NEW VOICES: Former Kentucky Supreme Court Justices Call for Halt to Executions

Two former Supreme Court Justices in Kentucky and the President of the American Bar Association called for a suspension of executions in the state until its death penalty system is reformed.  Writing in the Louisville Courier-Journal, the Justices stated, "The list of problematic cases is staggering, and review of the system is deeply troubling. Fairness, impartiality and effectiveness of counsel have been undermined by serious flaws that reveal systemic problems in administration of the death penalty in the commonwealth." Citing findings from a recent study conducted by the ABA, former Justices James Keller (pictured) and Martin Johnstone, along with William Robinson, President of the ABA, noted that since 1976, when the death penalty was reinstated, 50 of the 78 people who have been sentenced to death have had their sentence or conviction overturned due to misconduct or serious errors that occurred during their trial. The writers said, “In Kentucky, we cannot be certain that our death penalty system is fair and accurate. Our Death Penalty Assessment Team of lawyers, judges, bar leaders and legal experts conducted an exhaustive, two-year review of the death penalty system and identified a host of problems at various stages of the capital process, many of which increase the risk of executing the innocent. The problems affect not only those possibly facing execution, but also victims of crime.” Read full op-ed below.

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STUDIES: American Bar Association Releases Assessement of Kentucky's Death Penalty

On December 7, the American Bar Association released a report assessing Kentucky's system of capital punishment and calling for a halt to executions in the state.  The report was prepared by the Kentucky Assessment Team on the Death Penalty, which included law professors, former state supreme court justices, and practicing attorneys.  The two-year study recommended that the state temporarily suspend executions until serious issues of fairness and accuracy are addressed.  The review reported that courts have found an error rate of more than 60 percent in the trials of those who had been sentenced to death.  The review also found that at least 10 of the 78 defendants sentenced to death were represented by attorneys who were subsequently disbarred. Among the problems identified by the Assessment Team were the absence of statewide standards governing the qualifications and training for attorneys in capital cases, and uniform standards on eyewitness identifications and interrogations.  Many of Kentucky's largest law enforcement agencies do not fully adhere to best practices to guard against false eyewitness identifications and false confessions, two of the leading causes of wrongful convictions nationwide.  Linda Ewald, a law professor at the University of Louisville who co-chaired the assessment team, said, “We came in to this with no real idea of what we would find.  But at the close of our two-year deliberations, we were left with no option but to recommend that the Commonwealth halt executions until the problems we identified are remedied. This report is really about the administration of justice in Kentucky.”

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STUDIES II: Pennsylvania's Death Penalty System in Need of "Immediate Reform"

A recent review of death penalty cases in Pennsylvania conducted by the Philadelphia Inquirer (see earlier DPIC post) has revealed a pattern of ineffective assistance of counsel leading to extensive delays and reversals of death sentences.  When the cases are litigated a second time, now with more competent representation, they frequently do not result in a death sentence.  Prosecutors have called the system a great disservice to victims' families.  Edward McCann, the first assistant district attorney in Philadelphia, said, "The length of time is unconscionable.  To have to make phone calls to people 20 years after the fact and tell them: 'By the way, you know that death sentence you thought was final 20 years ago? We've got to talk to you about that.' I think it's unconscionable to put people through that."  And yet, according to the Inquirer's study, "lawyers found to have provided ineffective assistance of counsel are routinely appointed to new cases," and some even become judges.  Moreover, "deficient legal work extends to appellate cases, where the very lawyers hired to correct the errors of others themselves prove ineffective." Appellate lawyers have filed legal challenges that cite little or no case law, and have grammatical errors.  Some appellate lawyers missed key filing deadlines or failed to appear for court hearings. Jack McMahon, a former homicide prosecutor and now a defense lawyer, pointed to the low pay for attorneys in capital cases as the source of the problem: "The government gives people a constitutional right to an attorney, but by lowering the [lawyers'] fees to pauper's level, they have severely hindered that right," he said. "To me, that's inexcusable, particularly in a homicide case, where the government is either seeking to kill you or put you in jail for the rest of your natural life." Pennsylvania Supreme Court Justice Thomas G. Saylor (pictured) called the legal work in some cases emblematic of the "unconscionable delay, disarray, and inconsistencies" in death-penalty appeals and called "for immediate reform."

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COSTS: State Budget Cuts Affecting Prosecution and Defense Across the Country

Even as death penalty cases continue to absorb tens of millions of taxpayer dollars, state budget cuts are affecting courts, public defenders,and district attorney's offices across the country, raising concerns about delays and inadequate representation. Reduced budgets are impacting all aspects of the court system, including civil and criminal cases, and delaying death penalty cases. Prosecutors are forced to ignore some violations, judges are delaying trials, and in some cases, those charged with violent crimes have been set free because speedy trial requirements can't be met.  "It's extremely frustrating," said Scott Burns of the National District Attorneys Association. "Frankly, the people that do these jobs have a lot of passion. They don't do these jobs for the money. They are in America's courtrooms every day to protect victims and do justice.  And they're rewarded with terminations, furloughs and cuts in pay."  On the defense side, in the last three years, Georgia has cut funding for the Georgia Resource Center, which represents indigent death penalty defendants in post-conviction proceedings, by $250,000, forcing the center to reduce its staff. "We've been running on a shoestring for years and we are minimally available to take care of all the guys on death row," said Brian Kammer, the center's executive director. "But with this kind of funding loss, we're getting crippled."

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STUDIES: Review of Pennsylvania Death Penalty Cases Shows Low Pay and Serious Errors by Defense Lawyers

The Philadelphia Inquirer recently conducted a review of death penalty appeals in Pennsylvania spanning three decades and found a pattern of ineffective assistance by defense attorneys.  More than 125 capital murder trials in the Pennsylvania, including 69 in Philadelphia, have been reversed or sent back by state and federal courts after finding that mistakes by the defense attorney deprived the defendant of a fair trial.  These do not include cases in which courts found that lawyers made obvious mistakes but ruled that the mistakes did not affect the outcome of the case.  The Inquirer found that lawyers defending those facing the death penalty often spent little time preparing their cases, sometimes neglecting basic steps such as interviewing defendants, finding witnesses, and investigating a defendant's background.  For example, in a closing argument, Wilson Cooper's lawyer quoted a Biblical passage that called for the death penalty only in the killing of a pregnant woman, forgetting that Cooper had killed a pregnant woman.  Legal experts agreed that there are systemic problems in the state's indigent defense program, exemplified by underpaid and overworked lawyers who take on death penalty cases.  In Philadelphia, court-appointed lawyers receive $2000 for trial preparation in a capital case and $400 per day in court.  Critics say the fees, which are the lowest in the state, deter good lawyers from working on death penalty cases and inevitably lead to reversals.  Ronald D. Castille, the chief justice of the state Supreme Court, recently cited "intolerable" errors by defense lawyers, compounded by some "idiotic" appellate briefs.  The justice, who recently ordered a review of attorney pay rates, said that such practices all but guarantee delays and new court hearings that prolong cases for years.

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SUPREME COURT: Alabama Man Facing Execution Because Attorneys Left Without Filing Appeal

In one of the first cases of the new term, the U.S. Supreme Court on October 4 will hear from attorneys for death-row inmate Cory Maples of Alabama, whose appeal was rejected by lower courts because his lawyers quit and missed a critical filing deadline in his state appeal.  Copies of an Alabama court ruling in his case were sent to a volunteer New York law firm handling his appeals but were returned unopened to the court because the attorneys representing Maples had left the firm. Maples did not find out about the ruling or the fact that his attorneys had left until the deadline to file his state appeal had expired.  Gregory Garre, Maples' new attorney and former solicitor general under President George W. Bush, told the Court in a brief that the case "raises the shocking prospect that a man may be executed without any federal court review of serious constitutional claims due to a series of events for which all agree he was blameless.”  Alabama's Solicitor General, John C. Neiman Jr., replied that, "Maples is unquestionably guilty of murdering two people, and his conviction is now 15 years old.  He has received some sort of judicial review of every claim he has made."  Maples was trying to challenge the competency of his original trial lawyers, who were inexperienced and offered only $1,000 each to prepare for his trial.  They presented only 1 hour of testimony in his defense, and told the jury that they "may appear to be stumbling around in the dark."  The case is Maples v. Thomas, No. 10-63.

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EDITORIALS: New York Times: "An Indefensible Punishment"

The lead editorial in the New York Times on September 26 called for an end to the death penalty because, the editors said, it cannot be made to comply with the U.S. Constitution.  The editoral reviewed the 35-year history since the death penalty was reinstated in 1976 and concluded, "The death penalty is grotesque and immoral and should be repealed."  The paper pointed to the recent case of Troy Davis, who was executed on September 21 in Georgia, and to the continuing arbitrariness in the way the death penalty is applied.  It also highlighted the ongoing problems of racial bias, the risk of executing the innocent, and the poor quality of representation in capital cases. The death penalty, they said, is driven by political misuse: "Politics ... permeates the death penalty, adding to chances of arbitrary administration. Most prosecutors in jurisdictions with the penalty are elected and control the decision to seek the punishment. Within the same state, differing politics from county to county have led to huge disparities in use of the penalty, when the crime rates and demographics were similar."  Citing statistics from DPIC's List of Exonerations, the editorial noted, "Under this horrifying system, 17 innocent people sentenced to death have been exonerated and released based on DNA evidence, and 112 other people based on other evidence. All but a few developed nations have abolished the death penalty," and concluded,  "It is time Americans acknowledged that the death penalty cannot be made to comply with the Constitution and is in every way indefensible."  Read full op-ed below.

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U.S. Supreme Court Halts Execution For Third Time in a Year

Desert Storm veteran Cleve Foster (pictured), who faced execution in Texas for the third time this year for a murder nearly a decade ago, was granted another stay by the U.S. Supreme Court on September 20.  The Supreme Court stopped Foster's execution twice before in 2011.  In January, six hours before his scheduled execution, the Justices granted a reprieve to allow them more time to consider his appeal.  In April, the Court again halted his execution when his lawyers sought a rehearing, claiming that Foster was innocent and had ineffective legal assistance at his trial and during the early stages of his appeal. They later lifted the stay.  Foster has always maintained that his friend was responsible for the murder. The friend also received the death penalty for the crime but died of cancer before he was executed.  Duane Buck, who was scheduled to be executed in Texas on Sept. 15, received a reprieve similar to Foster's from the Supreme Court.  On September 21, Lawrence Brewer is facing execution in Texas for dragging a man to death in Jasper more than 13 years ago.  Some of the victim's family members oppose the execution.  Also on Sept. 21, Troy Davis is scheduled to be executed at 7 pm EDT in Georgia.

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High Percentage of U.S. Military Death Sentences Overturned

Of the 16 death sentences that have been imposed since the U.S. military made significant changes to its death penalty system in 1984, 10 have been overturned and all the defendants were resentenced to life.  There have been no executions, and the 6 remaining cases are still under appeal.  Military appellate courts overturned the sentences because of mistakes made at many levels of the military's judicial system, including inadequate defense representation, prosecutorial misconduct, and improper jury instructions.  Some observers attribute these widespread errors to an outdated system that has not enacted institutional changes to match current death penalty representation standards in civilian courts. Young, inexperienced lawyers are regularly assigned to represent capital defendants.  David Bruck, a veteran defense lawyer and director of the Virginia Capital Case Clearinghouse, said, "If you have a system where . . . where the lawyers are always trying their first capital case, you're going to guarantee the same kinds of mistakes . . . are going to be made over and over again."  A 2009 law requires the military to appoint qualified attorneys for terrorism suspects, but no such requirement exists for average service members who face criminal charges.  Military officials interpret its 80% death sentence reversal rate not as an indicator of the need for reform but as a natural part of the natural appeals process.

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COSTS: Capital Trials Put Strain on Struggling County's Budget; Prosecutors Laid Off

In Washington, King County has spent $656,564 to prosecute three capital defendants in two cases and over $4.3 million to defend the accused. The trials have yet to begin, but money has been needed for expert witnesses, investigators, and forensic analysis. Prosecution costs do not include work done by police officers and crime-lab analysts. The county has struggled with constraints on its criminal justice budget and has eliminated the jobs of 36 prosecutors since 2008. A third case prosecuted last year has thus far cost the county another $2.4 million.  Other counties with similar budgetary concerns have chosen not to seek the death penalty. Defense attorney Jeff Ellis said that the high cost of the death penalty may be partly responsible for the drop in death penalty cases in other areas. He said, "There is a downturn in the number of death-penalty sentences being sought and imposed because of the costs associated with them. What's happening now [in King County] is a reverse of what's happening nationwide." According to a 2006 study released by the Washington State Bar Association, a death penalty trial costs approximately $470,000 more than a murder case in which the death penalty is not sought, and an additional $70,000 in court costs. The study also found that more than $200,000 is spent on average on appeals.

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