New Civic and Religious Coalition Challenges Exclusion from Jury Service

A new coalition of religious and civic organizations is seeking to stop the exclusion of individuals who express moral or religious opposition to the death penalty from serving on capital juries. I Want to Serve is a new organization based in Louisiana that "oppose[s] the government’s intrusion on one’s right to express religious beliefs on capital juries." The group notes that the process of excluding jurors who oppose the death penalty from capital cases--known as death qualification--eliminates a large proportion of the otherwise-qualified jurors. The coalition points to research finding death-qualified juries to be demographically skewed, more prone to conviction, and more likely to make factual errors than non-death-qualified juries.  In its statement, the group objects to people being denied a fundamental right of citizenship because of their religious beliefs: "Jury service is a fundamental right of citizens and empowers us to keep a check on state power. . . .The voice of all those who do not think the death penalty is an appropriate punishment are removed from that determination."  

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NEW VOICES: Texas Judge Rules State Death Penalty Unconstitutional

On December 19, Dallas District Court Judge Teresa Hawthorne held that Texas’s death penalty was unconstitutional because it could lead to death sentences that were arbitrarily sought and obtained.  In ruling in favor of a defense motion, Judge Hawthorne acknowledged that the Texas Court of Criminal Appeals and other courts have upheld the statute, but judges still have the obligation to review the law based on its current practice.  The judge found parts of Texas's statute regarding findings of future dangerousness and the definition of mitigating evidence to be vague or misleading.  The prosecution has filed a motion to recuse Judge Hawthorne from the case.  In 2010, another Texas judge, Kevin Fine of Harris County, found the same statute unconstitutional because it posed too great a risk of resulting in the execution of an innocent person. Judge Fine withdrew his ruling and began hearings on the issue until ordered to stop by the Texas Court of Criminal Appeals. UPDATE: Judge Hawthorne was required to recuse herself from the trial, though her constitutional ruling may still stand.

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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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NEW VOICES: Ohio Supreme Court Justice Testifies for Death Penalty Repeal

On December 14, Ohio Supreme Court Justice Paul Pfeifer (pictured) testified before the state's House Criminal Justice Committee, urging lawmakers to overturn the death penalty law he helped write as a state senator 30 years ago. Justice Pfeifer said, “The death penalty in Ohio has become what I call a death lottery," citing factors such as the location of the crimes and the attitudes of individual county prosecutors as variables affecting whether the death penalty is pursued in a given case. He continued, “It's very difficult to conclude that the death penalty, as it exists today, is anything but a bad gamble. That's really not how a criminal justice system should work.'' As a sitting justice, Pfeifer has continued to issue decisions in death penalty cases and to set execution dates under the law. Of his role, he said, "I have a duty under the law to follow that law. At the same time, we are admonished under the rules that apply to judges that we have a duty to step forward and advocate for changes we think would lead to an improvement in the law.”

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Illinois Court Reverses Murder Conviction Reminiscent of Death Row Exonerations

On December 15 an Illinois appellate court reversed Juan Rivera’s (pictured) conviction for a murder committed almost 20 years ago. The case is reminiscent of many in Illinois that led to the state's abolition of the death penalty in 2011.  Rivera was convicted and sentenced to life in prison for killing 11-year-old Holly Staker based on a confession after nearly 24 hours of near-constant interrogation.  No physical evidence or witnesses conclusively linked him to the crime, and testing of DNA found on the victim, conducted in 2005, excluded him as the source. The reviewing court stated, “After viewing the evidence in the light most favorable to the prosecution, we hold that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Because the State’s evidence was insufficient to establish guilt beyond a reasonable doubt, we must reverse the conviction of Juan A. Rivera, Jr.”  Rivera’s case was highlighted in a recent New York Times Magazine article that noted there have been more than 250 exonerations through DNA testing, and nearly 76% of the original convictions were based on witness misidentification or flawed forensic evidence.

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Oklahoma Board Closely Split on First Execution for 2012

On December 5, the Oklahoma Pardon and Parole Board narrowly voted (3-2) to deny clemency to death row inmate Gary Welch, the first person scheduled to be executed in the country in 2012.  Welch was sentenced to death in 1996 for a murder that started as a fight related to a drug deal.  Welch said the victim first stabbed him with a knife and he tried to defend himself.  "To me, this was life or death. It was just luck that I survived," said Welch.  "My intentions were never to kill him.  But I also didn't intend for him to kill me either."  Welch's co-defendant, Claudie Conover, was also initially sentenced to death, but the sentence was later reduced to life without the possibility of parole.  Conover died of natural causes in 2001.  In Oklahoma, the governor makes the final decision on clemency, but must first have a positive recommendation from the Parole Board.

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STUDIES: Virginia Leads the Country in Death Sentences Resulting in Executions

According to a recent study by the Richmond Times-Dispatch, Virginia executes the highest proportion of people sentenced to death of any state in the country. Of the 149 death sentences handed down through 2010, 108 have resulted in an execution, a rate of about 72 percent.  Virginia is second to Texas in the total number of executions carried out since 1976, but Texas has executed less than half of those sentenced to death.  In many states, less than 1 in 10 death sentences have resulted in an execution.  Inmates in Virginia also spend the shortest time on death row prior to execution--on average, just 7.1 years--compared to a national average of just over 14 years for those executed in 2009.  From the mid-1970s to 1995, just 18% of Virginia death cases were reversed by appeals courts. Nationally, 68% of death cases were reversed in the same time period.  According to Richard J. Bonnie, director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia, "almost from the beginning, Virginia has basically tried to expedite the process of state post-conviction review and reduce the kinds of claims that can be raised in state courts." As a result, most of the post-conviction review occurs in federal court, particularly the 4th Circuit, which Bonnie described as "reluctant to set aside death sentences." 

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EDITORIALS: Calls for Florida to Revamp Its Untrustworthy Death Penalty System

The Orlando Sentinel in Florida recently called on the state to change the unusual way in which it arrives at death sentences, recommending instead unanimous jury decisions for a death sentence, the prevailing practice in the vast majority of states.  In June, a federal judge declared Florida’s death penalty unconstitutional because it only requires a simple majority to decide whether aggravating factors exist and to recommend a death sentence to the presiding judge.  In 2005, former Florida Supreme Court Justice Raoul Cantero urged legislators to make a similar change and require a unanimous jury recommendation in capital sentencing.  The following year, a study conducted by the American Bar Association called for reforms in the state’s death penalty system which has had more exonerations than any other state, with 23 inmates released from death row since 1973.  The chair of the study, Professor Christopher Slobogin, concluded, “Much more needs to be done to ensure that Florida's death penalty system avoids executing the innocent.”  The Sentinel's editorial echoed that concern, “Florida can no longer shrug off travesties of justice that damn innocents such as Frank Lee Smith. After serving 14 years for a rape and murder, DNA testing proved his innocence. Redemption that came 11 months after he died behind bars. Florida simply can no longer accept a simple majority when lives hang in the balance.”  Read the full editorial below.

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ARBITRARINESS: One U.S. Attorney in Upstate New York Stands Out in Seeking Federal Death Penalty

The U.S. Attorney for Western New York has filed more potential federal death penalty cases than most of his colleagues across the country.  Since taking office in March 2010, William J. Hochul, Jr. has petitioned the Justice Department to seek the death penalty against 24 people, more than his counterparts in cities like Los Angeles, Chicago, Detroit, Miami or cities in Texas.  Only two other federal prosecutors, both from more populous districts than Western New York, have filed as many death cases with Attorney General Eric Holder in the past 2 years.  None of Hochul's cases has yet resulted in a capital trial, much less a death sentence, but they have cost taxpayers more than $661,000 just in the past year.  This expenditure is more than the combined amount spent by the area's four previous U.S. attorneys on death penalty-eligible cases over the previous 11 years.  Kevin McNally, who heads the Federal Death Penalty Resource Counsel Project said, "I seriously doubt whether any of [Hochul's] defendants will actually face the death penalty at trial."  The Department of Justice spends an estimated $86 million a year on federal death penalty cases.  Since the reinstatement of the federal death penalty in 1988, three defendants have been executed.  David Kaczynzki, a member of New Yorkers for Alternatives to the Death Penalty, said,  "I do not see how even the staunchest supporter of the death penalty could argue that these prosecutions are an efficient use of taxpayer money."

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RACE: Historic Civil Rights Suit Filed in Alabama Over Exclusion of Blacks from Jury Service

On October 19, five African Americans filed a federal civil rights lawsuit charging that Alabama has illegally excluded blacks from serving on death penalty juries in Houston and Henry Counties.  The plaintiffs in this class action suit were all previously barred from serving on juries in capital or other serious felony cases.  In each case, state courts found blacks were illegally excluded from jury service because of their race.  Bryan Stevenson, lead attorney for the plaintiffs and executive director of the Equal Justice Initiative in Alabama, pointed particularly to the actions of District Attorney Douglas Valeska: "Mr. Valeska has repeatedly been found to have illegally excluded black people from jury service with peremptory strikes in capital cases but he continues the practice because most people don't know about it." He continued, "The underrepresentation and exclusion of people of color from juries has seriously damaged the credibility and reliability of the criminal justice system.  Individual case reversals haven't stopped this illegal practice, so there must be greater accountability."  The lawsuit alleges that, from 2006 to 2010, state prosecutors in Dothan used peremptory strikes to exclude 82% of qualified black jurors in death penalty cases.  As a result, the jury in every death penalty case in Houston County over this period has been either all white or had only a single black juror, despite the fact that the circuit is nearly 25% African American.  Houston County has the highest per capita death sentencing rate in Alabama.

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