British Man Freed from Ohio Death Row

Kenneth Richey, a British and an American citizen, is expected to be freed soon after spending 20 years on Ohio’s death row for the murder of his ex-girlfriend’s 2-year-old daughter in a 1986 apartment fire. Richey’s conviction was overturned by a federal court in August 2007 after 15 years of appeals that cast doubts on witness testimony and the competency of his defense attorney at the initial trial. More recently, the original evidence presented by arson experts was found to be based on "unsound scientific principles," and it now appears that the fire that killed 2-year-old Cynthia Collins was accidental.

Richey will plead no contest to attempted involuntary manslaughter, child endangering and breaking and entering. He is expected to be sentenced to time already served. Richey’s original trial was heard by three judges after his defense attorney advised him to forgo a jury trial. Prosecutors stated that Richey, who maintained his innocence throughout the trial, did in fact try to save the toddler. The judges, however, did not take that evidence under consideration. His case prompted intervention by Tony Blair, the Pope, the European Parliament and Amnesty International.

Alistair Carmichael, a Scottish Member of Parliament who had campaigned for Richey’s release, stated after he heard the news, “The reality of somebody who is kept locked up in a cell for 23 hours a day for 19 years is quite mind-blowing. It is a dreadful, inhumane and dehumanising system. If one man is off it, then remember there are hundreds of people in America still enduring that dreadful situation.”

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REPRESENTATION: Texas Creates its First Capital Case Public Defender's Office

Lubbock criminal attorney Jack E. Stoffregen will head West Texas’ first public defender service devoted solely to capital cases. Centered in Lubbock County, a sparsely populated area that has few local criminal-defense attorneys with capital murder trial experience, the West Texas Regional Public Defender Office will handle the cases of indigent defendants who cannot afford an attorney. The office, with a budget of $2.5 million funded by Texas, is expected to alleviate some of the high costs death penalty cases can incur. Recent figures show that a capital case can cost a west Texas county up to $500,000. According to KCBD News in Texas, the West Texas Regional Public Defender Office will reduce capital trial costs and “in turn will save taxpayers money.” (“Lubbock Lawyer Chosen as Chief Defender,”, Oct. 15, 2007). See also Resources, Costs, and Representation. The office will begin taking cases in January 2008.

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Kentucky Governor Commutes Death Sentence Before Leaving Office Gov. Ernie Fletcher of Kentucky commuted the death sentence of Jeffrey D. Leonard for the 1983 murder of a Louisville store clerk before leaving office. Governor Fletcher reduced Leonard's death sentence to life without parole. He had been convicted under the name of James Earl Slaughter. The Governor noted in his commutation that Leonard was not provided with adequate representation and that Leonard’s attorney did not even know his client's real name during the trial. The governor’s general counsel, David Fleenor, stated, “We're not going to execute somebody who clearly was denied a basic right."

Governor Fletcher said he spent considerable time reviewing the almost 1,000 cases of individuals who requested pardons and commutations. "None of those decisions that we have to make are easy but I feel like I can lay my head down and say we've done our very best to carry out the duties of the governor till our last day," he said.
(“100 Get Pardons, Commutations GOP Governor’s Final Acts,” by John Stamper, Lexington Herald-Leader, December 11, 2007). See also Clemency and Representation. There have been 3 commutations of death sentences in 2007.  There were none in 2006.

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NEW RESOURCE: American Journal of Criminal Law to Feature Article on Effective Counsel

In a forthcoming article in the American Journal of Criminal Law, John H. Blume of Cornell Law School explores recent Supreme Court decisions that affect the guidelines for effective counsel for capital defendants. Blume notes in "It's Like Déjà Vu All Over Again: Williams V. Taylor, Wiggins V. Smith, Rompilla V. Beard and a (Partial) Return to the Guidelines Approach to the Effective Assistance of Counsel" that despite the recognition by researchers, litigators, and judges of the problem of poor representation of capital defendants, most post-conviction claims of ineffective counsel are denied.

Claims of ineffective counsel are typically judged by the standards set forth in Strickland v. Washington (1984), which require a defendant to show that his lawyer did not perform within a wide range of competency and that this poor performance gives probability that the outcome of the defendant’s case would have been different. According to Blume, the Strickland standards have been difficult for defendants to satisfy. The cases discussed in Blume’s article, however, offer promise for change because “while purporting to operate within the Strickland framework, the [Supreme] Court in all cases held that trial counsel's representation was constitutionally inadequate.” Instead, the Supreme Court in Williams V. Taylor, Wiggins V. Smith, and Rompilla V. Beard used the American Bar Association Standards for Criminal Justice as guidelines for determining effective counsel and found the counsel in each case ineffective.

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U.S. Supreme Court to Hear Ineffective Counsel Case

The U.S. Supreme Court has agreed to hear a case in which it will decide how appellate courts are to evaluate claims of ineffective assistance of counsel in plea negotiations. The case, Arave v. Hoffman (07-110), is the latest effort by the Justices to decide whether mistakes made by a defense lawyer warrant overturning a criminal's conviction or sentence. The appeal stems from a Idaho 1987 murder committed by Max Hoffman and two other men. Five weeks before his trial, prosecutors offered Hoffman a plea deal stating they would not seek the death penalty in exchange for his pleading guilty to first-degree murder. His court-appointed lawyer advised him that Idaho's death penalty law was likely to be struck down as unconstitutional because it was nearly identical to an Arizona law that had recently been overturned by the state's high court. Hoffman, who doubted that he was guilty of first-degree murder given his role in the crime, followed his attorney's advice and rejected the state's plea deal. In 1989, he was convicted of first-degree murder and sentenced to death -- a sentence that was reaffirmed when the Idaho Supreme Court upheld the state's death penalty statute.

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Closing of the Capital Defender Office Will Save the State Millions as New York's Death Penalty Ends

New York's Capital Defender Office is preparing to close its doors in the wake of a N.Y. Court of Appeals ruling that disposed of the final appeal of a death sentence under the capital punishment law declared unconstitutional in 2004. "It is . . . my intention to close the office as soon as practically possible," said Kevin M. Doyle, who has served as Executive Director of the defender office established in 1995. Doyle said there is no point in keeping the office open given the status of the death penalty in New York and noted that the office will close within a matter of months.

At one time the Capital Defender Office had more than 70 staffers and an annual budget of $14 million. Now it has a $1.3 million budget and six people on staff. The remaining staffers now have the responsibility of reviewing some 3,000 boxes of information about its cases and finding a way to properly preserve privileged materials. Since the office was established, 10,000 murders have occurred in New York. Prosecutors considered bringing the death penalty in 877 capital-eligible cases, and district attorneys filed notice of intent to seek the death penalty in 58 cases. Juries in only seven cases ultimately returned death sentences.  No one was executed.

"In many instances, thanks to the Capital Defender Office, the D.A.s decided not to seek the death penalty. The relatively small amount of money spent on presentation before the D.A.s saved the state a lot of money," said attorney Ronald Tabak, president of New York Lawyers Against the Death Penalty and special counsel at Skadden, Arps, Slate, Meagher & Flom.

The New York Department of Correctional Services will also benefit from the Court of Appeals ruling. The death row at Clinton Correctional Facility will now close, saving the state an estimated $300,000 per year.
(New York Law Journal, October 29, 2007). See Representation and Recent Legislative Activities.

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The American Bar Association (ABA) renewed its call for a nationwide halt to executions following a series of state studies that found serious problems in their death penalty systems.

"After carefully studying the way states across the spectrum handle executions, it has become crystal clear that the process is deeply flawed. The death penalty system is rife with irregularity," said Stephen F. Hanlon (pictured), chairman of the ABA Death Penalty Moratorium Implementation Project.

During the past three years, the ABA has issued death penalty assessment reports in eight states: Alabama, Arizona, Georgia, Florida, Indiana, Ohio, Pennsylvania, and Tennessee. The studies were conducted by independent teams of former judges, attorneys, and academic researchers. The reports revealed ways that each state failed to meet some of the basic standards established by the ABA to ensure fairness and to minimize the risk that innocent persons could be executed.

The ABA's call for a nationwide moratorium on executions was contained in a press release accompanying their report detailing the findings of the state assessments. Among the key problems cited by the ABA were the following:

  • Spotty collection and preservation of DNA evidence, which has been used to exonerate more than 200 people, including many who were on death row
  • Misidentification by eyewitnesses
  • False confessions from defendants
  • Persistent racial disparities that make death sentences more likely when victims are white.

(Associated Press, October 29, 2007). Read the ABA State Assessment Reports. See also Studies, Innocence, Arbitrariness, Race, and Representation.

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New Mexico Supreme Court Stops Death Penalty Trial Over Funding Issue

The New Mexico Supreme Court halted a death penalty case against 2 prison inmates charged with killing a guard during a 1999 riot because the defense has received insufficient funding to proceed. "Defense counsels' compensation is inadequate under the facts of this case, violating defendants' Sixth Amendment right to effective assistance of counsel," the court said in a unanimous ruling. The court held that an additional $200,000 must be appropriated by the legislature before the case can move ahead.

Contracts with the defense team expired in November 2003, and the attorneys have not been paid since then although they have continued to work on the case. The attorney general's office said enough funding has been allocated to cover the costs of attorneys contracted to represent the defendants, but the defense team argues that the state has provided only half the funds needed to adequately represent their clients. In light of the funding shortage, they have asked the New Mexico Supreme Court to allow them to withdraw from the case, order the state to pay them more, or dismiss the death penalty charge against their clients.

A spokesman for Governor Bill Richardson said the governor's office must review the court's ruling before deciding whether to seek additional funds for the case. The administration would need to request the additional funds from the Legislature, which convenes in January 2008 for a 30-day session.
(Las Cruces Sun-News, October 26, 2007). See Costs and Representation.

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Death Penalty Prosecution Endangers Indigent Defense System in Georgia

A shortage of state funds to pay defense attorneys, experts, and investigators has brought jury selection in the trial of Brian Nichols in Georgia to a halt. Superior Court Judge Hilton M. Fuller (pictured), Jr. stopped jury selection after just two days due to concerns that Nichols' defense team did not have adequate funding to represent their client. His ruling came in response to a defense motion that noted, "[A]t this time, and for some period of time in the past, no defense experts have been engaged in ongoing efforts on this case. . . . Several experts and investigators have sent demand letters . . . declaring that unless and until the Georgia Public Defender Standards Council makes good on pending bills, no significant ongoing further work will be conducted." In his ruling, Hilton expressed frustration with having to delay the case, but added that he is "interested in getting this case tried . . . in a way the constitution requires."

The prosecution is seeking the death penalty against Nichols for charges stemming from a 2005 Fulton County Courthouse shooting incident.  Nichols has apparently agreed to plead guilty (and thereby eliminate expenses) in exchange for a sentence of life without parole.  The Georgia Public Defender Standards Council has stated that it is not capable of both paying the costs for Nichols' trial and carrying out its duty in roughly 80 other capital cases in the state. The state maintains that there is not enough money for other capital cases and it was forced to cut off funding for Nichols' case as of July 1, 2007. To date, Georgia's legislature and Governor have refused to step in to address the funding problem. Fuller has warned that the case may never go forward without adequate defense funding.

Georgia Senator Vincent Fort said that he is concerned that his colleagues in the legislature have not acted to address the problem: "What concerns me is that the judge is saying this will be kicked back, that on appeal this will be sent back, and ironically what that means is it will cost what? More money. . . . The council needs to come forward, the state, the Perdue administration needs to find a way to fund this. It's a matter of being pennywise and pound foolish."
(Fulton County Daily Report, October 18, 2007; Associated Press, October 18, 2007; Atlanta Journal-Constitution, October 6, 2007).  See CostsRepresentation, and Life Without Parole.

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American Bar Association Report Urges Death Penalty Reforms in Pennsylvania

According to a new report from a team of investigators sponsored by the American Bar Association (ABA), flaws in Pennsylvania's death penalty system are so pervasive that the state risks executing an innocent person. "The problems found in this assessment strike at the very heart of Pennsylvania's justice system," stated ABA president-elect H. Thomas Wells, Jr. The five-member Pennsylvania assessment team that conducted the review urged a series of important death penalty reforms designed to improve capital defense representation and reduce the likelihood of false confessions, crime-lab errors, witness misidentification and racial disparities. In addition to the reform recommendations, the ABA called on Governor Ed Rendell to order a more comprehensive study of Pennsylvania's death penalty.

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