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Capitally Charged, Alabama Man Imprisoned 10 Years Without Trial

In a racially charged case raising questions of prosecutorial overcharging, inadequate representation, and questionable jury practices, Kharon Davis (pictured), an African-American man charged with capital murder in Dothan, Alabama, has been imprisoned for 10 years without trial. Davis—who has consistently maintained his innocence and whose prior offense was driving without a license—was 22 years old when he and two others were arrested for the shooting death of a man from whom they were purchasing marijuana. After refusing a plea deal, Davis’s case has gone through two judges, three prosecutors, four sets of defense lawyers, and nine scheduled trial dates, and he has been placed in segregation in the county jail for minor infractions, faced restrictions on his ability to review legal documents, and been denied visits by his mother. A New York Times report described the pre-trial delays as “among the most protracted” the paper could find, and George Washington University law professor and constitutional consultant Jonathan Turley said “It is impossible to look at [the case] and not find it deeply, deeply troubling.” Houston County’s District Attorney Doug Valeska’s decision to seek the death penalty reignited questions of the county’s overuse of the death penalty. Despite a population of only 103,000, its 17-person death row makes Houston County one of the most prolific death-sentencing counties in the country. The county’s prosecutorial and law enforcement practices have also come under scrutiny: a number of capital cases have been overturned for racially biased jury selection, presenting improper evidence, and improper comments to juries. In 2015, Valeska also was accused of covering up evidence that a group of Dothan police officers with ties to white supremacist groups had been planting drugs on young black men. Davis’s case has been rife with questionable activity. His first lawyer, Benjamin Meredith, was the father of one of the investigating officers in the case and cross-examined his son in the preliminary hearing. That conflict was not disclosed for four years, after a new judge was appointed in the case, when Valeska brought it to the attention of the court. In those four years, Meredith had filed only two motions on Davis’s behalf. In that same time, Davis’s co-defendant, Lorenzo Staley, who told police where to find the gun used in the murder, went to trial in 2009 and was acquitted. A second co-defendant, Kevin McCloud—a childhood friend of Davis’s who had no criminal record—had pled guilty and agreed to testify against Davis to avoid the death penalty, although McCloud later said in a letter that Valeska had asked him to “get on the stand and lie” about Davis’s involvement in the case. The case was further delayed when, looking through the court record of Staley’s trial, new defense counsel discovered a gunshot residue kit that prosecutors had failed to disclose. A new district attorney who had once represented one of the co-defendants was elected in February 2017, requiring the case to be transferred to the attorney general’s office. At that point, the prosecution dropped the death penalty from the case. Finally, on September 19, the trial was again held up amid allegations that some members of the newly empaneled jury of 11 whites and one black may have had improper contact with people connected to the case.


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Virginia, Pennsylvania Death Rows Smallest in a Quarter Century as Death Sentences Show Long-Term Decline

Death rows are shrinking nationwide, and the experience in states like Virginia and Pennsylvania helps explain why. Virginia's death row has fallen from a reported high of 58 in 1995 to four in September 2017, the lowest it has been since 1979. Pennsylvania's death row of 160 prisoners is its smallest in nearly 25 years—down from 175 last December and from a reported 247 in April 2002. These declines mirror the national trends, as the number of prisoners removed from death row continues to outstrip the number of new death sentences imposed. In May 2017, a Bureau of Justice Statistics report showed that the population of death row nationwide had decreased for 15 consecutive years. Although Virginia has executed more prisoners since 1976 than any other state but Texas, executions do not by themselves account for the magnitude of the decline, and Pennsylvania's death row has shrunk despite not having executed anyone this century. A combination of exonerations, court decisions overturning death sentences, commutations, and deaths while appeals were underway have also removed significant numbers of prisoners from the two Commonwealths' death rows. Moreover, as in states like Georgia and Missouri that have been among the nation's most prolific recent executioners, the increase in executions has been accompanied by a decrease in the number of new death sentences imposed by juries. State Delegate Robert B. Bell, a death-penalty proponent who chairs the Virginia State Crime Commission, said obtaining the death penalty has become “an arduous endeavor for prosecutors,” requiring expenditures of staff time and financial resources that small counties cannot afford. As in Georgia and Texas, which have experienced major declines in new death sentences, Virginia also has made trials fairer by creating regional capital defense offices that provide better representation to indigent defendants at trial and by informing juries that capital defendants who are sentenced to life in prison will not be eligible for parole. Low murder rates and historically low public support for the death penalty also have contributed to the decline in new death sentences. In Pennsylvania, more than fifty defendants have been removed from death row in the past decade as their convictions or death sentences were overturned and they were resentenced to terms of life or less, and more have had their sentences overturned in the interim. Recently, the removal of prisoners from the Commonwealth's death row accelerated after a federal appeals court struck down the state's long-standing practice of automatically keeping capital defendants in solitary confinement until they had completed their retrial or resentencing proceedings, even after courts had overturned their death sentences.


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California Supreme Court Upholds, But Limits, Initiative to Speed Up Death-Penalty Appeals

In a 5-2 decision that left both proponents and opponents of the death penalty declaring victory, the Supreme Court of California has upheld the constitutionality of Proposition 66, a voter initiative intended to speed up death-penalty appeals and executions, but severely limited the scope of its core provisions. In Briggs v. Brown, the court on August 24 sustained portions of the measure that shifted which court will hear capital cases, increased the pool of death-penalty appeal lawyers by requiring lawyers who accept other appellate appointments to also take capital cases, eliminated public review of execution methods, and limited both the issues that can be raised in capital habeas appeals and the time courts have to decide them. However, the majority ruled that the measure’s flagship provision—a five-year deadline on appeals by condemned prisoners—was "directive, rather than mandatory"; that "courts must make individualized decisions based on the circumstances of each case"; and that "prisoners may seek to challenge [the time limitations and limitation on the claims they are permitted to raise] in the context of their individual cases." Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, who argued in support of Proposition 66 in the California Supreme Court, lauded the decision, saying that "Proposition 66 will go into effect almost entirely as written." He called the time limits for deciding appeals a “minor part” of the proposition. Scheidegger said "Californians finally have a chance to see justice carried out in the very worst murder cases." Death penalty opponents sharply disagreed with his characterization. Ana Zamora, criminal justice policy director for the ACLU of Northern California, said “Today’s decision changes nothing. The fact remains that California has not carried out an execution in over 10 years and executions will not resume any time soon.” Christina Von der Ahe Rayburn, who argued the case against the proposition, said the ruling had rendered the deadlines in Proposition 66 "toothless," allowing courts to continue to perform their "critical role in carefully reviewing the appeals of the state's death row inmates, in order to avoid the execution of an innocent person." The justices questioned the efficacy of the proposition and whether it could accomplish its stated aims. "We do not consider or weigh the economic or social wisdom or general propriety of the initiative," the court wrote. "It remains to be seen how effective the procedures enacted by Proposition 66 will be in expediting the capital posttrial review process." Justice Goodwin Liu, concurring in the court's decision, wrote "I find it stunning that Proposition 66’s proponents and the Attorney General claim that the voters intended the five-year limit to be nonbinding or aspirational when that claim is plainly belied by the ballot materials and advocacy campaign for Proposition 66." He said “Proposition 66 contains no plan to compress into five years a process that often takes two decades, and no entity – not this court, not the Judicial Council, not the Legislature – can simply wave a magic wand and make it so.” Santa Clara University law professor Gerald Uelmen, who served as executive director of a state senate commission that undertook a comprehensive review of the state's death penalty in 2008, said several of the provisions in Proposition 66 may actually increase delays in deciding death penalty cases. “It is just going to boggle up the system even more,” he said.


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Nebraska Death Penalty Challenge Unresolved, as Defendant Fires Lawyers, Pleads Guilty

A Nebraska trial judge has permitted Patrick Schroeder (pictured)—whose lawyers from the Nebraska Commission on Public Advocacy had challenged the constitutionality of the state's death penalty—to fire his lawyers, withdraw the challenge, and plead guilty to first-degree murder. The court deferred until August 22 whether to also permit Schroeder to waive his right to have a jury decide whether aggravating circumstance exist that could make him eligible for the death penalty. The court reappointed public defenders Sarah Newell and Todd Lancaster to represent Schroeder in the penalty-phase proceedings. Schroeder was serving a life sentence for a prior murder when he choked Terry Berry, his cellmate at the Tecumseh State Correctional Institution, to death in April. Authorities found a ripped-up note in the trash can of their cell, which read:  “You really need to get Terry Berry out of my cell before he gets hurt.” In June, Schroeder’s lawyers had filed a motion to bar the death penalty in his case, arguing that its application in Nebraska is unconstitutionally arbitrary and that the state's sentencing procedures violate the U.S. Supreme Court's 2016 decision in Hurst v. Florida requiring that juries find all facts necessary to impose the death penalty. The motion argued that Nebraska's law is inconsistently applied geographically, with only four of the state's 93 counties imposing death sentences, and is racially discriminatory. Eight of the nine men sent to death row in the last 15 years in the state have been defendants of color. Schroeder's lawyers also asserted that Nebraska's three-judge sentencing panel violated Hurst because it required that judges, rather than a jury, determine whether aggravating circumstances outweigh mitigating circumstances and justify imposing the death penalty. Only a handful of states permit judicial death sentencing without a prior unanimous jury finding that aggravating circumstances outweigh mitigation. Courts in Florida and Delaware have already struck down those states' statutes, holding that the weighing process is a factfinding that must be made by a jury. Alabama's appeal courts overturned a trial court ruling that its judicial factfinding was unconstitutional. The motion also had challenged the state's execution protocol as an unlawful delegation of legislative powers that gives prison directors overly broad discretion to determine the types and quantities of drugs to be used in the lethal-injection process. Schroeder’s waiver leaves the constitutionality of Nebraska's sentencing statute unresolved. The Nebraska legislature repealed the state's death penalty in 2015 over the veto of Governor Pete Ricketts, but Nebraska voters restored the statute in a 2016 referendum. The state last carried out an execution in 1997. [UPDATE: The Nebraska Supreme Court has agreed to review an appeal by brought by death-row prisoner Marco Torres to determine whether his challenge to the constitutionality of the state's death-penalty statute under Hust v. Florida was timely raised and can be decided by the courts.]


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Lawyers Say Utah Is Underfunding Death-Penalty Appellate Defense

Utah is not providing sufficient funding to competently represent death-row prisoners during their appeals, according to a motion filed on behalf of Douglas Lovell, the man most recently sentenced to death in the state. Because of that, Lovell's lawyer Samuel Newton says, Lovell's death sentence should be vacated and he should be resentenced to life in prison. Newton bases his claim on a 2008 Utah Supreme Court opinion, Archuleta v. Galetka, in which the court warned that "low levels of public funding for capital cases" and "significantly diminishing numbers of qualified counsel able and willing to represent capital defendants" might force the court to overturn death sentences if it "impedes prompt, constitutionally sound resolution" of a capital case. Newton argues that a billing cap imposed by Weber County officials and threats and meddling by county officials are compromising his ability to zealously represent Lovell. Lovell has been granted an evidentiary hearing on his post-conviction claims — including whether The Church of Jesus Christ of Latter-day Saints interfered with the trial by limiting the testimony available from bishops who had worked with Lovell at the prison — and Newton estimates that the hundreds of hours required to investigate and prepare for the hearing would cost about $37,000. However, Weber County officials sent Newton an email accusing him of overbilling the county and meeting with his client too frequently, and threatening that, as a result, they may have to find other attorneys for future appeals. The county has capped his payment for the hearing at $15,000. "That's the bind," Newton said. "Do I represent my client zealously like I'm constitutionally required to do? Or do I tread lightly so I don't lose my livelihood?" Newton said that the financial strain of handling another death-penalty case has caused stress-related heart problems that led him to request to be removed from that case. Newton's motion is not the first time attorneys have expressed concerns about Utah's capital defense funding. In 2007, the Utah Association of Criminal Defense Lawyers filed an amicus brief in the case of Ralph Menzies. Affidavits submitted by well-known defense lawyers in connection with that brief reported that the final payments they received for handling death-penalty appeals had amounted to compensation at levels of $17 and $19 per hour — about one-tenth their normal billing rates. Defense attorney Richard Mauro said the pay rates make it almost impossible for private attorneys to take on capital appeals: "If you are doing the work the way it's supposed to be done — and trying to keep the lights on and run the copy machine — it's really not a feasible thing to do."


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U.S. Supreme Court Rules Texas Death-Row Prisoner Cannot Challenge Ineffectiveness of His Appeal Lawyer

In a 5-4 decision released June 26, the United States Supreme Court upheld the decision of the U.S. Court of Appeals for the Fifth Circuit, denying review of Texas death-row prisoner Erick Daniel Davila's claim that he had been provided ineffective representation by his state appeal lawyer. The case, Davila v. Davis, raised the question of whether two earlier Supreme Court decisions (Martinez v. Ryan and Trevino v. Thaler) permitted a federal court to review a prisoner's claim that his direct appeal counsel had been ineffective, if—because of his state post-conviction lawyer's ineffectiveness—the appellate ineffectiveness claim had never been presented to the state courts. Davila's federal habeas corpus lawyer challenged an improper jury instruction to which his trial lawyer had objected at trial, but both his direct appeal and his state habeas lawyers failed to raise the issue. When his state habeas lawyer also failed to challenge the adequacy of his appellate lawyer's performance in failing to raise the issue, the federal habeas court ruled that the claim was procedurally defaulted and would not be reviewed. Justice Clarence Thomas, writing for the majority, said that Martinez is limited to claims of trial counsel's ineffectiveness and does not apply to appellate-ineffectiveness claims. "Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default," Thomas wrote. He said granting prisoners like Davila federal review of meritorious claims of constitutional error "could flood the federal courts with defaulted claims of appellate ineffectiveness," calling that "especially troublesome because those claims could serve as the gateway to federal review of a host of trial errors." Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan, arguing that the majority had interpreted Martinez too narrowly. "[E]ffective trial counsel and appellate counsel are inextricably connected elements of a fair trial," Breyer wrote. He added, “[t]he fact that ... nearly a third of convictions or sentences in capital cases are overturned at some stage of review suggests the practical importance of the appeal right, particularly in a capital case such as this one.” The dissent also said the majority’s concern was unfounded that granting review of the type of constitutional violation in Davila's case would overburden federal habeas corpus courts. He wrote, “there is no evidence before us that Martinez has produced a greater-than-expected increase in courts’ workload.”


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After Remand from U.S. Supreme Court, Georgia Federal Court Vacates Brain-Damaged Prisoner's Death Sentence

The U.S. District Court for the Northern District of Georgia has overturned the death sentence imposed on Lawrence Jefferson, saying that his trial counsel had been ineffective for failing to investigate and present available mitigating evidence in his case, including evidence related to "a head injury he sustained as a child when an automobile rolled over his head." The court also found that the state courts had denied Jefferson a "full and fair" hearing on the issue, in violation of due process, when, without notice to Jefferson's lawyer, it invited the Assistant Attorney General to submit an order dismissing Jefferson's petition for relief, then signed the order submitted verbatim, complete with factual misstatements and erroneous legal citations. The potential brain damage to Jefferson was so obvious that the U.S. Supreme Court noted in a 2010 opinion sending the case back for further consideration that "[t]he accident left [Jefferson's] skull swollen and misshapen and his forehead visibly scarred." Before trial, a psychologist had recommended that defense counsel obtain a neuropsychological evaluation of Jefferson, but no evaluation was performed. An examination conducted during Jefferson's appeals process found significant evidence of brain damage, including an enlarged head indicative of brain swelling from the accident, asymmetrical reflexes, and discrepancies in verbal and visual-spatial test scores. A neuropsychologist concluded that these findings indicated right hemisphere and frontal lobe damage to the brain. A neurologist testified, "the most common thing with a closed head injury, traumatic injury of this sort, is problems with judgments, executive planning, and impulse control, the ability to foresee the consequences of your action in the future, as opposed to right now." Jefferson's jury never heard this mitigating evidence. According to the court, "The mental health evidence would have provided the jury an explanation for Petitioner’s past behavior and his testimony regarding his past behavior." The practice of courts signing opinions and orders written by prosecutors verbatim is not uncommon. In 2016, the Supreme Court denied a petition filed by counsel for Alabama death-row prisoner Doyle Lee Hamm seeking review of his case, in which the state court adopted word-for-word an 89-page order written by the state attorney general's office and the federal court said it was bound by the state court "findings." That order rejected Hamm's claim that his lawyer was ineffective, ruling that evidence the jury had never heard concerning Hamm's childhood diagnosis of borderline mental retardation, school records reflecting Hamm's intellectual deficits, and evidence of seizures, head injuries, and drug and alcohol abuse was "cumulative." 


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Maricopa County, Arizona DA Seeks Death Penalty So Often, The County Has Run Out of Capital Defense Lawyers

Maricopa County, Arizona County Attorney Bill Montgomery has sought the death penalty so frequently that the county has run up millions of dollars in defense costs and run out of defense lawyers qualified to handle new capitally-charged cases. The Arizona Republic reports that, with 65 active death-penalty cases and more new capital cases charged than the 35 that have been resolved since July 1, 2014, the county ran out of the specialized lawyers needed to defend the cases in January of this year. Yet despite the county's high rate of seeking the death penalty, the number of death sentences imposed in the county is falling. With 81 people on death row as of January 1, 2013, Maricopa County ranked fourth among all U.S. counties in the number of death-row prisoners. According to a 2016 Fair Punishment Project report, Maricopa County imposed 28 death sentences between 2010 and 2015, making it one of only 16 counties to have imposed as many as 10 death sentences over that period. However, only six of the cases resolved since July 1, 2014, have resulted in death sentences. In addition to burdening the county's defense services, the County Attorney's broad pursuit of the death penalty has placed a significant financial strain on the county. An audit commissioned by the Office of Public Defense Services, one of the agencies that provides representation for capital defendants, found that capital murder cases cost eight to 40 times more than first-degree murder cases in which the death penalty is not sought. The audit found that non-capital murder trials cost about $27,000 to defend, whereas capital cases—which require two defense attorneys, an investigator, and a mitigation specialist—cost from $213,000 to $1 million, depending on the outcome. Capital cases ending in a plea to a lesser offense or sentence cost about $213,000, the audit said; more than the cost of a non-capital case taken to trial. Death penalty trials resulting in life sentences cost $580,000, and those that ended with a death sentence cost $1 million, not including federal appeals. John Canby, an attorney for the Maricopa County Public Defender's Office, summarized the situation: “For a variety of reasons it appears that juries in Maricopa County are less willing to return death verdicts in trials for first-degree murder than they once were. Nevertheless, it seems that the County Attorney’s Office is still willing to seek death sentences in cases with only a remote possibility of a death verdict. That practice costs the taxpayers of Maricopa County a lot of money because the court is required to appoint capital-qualified attorneys to those cases, even if the possibility of a death sentence is in fact very remote." 


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Supreme Court Grants Relief to Duane Buck in Texas Racial Bias Death Penalty Case

Saying that the "law punishes people for what they do, not who they are," the Supreme Court on February 22, 2017, granted relief to Duane Buck (pictured, right), a Texas death-row prisoner who was sentenced to death after his own lawyer presented testimony from a psychologist who told the jury Buck was more likely to commit future acts of violence because he is black. Writing for the six-Justice majority, Chief Justice Roberts (pictured, left) said that "[d]ispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle." Buck's case turned on the legal question of whether his lawyer had provided ineffective assistance. The Court left no doubt on the issue. Chief Justice Roberts wrote that "[n]o competent defense attorney would introduce such evidence about his own client." Despite counsel's deficient representation, the lower federal courts had refused to intervene, asserting that the references to race in the case had been brief and would have had only minimal, if any, effect on the jury's sentencing decision. The Chief Justice squarely rejected that conclusion, writing: "when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses." The Court explained that stereotyping black men as somehow more violence-prone than others is a "particularly noxious strain of racial prejudice." Buck's attorney, Christina Swarns, who had argued the case before the Court in October 2016, said “Today, the Supreme Court made clear that there is no place for racial bias in the American criminal justice system.” The decision, she said, reaffirms "the longstanding principle that criminal punishments—particularly the death penalty—cannot be based on immutable characteristics such as race.” Justice Clarence Thomas, joined by Justice Samuel Alito, dissented.


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Federal Court Stays Texas Execution After Appeal Lawyer Abandons Prisoner

Texas federal appeals court has upheld the ruling by a U.S. district court judge to stay the execution of John Henry Ramirez, who had been scheduled to be executed in Texas on February 2. The District Court had ruled that Ramirez was entitled to a stay so new lawyers could seek clemency on his behalf after Michael Gross, the lawyer initially appointed to represent Ramirez in his state and federal habeas corpus proceedings, had failed to file a clemency petition and left Ramirez "effectively without counsel" at the time of his death warrant. The court did not rule on a second issue alleged by Ramirez's new counsel, that Gross had an inherent conflict of interest in the case because he had provided ineffective representation in state court and could not be expected to litigate his own ineffectiveness as part of the federal habeas corpus proceedings. After the federal courts denied his habeas petition, Ramirez informed Gross that he wanted to replace him as counsel, and asked him not to file a clemency petition because he wanted his new attorney to do that. The district court held that "Gross had a duty to either (1) inform the Court of his client’s wishes and seek the substitution of new counsel or (2) ensure that a clemency petition was filed on his client’s behalf. Gross did neither. Gross’ inaction prevented judicial consideration of whether the circumstances required the substitution of counsel." The court also noted that Gross had previously failed to file key motions in the death penalty case of John Battaglia, requiring the courts to issue a stay of execution in December 2016 in that case. In Battaglia's case, Gross had refused to filed a state competency petition, saying that fell "outside the scope" of his representation. The Texas Attorney General's Office appealed Ramirez's stay to the U.S. Court of Appeals for the Fifth Circuit, arguing that Gross's action constituted "gamesmanship," not abandonment. A three-judge panel of the court disagreed and dismissed the state's motion to vacate the stay. 


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