Arizona Prosecutors Drop Death Penalty in Two Cases, Citing High Costs and Lengthy Legal Process

Prosecutors in Mohave County, Arizona announced in February that they will drop the pursuit of the death penalty in two murder cases in the county. Justin Rector and Darrell Ketchner were separately charged with first-degree murder, and officials said their defense teams had already spent over $2.2 million preparing for trials that are still far from taking place. Mohave County Attorney Matt Smith said, “Everybody’s looking to save money and these death penalty cases are extremely expensive." The murders happened in 2009 and 2014, but because of the thorough investigation and preparation required to competently defend a death-penalty case, Smith said, "[t]he anticipated soonest trial date in this case will be 10 years after the events charged." Even if the defendants were sentenced to death, "there is no reasonable likelihood of the death penalty actually being imposed in a realistic and efficient timeframe given the current state of affairs surrounding persons sentenced to death," he said. Bob Allison, whose granddaughter, Ariel, was allegedly killed by Ketchner, said he approves of the prosecutor's decision, in part because his other grandchildren were being bullied as a result of publicity around the case. “We’re OK with it because we want to protect the kids,” he said. “It’s a waste of money in my opinion and the end results are going to be the same.” Between fiscal years 2010 and 2018, Mohave County has spent nearly $3.6 million on defense costs in death-penalty cases. Because no lawyers in the county public defender’s or legal defender’s office meet the state's qualifications to handle death penalty cases, the county must contract out for those services, paying lead counsel at a rate of $125 per hour and $90 an hour for second-chair counsel. In 2016, the Mohave County Board of Supervisors authorized $344,000 in county funds to cover the costs of trying Rector and Ketchner. A Mohave County Superior Court judge granted the prosecution's motion to withdraw the death penalty in Rector's case on February 20, and allowed death-penalty counsel to withdraw from representing Rector. The court granted the motion to drop the death penalty in Ketchner's case on February 14. Only one case originating in Mohave County has ever resulted in an execution.

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Pentagon Fires War Court Official Who Was Attempting to Negotiate End to Guantánamo Death-Penalty Trial

The sudden firing by U.S. Secretary of Defense Jim Mattis (left) of the Pentagon official who oversaw military commission trials at Guantánamo Bay has raised concerns of political interference in the already tumultuous legal proceedings in the death-penalty trials of the five men charged with plotting the 9/11 attacks on the United States. The New York Times reports that Mattis fired Harvey Rishikof (right), who served as the Convening Authority of the Guantánamo tribunals, as Rishikof was engaged in plea negotiations that would potentially have spared the Guantánamo defendants the death penalty in exchange for pleading guilty to the September 11 attacks. The Pentagon provided no explanation for the February 5 firing, and David Nevin—who represents accused attack-mastermind Khalid Shaikh Mohammed—told The Times that “[t]he firing fairly raises the question" of whether the Pentagon was attempting to unlawfully influence the convening authority. The Office of the Convening Authority is responsible for approving cases for trial, plea agreements, reviewing convictions and sentences, and providing resources to defense teams. Military law prohibits even the appearance of “unlawful command influence” over the handling of a case. Nevin said the defense has "an obligation to try to learn everything we can" about possible improper influence, and he has asked prosecutors to turn over information relating to Rishikof’s firing. At the same time Rishikof was dismissed, the Pentagon's acting general counsel, William S. Castle discharged Rishikof's legal advisor Gary Brown, also without explanation. Brown and Rishikof’s firings have focused renewed attention on the dysfunctional military tribunals at Guantánamo. The death-penalty trial of Abd al Rahim al Nashiri, accused of planning the bombing of the U.S.S. Cole in Yemen, was thrown into chaos in October 2017 when his entire civilian defense team resigned amid allegations that military officials had violated attorney-client privilege by eavesdropping on legal meetings at the Cuban facility. Rishikof intervened in that case after the judge, Air Force Colonel Vance Spath, held the chief defense counsel for the Military Commissions Defense Organization, Marine Brig. Gen. John Baker, in contempt for allowing the resignations. Spath has directed that proceedings in the U.S.S. Cole case continue without expert death-penalty counsel, even though the only remaining member of Nashiri's defense team, Lieutenant Alaric Piette, graduated law school in 2012, does not meet the American Bar Association standards for death-penalty defense, and has never tried any murder case. During a January 2018 pretrial hearing in the case, Spath criticized Piette for seeking a continuance in the case until expert death-penalty counsel could be appointed, telling Piette to “engage in self help” by attending special training to become “more comfortable handling capital matters.” On February 5, Piette, who stayed on the case out of concern for his client’s rights, told The New York Times: “I don’t know if I’ve done the right thing, but I don’t think I really had a choice.” Piette “doesn’t come close to being qualified" to handle the case, according to Ellen Yaroshefsky, a professor of legal ethics at Hofstra University. “So a death penalty case is basically going forward without a lawyer. If that is what we think passes as a court system, we’re in big trouble,” she said. 

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BOOK: Death-Row Exoneree Anthony Ray Hinton Publishes “Heart-Wrenching Yet Ultimately Hopeful” Memoir

Anthony Ray Hinton spent thirty years confined on Alabama's death row for murders he did not commit. Three years after his exoneration and release, he has published a memoir of his life, The Sun Does Shine: How I Found Life and Freedom on Death Row, that recounts stories from his childhood, the circumstances of his arrest, the travesty of his trial, how he survived and grew on death row, and how he won his freedom. The book, co-authored with Lara Love Hardin, has earned praise from Kirkus Review as an “urgent, emotional memoir from one of the longest-serving condemned death row inmates to be found innocent in America,” and "[a] heart-wrenching yet ultimately hopeful story about truth, justice, and the need for criminal justice reform." Nobel laureate Archbishop Desmond Tutu called Hinton's book "an amazing and heartwarming story [that] restores our faith in the inherent goodness of humanity." The memoir begins: “There’s no way to know the exact second your life changes forever.” He was arrested in 1985 and capitally charged in connection with the murder of two fast-food restaurant managers, even though he had been working in a locked warehouse 15 miles away when that crime was committed. The prosecutor, who had a documented history of racial bias, said he could tell Hinton was guilty and "evil" just by looking at him. Hinton's incompetent trial lawyer did not know and did not research the law, and erroneously believed the court would not provide funds to hire a qualified ballistics expert to rebut the state expert's unsupported claim that the bullets that killed the victims had been fired from Hinton's gun. Instead, his lawyer hired a visually impaired "expert" who did not know how to properly use a microscope, whose testimony was destroyed in front of the jury. Hinton was convicted and sentenced to death. Hinton speaks candidly about the psychological effect executions of other prisoners had on him as he feared execution for crimes he did not commit. Writing about the 1987 execution of Alabama prisoner Wayne Ritter, Hinton says, “I didn’t even realize they had executed [him] until I smelled his burned flesh.” Faced with this gruesome reality, Hinton realized, “I wasn’t ready to die. I wasn’t going to make it that easy on them.” In 2002, three top firearms examiners testified that the bullets could not be matched to Hinton's gun, and may not have come from a single gun at all. In 2014, the U.S. Supreme Court unanimously held that Hinton had been provided substandard representation and returned his case to the state courts for further proceedings. Prosecutors decided not to retry him after the state's new experts said they could not link the bullets to Hinton's gun. Hinton's lead attorney in the efforts to overturn his conviction and obtain his freedom was Bryan Stevenson, Executive Director of the Equal Justice Initiative and author of Just Mercy. In the forward to The Sun Does Shine, Stevenson writes that Hinton’s story “is situated amid racism, poverty, and an unreliable criminal justice system.” Hinton, he writes, "presents the narrative of a condemned man shaped by a painful and tortuous journey around the gates of death, who nonetheless remains hopeful, forgiving, and faithful." Hinton—the 152nd person exonerated from America's death rows since 1973—says he hopes his story will increase public awareness of the risks of executing the innocent and the irreparable failures of the nation's capital-punishment system. "The death penalty is broken," he writes, "and you are either part of the death squad or you are banging on the bars.”

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Justices Appear Sympathetic to Louisiana Death-Row Prisoner Whose Trial Lawyer Conceded Guilt

The justices of the U.S. Supreme Court appeared to be favoring arguments presented by Louisiana death-row prisoner Robert McCoy (pictured), who was convicted and sentenced to death after his lawyer, in the face of repeated instructions from his client to argue his innocence, instead told the jury that McCoy had killed three family members. McCoy's trial lawyer, Larry English, said he ignored his client's instructions and conceded guilt hoping jurors would then vote against the death penalty because McCoy had "serious emotional issues" that prevented him from "function[ing] in society" or "mak[ing] rational decisions." News coverage of the January 17 oral argument in McCoy v. Louisiana reports that the justices were in "broad agreement" with McCoy's position and "seemed sympathetic to his plight." The question debated during the hour-long Supreme Court argument was "whether the right to a lawyer that’s guaranteed by the Constitution is meaningful if, even with the best intentions, he can ignore his client’s wishes." Seth Waxman, former U.S. Solicitor General under the Clinton Administration, argued on behalf of McCoy, saying that "when a defendant maintains his innocence and insists on testing the prosecution on its burden of proof" then the Sixth Amendment right to counsel "prohibits a trial court from permitting the defendant's own lawyer, over the defendant's objection, to tell the jury that he is guilty." The state's attorney, Louisiana Solicitor General Elizabeth Murrill, argued for what the state charcterized as a "narrow exception" that would allow a defense lawyer in a capital case to override the client's wishes and admit the client's guilt if the lawyer believed that was necessary to save the client's life. But even Justices Gorsuch and Alito—two of the Court's most conservative justices—seemed to agree in some respects with McCoy's position. Justice Gorsuch asked Murrill why the error at trial was not "a total denial of the assistance of counsel" and said that the right to counsel included "not to have an agent of the state assist the state in prosecuting you." Justice Alito expressed exasperation that the case had even reached this point, questioning the trial court decisions finding McCoy competent to stand trial and refusing to allow English to withdraw from the case. "[I]f somebody like McCoy really sincerely believes that he did not commit these physical acts, but it was all done by—as part of an elaborate conspiracy, is he—is he capable of assisting in his own defense?," Alito asked. Justices Breyer and Kagan voiced sympathy for English, who they believed was trying to save McCoy's life. Justice Kennedy, often the swing vote in death-penalty cases, asked the Louisiana Solicitor General a single line of questions: was it Louisiana's position that, if "a defendant [in a capital case] wants to plead not guilty, the defense attorney can plead guilty if the defense attorney thinks that's the best way to avoid the death penalty?" When the solicitor general said that a lawyer could not do that, Kennedy followed up, asking "How is that proposition any different from what really happened in this case?" A decision is expected by the end of June 2018.

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