Death Penalty Information Center en-US Fri, 03 Apr 2020 16:21:00 -0400 Fri, 03 Apr 2020 16:51:07 -0400 2019 Exoneration Report: Official Misconduct and Perjury Remain Leading Causes of Wrongful Homicide Convictions Fri, 03 Apr 2020 16:21:00 -0400 Death Penalty Information Center Official misconduct and perjury or false accusation continue to be the main reasons innocent men and women are wrongfully convicted in America, according to the 2019 annual report by the National Registry of Exonerations. That misconduct, the report indicates, is most prevalent in cases involving the most serious criminal charges.

The registry reported on March 31, 2020 that 143 men and women were exonerated in 2019 following wrongful convictions across the United States. More than half (76) involved wrongful convictions for homicide, including three people who had been sentenced to death, and other cases in which innocent defendants had been capitally tried, defendants threatened with the death penalty had falsely confessed, or witnesses threatened with the death penalty had provided testimony falsely implicating innocent defendants.

Perjury or false accusation was present in 101 of the 143 exonerations (70.6%), making it the most prevalent factor in the 2019 exonerations, largely because of 14 exonerations in which a Chicago police sergeant had planted drugs on suspects he had arrested. Even then, perjury or false accusation was more pronounced in homicide cases, where it was present 76.3% of the time (58 of 76 cases), as compared with 43 of 67 (64.2%) non-homicide cases.

Official misconduct by police, prosecutors, or other government actors — most commonly in the form of withholding exculpatory evidence — was the next most frequent contributing factor in the 2019 exonerations, occurring in nearly two-thirds of all exonerations (93 of 143). Again, misconduct was more pronounced in the wrongful homicide convictions, in which it was 1.4 times more likely to occur. Misconduct was present in three-quarters of homicide exonerations (57 of 76 cases), compared to slightly more than half (36 of the 67, 53.7%) of the wrongful conviction for crimes other than homicide.

The report noted that exonerations in 2019 involved a record number of years lost to incarceration – the 143 exonerees spent a total of 1,908 years in prison. This pattern was reflected in the death-row exonerations that took place last year, which included two prisoners who each spent more than 40 years wrongfully incarcerated and a third who was on death row for 26 years.

Barbara O’Brien, the report’s author, emphasized the prevalence of wrongful convictions throughout the legal system, and the importance the issue has taken on during the current pandemic. "Right now, there are likely thousands of innocent people in U.S. jails and prisons as a result of wrongful convictions. It is hard to imagine the horror of being incarcerated today — innocent or guilty — as the COVID-19 virus is spreading through these closed spaces and threatening lives,” she said.

STUDIES—Junk Psychological Science Continues to Infect Death-Penalty Determinations Thu, 02 Apr 2020 19:01:00 -0400 Death Penalty Information Center Courts are failing badly in keeping junk psychological science out of the courtroom in criminal cases, permitting the admission of psychological tests that have never been reviewed for reliability and others that have been found unreliable, a recent study reports. Among the problematic tests, another group of psychologists write, is a “psychopathy checklist” commonly used by prosecutors to argue that a defendant poses a future danger to society and should be sentenced to death.

The article, Psychological Assessments in Legal Contexts: Are Courts Keeping “Junk Science” Out of the Courtroom?, which was published February 15, 2020 in the Association of Psychological Science journal, Psychological Science in the Public Interest, looked at 364 psychological assessment tools psychologists reported having used in legal cases. It found that nearly a quarter of the tests were considered unreliable, one-third lacked general acceptance in the field of psychology, “and only about 40% ha[d] generally favorable reviews of their psychometric and technical properties.” Yet, the researchers wrote, legal challenges to the tests were raised in only 5.1% of the 876 state and federal cases reviewed in which the evidence was presented, and those challenges failed about two-thirds of the time.

“There’s a lot of stuff that looks like it’s junk and should be filtered out by the courts, but it’s not being filtered out,” said Arizona State University psychology professor Tess Neal, the lead author of the study.

One controversial psychological test, the Hare Psychopathy Checklist—Revised (PCL–R), came under fire in the American Psychological Association’s journal, Psychology, Public Policy, and Law. In a joint statement first published on-line on January 30, 2020, thirteen expert psychiatrists and psychologists wrote that while the test may have general usefulness in measuring psychopathy “as a construct,” it is “inappropriate [to use] the PCL–R to draw conclusions about an individual’s risk for committing serious violence in high-security custodial facilities.” Such conclusions are often critical in capital sentencing determinations in states such as Texas in which finding that a defendant poses a continuing threat to society is a prerequisite to imposing a death sentence.

The experts criticize the PCL–R as plagued by adversarial allegiance — mental health witnesses called by the prosecution will rate a defendant’s level of psychopathy higher than defense experts will during “evaluations of the same person, made around the same time, and even when made on the same information base.” They also say that “the association between PCL–R scores and serious institutional violence is negligible,” making the test unreliable as an indicator of whether a defendant will actually commit violence in prison. The PCL–R “cannot make predictions that an individual will engage in serious institutional violence with any reasonable degree of precision or accuracy,” they say, “and should not be used for this purpose in capital sentencing evaluations.”

Colorado District Attorneys Drop One Capital Prosecution, Continue a Second, After State Abolishes Death Penalty Wed, 01 Apr 2020 15:31:00 -0400 Death Penalty Information Center After ignoring health risks posed by lengthy court proceedings during the coronavirus pandemic and facing criticism that a capital prosecution following the state’s abolition of capital punishment would amount to a politically partisan waste of taxpayer dollars, prosecutors in Adams County, Colorado have announced that they will drop the death penalty in a high-profile case involving the killing of a sheriff’s deputy.

On March 30, 2020, 17th Judicial District Attorney Dave Young filed papers in the trial court to withdraw pursuit of the death penalty against Dreion Dearing (pictured). Young blamed Colorado Governor Jared Polis for the prosecution’s choice to drop the death penalty, saying the Governor’s commutation of the death sentences of the three men on the state’s death row made continuing to seek the death penalty futile. “The People cannot overcome Governor Polis’ stated intent to forego any death sentence with a stroke of his pen,” Young’s pleading said.

Colorado’s death-penalty abolition law applies only to cases in which capital charges are brought after July 1, 2020, leaving open the possibility that prosecutors could still seek the death penalty in a small number of pending and future cases. In El Paso County, prosecutors are still seeking the death penalty against Marco Garcia-Bravo in a trial in which jury selection has been delayed until at least July 17. “Right now, nothing has changed” regarding the pursuit of the death penalty in that case, 4th Judicial District Attorney’s Office spokeswoman Lee Richards told the Colorado Springs Gazette.

Texas Appeals Court Rejects Recommendation for New Trial for Death-Row Prisoner Tue, 31 Mar 2020 17:30:00 -0400 Death Penalty Information Center The Texas Court of Criminal Appeals (TCCA) has once again rejected the findings of a trial court that a death-row prisoner was entitled to relief from his conviction or death sentence.

Applying a narrow interpretation of a 2013 junk-science law, the court on March 11, 2020 set aside the recommendation of an El Paso County trial court that death-row prisoner Rigoberto Avila should be granted a new trial as a result of the prosecution’s reliance on false and outdated scientific evidence. The court wrote that Avila had failed to meet the “’Herculean’ burden to prove by clear and convincing evidence that no reasonable juror would have convicted him based on the new evidence.”

The ruling followed two other recent TCCA decisions refusing to overturn death sentences that trial courts had said were unconstitutionally imposed. In October 2019, the TCCA reinstated a death sentence imposed on Paul Storey, reversing a Tarrant County court ruling that had reduced Story’s sentence to life because the prosecutor lied to the jury that the victim’s family wanted the death penalty.

In June 2018, after already having been reversed by the U.S. Supreme Court on the same issue, the TCCA ruled that Bobby Moore is not intellectually disabled and may be executed, despite a finding by a Harris County trial court judge, a concession from the Harris County District Attorney’s office, and briefs from numerous professional associations and disability advocates all concluding that Moore meets the diagnostic criteria for intellectual disability. The Supreme Court later overturned the TCCA for a second time, and Moore was resentenced to life in prison.

After Unanimous House Passage, Florida Senate Fails to Enact DNA Reforms Mon, 30 Mar 2020 17:05:00 -0400 Death Penalty Information Center After receiving unanimous support in the Florida House of Representatives, a bill that would have expanded access to postconviction DNA testing failed in the Florida Senate when the legislative body adjourned its 2020 legislative session without taking up the bill.

Introduced by State Representative Jamie Grant (pictured, R–Tampa) on February 5, 2020, CS/HB 7077 sailed through the House of Representatives with ease, passing the House Appropriations Committee on February 18 by a vote of 27-0 and the House Judiciary Committee by a 17-0 vote on February 27. It passed the full House by a vote of 114-0 on March 10. However, the Senate Judiciary Committee indefinitely postponed consideration of the proposal on March 14, and the bill died in committee.

Representative Grant said the bill was inspired by the case of death-row prisoner Tommy Zeigler, who has maintained his innocence for more than four decades but has been denied access to DNA testing that he argues could prove his case. Limited DNA testing that has been conducted in the case showed that the victim’s blood was not present on the clothes Zeigler was wearing the night the murder occurred. He has unsuccessfully sought additional testing of fingernail scrapings from the victim and blood from other clothing to further bolster his innocence case. In March 2019, Monique Haughton Worrell, the head of the Conviction Integrity Unity created by Orange/Osceola County State Attorney Aramis Ayala, recommended that prosecutors support Zeigler’s application for DNA testing. However, documents obtained in an open records request by the Tampa Bay Times show that, after Worrell left the position, the unit’s new director, Amanda Simpaio Bova, believed new testing would not fully exonerate Zeigler. Ayala then denied Zeigler’s request.

Under the legislation proposed by Rep. Grant, DNA testing could be conducted even if it was only likely to provide additional evidence, rather than fully exonerate a prisoner. “I’ll keep working on it until it’s done,” Grant said after the bill died in the Senate. “I think this is an example that sometimes the process can be really ugly.” David Michaeli, an attorney for Zeigler, was encouraged by the unanimous support the bill received in the House. “How many bills accomplish that?” he said. “It tells us something about the common sense wisdom of testing and the fact that it is a nonpartisan issue.”

Coronavirus Pandemic Halts Executions, Perhaps for the Foreseeable Future Fri, 27 Mar 2020 18:01:00 -0400 Death Penalty Information Center The public health crisis from the COVID-19 coronavirus pandemic has halted executions in the United States and, legal experts say, is likely to continue to do for the foreseeable future.

With nine of the eleven serious death warrants between March 15 and June 30, 2020 scheduled in Texas, the decisions by the Texas Court of Criminal Appeals (TCCA) to issue 60-day stays for the two prisoners with March execution dates suggests that other stays are likely to follow. Citing “the current health crisis and the enormous resources needed to address that emergency,” the TCCA stayed John Hummel’s March 18, 2020 execution on March 16, and three days later halted the March 25 execution of Tracy Beatty.

Viewed in concert with the TCCA’s March 13 First Emergency Order Regarding the COVID-19 State of Disaster—which directs all Texas courts to modify or suspend court deadlines and procedures during the current State of Disaster when necessary “to avoid risk to court staff, parties, attorneys, jurors, and the public”—it seems unlikely that executions would resume during that period. “When courts aren't even capable of dealing with the ordinary business, it is unrealistic to expect they'll be capable of dealing with extraordinary business,” DPIC Executive Director Robert Dunham told UPI.

The prospects of new short-term execution dates being set during the height of the pandemic also appears increasingly remote. The Wall Street Journal reports that prosecutors in Georgia, whose two-week death warrant period is the shortest in the nation, said executions are “taking a back seat to more urgent priorities.” Katie Byrd, a spokeswoman for Georgia Attorney General Chris Carr told the Journal: “The state of Georgia’s resources are focused on ensuring essential services and functions of state government in light of the current public health emergency, and it would be highly unlikely the state would proceed until such emergency subsides.”

United Kingdom Supreme Court Rules Britain Cannot Provide Evidence to U.S. for Use in Death-Penalty Cases Thu, 26 Mar 2020 16:53:00 -0400 Death Penalty Information Center In a decision that exposed the deep divide between the United States and its European allies on capital punishment issues, the Supreme Court of the United Kingdom unanimously ruled that the British government unlawfully provided information to the United States about two suspected Islamic State members without first obtaining assurances that the information would not be used to impose or carry out the death penalty.

The landmark ruling, issued March 25, 2020 in the case of Elgizouli v. Secretary of State for the Home Department, requires British authorities to withhold from the United States any evidence that the United States could use to prosecute Shafee El Sheikh and Alexander Kotey—two British Islamic State detainees accused of murdering U.S. and British captives—because U.S. officials had refused to rule out pursuit of the death penalty in their cases. “No further assistance should be given for the purpose of any proceedings” against El Sheikh and Kotey “in the United States of America,” Lord Brian Kerr wrote for the Court, “without the appropriate death penalty assurances.”

The U.S. State Department did not offer immediate comment on the ruling.

Human rights organizations and international capital defense organizations praised the U.K. high court’s decision. The London-based Death Penalty Project, which the Court permitted to intervene in the lawsuit, described the decision’s importance as “wider than just this case.” The organization’s Co-Executive Director Parvais Jabbar said the ruling “has implications for any individual who may be facing the death penalty and concerns what assurances the U.K. Government must seek before deciding what help or assistance it may give. These are fundamental issues concerning the right to life. The UK abolished the death penalty over 50 years ago and the Government must hold true to its commitment to oppose capital punishment in all circumstances and as a matter of principle.”

Maya Foa, Director of the international human rights organization Reprieve, assailed the British government’s actions that led to the lawsuit. “By sharing information without first seeking—and securing—assurances that the death penalty wouldn’t be in play, this government acted unlawfully,” she said. “In doing so they undermined the U.K.’s strong assistance for people facing capital punishment across the globe, and so put hundreds of lives at risk.”

Georgia Death-Row Prisoner Asks Supreme Court to Strike Down Law That Evades Prohibition on Executing the Intellectually Disabled Wed, 25 Mar 2020 17:01:00 -0400 Death Penalty Information Center Georgia death-row prisoner Billy Daniel Raulerson, Jr. (pictured) is asking the U.S. Supreme Court to strike down a state law that, he argues, is permitting Georgia to unconstitutionally execute individuals with Intellectual Disability. On March 27, 2020, the Court is scheduled to consider whether to hear the case of Raulerson v. Warden and to review the constitutionality of Georgia’s evidentiary requirement that capital defendants prove they are intellectually disabled “beyond a reasonable doubt” before they are exempted from execution.

In 2002, in Atkins v. Virginia, the U.S. Supreme Court declared that the execution of individuals with intellectual disability violates the Eighth Amendment proscription against cruel and unusual punishment. While it has struck down several other state evidentiary rules that had resulted in the execution of some intellectually disabled offenders, it has so far declined to intervene in cases challenging Georgia’s strict burden of proving intellectual disability. In 1988, Georgia became one of the first states in the nation to prohibit the death penalty for the intellectually disabled. Yet, 32 years later, not a single defendant charged with intentional murder has been able to meet the state’s “beyond a reasonable doubt” burden of proof.

Raulerson filed his petition challenging that standard on January 24, 2020, calling Georgia’s burden of proof an “outlier” practice that no other state used in determining intellectual disability and that Georgia itself did not use in any other facet of intellectual disability law. Raulerson’s petition drew friend-of-the-court support in briefs filed by a coalition of disability rights organizations and mental disability professionals and by The Southern Center for Human Rights and the Roderick & Solange MacArthur Justice Center. Citing Cooper v. Oklahoma, a 1996 Supreme Court decision that struck down a lesser “clear and convincing evidence” standard that Oklahoma required defendants to meet for proving incompetence and Atkins’ absolute bar to executing the intellectually disabled, Raulerson asked the Court to take his case and declare Georgia’s burden of proof unconstitutional.

Colorado Becomes 22nd State to Abolish Death Penalty Tue, 24 Mar 2020 13:11:00 -0400 Death Penalty Information Center On March 23, 2020, Colorado became the 22nd U.S. state to abolish the death penalty, as Governor Jared Polis (pictured) signed legislation repealing the state’s capital punishment statute and commuted the sentences of the state’s three death-row prisoners to life without possibility of parole. The state was the tenth to legislatively or judicially abolish capital punishment in the past fifteen years.

Colorado’s abolition of capital punishment exemplifies a nationwide trend away from the death penalty, which has been particularly striking in the West. Governors in four Western states – California, Colorado, Oregon, and Washington – halted executions in recent years. Two of those states – Colorado and Washington – went on to judicially or legislatively abolish the death penalty, and Oregon restricted the circumstances in which it can be used. No state west of Texas has carried out an execution in the past five years and fewer new death sentences were imposed in those states last year than in any year since California brought back its death penalty in the late 1970s. Public support for the death penalty throughout the U.S. is near a generational low, dropping from a high of 80% in 1994 to 56% in 2019. A majority of Americans (60%) in last year’s death-penalty poll by the Gallup organization said they prefer life without parole to the death penalty as the appropriate punishment for murder.

The repeal bill did not address the fates of the state’s three death-row prisoners: Nathan Dunlap, Sir Mario Owens, and Robert Ray. In a statement released in conjunction with the executive orders commuting their sentences, Governor Polis said his acts of clemency were not based on humanitarian concerns, but “to reflect what is now Colorado law.” The commutations, he said, “are consistent with the abolition of the death penalty in the State of Colorado, and consistent with the recognition that the death penalty cannot be, and never has been, administered equitably in the State of Colorado.”

Alabama Judge Denies New Trial for Toforest Johnson Mon, 23 Mar 2020 17:24:00 -0400 Death Penalty Information Center A Birmingham judge has denied a new trial to Alabama death-row prisoner Toforest Johnson (pictured, center), saying he had not proven his claim that his conviction and death sentence for the killing of a sheriff’s deputy in 1995 were the product of prosecutorial misconduct.

Johnson was convicted in 1999 of murdering Jefferson County Sheriff’s Deputy William G. Hardy. Over the course of four different court proceedings, the state presented at least five different accounts of who committed the killing. No physical evidence connected Johnson to the crime, and ten alibi witnesses placed him at a nightclub on the other side of Birmingham when the shooting occurred. Johnson’s conviction rested on the testimony of one witness, Violet Ellison, who claimed she had been eavesdropping on a phone call her daughter had placed to the prison and overheard a man calling himself “Toforest” confess to the crime. Prosecutors did not disclose to Johnson’s lawyers or the jury that Ellison had been paid $5,000 in reward money for her testimony.

Johnson’s lawyers first learned in 2003 that a reward payment may have been made. The prosecution had been aware of the payment and the trial judge, Alfred Bahakel, whose brother Jerry was a Jefferson County sheriff’s deputy at the time Hardy was murdered, approved the payout. Neither disclosed the payment to the defense. After 15 years of litigation on the issue, the Alabama Attorney General’s office turned over documentation of the reward payment in January 2019. They blamed the delay on Jefferson County prosecutors having “misfiled” the records of the payment.

In a June 2019 hearing in Jefferson County court, Johnson presented evidence documenting the payment, including copies of the $5,000 check and a letter from then-District Attorney David Barber asking for the state to pay Ellison and acknowledging that she had come forward in an effort to collect the reward money. Ellison testified that she was unaware of the reward until several years after the trial, but Johnson’s lawyer, Ty Alper argued, “[t]he State does not just call you out of the blue, years after trial for no particular reason and tell you, we’d like to give you $5000 for this trial that you testified in three years ago.”

In a March 16, 2020 order, Judge Teresa Pulliam credited Ellison’s testimony, describing her as “well-dressed” and “articulate.” Ellison’s testimony, she wrote, outweighed the evidence presented by Johnson’s attorneys. His lawyers said they would appeal the court’s ruling.

Showing Coronavirus Symptoms, 'Likely Innocent' Death-Row Prisoner Seeks Emergency Medical Care Fri, 20 Mar 2020 16:24:00 -0400 Death Penalty Information Center Exhibiting symptoms of the coronavirus, a Philadelphia death-row prisoner who prosecutors now acknowledge is “likely innocent” and whose potential release has been delayed by the Philadelphia courts has filed an emergency motion to obtain testing and independent medical treatment for COVID-19.

Walter Ogrod (pictured)—sentenced to death in 1996 for the city’s highly sensationalized 1988 “baby in a box” murder—was taken to the death-row infirmary at Pennsylvania’s State Correctional Institution Phoenix last week with a 106° fever and a dry cough. His Boston-based pro bono attorney James Rollins, described Ogrod’s respiration as “like breathing through a sponge,” but said the only treatment he had received in prison was Tylenol and placement in and out of isolation.

On March 18, 2020, Rollins filed two emergency motions in the Philadelphia Court of Common Pleas. One sought an order directing the Pennsylvania Department of Corrections (DOC) to take Ogrod “to a hospital outside of the prison for COVID-19 testing and appropriate treatment forthwith.“ The second motion urged the Philadelphia trial court to issue an expedited ruling on two claims that the Philadelphia District Attorney’s office agrees entitle Ogrod to a new trial. Ogrod’s counsel urged immediate action on his petition “[b]ecause of Mr. Ogrod’s dire medical condition in the midst of a worldwide pandemic, the prison’s apparent inability to test him for the coronavirus (COVID-19) and treat him, and his incarceration on death row despite his likely innocence.”

On February 28, 2020, Ogrod and the Philadelphia District Attorney’s office filed a Joint Stipulation in the Philadelphia courts describing why new evidence required Ogrod’s conviction to be set aside. The DA’s Conviction Integrity Unit filed an accompanying brief calling Ogrod’s conviction a “gross miscarriage of justice” based upon “false, unreliable and incomplete” evidence and that Ogrod was “likely innocent.” The Conviction Integrity Unit said police and prosecutors at the time of trial had known that 4-year-old Barbara Jean Horn had died of asphyxiation but had withheld that evidence from the defense and proceeded to trial under the theory that Ogrod had sexually assaulted the girl and beaten her to death with a weight bar. Barbara Jean’s naked body had been found in a plastic bag in a cardboard box that had been put out for trash collection. The DA also disclosed that the homicide detectives who obtained a confession from Ogrod after between 8-16 hours of interrogation had a history of coercing false confessions, and that the jailhouse informants who implicated Ogrod in his second trial—his first ended in a mistrial after an 11-1 jury vote favoring acquittal—had colluded with one another and lied to the jury.

Philadelphia Common Pleas Court Judge Shelley Robbins New, herself a former Philadelphia homicide prosecutor, refused to accept the Joint Stipulation without an evidentiary hearing and initially set a March 27 court date. Without explanation, the court postponed the hearing until June.

“There's no reason for [Ogrod] to still be in prison,” Rollins told Philadelphia’s KYW Newsradio. “He's innocent. The judge needs to act on the petition. Barring his immediate release, we at least want him to get some treatment beyond what's available in the prison.”

[UPDATE: The Philadelphia Court of Common Pleas granted the emergency treatment motion on March 20, 2020. However, the Pennsylvania Department of Corrections refused to comply with the order, arguing that the court lacked jurisdiction to rule on that issue. On March 25, the court vacated its order.]

Ohio Death-Row Prisoner Granted New Trial After Lawyer Allowed Racially Biased Juror to Sit on Jury Thu, 19 Mar 2020 11:14:00 -0400 Death Penalty Information Center The Ohio Supreme Court has granted a new trial to a Cincinnati death-row prisoner whose lawyer’s inaction permitted a racially biased juror to serve in his case. In a 5-2 opinion issued February 27, 2020, the court ruled that defense counsel for Glen Bates (pictured) had been ineffective for failing to question a juror about her racial bias, challenge her for cause, or exercise one of his remaining discretionary strikes to prevent her from serving in the case, in violation of his right to an impartial jury.

Bates had been convicted and sentenced to death in 2015 for the murder of his two-year-old daughter. Evidence in the case showed she had been starved and abused over an extended time period.

Several jurors indicated in responses to a jury questionnaire that “[s]ome races and/or ethnic groups tend to be more violent than others.” One white juror indicated that she “strongly agree[d]” with that statement, then wrote in the space provided for explanation: “Blacks.” When asked whether there was “any racial or ethnic group that you do not feel comfortable being around?,” she responded: “Sometimes black people.” Even though Bates is Black, his lawyer accepted the juror without questioning her about her biases, challenging her for cause, or using an available peremptory challenge to strike her from the jury.

The majority opinion found that the seating of this juror created a constitutionally unacceptable risk that a “powerful racial stereotype—that of black men as ‘violence prone,’ infected the jury’s deliberations.” The court reversed Bates’ conviction and death sentence and directed that he be granted a new trial.

Virginia Death Row Shrinks to 2 as Prosecutor Drops Death Penalty Against Mark Lawlor Wed, 18 Mar 2020 10:04:00 -0400 Death Penalty Information Center Virginia’s death row shrank to just two prisoners on March 12 as recently elected Fairfax County, Virginia Commonwealth’s Attorney Steve T. Descano agreed to a deal to resentence former death-row prisoner Mark Lawlor (pictured) to life without parole. Lawlor was sentenced to death in 2011 for the murder of Genevieve Orange. No one has been sentenced to death in Virginia since.

A federal appeals court overturned Lawlor’s death sentence in 2018, holding that the trial judge had unconstitutionally prevented the defense from presenting expert testimony that Lawlor would not be dangerous in a prison setting. Former Commonwealth Attorney Raymond F. Morrogh, whom Descano defeated in the 2019 Democratic primary election, had personally prosecuted Lawlor and had argued that the death penalty was appropriate because Lawlor would pose a future danger to society unless sentenced to death. He nevertheless moved to bar the defense testimony and the trial court granted his motion.

Morrogh had planned to reprosecute Lawlor, if re-elected. But Descano, who ran on a platform of criminal justice reform that included a pledge to “not seek the death penalty — period, full stop,” agreed to resentence Lawlor to life. Descano called Lawlor’s life sentence “a notable outcome because it exemplifies that our criminal justice system can seek justice, find resolution, and keep our community safe while adhering to our community’s values.”

Texas Court Issues 60-Day Stay of Execution for John Hummel in Response to Coronavirus Crisis Tue, 17 Mar 2020 13:07:00 -0400 Death Penalty Information Center Responding to escalating health concerns caused by the COVID-19 coronavirus pandemic, the Texas Court of Criminal Appeals (TCCA) has temporarily halted the execution of John Hummel. In an order issued on March 16, 2020, the TCCA stayed Hummel’s execution, which had been scheduled for March 18, for 60 days, saying the delay was necessary “in light of the current health crisis and the enormous resources needed to address that emergency.”

Hummel’s attorney had asked for the stay, arguing that the health crisis has impeded last-minute investigations in the case, and that bringing execution witnesses into the prison would put vulnerable people, especially prisoners, at risk of contracting the virus. Three other executions are scheduled in Texas in the next 60 days, but it is not yet clear what action the court will take on those cases.

In a March 13 filing, Hummel’s attorney, Michael Mowla, argued that societal disruptions related to the pandemic would impede final review of Hummel’s case and that moving forward with the execution could endanger witnesses, prisoners, and prison staff. He also said that the absence of members of the execution team due to illness could increase the risk of a botched execution. Noting that courts, the governor, and the Board of Pardons and Paroles must all consider final appeals and clemency pleas, Mowla said, “Disruptions in any one of those offices—or the illness of a judge or decision maker—could render it impossible for Hummel to receive review.”

Also on March 13, the TCCA issued a First Emergency Order Regarding the COVID-19 State of Disaster. The order grants all Texas courts discretion to “[m]odify or suspend any and all deadlines and procedures … for a stated period ending no later than 30 days” after the current State of Disaster declared by Governor Greg Abbott is lifted. The order mandates suspension of procedures where necessary “to avoid risk to court staff, parties, attorneys, jurors, and the public.” Legal experts said that the order was likely to cover procedures such as executions, clemency hearings, and the issuance of new death warrants.

Georgia Supreme Court Votes 9-0 for New Trial for Former Death-Row Prisoner Johnny Gates Mon, 16 Mar 2020 19:02:00 -0400 Death Penalty Information Center More than forty years after he was convicted and sentenced to death by an all-white Columbus, Georgia jury for the rape and murder of a 19-year-old white woman, Johnny Lee Gates (pictured) will be getting a new trial. On March 13, 2020, the Georgia Supreme Court unanimously held that DNA contained on physical evidence that police and prosecutors had withheld for decades raised “significant doubt” as to Gates’ guilt.

The court’s 9-0 decision rejected an appeal by state prosecutors of a January 2019 trial court ruling that had set aside Gates’ convictions in the 1976 killing. DNA testing of physical evidence that police and prosecutors had falsely claimed no longer existed excluded Gates as the source of DNA on a bathrobe belt and several neckties that the killer had used to bind his victim. The decision was the culmination of decades of court proceedings that litigated Gates' innocence and intellectual capacity and systemic race discrimination by the prosecution.

DPIC Analysis: Exoneration Data Suggests Non-Unanimous Death-Sentencing Statutes Heighten Risk of Wrongful Convictions Fri, 13 Mar 2020 17:39:00 -0400 Death Penalty Information Center Capital sentencing schemes that permit judges to impose a death sentence despite the votes of one or more jurors for life create a heightened risk that an innocent person will be wrongfully convicted and sentenced to death, according to a new Death Penalty Information Center analysis of death-row exoneration data.

DPIC found that one or more jurors had voted for life in more than 90% of the death-row exonerations in states that permitted judges to impose death sentences based on a jury's non-unanimous sentencing recommendations or allowed them to override jury votes for life. The three states that allowed those practices—Florida, Alabama, and Delaware—collectively account for one-fifth of all the death-row exonerations since capital punishment resumed in the United States in 1972.

DPIC was able to determine the jury vote in 30 of the 32 exonerations arising out of death sentences imposed in those states since 1972. In 28 of the 30 cases for which the jury vote is known—an astounding 93.3%—at least one juror had voted for life. DPIC was unable to find information on the jury vote for one 1974 conviction in Florida and a defendant in one Alabama case had waived his right to a sentencing jury.

"Death sentences imposed by judges without the unanimous assent of jurors have long been controversial, and for good reason," said DPIC Executive Director Robert Dunham, who conducted the analysis. "They arose as a means to disenfranchise minority jurors and they often have been applied in an arbitrary, discriminatory, and politicized manner. That they also appear to create a significantly heightened risk that innocent people will be sentenced to death should be an important additional consideration in deciding whether this outlier practice should be permitted to continue or should be abandoned."

Since 2015, six former death-row prisoners who were sentenced to death by judges despite juror votes for life have been exonerated: Derral Hodgkins (2015), Ralph Wright (2017), Clemente Aguirre-Jarquin (2018), and Clifford Williams (2019) in Florida, Anthony Ray Hinton (2015) in Alabama, and Isaiah McCoy (2017) in Delaware. (Click here to enlarge photo montage.)

Alabama executed Nathaniel Woods March 5, 2020, despite a strong claim of innocence and undisputed evidence that he was not the shooter. Two jurors had voted to spare his life. It also executed Domineque Ray on February 7, 2019, with no physical evidence that he was even present at the scene of the murder. The prosecution had withheld evidence that the only person who implicated Ray in the murder was severely mentally ill and psychotic. The jury voted 11-1 to recommend that Ray be sentenced to death. Rocky Myers, who has a strong case of innocence and intellectual disability and received a 9-3 jury recommendation for life, also faces imminent execution.

Paul Hildwin was released from prison in Florida on March 9, 2020 after spending nearly 34 years incarcerated for a murder DNA evidence now shows he did not commit. Despite overwhelming evidence of innocence and a Florida Supreme Court opinion stating he would probably be acquitted on retrial, Florida prosecutors intended to retry Hildwin unless he accepted a plea deal for his release.

Winter 2020 Death Row USA: U.S. Death Row Shrinks 20% During the 2010s Thu, 12 Mar 2020 08:35:00 -0400 Death Penalty Information Center The number of people on death row across the United States or facing potential capital resentencings declined by nearly 20% in the 2010s, according to a Death Penalty Information Center analysis of data from the latest quarterly death-row census by the NAACP Legal Defense and Educational Fund (LDF).

The Winter 2020 edition of Death Row USA (DRUSA), released in March 2020, reports that 2,620 people were on death row as of January 1, 2020, down 2.6% from the 2,690 LDF reported in January 1, 2019. The death-row population dropped by 19.7% over the course of the last decade—down from 3,261 on January 1, 2010—and has fallen by 28.3% since January 1, 2000, when LDF reported 3,652 people on death row or facing capital resentencing.

The DPIC analysis found that fewer people were on death row or facing capital resentencing in the United States at the start of this decade than at the start of any year since 1992, when the December 1991 DRUSA reported 2,547 death-row prisoners or capital defendants sentenced to death or facing capital resentencing.

The number of U.S. prisoners facing active death sentences also continued to decline. A DPIC analysis of LDF’s death-row count found 240 individuals whose convictions or death sentences had been reversed who were awaiting retrial, resentencing, or completion of the appeals process. That left 2,380 prisoners facing active death sentences, 74 fewer (a decrease of 3.0%) than the 2,454 active death sentences at the start of 2019.

34.6% of those on death row or facing capital resentencing at the start of the decade (906 prisoners) were in states with moratoria on executions. Subtracting the cases in moratorium states and the cases in which convictions or death sentences have been overturned, LDF found that there were 1,525 currently enforceable death sentences in the country. The percentage of the nation’s death-row prisoners who do not have active and enforceable death sentences remained stable at just under 42%.

Timothy Hurst, Whose Case Struck Down Florida’s Death-Penalty Statute, Is Resentenced to Life Wed, 11 Mar 2020 15:51:00 -0400 Death Penalty Information Center Former Florida death-row prisoner Timothy Hurst (pictured), whose case led the U.S. Supreme Court to strike down Florida’s death-penalty statute in 2016 and spurred the elimination of non-unanimous jury verdicts for death in Florida and Delaware, has been resentenced to life without parole. Hurst was officially removed from Florida’s death row after his capital resentencing jury did not reach a unanimous sentencing recommendation on March 5, 2020.

The resentencing marked the third time prosecutors were unable to persuade a capital sentencing jury to unanimously recommend that Hurst be sentenced to death. Hurst had twice before received the death penalty under Florida’s unconstitutional death-sentencing statute – first in 1998 by a jury split 11-1 in favor of a death sentence and again in 2012 by a jury split 7-5 for death. Media reports did not indicate the jury vote in his latest sentencing trial.

Hurst’s first death sentence was overturned because of counsel’s ineffectiveness in failing to investigate and present available mitigating evidence. The U.S. Supreme Court agreed in 2015 to review Hurst’s second death sentence, and his case became the vehicle for a landmark decision striking down Florida’s death sentencing scheme. In an 8-1 ruling issued January 12, 2016, the Court declared Florida’s capital sentencing statute unconstitutional because it limited Hurst’s sentencing jury to an advisory role and reserved for the judge the authority to find the facts on which it based his death sentence. “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death,” the Court wrote. “A jury’s mere recommendation is not enough.”

The Court’s decision in Hurst v. Florida led the legislature to twice amend its capital sentencing statute. First, in March 2016, the statute was changed to require that jurors unanimously determine any aggravating circumstances necessary to impose death, and that at least ten jurors agree to recommend death before judge could consider imposing a death sentence. The Florida Supreme Court then ruled in October 2016 that the jury’s no-longer advisory penalty-phase decision constituted a verdict that, under Florida’s constitution, must be unanimous. The state court then struck down that new law because it did not require a unanimous jury recommendation of death. The state legislature then amended the law in March 2017 to require a unanimous jury recommendation for death before a judge could consider imposing a death sentence.

In August 2016, the Delaware Supreme Court relied on the U.S. Supreme Court’s decision to declare its death-sentencing procedures unconstitutional, and that December applied Hurst to all of the state’s death-penalty cases, clearing the state’s death row. With the Florida legislature’s decision, Alabama became the only remaining state in the United States to permit a judge to base a death sentence on a jury’s non-unanimous sentencing recommendation.

Paul Hildwin Released from Florida Prison 34 Years After Being Sentenced to Death Tue, 10 Mar 2020 16:39:00 -0400 Death Penalty Information Center Paul Hildwin, whose death sentence was upheld by the U.S. Supreme Court in 1989 in a decision it overruled 26 years later, has been released from prison in Florida after spending nearly 34 years incarcerated for a murder DNA evidence now shows he did not commit.

Hildwin (pictured, center, with investigator Kate O’Shea, left, and attorney Lyann Goudie, right) agreed to a no-contest plea deal to secure his immediate release on March 9, 2020, rather than risking a third attempt by Florida prosecutors to sentence him to death. “Paul Hildwin’s unwavering determination to one day walk free enabled him to survive three and a half decades behind bars, during which he battled four bouts of cancer,” said Nina Morrison, Innocence Project Senior Litigation Counsel, who helped represent Hildwin on his appeals from 2004 to 2014. “It is outrageous that Paul was held in jail for five more years after the Florida Supreme Court ruled that the new DNA would likely lead to his acquittal. And while we hoped that he would be fully exonerated, we are thrilled that Paul will not spend another day behind bars or face another death penalty trial.”

Hildwin was convicted in 1986 of the murder of Vronzettie Cox. He said Cox had given him a ride when he ran out of gas on the highway. Hildwin said she and her boyfriend, William Haverty, began fighting, and he stole a ring and a radio from the car while they weren’t looking. When the argument became heated, Cox and Haverty pulled the car over, and Hildwin left. Four days later, Cox’s body was found inside the trunk of her car in the woods. When Hildwin was found in possession of Cox’s property, he came under suspicion for her murder.

At trial, Hildwin was represented by an inexperienced lawyer who had never tried a murder case before. He failed to call two witnesses who said they had seen Cox alive 12 hours after prosecutors claimed Hildwin had killed her. Hildwin was convicted on testimony from an FBI forensics expert who claimed that semen and saliva from the crime scene had come from Hildwin and could not have come from Haverty. During Hildwin’s appeals, the Innocence Project took on his case and sought modern DNA testing. In 2003, tests excluded Hildwin as the source of the bodily fluids. The Innocence Project worked for seven years to convince prosecutors to run the DNA results through a national DNA database, and in 2010, the Florida Supreme Court ordered the DNA database search. The DNA from the crime scene matched Haverty, who was included in the database because of an unrelated conviction of 16 counts of sexual battery of a minor.

Media and Legal Organizations Urge Idaho Supreme Court to Require Execution Transparency Mon, 09 Mar 2020 17:47:00 -0400 Death Penalty Information Center Saying that states have “no compelling need” to keep execution information secret, the American Bar Association (ABA) has asked the Idaho Supreme Court to require the state to disclose numerous execution-related documents under Idaho’s freedom of information law. On February 28, 2020, the ABA and a coalition of Idaho media organizations led by the Idaho Press Club filed amicus curiae briefs in Cover v. Idaho Board of Correction in support of an Idaho law professor’s lawsuit seeking release of public records on Idaho’s execution procedures.

In 2017, Aliza Cover, a law professor at the University of Idaho, sued the Idaho Department of Correction (IDOC) after the agency refused to produce numerous execution-related records in response to Cover’s 2017 public-records request. IDOC initially responded to her request by disclosing only a copy of the state’s execution policy manual, but failed to disclose documents including purchase orders, receipts, lot numbers, and expiration dates for execution drugs. A state trial court ruled in 2019 that IDOC must release the records about past executions and IDOC appealed. The Idaho Supreme Court is expected to hear argument in the case later this year. Both amicus groups argue that revealing the state’s sources of lethal-injection drugs is in the public interest, and that the court should rule in favor of Professor Cover.

“There is no compelling need for secrecy around execution protocols,” the ABA brief stated. “No statute explicitly requires secrecy, and the department has no legitimate interest in carrying out unexamined, and potentially unconstitutional, executions.” The ABA does not take a position for or against capital punishment, but believes if a state authorizes the death penalty it should be “administer[ed] … fairly and accurately, with appropriate substantive and procedural protections.” In 2015, the ABA adopted a resolution making clear that transparency in executions is a necessary procedural safeguard, urging states to “require disclosure to the public, to condemned prisoners facing execution, and to courts all relevant information regarding execution procedures.” “[W]eighing the public interest in ensuring lawful executions against the Department’s interests in confidentiality and security,” the ABA brief argues, “the public interest prevails.” The Idaho Association of Criminal Defense Lawyers also filed a brief in support of transparency in executions.

The media coalition — including the Idaho Press Club, Idahoans for Openness in Government, the Associated Press, the Idaho Statesman, other local newspapers, and the Boise television station, KTVB — filed a separate brief urging the court to rule against the state’s efforts at secrecy. It is not for public officials “to decide what is good for the people to know,” the brief said. “Not only does allowing the press to report on executions promote a more informed discussion of the death penalty, it promotes the public perception of fairness and transparency concerning the death penalty,” the brief states.

The media brief also noted that public discourse in evaluating death-penalty practices plays an important role in assessing the “evolving standards of decency” that determine the constitutionality of those practices. Accurately assessing those standards “depends on public disclosure and debate about whether those punishments comport with our evolving understanding of the Eighth Amendment. By contrast, secrecy surrounding executions prohibits the public from meaningfully evaluating those actions.”