argument by telling the Court that the "awesome power" to execute a person who no longer poses an immediate threat must "be utilized fairly, reliably, and humanely." The Court, Stevenson said, reviews facts and circumstances "through the window of the Constitution ..... But the Eighth Amendment isn't just a window. It's a mirror." Our norms and values "are implicated when we do things to really fragile, really vulnerable people," Stevenson said. "And what we've argued is that dementia in this case renders Mr. Madison frail, bewildered, vulnerable in a way that cannot be reconciled with executing him because of his incompetency."
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Tennessee Executes Billy Ray Irick in First Execution Since 2009
Over sharp dissents by justices of the U.S. and Tennessee Supreme Courts and lingering questions about the prisoner's history of mental illness and the efficacy of the state's lethal-injection protocol, Tennessee executed Billy Ray Irick (pictured) on August 9. He was the first person executed by the state since 2009. Justice Sonia Sotomayor described the process as a "rush to execute" and a descent into "barbarism." In the days leading up to the execution, the Tennessee Supreme Court and Tennessee Governor Bill Haslam rejected Irick's request for a stay or clemency. The state Supreme Court ruled on August 6 that Irick had failed to show his challenge to the execution protocol was likely to succeed on appeal, a requirement for the court to allow the lawsuit to proceed. Judge Sharon Lee dissented from the majority decision, writing, "The harm to Mr. Irick of an unconstitutional execution is irreparable. Yet the harm to the State from briefly delaying the execution until after appellate review is minimal, if any." Governor Bill Haslam declined to exercise his clemency power in Irick's case, saying that the judicial review of the case was "extremely thorough." Gene Shiles, Irick's attorney disagreed: "The truth is no facts relating to Billy’s state mind at the time of the offenses — including his hallucinations and talking to 'the devil' were ever considered by a single court on the merits. These facts, the most important to reasoned decisions as to guilt and punishment, were instead 'defaulted' and never weighed because they were determined to be untimely — raised too long after the trial." The U.S. Supreme Court denied a stay, but Justice Sonia Sotomayor strongly dissented from that denial, writing, "In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis. I cannot in good conscience join in this 'rush to execute' without first seeking every assurance that our precedent permits such a result. If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism." The Tennessean reported that Irick's execution was "certain to fuel a fierce national debate surrounding the drugs used to kill him, and if they amount to state-sanctioned torture." Federal public defender Kelley Henry said Irick exhibited signs of pulmonary edema during an execution that took more than twenty minutes. Henry said media witnesses had reported that “Mr. Irick ‘gulped for an extended period of time,’ was ‘choking,’ ‘gasping,’ ‘coughing,’ and that ‘his stomach was moving up and down.’ Witnesses described movement, including movement of the head, after the consciousness check. This means that the second and third drugs were administered even though Mr. Irick was not unconscious,” Henry said. Media reports indicated that the second and third drugs, a paralytic agent and potassium chloride, would cause a pain similar to drowning and being burned alive.
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Montana Prosecutors Drop Death Penalty Against Mentally Ill Defendant
Lloyd Barrus (pictured, left) will not become the first person sentenced to death in Montana this century, after prosecutors dropped their pursuit of the death penalty for the killing of a sheriff's deputy. In a motion filed July 19, 2018, Broadwater County Attorney Cory Swanson (pictured, right) wrote that, "after extensive analysis of the Defendant's history of ... mental illness," the state would no longer seek the death penalty in the case. Doctors at the Montana State Hospital had diagnosed Barrus with multiple mental health disorders, including a delusional disorder, that led Judge Kathy Seeley to find him incompetent to stand trial and to commit him to a mental hospital for treatment. Medical records documented Barrus's history of mental health issues dating to 2000, and Swanson did not contest the diagnoses. The prosecution's notice to withdraw the death penalty acknowledged that Barrus's mental illness was potentially a "sufficiently mitigating circumstance" for the court to choose a life sentence over the death penalty. Swanson said he believes the mental health treatment plan ordered by the court will restore Barrus's competency to be tried, that he "expects to try this case before a jury, and believes the court will have the opportunity to hold the Defendant accountable through a just sentence, which includes up to imprisonment for life without the possibility of parole." With the death penalty off the table, Montana will continue its 21-year streak without a death sentence. The last time the state sentenced a defendant to death was 1996. Just two people remain on Montana's death row, and the state's last execution was in 2006. Several states have considered bills in recent years that would exempt people with severe mental illness from the death penalty, but no state has imposed such a ban.
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STUDY: Tennessee Could Save $1.4 Million Annually Ending Death Penalty for Severe Mental Illness
Tennessee could save an estimated $1.4–1.89 million per year by adopting a ban on capital punishment for defendants with severe mental illness, according to a new report by the American Bar Association Death Penalty Due Process Review Project. The report said a severe mental illness death-penalty exclusion “could result in cost savings [because] a subset of individuals who currently could face expensive capital prosecutions and decades of appeals would become ineligible” for capital prosecution. As a result, “their trials and appeals would be significantly truncated, while still resulting in guilty verdicts.” The study projected statewide costs based upon its review of the death-row population from Shelby County, Tennessee, the nation's 13th largest county death row, and the results of comprehensive cost studies from other jurisdictions. Based on the 67 death sentences imposed in Shelby County between 1977 and 2017, the study estimated that approximately 15% of death-row prisoners had been diagnosed with a severe mental illness, which includes schizophrenia, schizoaffective disorder, bipolar disorder, delusional disorder, or major depression. If the same percentage of death-sentenced prisoners across the state had severe mental illness, the study said, 28 prisoners would have been exempted from Tennessee’s death penalty since 1977. The report based its cost estimates on a 2008 Urban Institute cost study of Maryland’s death penalty—considered one of the most rigorous of the state death-penalty cost studies conducted across the country. That study found that death-penalty cases cost about $1.9 million more than non-capital murder cases. Using that estimate, the report said, eliminating the 28 capital prosecutions of severely mentally ill defendants would have saved Tennessee $54.8 million over the last 40 years, or an average of $1.4 million per year. Mental Health America estimates that 20% of death-row prisoners have serious mental illness, the report said, and using its estimate of the prevalence of severe mental illness, Tennessee’s average annual savings would be even higher, at $1.89 million. Because no data were available on capital prosecutions in which seriously mentally ill defendants were not sentenced to death, the report did not calculate the potential additional cost savings from decapitalizing those cases. Tennessee is one of several states considering a mental illness exemption from the death penalty, and was selected for the study because it provides detailed information on all first-degree murder cases since 1977. In 2017, former Tennessee Attorney General W.J. Michael Cody expressed his support for a mental illness exemption, saying, “[a]s a former Tennessee Attorney General, I understand how horrific these crimes are and how seriously we must take capital cases. ... But in light of our increased understanding of mental illness, I believe that for those with documented mental illness of the most severe form at the time of their crime, the maximum punishment should be life in prison without parole.”
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Federal Appeals Court Hears Argument in Case of Texas Death-Row Prisoner Who Gouged Out His Eyes
A severely mentally ill Texas death-row prisoner who gouged out his eyes and ate one of them has asked a federal appeals court to allow him to appeal a lower court decision that upheld his conviction and death sentence and found that he had been competent to stand trial. Andre Thomas (pictured, left when arrested; center, after gouging out his right eye prior to trial; right, after gouging out and eating his left eye while on death row); is seeking review of his claims that his conviction and sentence must be overturned because he is severely mentally ill, received inadequate representation at trial and at sentencing, and his jury was tainted by racial bias. On June 5, a panel of the U.S. Court of Appeals for the Fifth Circuit heard oral argument on whether Thomas is entitled to a “certificate of appealability” ("COA"), a procedural prerequisite to obtaining appellate review of the issues in his case. Thomas was sentenced to death in 2005 for the murders of his ex-wife, their son, and his ex-wife’s daughter. His lawyers did not contest that he had committed the murders, but argued he was incompetent to stand trial. Thomas began hearing voices at age nine and began smoking marijuana and using alcohol during his childhood. His condition sharply deteriorated shortly before the murders, as he heard voices, repeatedly mutilated himself, put duct tape over his mouth for days at a time because he believed God had told him not to talk, and attempted suicide. While in jail awaiting trial, Thomas gouged out his right eye. In 2008, while on death row, he then gouged out and ate his left eye. Three psychologists who evaluated Thomas before trial said he had paranoid schizophrenia and was incompetent to stand trial. However, after just six weeks of treatment, a state hospital psychologist claimed that Thomas had been exaggerating the symptoms, changed his diagnosis to "substance-induced psychosis," and judged Thomas competent to be tried. Thomas’s trial lawyers did nothing to contest the competency finding—allowing the trial to proceed—failed to retain an expert to challenge the state’s diagnosis of drug-related psychosis, and failed to present significant evidence of his mental illness. On appeal, Thomas challenged his lawyers’ performance on these issues. Appeal counsel also argued that, as a result of trial counsel’s failures, Thomas’s jury was impermissibly tainted by racial bias. Thomas is Black; his ex-wife was White. Written questionnaires submitted by several jurors suggested this raised serious concerns for several of the jurors. One juror wrote that he opposed interracial marriages because he believed “the bloodlines shouldn’t be mixed.” Another expressed concern that “any children” of an interracial marriage “would not have a specific race to belong to.” A third said “interracial relationships were contrary to God’s intent.” Although Thomas’s trial counsel were aware of these responses, they asked no follow-up questions of these jurors, and accepted them to serve on the jury. Finally, Thomas’s current lawyers argued that subjecting people like him, with severe mental illness, to the death penalty is categorically unconstitutional. “There is a growing consensus against the execution of the severely mentally ill,” they wrote in a brief. “The leading legal and mental-health professional organizations—including the American Bar Association, the American Psychiatric Association, and the American Psychological Association—oppose the death penalty for the severely mentally ill.” [UPDATE: The Fifth Circuit granted Thomas a certificate of appealability permitting him to appeal the denial of his claims that his lawyers were ineffective in failing to challenge his competency, failing to present mitigating evidence relating to his mental illness, and failing to take action to keep jurors who expressed clear racial animus off his jury. The court denied his request for a COA on the constitutionality of executing prisoners who are severely mentally ill.]
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