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New Podcast: Authors of Tennessee Death-Penalty Study Discuss Arbitrariness

The latest edition of Discussions with DPIC features H.E. Miller, Jr. and Bradley MacLean, co-authors of a recent study on the application of Tennessee's death penalty. Miller and MacLean describe the findings from their article, Tennessee's Death Penalty Lottery, in which they examined the factors that influence death-penalty decisions in the state. Based on their survey of thirty years of homicide cases, they found that whether a death sentence is imposed is influenced far less by the circumstances of the offense than by arbitrary factors such as geography, race, and the poor quality of defense representation. MacLean says, "It operates just like a lottery. There's no rationale, there's no rhyme or reason for why an infinitesimally small number of defendants are sentenced to death and even a much smaller number are actually executed, as compared to all the defendants who are convicted of first-degree murder." The authors collected data on more than 2,500 first-degree murder cases in Tennessee from 1977-2017, and found that about 3.5% of first-degree murder defendants have been sentenced to death and fewer than 0.3% have been executed. Those few who are selected for the death penalty, though, do not represent the worst of the worst, with about 90% of multiple-victim murders resulting in life sentences. "The bottom line is, the people who get the death penalty are the most vulnerable, not the ones who commit the worst crimes," MacLean said. In the podcast, the authors also discuss the litigation surrounding Tennessee's method of execution, saying, "If the state can't get their method of execution right, then how can we expect them to get anything else right about the system?" They conclude, "The whole point of our study was to look at whether we have properly addressed the problem of arbitrariness that the Supreme Court talked about in Furman [v. Georgia, which declared all U.S. death-penalty statutes unconstitutionally arbitrary in 1972]. Our conclusion is that our system is no less arbitrary, it is just as arbitrary, as the systems that existed before Furman was decided. ...That's why we believe that our system is clearly unconstitutional."


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Florida Juries Reject Death Sentences for Four Men, Highlighting Impact of Unanimity Requirement

Juries in two Broward County, Florida death-penalty trials have handed down life sentences for four capital defendants in the span of one week, highlighting the effect of a new Florida law requiring the unanimous agreement of the jury before a defendant can be sentenced to death. On July 16, a Broward County jury spared three defendants—Eloyn Ingraham, Bernard Forbes, and Andre Delancy—whom it had convicted in March of murdering a Broward sheriff's deputy. Three days later, another Broward jury rejected the death penalty for Eric Montgomery, after having convicted him in April of the murders of his wife and stepdaughter. The verdicts marked the third time in four capital trials since Florida adopted the jury unanimity requirement that Broward juries have opted for life sentences. The sole exception was the case of Peter Avsenew, who represented himself in the penalty-phase after firing his lawyers, presented no penalty-phase defense, and told the jury he had "no regrets" for his actions and was "proud of the decisions [he'd] made." South Florida juries in Palm Beach County also have recommended life sentences in the three first-degree murder trials conducted there since September 2017. In March 2017, the Florida legislature changed its death penalty law in response to two Florida Supreme Court decisions in October 2016 that declared the state’s practice of permitting judges to impose death sentences based upon a non-unanimous jury recommendations for death to be unconstitutional. Those decisions were based on the U.S. Supreme Court's January 2016 decision in Hurst v. Florida, which ruled that Florida's previous death-penalty statute violated the Sixth Amendment right to a jury trial by giving judges, rather than the jury, the ultimate power to find the facts that could lead to a death sentence. Florida's criminal law required unanimity for every other decision made by a jury, and the 2017 amendment brought Florida's law into line with the laws of virtually every other death-penalty state. Only Alabama still permits a trial judge to impose the death penalty based upon a jury's non-unanimous sentencing recommendation. 


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North Carolina Death-Row Prisoners Challenge Retroactive Repeal of Racial Justice Act

Four African-American death-row prisoners in North Carolina whose death sentences had been overturned for racial discrimination have challenged the constitutionality of subsequent state court rulings that reinstated their death sentences and then denied them a new hearing on their discrimination claims. The four—Marcus Robinson (pictured), Tilmon Golphin, Quintel Augustine, and Christina Walters—had overturned their death sentences in 2012 under the North Carolina Racial Justice Act (RJA), presenting evidence that a multi-decade systematic exclusion of African Americans from death-penalty juries in North Carolina had infected their cases with racial bias. However, the North Carolina Supreme Court vacated those rulings, saying state prosecutors deserved an opportunity to present additional evidence, and the North Carolina legislature repealed the RJA. The trial court then ruled that, because of the repeal, it could no longer hear the prisoners' cases. Backed by a broad coalition of civil rights groups and several former prosecutors, the prisoners filed briefs in the North Carolina Supreme Court on July 16, 2018 arguing that the lower court ruling violated numerous constitutional guarantees, including due process and the Double Jeopardy clauses of the state and federal constitutions. After nearly three weeks of testimony in Robinson’s case, which detailed state prosecutors’ use of jury strikes in 173 capital trials between 1990 and 2010, Superior Court Judge Gregory Weeks overturned Robinson’s death sentence, finding that the “evidence showed the persistent, pervasive, and distorting role of race in jury selection.” Reviewing expert testimony about prosecutors’ choices to accept or strike more than 7,400 jurors, Weeks determined that prosecutors had systematically excluded black jurors from serving in capital cases “with remarkable consistency across time and jurisdictions.” Based on the same statewide evidence, plus the jury strikes in their cases, Weeks concluded that the death sentences imposed on Golphin, Augustine, and Walters also should be overturned. Prosecutors then persuaded the North Carolina Supreme Court to vacate Weeks’s rulings and send the cases back to the trial court for more evidence. “Lo and behold we get back into Superior Court, and at that point, the position shifts, and it’s well wait a minute, the statute’s been repealed, the courthouse door has been shut, and you are out of luck,” explained Gretchen Engel, director of the Center for Death Penalty Litigation. The prisoners’ appeal drew support from numerous civil rights and law-reform organizations, including the NAACP Legal Defense and Educational Fund (LDF), the North Carolina NAACP, the National Association of Public Defenders, the North Carolina Association of Black Lawyers, the North Carolina Council of Churches, North Carolina Advocates for Justice, the ACLU Capital Punishment Project, and a group of former prosecutors. In a statement, LDF senior deputy director of litigation Jin Hee Lee said: “The continuing stain of racial discrimination not only invalidates the death sentences imposed on these defendants, but it also undermines public confidence in North Carolina’s judicial system as a whole.” Former Virginia Attorney General Mark Earley said, “Whatever one thinks of the death penalty, we should all agree that execution can never be an option when racial stereotypes are used to keep black citizens off capital juries. No civil right is more basic than this.” 


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In Two Mississippi Cases, Justice Breyer Renews Call to Review Constitutionality of Death Penalty

As its 2017-2018 term came to a close, the U.S. Supreme Court declined to review two Mississippi cases that presented significant challenges to capital punishment as implemented in that state and across the country. Over the dissent of Justice Stephen Breyer (pictured), who renewed his call for the Court to review the constitutionality of the death penalty as a whole, the Court on June 29 denied certiorari in the cases of Timothy Evans and Richard Jordan. Reiterating concerns he first voiced in his landmark dissent three years ago in Glossip v. Gross (2015), Justice Breyer wrote: “the death penalty, as currently administered, suffers from unconscionably long  delays, arbitrary application, and serious unreliability.” Two Mississippi cases, he wrote, illustrate the first two of those factors. Evans and Jordan were both sentenced to death in Mississippi’s Second Judicial District, which—according to death sentencing data maintained by Mississippi’s Office of the State Public Defender—has imposed more death sentences than any of the 21 other judicial districts in the state and nearly 1/3 of all the death sentences imposed in the state this century. Evans’s petition for writ of certiorari had argued that his death sentence was unconstitutionally arbitrary because of the geographic disproportionality in the way in which the death penalty was imposed and carried out across the state. Jordan had asked the Court to review the constitutionality of his more than forty-year tenure on Mississippi’s death row for a crime committed in 1976. Jordan’s death sentence was overturned three separate times because of different constitutional violations in each of his sentencing trials. In 1991, after his sentence had been overturned for the third time, a special prosecutor agreed that Jordan should be sentenced to life without parole. However, the Mississippi Supreme Court vacated the life sentence saying the sentence was invalid because it had not been authorized by Mississippi law in effect at the time of the murder. The state then sought and obtained the death penalty against Jordan for a fourth time. “Jordan has lived more than half of his life on death row,” Breyer wrote, living most of that time “in isolated, squalid conditions.” Breyer said the cruelty of the conditions of Jordan’s imprisonment constitute an “additional punishment” that warrants review by the Court to address whether the lengthy delay, in and of itself, violates the Eighth Amendment. The geographically arbitrary death-sentencing practices in the Second District also warranted review, Breyer wrote. “This geographic concentration reflects a nationwide trend. Death sentences, while declining in number, have become increasingly concentrated in an ever-smaller number of counties,” he wrote. This arbitrariness, Justice Breyer explained, “is aggravated by the fact that definitions of death eligibility vary depending on the state.” As a result, in Mississippi, unlike most states, a defendant may be sentenced to death for a felony robbery-murder, which does not require that the defendant actually intended to kill someone. Justice Breyer also found evidence in Mississippi that the death penalty was not reliably administered. He noted that just “[f]our hours before Willie Manning was slated to die by lethal injection, the Mississippi Supreme Court stayed his execution,” and in April 2015, Manning became the fourth Mississippi death-row prisoner to be exonerated. With six more death-row prisoners exonerated throughout the U.S. since January 2017, the unreliability of the death penalty, Justice Breyer argued, provides a third reason for the Court to review the constitutionality of capital punishment. “[M]any of the capital cases that come before this court,” Justice Breyer wrote, “involve, like the cases of Richard Jordan and Timothy Evans, special problems of cruelty or arbitrariness. Hence, I remain of the view that the court should grant the petitions now before us to consider whether the death penalty as currently administered violates the Constitution’s Eighth Amendment.” 


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Florida Supreme Court Reverses Death Sentence, Orders Hearing for Prisoner Convicted by Anti-Gay Juror

The Florida Supreme Court has overturned the death sentence imposed on Eric Kurt Patrick (pictured) and ordered the lower court to conduct a hearing on the failure of Patrick’s lawyer to adequately question a juror who admitted his belief that gay people are “morally depraved” might affect his judgment of guilt or innocence. Patrick was convicted of the 2005 murder of Steven Schumacher, a gay man who had brought Patrick home after meeting him in a park, and was sentenced to death after a bare 7-5 majority of jurors voted to recommend the death penalty. The court on June 14, 2018, reversed Patrick’s death sentence based upon its 2016 decision in Hurst v. State, which declared that death sentences based upon a non-unanimous jury recommendation for death violated the state and federal constitutions. The appeals court directed the trial court to conduct an evidentiary hearing to determine whether Patrick’s lawyer’s handling of jury selection was ineffective. During jury selection, one juror admitted he “would have a bias if [he] knew the perpetrator was homosexual.” When asked about his ability to evaluate guilt based only the evidence proven beyond a reasonable doubt, he said, “Put it this way, if I felt the person was a homosexual, I personally believe that person is morally depraved enough that he might lie, might steal, might kill.” The juror then answered “yes” when asked if this bias might affect his deliberations. Patrick, who does not identify as gay, was homeless and acknowledged that he had engaged in sexual activity with other men to support himself. On the night of the murder, the men were in bed together after Patrick had given Schumacher a massage, when Schumacher attempted to initiate anal sex and Patrick “cut loose on” the victim, beating him to death. Patrick’s appeal lawyers argued that defense counsel should have struck the juror because of his clear bias; prosecutors argued that Schumacher, not Patrick, was gay and that Patrick’s trial lawyer accepted the juror for strategic reasons. The court wrote that “[a]pplying this evidence to the juror’s voir dire answers establishes that, by the juror’s own acknowledgement on the record, he was predisposed to believe that Patrick is morally depraved enough to have committed the charged offenses. Although Patrick does not identify as homosexual and indicated in his confession that his sexual activity with men was for material support rather than personal fulfillment,” the opinion said, “these points do not eliminate the bias that this juror said he would feel based on the evidence that trial counsel and the trial court knew the jury would hear during trial.” However, the court said it did not have enough evidence to decide the issue. Remanding the case for an evidentiary hearing, it wrote, “[o]n this record, we can neither ignore the possibility that counsel’s failure to challenge this juror was strategic nor conclude that it was.” 


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ANALYSIS: Research Supports Assertion that U.S. Death Penalty "Devalues Black Lives"

The Movement for Black Lives has called for abolishing the death penalty in the United States, asserting that capital punishment is a racist legacy of slavery, lynching, and Jim Crow that “devalues Black lives." A Spring 2018 article in the University of Chicago's philosophy journal Ethics, co-authored by Michael Cholbi, Professor of Philosophy at California State Polytechnic University and Alex Madva, Assistant Professor of Philosophy at Cal Poly Pomona, examines the philosophical underpinnings of those assertions and concludes that they are correct. In Black Lives Matter and the Call for Death Penalty Abolition, the authors examine "the two central contentions in the movement’s abolitionist stance"—that the death penalty as practiced in the United States wrongs Black communities as a whole, rather than just the individual Black defendants charged with capital murder or the particular Black victims whose murders were not capitally prosecuted; and that abolition of the death penalty in its entirety, rather than attempts at piecemeal reform, is "the most defensible remedy for this wrong." Cholbi and Madva review numerous 21st-century death-penalty studies and find that the data show two major classes of racial distinctions in American death-penalty practices: a White-victim preference in both prosecutorial choices to seek and jury verdicts to impose the death penalty and a sentencing bias against non-White defendants once a case has been designated as capital. Cholbi and Madva conclude that Black Americans are subject to a citizenship class that renders them vulnerable to both retributive and distributive injustice: retributive in the sense that individual Black capital defendants are empirically more likely to be subject to execution than defendants of other races and distributive in that that those who murder Black people are empirically less likely to be subject to execution than those who murder non-Black people. As a result of, in part, implicit racial biases that manifest at every level of the capital punishment system, Black capital defendants face the retributive injustice of being more likely to be sentenced to death than any other group. “Preexisting biases regarding blacks' proclivity toward and insusceptibility to violence that may otherwise remain dormant are galvanized when individuals are afforded the opportunity to render judgments regarding who ought to be executed for their crimes,” Cholbi and Madva write. In one shocking study cited by the pair, White respondents became more supportive of capital punishment when informed about the issue of racial bias in capital sentencing. Another study showed White members of a mock jury more likely to convict Black people and less likely to convict White people when informed that the maximum sentence possible was death as opposed to a life sentence. “Such results suggest that capital punishment is not just another arena infected with bias but instead represents a distinctive channel for racial discrimination” where anti-Black biases are "activate[d] and amplif[ied]." To not address the distinct and permeative nature of this discrimination, Cholbi and Madva write, “amounts to a form of societal or institutional recklessness.” Research supports the Movement for Black Lives' assertion that all Black people, not just individual Black capital defendants, are unjustly impacted by capital punishment’s systemic racial bias. Because the murder of a Black person is less statistically likely to result in a death sentence, Cholbi and Madva argue, “the law fails to penalize killings of blacks in a manner consistent with their having the equal protection of the law.” Given that the law “routinely punishes those who kill blacks less harshly than those who kill others, killing blacks becomes commensurably less risky (especially if the killer is white)." This distributive injustice “is one that all blacks face, not only those who actually are murdered.” The authors analyze attempted state-level death-penalty reforms and conclude that they “have had modest success at best” at eliminating racial bias, and therefore "abolishing the death penalty may itself be one among many necessary reforms for reducing broader racial disparities in criminal imprisonment." The task of ensuring that the lives of Black people are comparably protected and their killers are equally punished in the U.S. criminal justice system is impossible, they argue, without dismantling the capital punishment system for good. 


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STUDY: Pervasive Rubberstamping by State Courts Undermines Legitimacy of Harris County, Texas Death Sentences

State-court factfinding by judges in Harris County, Texas death-penalty cases is "a sham" that "rubberstamps" the views of county prosecutors, according to a study of the county's capital post-conviction proceedings published in the May 2018 issue of the Houston Law Review. In The Problem of Rubber Stamping in State Capital Habeas Proceedings: A Harris County Case Study, researchers from the University of Texas School of Law Capital Punishment Center examined factfinding orders in 191 Harris County capital post-conviction proceedings in which factual issues were contested, and found that in 96% of the cases, Harris County judges adopted the county prosecutors' proposed findings of fact verbatim. In the vast majority of cases, judges signed the state’s proposed document without even changing the heading. Looking at the 21,275 individual factual findings that county prosecutors had proposed, the researchers discovered that 96% of the judicial findings were word-for-word what prosecutors had written. The study's authors—Capital Punishment Center Director and Judge Robert M. Parker Chair in Law Jordan M. Steiker, Center Co-Director and Clinical Professor James W. Marcus, and Clinical Fellow Thea J. Posel—identified two related state post-conviction practices that they say "undermine the accuracy and fairness of the death penalty" in the nation's most prolific county for executions: "the reluctance of state trial courts to conduct evidentiary hearings to resolve contested factual issues, and the wholesale adoption of proposed state fact-finding instead of independent state court decision-making." State post-conviction applications typically present affidavits from witnesses and experts containing evidence that could have been, but was not, presented at trial. This evidence may "relate[ ] to the accuracy of the conviction, including forensic, alibi, or eyewitness testimony; or the affidavits might highlight important [penalty-phase] mitigating evidence regarding the inmate’s psychiatric or psychological impairments, abused background, or redeeming qualities." The systemic rubberstamping rejects this evidence, often without any evidentiary hearing into contested factual issues. The "inadequate development of facts" caused by this "one-sided consideration of contested factual issues," the researchers say, "prevents Harris County post-conviction courts from enforcing federal constitutional norms." The sham state-court proceedings also lead to unreliable federal habeas corpus review of Harris County death sentences, the researchers said, "[b]ecause even rubberstamped findings receive deference in federal court." When federal habeas relief is denied and an execution occurs, "prosecutors and newspapers recount the many layers of review undertaken" in the case, notwithstanding the underlying reality that "those layers of review afforded no meaningful consideration of the inmate’s constitutional claims." The reality of rubberstamped state-court factfinding and illusory federal appellate review, they say, "undermines the legitimacy of Harris County executions."


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Texas Executes Juan Castillo Without a Hearing on His Claims of Innocence and Ineffective Representation

Texas executed Juan Castillo (pictured) on May 16, 2018, after its state courts stayed his execution to address whether his conviction and death sentence for a botched robbery and murder had been a product of false testimony, but then denied him an evidentiary hearing necessary to prove that claim. No physical evidence implicated Castillo in the murder, and he consistently asserted his innocence. To convict him, Bexar County prosecutors presented testimony from several admitted perpetrators who had been given favorable plea deals, corroborated by the testimony of prison informant, Gerardo Gutierrez, who claimed that Castillo had confessed to him. But in 2013, Gutierrez recanted, admitting in a sworn affidavit that he had lied "to try to help myself." With Castillo facing a December 2017 execution date, the Texas Court of Criminal Appeals granted him a stay on November 28, and directed the trial court to resolve his claim that prosecutors had violated his rights by presenting false or perjured testimony from Gutierrez. Two days later, on November 30, the Bexar County District Attorney's office submitted proposed findings of fact and a proposed order to deny Castillo's petition without a hearing. The next day, on December 1, Judge Maria Teresa Herr adopted the prosecution's proposed findings and order verbatim—changing only the signature line on the order—without permitting Castillo's lawyers to submit proposed findings or to respond to the prosecution's submission. The Texas Court of Criminal Appeals upheld the ruling, and with Texas prosecutors arguing that defects in the state-court process were not a basis for federal review because prisoners "ha[ve] no due process right to collateral proceedings," the U.S. Supreme Court declined to intervene. Castillo also asked the Texas Board of Pardons and Paroles and Governor Greg Abbott to stop his execution. Greg Zlotnick, who represented Castillo in his clemency proceedings, argued that the treatment of Castillo's case by the courts "had been marked by unfair and arbitrary decisions" and the courts had "rubber-stamped" the denial of Castillo's latest petition "with no regard for his opportunity to be heard." Zlotnick argued that Castillo’s trial lawyers "failed to actively investigate the case, speak with witnesses, question police, request additional evidence from law enforcement and district attorney offices, and properly plead legal claims in the courts" and that the post-conviction courts had denied without a hearing Castillo's "common-sense request for DNA testing on physical evidence that could have pointed to another perpetrator." Trial counsel's performance was so bad, Zlotnick said, that "Mr. Castillo even felt compelled to represent himself at sentencing." After the pardons board denied the clemency application, the Texas Defender Service (TDS)—which became involved in the case close to the execution date—sought a 30-day reprieve from Governor Abbott to further develop evidence in the case. In a May 15 letter to the governor, executive director Amanda Marzullo wrote that TDS had discovered additional evidence that contradicted the testimony given at Castillo’s trial, including a video of a woman telling police—contrary to her prior statements—that Castillo had never told her he was the triggerman. Abbott did not act on that request. Castillo was the eleventh person executed in the United States in 2018, and the sixth in Texas.


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Prosecutors Withdraw Death Penalty, Agree to Guilty Pleas in Two High Profile Cases With Multiple Victims

State and federal prosecutors have agreed to withdraw the death penalty in exchange for guilty pleas by defendants charged with multiple killings in two unrelated high-profile murder cases. On May 4, Lake County, Indiana prosecutors dropped the death penalty against Darren Vann (pictured, left), who had killed seven women. On May 1, federal prosecutors announced they would not pursue the death penalty against Esteban Santiago (pictured right), who killed five people and wounded six others in a shooting rampage at the Fort Lauderdale-Hollywood International Airport in Florida in 2017. Military records reflect that Vann—a former Hawk Missile system operator who had earned a National Defense Service Medal—was prematurely discharged from the Marine Corps in 1993 for conduct described as "incongruent with Marine Corps’ expectations and standards." Vann had been capitally charged in the strangulation deaths of two women after having been released from prison in Texas in 2013 where he had served time for a rape conviction. County prosecutors agreed to withdraw the death penalty in exchange for his admission of guilt in their murders and the murders of five other women in an area of Gary, Indiana, frequented by sex workers and drug users. He was arrested in October 2014 after police found one victim's body in a motel bathtub. Vann told police he had killed six other women and later led authorities to their remains. Marvin Clinton, the longtime boyfriend of one of the victims and father of her child, called the death penalty "the easy way out" and said he preferred than Vann be sentenced to life without parole. "I want him to suffer," Clinton said. "These women will haunt him for the rest of his life.” Federal prosecutors reached a plea agreement that would avoid a protracted death-penalty trial for Santiago, a severely mentally ill Iraqi War veteran who suffers from auditory hallucinations and is being medicated for schizophrenia. Santiago opened fire in the Fort Lauderdale airport two months after having been released from a psychiatric hospitalization in Alaska. At that time, Santiago told local FBI agents in Anchorage that he was hearing voices and thought the government was controlling his mind. Local police then confiscated his handgun, but returned it to him weeks before the airport shooting. Santiago's lawyer, Assistant Federal Public Defender Eric Cohen, said Santiago has expressed remorse for the shooting. U.S. District Judge Beth Bloom has ordered Santiago to undergo a mental health evaluation to ensure he is legally competent to plead guilty and has scheduled a competency hearing for May 23.


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Texas Judge Finds Prosecutors Lied That Victim's Family Supported Death Penalty, Recommends Resentencing to Life

Finding that prosecutors withheld evidence that the family of murder victim Jonas Cherry opposed the death penalty for his accused killer and then lied to jurors that Cherry’s family supported the death penalty, a trial judge in Tarrant County, Texas has recommended overturning the death sentence imposed on Paul David Storey (pictured) and replacing it with a sentence of life without parole. Storey was convicted and sentenced to death in 2008 for murdering Cherry during a 2006 robbery of a Fort Worth putt-putt golf course. The victim’s parents, Glenn and Judith Cherry, told prosecutors before the trial that they did not want any of the people charged with the murder sentenced to death. But in the penalty-phase closing argument in Storey’s trial, Assistant Tarrant County District Attorney Christy Jack told the jury "[i]t should go without saying that all of Jonas [Cherry’s] family and everyone who loved him believe the death penalty [is] appropriate.” In March 2017, Cherry’s parents sought clemency for their son’s killer. In a letter to Governor Greg Abbott, they wrote that, as a result of their “ethical and spiritual values,” they strongly oppose the death penalty, and said “[w]e do not want to see another family having to suffer through losing a child and family member.” Storey’s execution, they wrote, “will not bring our son back, will not atone for the loss of our son and will not bring comfort or closure.” On April 7, 2017, less than a week before Storey was scheduled for execution, the Texas Court of Criminal Appeals issued a stay and ordered the trial court to determine whether the prosecution had knowingly misled the jury about the family’s views. After hearing testimony from nineteen witnesses, Judge Everett Young found that the prosecutor’s argument was false, that Jack had “made the argument intending it to affect the jury's verdict,” and that she “was aware of [its] falsity” when she did so. Concluding that “the false argument was reasonably likely to affect the jury's verdict,” Judge Young held that the argument violated Storey’s right to due process and that the prosecutors’ suppression of evidence relating to the Cherry family’s views violated their duty to disclose evidence favorable to the defense. The court also ruled that “[t]he false argument ... had the effect of reducing the responsibility of jurors by inviting them to acquiesce to the falsely-asserted desire of the victim's family for death,” in violation of the Eighth Amendment. The Tarrant County District Attorney’s office had argued that even if the argument had been improper, Storey had not timely raised the claim in the Texas courts. The court ruled, however, that the state had “unclean hands due to its suppression ... and false use of the evidence and had forfeited that argument. It wrote: “Because the State secreted evidence it was legally required to disclose, it cannot benefit from its wrong-doing by faulting [defense] counsel for failing to discover its own misconduct.” The case now returns to the Texas Court of Criminal Appeals, which may accept or reject the judge’s findings and sentencing recommendation. “Basically, it is now up to the Court of Criminal Appeals,” said Keith Hampton, a member of Storey’s legal team. 


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