Wrongful Capital Convictions May Be More Likely in Cases of Judicial Override, Non-Unanimous Death Verdicts
New data suggests that states that capital sentencing statutes that permit judges to impose death sentences by overriding jury recommendations for life or after juries have returned non-unanimous recommendations for death may increase the risk of wrongful executions. In an article in the Yale Law Journal Forum, lawyers Patrick Mulvaney and Katherine Chamblee of the Southern Center for Human Rights report that in Alabama, the only state that still permits judges to override a jury's recommendation for life, override cases account for less than a quarter of death sentences but half of death row exonerations. They say that this may be a result of "residual doubt" among jurors, which they describe as “a state of mind that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty,’” often resulting from weaker or more suspect evidence of guilt. Research has shown that when juror have such doubts, they are substantially more likely to vote for a life, as did jurors in the cases of Alabama death row exonerees Larry Randal Padgett (9-3 jury vote for life) and Daniel Wade Moore (pictured, left, 8-4 vote for life) and current death row prisoner Shonelle Jackson (unanimous jury life recommendation). Non-unanimous jury recommendations for death also appear to pose similar problems. Of Alabama's six death row exonerations, 83% involved either judicial override (3 cases) or non-unanimous jury votes for death (2 cases, including Anthony Ray Hinton, pictured, right). Data from Florida reveals a similar pattern: of the 20 death row exonerations for which information on the jury vote is available, 90% involved a non-unanimous recommendation for death, including three judicial overrides of jury recommendations for life. In 1984, U.S. Supreme Court Justice John Paul Stevens raised concerns about judicial override and wrongful convictions that are now supported by data: “It may well be that the jury was sufficiently convinced of petitioner’s guilt to convict him, but nevertheless also sufficiently troubled by the possibility that an irrevocable mistake might be made . . . that [it] concluded that a sentence of death could not be morally justified in this case.” Statutes permitting judicial override or non-unanimous jury recommendations for death have been under increased scrutiny since the U.S. Supreme Court's decision in Hurst v. Florida in January 2016. Hurst struck down Florida's sentencing statute saying, "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." Florida's legislature responded by ending judicial override and requiring juries to unanimously find aggravating circumstances in capital cases, though they may still make non-unanimous sentencing recommendations. The Delaware Supreme Court struck down its sentencing statute in light of Hurst in August 2016, leaving Florida and Alabama as the only states that still permit non-unanimous jury receommendations of death.
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Delaware Attorney General Will Not Appeal Decision Striking Down Death Penalty Statute
Delaware Attorney General Matt Denn (pictured) announced on August 15 that his office will not appeal the Delaware Supreme Court's August 2 decision in Benjamin Rauf v. State of Delaware, which struck down the state's death penalty statute. In Rauf, the court found that Delaware's capital sentencing scheme violated the Sixth Amendment, as interpreted by the U.S. Supreme Court in Hurst v. Florida, by granting judges, rather than juries, the ultimate power to decide whether the prosecution had proven all facts necessary to impose the death penalty. Delaware's statute had not required a unanimous jury determination of all aggravating circumstances that were considered in sentencing a defendant to death or a unanimous jury finding that those reasons for death outweighed mitigating circumstances. The Rauf decision intensifies the national spotlight on Alabama and Florida as the only states that still permit judges to impose death sentences after non-unanimous jury recommendations for death and on Alabama as the only remaining state to permit a judge to override a jury's life verdict. The statement of the attorney general's office said Denn "has concluded that even if the United States Supreme Court reversed the opinion on Federal Constitutional grounds, ... the Delaware Supreme Court would ultimately invalidate Delaware’s current death penalty statute based on the Constitution of the State of Delaware." Litigating those issues, he said, "would likely take years" and "would likely not only bring about the same result, but would also deny the families of victims sentencing finality." The statement indicated that state prosecutors would challenge the application of Rauf to the thirteen prisoners currently on Delaware's death row, leaving their status uncertain. For future cases, legislative action is now the only route to reinstating the death penalty in Delaware. Such action seems unlikely, given that it must be approved by both houses of the legislature and by the Governor. However, death penalty abolition bills passed the state Senate in 2013 and 2015, and narrowly failed in the House earlier this year, and Governor Jack Markell has expressed support for abolishing the death penalty and "applaud[ed] the Supreme Court's finding that the state's death penalty law is unconstitutional."
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Delaware Supreme Court Declares State's Death Penalty Unconstitutional
The Delaware Supreme Court on August 2 declared the state's capital sentencing procedures unconstitutional, leaving Delaware without a valid death penalty statute. In the case of Benjamin Rauf v. State of Delaware, the court held that Delaware's death sentencing procedures violate the constitutional principles recently set forth by the U.S. Supreme Court's January 2016 decision in Hurst v. Florida. Hurst stated that a capital defendant's Sixth Amendment right to trial by jury requires "a jury, not a judge, to find each fact necessary to impose a sentence of death." Four members of the Delaware high court ruled that the state's capital sentencing statute unconstitutionally empowers judges, rather than jurors, to decide whether the prosecution has proven the existence of aggravating circumstances that are considered in determining whether to impose for the death penalty. They wrote that the jury must unanimously find those facts to have been proven beyond a reasonable doubt before a death sentence may be considered. In an opinion by Chief Justice Leo Strine, Jr., a narrower 3-justice majority of the court also ruled that the facts necessary to impose a death penalty in Delaware included a finding that aggravating circumstances outweigh mitigating circumstances (reasons to spare the defendant's life). Delaware's statute violates the Sixth Amendment, they wrote, because it does not require as a prerequisite to the death penalty that jurors unanimously agree that aggravating circumstances outweigh mitigation beyond a reasonable doubt. The court said the unconstitutional sentencing provisions were inseverable from the rest of the death penalty statute, and that any changes to the statute would have to be made by the legislature. However, recent legislative activity suggests that a bill restoring the state's ability to impose death sentences may have difficulty passing. Calling the death penalty "an instrument of imperfect justice," Governor Jack Markell has indicated that he would sign a bill to abolish capital punishment if it passed the legislature. Such a bill passed the state Senate in 2013 and 2015 and was released by the House Judiciary Committee for consideration by the full House, where it narrowly failed earlier this year. Professor Eric Freedman, a death penalty expert at the Hofstra University School of Law, said "[t]his probably means, as a practical matter, the end of the death penalty in Delaware."
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Decline in "Resource-Draining" Death Penalty Trials in Amarillo Texas Mirrors Trends in State, Nation
Forty years after Gregg v. Georgia ushered in the modern era of capital punishment in the United States, the death penalty is in decline across the country and in Texas. The Lone Star State continues to lead the nation in executions—with nearly half of all executions in the U.S. this year—but the Amarillo Globe-News reports that fewer Texas prosecutors are seeking death sentences and fewer juries are imposing them. According to the Globe-News, 26 people have been sentenced to death since 1976 in the Amarillo-area counties of Potter (17 death sentences) and Randall (9 death sentences). As of January 1, 2013, Potter County ranked 11th in the country in executions, but with its last execution in 2008, it has fallen to 16th, and no Amarillo-area prisoner is on death row for an offense committed after 2003. The two Potter County death row prisoners, John Balentine and Travis Runnels, are challenging their death sentences in federal court on the grounds that the lawyers the county appointed for them at trial and in state appellate proceedings provided ineffective representation, inadequately investigating and failing to present mitigating evidence that might have persuaded the jury to spare their lives. A third Amarillo-area prisoner, Brittany Holberg, has been on death row for 18 years, and Randall County criminal district attorney James Farren estimates her case has already cost taxpayers $2 million - $3 million. Farren believes the practical costs of the death penalty are contributing to prosecutors' decisions not to seek death in new cases. “The process has become so onerous, time-draining and resource-draining that the local prosecutors who choose to seek the death penalty in most cases are going to opt not to," he said. "It’s simply unfair to the taxpayers to bankrupt the county pursuing that result in a single case.” Farren also says that legislation creating a life without parole sentencing option has changed jurors' views: “It’s difficult to find 12 people who all agree that even though this person may die in prison to vote for the death penalty.” This reflects public opinion polls, which find that a majority of the public prefers life without parole to the death penalty. A recent poll by the Kinder Institute for Urban Research indicates that only 27% of Houstonians think the death penalty is a more appropriate punishment for murder than life without parole. Houston is in Harris County, Texas, which has executed more prisoners than any other county in the nation.
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Georgia Approaches Record Number of Executions But Hasn't Imposed Death Sentences in Two Years
The pace of executions in Georgia is outstripping the pace of death sentences. While the number of executions this year (5) is equal to the single-year record set in 1987 and 2015, no one has been sentenced to death in more than two years, and prosecutors are rarely seeking death sentences. The last death sentence in Georgia came down in March 2014. The number of notices of intent to seek the death penalty has fallen by more than 60% in the last decade, from 34 in 2006 to 13 in 2015. This year, the death penalty is being sought in only one case - the murder of a priest who had protested against capital punishment and signed a document stating his opposition to the death penalty, even in the event he was violently killed. Brian Kammer, head of the Georgia Resource Center, which represents death row inmates in their appeals, said improving the quality of representation has been crucial in bringing about change: “Had such legal teams with adequate resources been available to these recently executed prisoners at the time they were tried originally, I am confident they would be alive today.” Both defense attorneys and prosecutors said the option of life without parole has had a significant impact. Chuck Spahos, head of the Prosecuting Attorneys’ Council of Georgia, said, “It has made an enormous difference. When you start talking about the expense, the years of appeals and the length of the process that goes on and on and having to put victims’ families through that with no closure, the availability of life without parole with a guilty plea has become an attractive option.” Atlanta criminal defense attorney Akil Secret raised questions of fairness, asking, "If a life-without-parole sentence is sufficient for today’s worst crimes, why isn’t it sufficient for those crimes from the past where death was imposed?"
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Delaware Supreme Court Hears Oral Argument on Constitutionality of Its Death Penalty Statute
The Delaware Supreme Court heard oral argument on June 15 in Rauf v. State, a case challenging the constitutionality of the state's death sentencing statute on the grounds that it violates the Sixth Amendment right to trial by jury. The challenge arose in the wake of the U.S. Supreme Court decision in January 2016 in Hurst v. Florida, which struck down Florida's sentencing scheme, saying that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough." Delaware, Florida, and Alabama are the only states that permit a judge to make the final sentencing decision in capital cases after receiving a non-unanimous sentencing recommendation from a jury. At the time of Hurst, Florida death penalty jurors were asked to consider and weigh aggravating and mitigating circumstances without reporting which factors they found, and then make a recommendation of sentence. However, the trial judge ultimately determined whether aggravating factors existed that made the defendant eligible for the death penalty and decidede whether to impose a life sentence or the death penalty. After Hurst, the state amended its statute to require the jury to unanimously find aggravating circumstances and vote at least 10-2 for death before the judge could impose a death sentence. The Delaware Supreme Court must decide whether Delaware's system, which requires a jury to unanimously determine whether an aggravating factor exists, but allows a judge to weigh aggravating and mitigating factors, meets constitutional requirements. Santino Ceccotti, a public defender who argued on behalf of Benjamin Rauf, a defendant whose capital case is pending, said the weighing of aggravating and mitigating factors is a fact finding, and therefore should be done by a jury. "The Sixth Amendment requires not a judge, but a jury, to find each fact," he said. Deputy Attorney General Sean Lugg, who argued for the state, conceded that Delaware's weighing process was a fact finding necessary before a death sentence could be imposed, but said the jury fact finding required by Hurst was limited to determining whether the defendant was eligible for the death penalty, not what the ultimate sentence should be. A Florida trial court ruled last week that Florida's new statute violated Hurst because the determination that aggravating circumstances outweigh mitigation is a fact finding that must be made by the jury. An Alabama trial court has also ruled that its judicial sentencing statute violates Hurst. All capital trials in Delaware are on hold while the court considers the case.
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Second Florida Trial Court Strikes Down State's Death Penalty Statute
A second Florida trial court has ruled that the state's new death penalty statute is unconstitutional. On June 9, Hillsborough County Judge Samantha Ward barred prosecutors from seeking death against Michael Edward Keetley, saying that the state's death penalty statute violated the Sixth Amendment to the U.S. Constitution. Judge Ward said that the Florida legislature's changes to the sentencing law after the U.S. Supreme Court had declared the old statute unconstitutional in Hurst v. Florida, created an additional set of constitutional problems. Hurst held that the Florida sentencing statute impermissibly permitted the judge, rather than the jury, to determine whether the prosecution had proven each fact necessary to impose the death penalty. In response to Hurst, the legislature passed a new law that permitted the court to impose a death sentence only if the jury unanimously found at least one aggravating circumstance that would make the defendant eligible for the death penalty and then recommended a death sentence by a vote of at least 10-2 after determining that the aggravating circumstance were sufficiently serious to justify a death sentence and outweighed any mitigating circumstances. Judge Ward said that, under the new sentencing scheme, the jury's weighing of aggravating and mitigating circumstances constituted a fact-finding necessary before a death sentence could be imposed. She wrote, "it defies logic, and the dictates of [the Sixth Amendment], to have the jury find one of the prerequisites unanimously and beyond a reasonable doubt (that at least one aggravating factor exists), but not the other two prerequisites (that sufficient aggravators exist and that they outweigh the mitigating circumstances). Hurst specifically stated '[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.'" Judge Ward is the second Florida judge to find the new statute unconstitutional: one month earlier, on May 9, Miami-Dade Circuit Judge Milton Hirsch also struck down the law, ruling that the portion of the statute permitting the court to impose the death penalty without a unanimous jury vote for death violates the state constitution.
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U.S. Supreme Court Reverses Arizona Death Sentence After Jury Not Told of Defendant's Ineligibility for Parole
The U.S. Supreme Court has overturned a death sentence imposed on Shawn Patrick Lynch by an Arizona jury that had not been told he would have been ineligible for parole if jurors sentenced to him to life imprisonment. In a 6-2 decision on May 31, the Court agreed to review Lynch's case, vacated the judgment of the Arizona Supreme Court, and summarily reversed Lynch's death sentence. Under Arizona law, the only sentences the jury could impose in Lynch's case were life without possibility of parole or the death penalty. The prosecution in the case presented evidence and argument to the jury suggesting that Lynch would pose a future danger to society unless he were sentenced to death. At the same time, it filed a motion, which the trial judge granted, to prevent Lynch's lawyer from informing the jury that its life sentencing option carried no possibility of parole. The trial court also did not instruct the jury that Lynch would be ineligible for parole if sentenced to life. The Supreme Court held that this violated Lynch's right to due process, as set forth in its 1994 decision in Simmons v. South Carolina. Simmons ruled that a capital defendant is entitled to inform the jury of his parole ineligibility whenever his future dangerousness is at issue and the only sentencing alternatives available to the jury are death or life imprisonment without possibility of parole. This was Lynch's third penalty phase. In his first penalty trial, the jury was unable to reach a unanimous verdict and the court declared a penalty mistrial. Lynch was again sentenced to death at his second penalty trial, but that sentence was overturned because of misconduct by prosecutor Juan Martinez, who had misrepresented to the jury that the aggravating factor “excessively cruel, heinous or depraved” constituted three separate aggravating circumstances. In his latest resentencing trial in 2012, the Arizona Supreme Court found that Martinez had “disturbingly made a number of inappropriate comments” and had engaged in "some instances" of misconduct. However, it ruled that the “prosecutorial misconduct ... was not so pronounced or sustained as to require a new sentencing trial.” Lynch's case now returns to state court for a fourth sentencing trial.
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Judge Rules Florida's New Death Penalty Law Violates Its State Constitution
Miami-Dade Circuit Judge Milton Hirsch (pictured) ruled on May 9 that Florida's new death sentencing law violates the state's constitution. Ruling in the case of Karon Gaiter, who is awaiting a capital trial, Judge Hirsch said new law's requirement that at least 10 jurors agree to the death penalty before a defendant can be sentenced to death violated Florida's constitutional requirement that all jury verdicts must be unanimous. "For the ultimate decisions made within the judicial branch of government—guilty or not guilty, life or death—majority rule is insufficient," Hirsch wrote. "We do ask, indeed we insist, that the decisions of capital juries be, in some sense, perfect; for they are, in some sense, final. We ask, indeed we insist, that they reflect the will of all rather than the will of the few or even of the many.... However outrageous a crime, however controversial a case, as Floridians and Americans we ... cannot accede, we will not accede, we have never acceded, to outcomes as to which no more can be said than that some jurors have spoken." Hirsch wrote that the state's previous death penalty statute, which was struck down by the U.S. Supreme Court in Hurst v. Florida, did not raise this constitutional question because the jury's advisory penalty-phase sentencing recommendation "was, in effect, a straw poll" rather than a verdict. Hirsch's decision comes as the Florida Supreme Court considers how Hurst will affect the nearly 400 death row prisoners sentenced under the previous sentencing scheme. The Miami-Dade state's attorney's office said it would appeal Hirsch's ruling.
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Death Penalty Support Continues Its Steady Decline in Nation's Leading Execution County
Just 27% of Houston-area residents prefer the death penalty over life sentences for those convicted of first-degree murder, according to a new report by the Kinder Institute for Urban Research at Rice University. Harris County, the largest county in the Houston metropolitan area, "earned its reputation as the 'death penalty capital of America,'” the report says, "having executed more people since 1976 ... than any other county in the nation." At its peak, Harris County sentenced 44 people to death during a three-year period (1994-1996). However, declining public support for capital punishment has contributed to a drop in the number of death sentences the county imposes. Over the last three years, five people were sentenced to death in Harris County, with no new death sentences imposed in 2015. Texas is experiencing a similar statewide trend: while the state imposed a high of 48 death sentences in 1999, it imposed only two new death sentences in 2015. The percentage of Houston residents who consider the death penalty the most appropriate punishment for murder has "dropped steadily," the report says, including a decline of 12 percentage points since 2008. It attributes the erosion of support for the death penalty to "recent revelations of discriminatory sentencing, innocent persons being freed from Death Row just before their scheduled executions, and botched lethal injections," along with the comparatively greater costs of seeking the death penalty, rather than life imprisonment, which the report says "have risen dramatically." (Click image to enlarge.)
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