Publications & Testimony

QUESTION PRESENTED: Whether the Fifth Circuit erred in holding that 18 U.S.C. § 3599(f) withholds ​“reasonably necessary” resources to investigate and develop an ineffective- assistance-of-counsel claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the § 3599(f) motion is made. * * * * * On October 30, the Supreme Court held oral argument in Ayestas v. Davis. The Petitioner, Carlos Ayestas, was convicted and…

Exonerated: A History of the Innocence Movement, by Robert J. Norris, describes the rise of the ​“innocence movement,” the lawyers, investigators, journalists, lawmakers, and organizations that have worked to uncover wrongful convictions, educate the public about the problem, and reform the criminal justice system to prevent future mistakes. For the book, Norris interviewed 37 key leaders on the issue, including Innocence Project co-founders Barry Scheck and Peter Neufeld, and Rob Warden…

An Ohio appeals court heard argument on June 6 on whether to grant a new trial to former death-row prisoner Kevin Keith (pictured), whose death sentence was commuted to life without parole by Ohio Governor Ted Strickland in 2010 amid concerns that he may be innocent. Keith, who has consistently maintained his innocence of the three 1994 murders for which he was sentenced to death, presented argument to the Ohio Court of Appeals for the 3^rd District based on newly discovered evidence that the…

From 2007 to 2013, Dallas sentenced twelve capitally charged defendants to death — more than any other county in Texas — and Dallas ranks second nationally, behind only Harris County (Houston), in the number it has executed since 1972. But the county has not imposed any new death sentences since then, and the recent life sentences in the capital trials of Justin Smith and Erbie Bowser highlight a statewide trend away from the death penalty. Smith was charged with killing three and injuring two…

Robert Melson (pictured), an Alabama death-row prisoner whose clemency petition alleges that abandonment by his post-conviction lawyers prevented him from adequately challenging the flawed forensic evidence in his case, received a stay of execution from the U.S. Court of Appeals for the 11^th Circuit on a challenge to Alabama’s lethal-injection protocol. Melson was convicted of three murders at a Popeye’s restaurant in 1994. A survivor of the crime recognized one of two assailants as Cuhuatemoc…

The Indiana Court of Appeals has voided the state’s lethal-injection protocol. In a ruling on June 1, 2017, the state intermediate appeals court held that the Indiana Department of Corrections (DOC) had failed to comply with state rulemaking procedures when it adopted a never-before-used execution protocol without public notice or comment. In 2014, the DOC announced that it had adopted a new execution protocol ​“informally as an internal DOC policy.” The protocol called for a three-drug…

Todd Kohlhepp (pictured) pleaded guilty to seven South Carolina murders on May 26, 2017 and was sentenced to seven consecutive life sentences, plus 60 additional years for the kidnapping and sexual assault of surviving victim Kala Brown. Kohlhepp made a deal with prosecutors to avoid the death penalty, providing information that solved four murders at a motorcycle store in 2003 and sparing Brown and the families of the murder victims from enduring a lengthy trial and appeals process. Seventh…

Many factors contribute to wrongful convictions, and it is no different in capital cases. But the most recent data from the National Registry of Exonerations points to two factors as the most overwhelmingly prevalent causes of wrongful convictions in death penalty cases: official misconduct and perjury or false accusation. As of May 31, 2017, the Registry reports that official misconduct was a contributing factor in 571 of 836 homicide exonerations 68.3%, very often in combination with perjury…

A Las Vegas, Nevada, judge — who, as a prosecutor, committed misconduct in several death-penalty trials — now faces judicial misconduct charges arising out of another murder case in which a defendant he prosecuted has been granted a hearing to prove her innocence. The Nevada Commission on Judicial Discipline has charged Bill Kephart (pictured) with several violations of the judicial code of conduct for giving a media interview about his controversial 2002 prosecution of Kirstin Lobato that the…

On Friday, May 26, Alabama Governor Kay Ivey (pictured) signed into law a statute denominated the ​“Fair Justice Act,” which is designed to shorten the state death-penalty appeals process. The law constricts the amount of time death-row prisoners have to file appeals, imposes time limits for judges to rule on appeals, and requires prisoners to pursue their direct appeal and post-conviction appeal simultaneously, including raising claims of appellate counsel’s ineffectiveness while appellate…