STUDIES: American Bar Association Releases Assessment of Virginia Death Penalty
On September 5, the American Bar Association's Death Penalty Due Process Review Project released its latest report, focusing on the fairness and accuracy of Virginia's death penalty system. The assessment recommended changes to the way the state handles defendants with mental retardation and severe mental illness. It also recommended requiring prosecutors to disclose additional information about testifying witnesses and allowing prosecutors to withdraw the death penalty even after charging a defendant with capital murder. The report was critical of the state's practice of setting an execution date before all appeals are complete because it "effectively provides less due process to those under a death sentence than that which is afforded to non-capital inmates." The report praised recent improvements in documenting police procedures for eyewitness identification and accreditation of crime laboratories, but recommended additional reforms. The assessment found the state to be not in compliance or only in partial compliance with many of the ABA's protocols for the death penalty. The assessment team included Mark Earley, the former Attorney General of Virginia, John Douglass (Chair), the Dean Emeritus of the University of Richmond Law School, and other leaders from the judicial and legislative communities.
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POSSIBLE INNOCENCE: Federal Judge Throws Out Pennsylvania Conviction As 'Grave Miscarriage of Justice'
A federal judge in Pennsylvania overturned the conviction of a death row inmate, stating he was "sentenced to die for a crime in all probability he did not commit." U.S. District Court Judge Anita Brody found errors in all facets of the case, noting that "Improper police work characterized nearly the entirety of the investigation." She described the prosecution as "a grave miscarriage of justice," and criticized the defense for failing to adequately investigate the evidence. The presentation of evidence in the penalty phase of the trial took only about 3 hours. The defendant, James Dennis, has been on death row for over 20 years, having been convicted of the 1991 murder of a high school student. No forensic evidence linked him to the crime, police ignored other leads, and prosecutors failed to hand over evidence to the defense. Evidence corroborating Dennis's alibi - that he was riding a bus far from the crime scene at the time of the murder - was lost by the prosecution. In 2011, the governor signed his death warrant, but the execution was stayed.
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ARBITRARINESS: An Attorney's Story of Her Client's Death
Vicki Werneke is a federal public defender who represented Billy Slagle on Ohio's death row. She recently wrote about her frenzied work during the last weekend before Slagle's death on August 4. She noted that he was only 18 and highly intoxicated at the time of his crime. He had been remorseful ever since, trying to do some good with his life while on death row. Even the District Attorney of the county that prosecuted him supported a reprieve, making this a strong case for clemency. On the final weekend before his execution, new evidence emerged that Slagle had not been informed about an opportunity to plead guilty at his trial and avoid the death penalty. The current prosecutors agreed not to oppose a motion for a stay, but, as Werneke wrote, a tragedy occurred: "But then Sunday morning, the world shattered. I was in church with my dad and my phone kept vibrating in the middle of the sermon. I could tell I was getting phone calls, but didn’t look at my phone. As soon as I could find a discreet time to take a glance at my phone, I saw a text message from [our investigator] telling me that Billy’s sister called to tell us that he had hanged himself. He was gone." He didn't know of the new legal development. Werneke concluded, “Even in a case where there is no question of guilt, there remain serious questions about whether the death sentence was the appropriate punishment and the cat and mouse games played by those in power. Hope is a powerful thing and loss of hope can be deadly.”
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LAW REVIEWS: Yale Law Journal Commemorates 50th Anniversary of Gideon v. Wainwright
The latest edition of the Yale Law Journal features essays commemorating the 50th anniversary of Gideon v. Wainwright, the landmark 1963 U.S. Supreme Court decision guaranteeing all criminal defendants a right to an attorney. The collection of essays from leading legal experts includes an article by Stephen Bright and Sia Sanneh, titled “Fifty Years of Defiance and Resistance After Gideon v. Wainwright,” arguing that the criminal system is not truly adversarial because prosecutors possess broad power and resources, while defense systems are often poorly funded. Other essays by death penalty scholars include pieces by John Blume, Sheri Lynn Johnson, and Carol Steiker. Other authors explore the impact of race and poverty on representation, and the application of Gideon to military tribunals.
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STUDIES: New Study Finds Death Penalty in California and Louisiana "Arbitrary and Discriminatory"
The Center for Constitutional Rights (CCR) and the International Federation for Human Rights (FIDH) recently released findings on the use of the death penalty in California and Louisiana. The organizations concluded that the use of the death penalty in both states was arbitrary and discriminatory. The study also found that conditions on death row constituted cruel and inhumane treatment. The study recommended that California and Louisiana improve death row conditions by ending solitary confinement and providing visits with family members. The study concluded, “States must also ensure that all persons charged with a death-eligible offense have timely-appointed, competent, and experienced representation at all stages of a capital case, and that appointed counsel have adequate funding to carry out the tasks necessary to provide effective representation.” Read full text of Executive Summary here.
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500th Texas Execution Scheduled Despite Concerns about Racial Bias and Quality of Legal Representation
Kimberly McCarthy (pictured), who is facing execution on June 26, is scheduled to become the 500th person executed in Texas since 1976. McCarthy’s attorney, Maurie Levin, recently filed a new motion to stay the execution because racial discrimination and inadequate legal representation played significant roles in McCarthy’s case. According to the filing, only four non-white potential jurors made it to the final selection from an initial pool of 64 prospective jurors. Three of the four potential jurors were removed from the final jury by the prosecution using peremptory strikes. Levin also argues that McCarthy’s execution should be stayed because she received inadequate legal representation. In a recent U.S. Supreme Court ruling in Trevino v. Thaler, the Court said Texas courts are required to consider appeals from death row inmates who claim ineffective assistance of counsel.
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LAW REVIEW: "Toward a Right to Litigate Ineffective Assistance of Counsel"
In a forthcoming article in the Washington and Lee Law Review, Ty Alper (pictured), Clinical Professor of Law at the University of California at Berkeley, examines how recent U.S. Supreme Court decisions may affect the ability of defendants to raise claims of ineffective assistance of counsel. Although the right to effective counsel is constitutionally guaranteed, most defendants, especially those charged with non-capital crimes, do not have adequate opportunities during appeals to raise claims of ineffective counsel, in part because such a claim requires the aid of counsel. Alper argues that the recent Supreme Court cases Martinez v. Ryan (2012) and Maples v. Thomas (2012) "portend a legal landscape in which it is possible to obtain a remedy for a Sixth Amendment violation without extending the right to counsel to postconviction cases in their entirety." He concludes that "If...the Court eventually adopts a rule that actually ensures states provide counsel to investigate and raise ineffectiveness claims (as opposed to merely creating tentative incentives for them to do so), capital defendants will benefit from the increased ability to establish cause for procedural default in federal court. But the real sea change will be with respect to the many more noncapital defendants who will be able to surface violations of Gideon in a way that has never before been possible."
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Supreme Court Ruling Expands Opportunities for Federal Review of Ineffective Assistance Claims
On May 28, 2013, the Court ruled (5-4) in Trevino v. Thaler that death row inmates in Texas can raise claims of ineffectiveness of counsel for the first time in federal court if they did not have a meaningful chance to raise the claim in state appeals. The Court held that its ruling in Martinez v. Ryan (2012), which provided such a right in an Arizona case where state law forbids raising the claim in one's direct appeal, applies in Texas because the “state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal.” In Martinez v. Ryan, the Supreme Court ruled that “procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.”
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MULTIMEDIA: New Documentary Explores Landmark Right to Counsel Case
A new documentary released by the Constitution Project and the New Media Advocacy Project commemorates the 50th anniversary of the Supreme Court's landmark 1963 decision in Gideon v. Wainwright, requiring states to appoint lawyers for indigent defendants in criminal cases. Prior to this decision, some states only provided attorneys in cases with special circumstances, like death penalty cases. Defending Gideon is narrated by Martin Sheen and includes interviews with national experts, including former Vice-President Walter Mondale, former N.Y. Times reporter Anthony Lewis, and death-penalty attorney Bryan Stevenson. Clarence Gideon was convicted, without an attorney, of breaking into a pool hall in Florida and stealing money. When he was retried with legal counsel, he was acquitted. The video underscores the importance of guaranteeing effective representation, especially if a person's life is at stake.
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Prominent Former Prosecutors Fight for Death Row Inmate's Life
Former Manhattan District Attorney Robert M. Morgenthau has joined two other former prosecutors in filing an amicus brief in the U.S. Supreme Court on behalf of William Kuenzel, an Alabama death row inmate sentenced to death in 1988. New evidence emerged in 2010 raising doubts about his guilt. According to Morgenthau's brief, two witnesses who testified against Kuenzel gave entirely different accounts that did not identify him when they first met with authorities. One of the witnesses admitted being involved in the murder. Morgenthau, who retired from the D.A.'s office in 2009 at the age of 90, asked Gil Garcetti, former Los Angeles District Attorney, and E. Michael McCann, former District Attorney of Milwaukee, to join him in asking the Supreme Court to hear the case. The three men each served over 30 years as prosecutor, and oversaw a total of more than 7 million cases. Morgenthau said he always opposed the death penalty and felt he had to act in Kuenzel's case because it reminded him of the Central Park Jogger case, in which he helped reverse the convictions of five teenagers originally convicted of rape and attempted murder. Of the death penalty, which was in place in New York from 1995 to 2007, he said, “[W]e reduced murder by 90 percent and never once sought it.”
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