Death Penalty Information Center en-US Mon, 11 Nov 2019 16:33:00 -0500 Tue, 12 Nov 2019 03:45:53 -0500 Texas Prisoner Receives Second Stay of Execution Over Religious Discrimination Issue Mon, 11 Nov 2019 16:33:00 -0500 Death Penalty Information Center A federal district court has granted a stay of execution to a Buddhist death-row prisoner in Texas over allegations that the state is discriminatorily denying him access to religious services that would be available to Christian prisoners on the day of their execution. On November 7, 2019, the United States District Court for the Southern District of Texas stayed the November 13 execution of Patrick Murphy (pictured), marking the second time in 2019 that his execution has been stayed over allegations that Texas’ policies regarding religious advisors are discriminatory. The Texas attorney general’s office has appealed the order.

In March, the U.S. Supreme Court granted a last-minute stay to Murphy based on allegations that Texas allowed Muslim and Christian prisoners to have a spiritual advisor present in the execution chamber, but did not grant such access for prisoners of other faiths. The stay came less than two months after the Court was sharply criticized for reversing a stay of execution and permitting Alabama to execute Domineque Ray, a Muslim death-row prisoner who had not been permitted to have an imam present in the execution chamber in circumstances in which a Christian chaplain was provided to condemned Christian prisoners. At the time, Justice Brett Kavanaugh suggested two ways Texas could afford all religious equal treatment and avoid a religious discrimination violation: by permitting all condemned prisoners to have a religious adviser of their religion present in the execution chamber or by excluding religious advisers from the execution chamber altogether and providing equal access to a religious adviser in witnessing the execution.

Texas responded by excluding religious advisers from the execution chamber. However, Murphy alleged that the new policy continues to discriminate because the state allows Christian and Muslim chaplains, who are employed by the Texas Department of Criminal Justice, to remain with prisoners until the moment the prisoner enters the executions chamber and requires other spiritual advisors to leave the prisoner two hours before execution.

In the stay order, U.S. District Judge George C. Hanks Jr. wrote that the religious discrimination concerns raised by Murphy about Texas’ pre-execution procedures “are as compelling as those in [his] original complaint.” The state’s revised policy “still favors some religions over others because TDCJ-employed chaplains, who are all Christian or Muslim, have greater access to the condemned than non-TDCJ employee spiritual advisors,” Hanks wrote. “If Murphy were Christian, he would have the benefit of faith-specific spiritual support until he entered the execution chamber; as a Buddhist he is denied that benefit.” Hanks temporarily halted Murphy’s execution, writing that a stay would provide the court “time to explore and resolve serious factual concerns about the balance between Murphy’s religious rights and the prison’s valid concerns for security.”

Texas’ Office of Attorney General filed a motion to vacate the stay in the U.S. Court of Appeals for the Fifth Circuit on November 8, 2019. Murphy filed his response on Sunday, November 9, supported by an amicus brief by the Becket Fund for Religious Liberty. As of publication, the circuit court had not ruled on the state prosecutor’s motion.

Jurors Speak About Decision to Impose Life Sentence in Florida Case at Center of Conflict Between Prosecutor and Governor Fri, 08 Nov 2019 11:31:00 -0500 Death Penalty Information Center On March 16, 2017, saying that capital punishment is “not in the best interests of this community or in the best interests of justice,” Orange/Osceola County (FL) state prosecutor Aramis Ayala announced that her office would not pursue the death penalty in any case. That decision, announced in connection with the prosecution of a man charged with killing his ex-girlfriend, her unborn child, and a police officer responding to the crime, ignited a political firestorm in which then-Florida Gov. Rick Scott removed Ayala from the case and replaced her with a special prosecutor. Scott subsequently issued executive orders removing Ayala from at least 26 other homicide cases.

On October 23, 2019, a Florida jury rejected the death penalty in the case that started it all, imposing a life sentence on Markeith Loyd (pictured) for the killings of Sade Dixon and her unborn child. The special prosecutor had sought the death penalty over the objection of Dixon’s family, who had supported Ayala’s decision to decapitalize the case. Loyd still faces a second trial and possible death sentence for the murder of police Lieutenant Debra Clayton.

Two jurors from Loyd’s trial spoke to local news outlet WFTV in early November, explaining how they reached their decision. One juror, who requested anonymity, said that two members of the jury were not initially certain of Loyd’s guilt, but were persuaded by the rest of the jury to vote to convict. “There were just some that didn’t believe that he’d committed the murders,” she said. Though the jury was split on the question of the appropriate sentence, she said everyone discussed the matter respectfully.

Jury foreman Glenn D. Glasgow said he told the jurors before they began their deliberations: “This is a decision that you’re going to make that tomorrow, you’re going to look at yourself in the mirror and go ‘I’ve made a right decision, based on my moral or ethical upbringing, this was my decision. As long you can live with that decision,’” he said, “'that will be the right decision.'” The jury deliberated less than an hour before returning a life verdict. Four jurors opposed a death sentence, Glasgow said. Glasgow said the jurors respected each other’s judgment and did not ask for explanations why they voted for or against the death penalty. Following the vote, there were no efforts to try to change the minds of any of the jurors.

Justen Hall Executed in Second 2019 Texas Case to Raise Questions of Competency Thu, 07 Nov 2019 14:39:00 -0500 Death Penalty Information Center Texas executed Justen Hall (pictured) on November 6, 2019 in the second Texas case of the year to present significant questions as to a prisoner’s competency to be executed.

Hall, a mentally ill death-row prisoner who had given up his appeals, had attempted suicide and had told courts on multiple occasions that he wanted to be executed. His lawyers—with whom he had refused to speak since 2017—said Hall exhibited symptoms of serious mental illness, including hallucinations, paranoia, and depression. On October 22, they filed a motion in El Paso County to request judicial review of Hall’s competency to be executed, but—relying on Hall’s self-assertion that he was competent—the trial court refused to hold a hearing on the issue.

In October 2016, Hall wrote a letter to the county court, saying, “These walls 24/7 have broken me. It is taking every last ounce of will to even make it from day to day.... I need to be put down like the rabid dog I am.” At that time, he asked the court to dismiss his appeals and set an execution date. In 2017, Hall sought to fire his attorneys, and they told the Texas Court of Criminal Appeals that they would seek a competency hearing if he persisted in his request. Hall then gave up his efforts to fire the attorneys.

According to prison records from that time, Hall attempted suicide in November 2016.

Hall’s lawyers had sought DNA testing of the murder weapon from his case, but Hall attempted to waive the motions seeking that testing. In January 2019, the Texas Court of Criminal Appeals denied the motion for testing, saying that an exculpatory result would not have made a difference in the jury’s verdict. In the same decision, the court said that Hall’s suicide attempt and statement that death row had “broken” him did not indicate a lack of competency.

“Being depressed by his circumstances is understandable and is a rational response to adverse conditions,” the court wrote. “In light of this testimony, Appellant's earlier statement about being ‘broken’ does not, even in combination with his suicide attempt, indicate a lack of competency.”

Hall’s lawyers argued that his medical records were replete with “numerous examples of his psychiatric condition deteriorating” over the course of the 14 years he was imprisoned on death row. Hall cut off communication with his lawyers in 2017 and later also cut off communication with his family. During a recent attempted visit by attorney Benjamin Wolff and Hall’s mother, Wolff said Hall “turned his back to me, and continued standing with his back to me (and the Visitors Area) for approximately an hour before he was escorted back to his cell.”

The case is the second in Texas in 2019 that raised questions of a condemned prisoner’s mental competency. A Henderson County court withdrew the death warrant that had scheduled Randall Mays’ execution for October 16, after his attorneys raised a claim of incompetence based upon a new diagnosis by prison doctors that Mays has schizophrenia. In withdrawing the warrant, District Judge Joe Clayton cited the need to “properly review all medical records submitted” in the case. Mays had previously received a stay of execution in 2015 on a competency claim, but the Texas Court of Criminal Appeals later found him competent to be executed.

After Being Reversed Twice, Texas Appeals Court Takes Intellectually Disabled Prisoner Off Death Row Wed, 06 Nov 2019 16:31:00 -0500 Death Penalty Information Center After being reversed twice by the United States Supreme Court, the Texas Court of Criminal Appeals (CCA) has resentenced intellectually disabled death-row prisoner Bobby James Moore to life in prison. In a three-page decision issued on November 6, 2019, 39 years after Moore was sentenced to death in Houston for a 1980 murder during a supermarket robbery, the CCA conceded that the U.S. Supreme Court has determined that “Moore … is a person with intellectual disability.” Given that determination, the CCA wrote, “[t]here is nothing left for us to do but to implement the Supreme Court’s decision.”

The CCA had been repeatedly criticized in the past for allowing the execution of intellectually disabled prisoners despite the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia that the practice constituted cruel and unusual punishment. In March 2017, in Moore’s case, the U.S. Supreme Court unanimously struck down the state’s use of a set of lay stereotypes to evaluate intellectual disability in death penalty cases as an unscientific “invention … untied to any acknowledged source” that lacked support from “any authority, medical or judicial.” The Court wrote that Texas’s “outlier” approach, “[b]y design and in operation, … create[s] an unacceptable risk that persons with intellectual disability will be executed.” dopting a non-scientific standard for evaluating whether a defendant or prisoner was exempted from the death penalty because of intellectual disability.

The Court returned Moore’s case to the CCA with directions to reconsider his claim based upon prevailing clinical standards for assessing intellectual disability. At that time, Harris County prosecutors agreed with Moore’s lawyers and mental health advocacy organizations that Moore meets the medically established criteria for intellectual disability and therefore could not be executed. Nonetheless, the CCA again ruled against Moore. Three judges dissented, cataloguing the numerous groups that had concluded Moore satisfied the medical criteria for intellectual disability. They wrote: “There is only one outlier in this group that concludes that applicant is ineligible for execution due to his intellectual disability, but unfortunately for applicant, at this juncture, it is the only one that matters. Today, in solitude, a majority of this Court holds that applicant is not intellectually disabled, and it denies his application for habeas relief.”

In February 2019, the U.S. Supreme Court again reversed, criticizing the CCA for relying upon the same improper lay stereotypes and committing many of the same errors that had led the Court to overturn the CCA’s prior decision in the case. The Justices independently reviewed the evidence, concluded that Moore met the criteria for intellectual disability, and returned the case to the Texas courts.

The CCA wrote that the Supreme Court’s conclusion that Moore is intellectually disabled “is determinative.… Accordingly, we reform Applicant’s sentence of death to a sentence of life imprisonment.”

Moore’s defense team expressed pleasure at the court’s ruling. "We greatly appreciate that the Texas Court of Criminal Appeals has implemented the Supreme Court decision and has ensured that justice is done regarding the inappropriateness of the death penalty for Bobby Moore,” Cliff Sloan wrote in a statement.

Idaho Prosecutor Says State’s Longest-Serving Death-Row Prisoner Should Not Be Executed Tue, 05 Nov 2019 09:04:00 -0500 Death Penalty Information Center The prosecutor who sent Thomas Creech, Idaho’s longest-serving death-row prisoner, to jail 37 years ago now says that Creech and others sentenced to death in the Gem State should not be executed.

Jim Harris (pictured), former County Prosecutor for Ada County, sought the death penalty against Creech in 1982. Creech, who was first sentenced to death in another case in 1976, has spent more time in prison than any other person on the state’s death row, but in the years since Harris obtained a death sentence for Creech for a prison murder, the former prosecutor has become convinced that Creech should not be executed.

"When I asked for the death penalty against Tom Creech I definitely did believe he should suffer the death penalty,” Harris told WIVI-TV in Boise. "I don't believe quite frankly that Tom Creech, at least based on the murder that he committed in the penitentiary, should be executed. And I don't say that easily.” Harris told WIVI that he now believes Creech’s death sentence is disproportionately severe compared to the lesser sentences other prisoners received for murders that are worse than Creech’s prison killing.

Harris also commented on the wastefulness of Idaho’s death penalty. "It's a waste of time. It's a terrible waste of money that is expended in these death penalty cases and they are never going to happen. So, the judges ought to simply bear up and sentence these people for fixed life and leave it at that," he said. Idaho hasn’t carried out an execution in seven years, and no execution dates are set for Creech or the other seven people on death row. Only one person has been sentenced to death in Idaho since 2011.

South Dakota Prisoner Executed After Supreme Court Denies Review of Anti-Gay Bias, Denial of Mental Health Expert Mon, 04 Nov 2019 11:36:00 -0500 Death Penalty Information Center Whether South Dakota death-row prisoner Charles Rhines (pictured) lives or dies may depend less on whether he was constitutionally convicted and sentenced to death and more on whether the courts value finality more than they value fairness. As Rhines filed two separate petitions in the U.S. Supreme Court and an appeal in the South Dakota Supreme Court on November 1, the South Dakota Department of Corrections announced that his execution, scheduled for the week of November 3, 2019, would be carried out shortly after noon on Monday, November 4. [UPDATE: The U.S. Supreme Court declined to intervene in Rhines' case and he was executed.]

On November 1, Rhines’ lawyers filed a rare petition for writ of habeas corpus directly in the U.S. Supreme Court, asking it to take jurisdiction over the case and direct the lower federal courts to consider evidence that jurors had relied on anti-gay stereotypes in sentencing him to death. They also filed a petition for a writ of certiorari challenging South Dakota’s refusal to provide a defense mental health expert access to Rhines to conduct a psychological evaluation for his clemency application and procedural obstacles erected by a federal appeals court to obtaining review of that issue. At the same time, Rhines filed an appeal in the South Dakota Supreme Court challenging the trial court’s decision to permit the state to deviate from the execution protocol state law authorized for use in his case.

There is little dispute about the facts and the law that make Rhines’ death sentence constitutionally problematic. In February 2017, Supreme Court Chief Justice John Roberts declared that the “law punishes people for what they do, not who they are” and overturned a death sentence imposed based on “noxious” racial stereotypes. According to juror affidavits submitted with Rhines’ habeas petition: “One juror who had voted for death stated that ‘we also knew that [Mr. Rhines] was a homosexual and thought that he shouldn’t be able to spend his life with men in prison.’ A second juror indicated about deliberations: ‘One juror made . . . a comment that if he’s gay, we’d be sending him where he wants to go if we voted for [life imprisonment without the possibility of parole].’ And a third juror noted that there had been ‘lots of discussion of homosexuality’ and ‘a lot of disgust.’” The petition notes that no court has ever reviewed the merits of Rhines’ juror-bias claim because the federal courts considered it part of “an unauthorized ‘second or successive’ petition.”

Rhines argues that he could not have raised the issue prior to 2017 because South Dakota did not permit use of juror statements to challenge the jury deliberation process. That year, the U.S. Supreme Court held in Peña-Rodriguez v. Colorado that state rules of evidence such as South Dakota’s “no-impeachment rule” cannot be interposed to exclude juror statements that provide evidence of a violation of the Sixth Amendment right to a trial by an impartial jury. In a statement, Rhines’ attorney, assistant federal defender Shawn Nolan, said, “Anti-gay prejudice should never have any role in sentencing a man to death. It is shocking that no court has ever considered the new evidence of some jurors’ anti-gay statements. The U.S. Supreme Court must intervene to make sure a court hears this evidence before Mr. Rhines is executed.”

South Dakota’s lawyers did not address the substance of Rhines’ claim in their brief to the Court, instead subjecting the federal community defender office that is representing Rhines to a broad ad hominem attack and falsely accusing them of “posing as” federal attorneys.

Rhines’ separate cert petition states, “In support of his request for gubernatorial clemency, he seeks to present psychiatric and neuropsychological experts to attest to his significant cognitive and psychiatric impairments. However, in the absence of a court order, state corrections officials have for years refused to permit his experts to evaluate Petitioner in person.” Rhines had sought orders from both the federal district court and the U.S. Court of Appeals for the Eighth Circuit to grant his expert access to Rhines for an evaluation, but both courts denied his request on procedural grounds. The cert petition challenges the federal appeals court’s procedural ruling.

DPIC Analysis: States Scheduled Ten Executions for October 2019 — Why Nine Did Not Happen Fri, 01 Nov 2019 19:02:00 -0400 Death Penalty Information Center Ten executions were scheduled to take place in October 2019, more than in any other month in the last two years. As the month closed, however, nine of those executions were not carried out. The 90% rate of warrant failures symbolizes the death penalty’s continuing decline and the widespread problems states are having with its implementation. And with eight active execution dates pending and two other stays of execution in place in November and December, 2019 is nearly certain to become the fifth consecutive year of fewer than 30 executions in the United States.

A DPIC review of the October death warrants found that four death-row prisoners received stays of execution, two warrants were withdrawn because of case developments, 1 warrant was halted by reprieve, and there was 1 execution. Two prisoners died on death row, making their warrants moot.

Georgia Supreme Court, Ohio Governor Provisionally Halt Three Executions Thu, 31 Oct 2019 11:23:00 -0400 Death Penalty Information Center Three U.S. executions were halted on October 30, 2019, as the Georgia Supreme Court issued a day-of-execution stay to Ray Jefferson Cromartie and Ohio Gov. Mike DeWine (pictured) granted warrants of reprieve to the next two death-row prisoners scheduled for execution in Ohio. The actions capped a tumultuous October in which nine of ten scheduled executions did not take place and federal courts stayed two other executions set for later in the year.

Shortly after noon on October 30, the Georgia Supreme Court provisionally called off Cromartie’s execution to consider improprieties in the issuance of the death warrant. The court’s stay order said that “it appears that the pending execution order may be void” because it was issued by the trial court at a time in which Cromartie’s appeal of an another order denying him DNA testing was pending before the state’s high court and the trial court lacked jurisdiction to take any action in the case. The Atlanta Journal-Constitution reported that the Georgia Attorney General’s office has conceded that the death warrant was void and that it would “immediately” seek a new execution date. Cromartie’s counsel, assistant federal defender Shawn Nolan, issued a statement that, while the court stayed Cromartie’s execution “on a jurisdictional question, we remain hopeful that the courts will ensure that DNA testing is completed in [his] case before an execution is carried out.” Nolan said that DNA testing could prove Cromartie’s innocence of capital murder and noted that “[t]he victim’s daughter has repeatedly asked Georgia state officials to conduct the DNA testing before proceeding with an execution.” The public, he said, “has a strong interest in allowing DNA testing because the execution of an innocent person would be the gravest miscarriage of justice.”

Later in the day, Gov. DeWine issued execution reprieves to James Hanna and Kareem Jackson, the next two prisoners scheduled for execution in Ohio. DeWine halted Hanna’s scheduled December 11, 2019 execution, setting a new execution date of July 16, 2020. His warrant of reprieve for Jackson postponed his scheduled January 16, 2020 to September 16, 2020. The postponements mean that none of the death warrants scheduling 18 execution dates in Ohio in 2019 will be carried out.

DeWine’s action was expected, as a result of the state’s ongoing difficulty in obtaining suitable lethal-injection drugs. On Friday, October 25, DeWine told reporters that it was “highly unlikely” the state would execute Hanna on December 11. At that time, DeWine restated his concern that Ohio cannot obtain drugs to carry out executions without putting public health at risk, saying that the possibility that pharmaceutical manufacturers would stop selling medicines to any state agency if they suspect Ohio would divert drugs intended for therapeutic purposes to use in executions had placed the state “in a very difficult situation.”

Victims’ Family Members Ask for Clemency for Federal Death-Row Prisoner Daniel Lee Wed, 30 Oct 2019 09:35:00 -0400 Death Penalty Information Center When Attorney General William Barr announced in July 2019 that the federal government planned to execute five prisoners in a five-week span from December 9, 2019 to January 15, 2020, he declared that “we owe it to the victims and their families to carry forward the sentence imposed by our justice system.” In at least two of those cases, however, the victims’ families and community have said they don’t want the death penalty carried out.

In a six-minute video, Earlene Branch Peterson (pictured, holding a photo of her daughter, Nancy Mueller) has asked President Donald Trump to grant clemency for Daniel Lewis Lee, who is scheduled to die on December 9 for the murders of Peterson’s daughter, son-in-law, and granddaughter. She is joined in her plea by a surviving daughter, Kimma Gurel, and granddaughter, Monica Veillette, as well as the U.S. attorney who investigated and prosecuted the murders and the trial judge who presided over the case.

Lee and co-defendant Chevie Kehoe were convicted in 1999 of killing Nancy Mueller, her husband William Mueller, and her 8-year-old daughter Sarah Powell. Mueller’s family, the prosecutor, and the judge all believe that executing Lee, who is scheduled to be the first federal prisoner put to death in 16 years, would be a miscarriage of justice given the life sentence imposed on his much more culpable co-defendant. Judge G. Thomas Eisele described Kehoe as the “ringleader” and trial testimony showed that Kehoe killed Sarah Powell after Lee refused, saying he would not kill a child.

In asking President Trump to commute Lee’s death sentence to life without parole, Peterson says, “Yes, Daniel Lee damaged my life, but I can’t believe taking his life is going to change any of that. I can’t see how executing Daniel Lee will honor my daughter in any way. In fact, it’s kind of like it dirties her name, because she wouldn’t want it and I don’t want it. That’s not the way it should be. That’s not the God I serve.” Peterson, who voted for President Trump and said she would do so again in 2020, believes “[i]f I could talk personally to President Trump, I feel he could feel my heart and know that I don’t want this to happen, that Daniel Lee doesn’t need this any more than Chevie Kehoe does. I believe that he should give Daniel Lee clemency for what he did.”

“The government ain’t doing this for me,” she says, “because I would say no.”

On October 4, a federal appeals court granted a stay of execution to Lezmond Mitchell, the second of the five federal prisoners on the Department of Justice’s execution schedule. Before Mitchell’s trial, Navajo Nation officials wrote a letter to the federal prosecutor opposing the death penalty for Mitchell, who is Navajo, saying that the “the taking of human life for vengeance” is counter to Navajo culture and religion. Family members also opposed the prosecution seeking the death penalty in that case.

More Than 250 Conservative Leaders Join Call to End Death Penalty Tue, 29 Oct 2019 13:47:00 -0400 Death Penalty Information Center More than 250 conservative leaders from across the country have signed on to a statement expressing their opposition to capital punishment as administered across the United States and issued a “call [to] our fellow conservatives to reexamine the death penalty and demonstrate the leadership needed to end this failed policy.” Conservatives Concerned About the Death Penalty (CCATDP) released the statement in conjunction with an October 28, 2019 nationally webcast press conference that highlighted on-going efforts by conservative advocates in Ohio, Utah, and Wyoming to abolish the death penalty in those states.

The signatories to the statement include current and former state legislators, local-, county-, and state-level officers of Republican and Libertarian organizations, law enforcement officials, and other elected officials and candidates. Among the nationally-recognized figures on the list are Richard Viguerie, Republican former Governor of Illinois George Ryan, and former U.S. Representative and presidential candidate Ron Paul. The statement begins, “We have come to the conclusion that the death penalty does not work and can’t be made to work, not in spite of our conservative principles, but because of them.” It sets forth a series of reasons why conservatives have increasingly turned against capital punishment, calling it “a costly and ineffective government program” that “makes too many mistakes” and “has no place in a culture seeking to promote life.”

The statement was intended, in part, as response by conservatives to the announcement by the U.S. federal government in July that it will resume executions this December after a 16-year hiatus.

Georgia Prisoner Says He is Not the Shooter, Seeks Stay of Execution to Permit DNA Testing Mon, 28 Oct 2019 17:59:00 -0400 Death Penalty Information Center Supported by the murder victim’s daughter, a Georgia death-row prisoner who is scheduled for execution October 30, 2019 is asking the federal courts to grant him a stay to permit DNA testing that, he says, will prove that he did not commit the killing for which he is on death row. Ray Cromartie (pictured) admits his involvement in the robbery in which Richard Slysz was murdered, but maintains that his co-defendant shot the victim.

Cromartie has filed petitions in the Georgia state and federal courts seeking DNA testing of shell casings, clothing, and a cigarette pack from the crime scene. Slysz’s daughter, Elizabeth Legette, wrote a letter to the Georgia Supreme Court urging that court to permit DNA testing. “My father’s death was senseless. Executing another man would also be senseless, especially if he may not have shot my father. ... Today I learned that the State has set a date to execute Mr. Cromartie without doing any testing. This is wrong, and I hope that you will take action to make sure that the testing happens.”

On October 25, the Georgia Supreme Court denied his requests. Assistant federal defender Shawn Nolan, who is representing Cromartie in federal court, said evidence that Cromartie was not the shooter would have dramatically altered the jury’s understanding of the murder and Cromartie’s culpability for the killing. "With the clock ticking, there is still time to prevent an unjust execution if the courts recognize Ray Cromartie's civil right to get the DNA evidence tested before his scheduled execution on October 30th,” Nolan said in a statement. Cromartie’s federal court complaint challenges the constitutionality of Georgia’s law on post-conviction DNA testing and its application by Georgia courts. It describes the advances in DNA science that would make testing today more fruitful than testing at the time of Cromartie’s trial.

As Cromartie’s execution date approached, his lawyers took the unusual step of deciding not to file a clemency petition. “Filing a clemency petition would have required Mr. Cromartie to ask for a sentence of life in prison without the possibility of parole, but there is simply too much doubt in his case to ask for this sentence in good faith,” Nolan wrote. “Only by testing the DNA can Georgia ensure Mr. Cromartie’s jury was correct to impose death because he was the shooter. Georgia officials must agree to DNA testing in this case before it’s too late; otherwise, the state risks an unjust execution.”

Tennessee Court to Decide Whether to Test DNA that Could Exonerate Man Executed in 2006 Fri, 25 Oct 2019 14:26:00 -0400 Death Penalty Information Center A Shelby County (Memphis) judge has heard argument and will rule on November 18, 2019 whether to allow DNA testing in a case that could show whether the state of Tennessee executed an innocent man in June of 2006. On October 14, lawyers from the Innocence Project, representing the estate of Sedley Alley (pictured) and his daughter, April Alley, urged Criminal Court Judge Paula Skahan to release for DNA testing physical evidence that they believe will exonerate Sedley Alley and might identify the person who raped and murdered Lance Corporal Suzanne Collins in 1985.

“The primary reason we are here is that April Alley wants to know the truth,” Innocence Project co-founder Barry Scheck told the court. “She has the courage to seek the truth here, and DNA testing can … provide that truth.”

Alley initially confessed to having murdered Collins, but later insisted that the confession—which did not match the details of the crime scene or autopsy—had been coerced. An eyewitness description of a man seen with Collins in the vicinity of the murder did not match Alley’s appearance. Alley’s clemency lawyers found numerous inconsistencies in the state’s evidence, unearthed evidence that pointed to another suspect who fit the eyewitness descriptions of the murderer and had a car that matched descriptions of the murderer’s car, and discovered that Alley had been at home under police surveillance at the time Collins was raped and killed. “This has all the earmarks of a false confession,” Scheck said. “But we need not debate it, because DNA evidence can provide us an answer.”

After discovering the defects in the prosecution’s case, Alley’s clemency lawyers asked in 2006 for DNA testing of the clothing and the murder weapon. The Tennessee Board of Parole agreed that testing should be done and recommended to then-Governor Phil Bredesen that he stay Mr. Alley’s execution and order DNA testing. Instead, Bredesen directed the lawyers to present their request for testing to the Tennessee courts, which refused to allow the testing to occur. Alley was executed on June 28, 2006, without the evidence having been subjected to DNA analysis.

Five years later, the Tennessee Supreme Court disavowed its decision in Alley’s case, admitting it had misapplied Tennessee’s post-conviction DNA testing act. On April 30, April Alley filed a petition in state court seeking testing “of any and all remaining evidence” in her father’s case. “The courts got it wrong in 2006 when they allowed Mr. Alley to be executed before testing the DNA,” Scheck said. “If Mr. Alley were alive today, he would be entitled to DNA testing under the … statute. We now have a chance to learn the truth in this case.”

Courts Grant Stays of Execution on Procedural Grounds in Two Cases Raising Significant Guilt-Related Questions Thu, 24 Oct 2019 18:17:00 -0400 Death Penalty Information Center Courts in Texas and Florida have granted stays of execution to two men who faced imminent execution despite serious questions as to their involvement in the murders for which they were sentenced to death. On October 22, 2019, the Texas Court of Criminal Appeals (CCA) stayed the execution of Ruben Gutierrez (pictured, left), which had been scheduled for October 30. The following day, the U.S. District Court for the Middle District of Florida granted a stay of execution to James Dailey (pictured, right), whose execution had been set for November 7. Both stays were issued on procedural grounds but may provide an opportunity for judicial consideration of significant issues of innocence or degree of guilt in their cases.

Ruben Gutierrez was sentenced to death for the murder of an elderly Brownsville, Texas woman in 1988 during the commission of a robbery. Gutierrez has been seeking DNA testing to support his claim that, while he was present during the robbery of Escolastica Harrison, he did not kill her. DNA evidence from fingernail scrapings, a hair held in the victim’s hand, and blood stains has been preserved, but it has never been tested. Gutierrez says testing could prove that the murder was committed by one of his co-defendants, not by him. Although he could still be eligible for the death penalty under Texas’s “law of parties”—which holds a participant in a felony criminally responsible for the acts of others, even if he did not intend those acts to occur—Gutierrez argues that the fact that he is not the killer could have made the difference between life and death in the jury’s sentencing decision.

Gutierrez’s filing seeking DNA testing is currently pending before the CCA. However, the stay was issued on unrelated technical grounds as a result of the state’s failure to follow mandated procedural steps in issuing and serving his death warrant. In Gutierrez’s case, the county court issued two execution warrants with conflicting times of execution, failed to affix the proper seal establishing the authenticity of the warrant, and failed to serve the warrant on Gutierrez’s lawyers in the time frame required by Texas law. In his stay application, Gutierrez’s lawyers wrote, “This is about whether the State of Texas may carry out the most solemn and irrevocable act of government without compliance with the statutes that alone authorize the government to take such an act.” The court stayed the execution indefinitely, “pending further order by this Court.”

In Florida, a federal district court granted a limited stay of execution to James Dailey to provide his new federal habeas lawyers ninety days to prepare filings challenging his conviction and death sentence. Shortly after his execution date was set, Dailey’s former appellate lawyers had to withdraw from his case because of a conflict of interest. The federal court appointed new lawyers to represent him on October 1. His new counsel advised the court that federal law granted them at least 90 days to meaningfully review his case and prepare and file appropriate pleadings. They further argued that it would be impossible to do this in the constricted time frame created by his November 7 execution date. U.S. District Judge William F. Jung issued a 90-day stay from the date of counsel’s appointment, writing, “it is in the interests of a just and fair system for Mr. Dailey’s new counsel to have the statutory grant of time to review and present habeas issues to this Court. Mr. Dailey has been on death row since 1987. Staying his execution for 53 days to ensure that Dailey’s right to counsel is meaningful is scant prejudice to Respondents.”

Dailey maintains his innocence in the 1985 murder of Shelley Boggio. He was convicted on the basis of informant testimony that has been discredited. Dailey’s co-defendant, Jack Pearcy, has admitted on at least four occasions that he alone killed Boggio. In response to the stay, Dailey’s attorney Carol Wright wrote, “We are grateful that the U.S. District Court for the Middle District has granted a stay to allow Mr. Dailey's newly appointed federal counsel time to present his new and substantial claims of innocence, so that they may finally be heard on the merits. We urge the Attorney General and Governor DeSantis not to appeal or otherwise oppose this limited stay in order to allow Mr. Dailey’s case to proceed under the timeline directed by the Court.”

Louisiana Man Freed 42 Years After Wrongful Conviction in Death-Penalty Trial Wed, 23 Oct 2019 15:34:00 -0400 Death Penalty Information Center A Louisiana prisoner wrongfully prosecuted for capital murder has agreed to a plea deal that secures his freedom after spending 42 years in prison for a crime he says he did not commit. With the assistance of the Innocence Project New Orleans, Elvis Brooks (pictured) succeeded in overturning his 1997 conviction and agreed to plead guilty to lesser charges in exchange for his release on October 15, 2019.

Taking the plea was “something I [didn’t] want to do, but I wanted my freedom.” Brooks said. “I’ve been locked up since ’77. I’m not getting any younger. I’d like to get out.”

Brooks was arrested when he was 19 years old and faced the death penalty on charges that he murdered a bar patron during an armed robbery. He was convicted and sentenced to life in prison in a trial that lasted less than one day. No physical evidence linked Brooks to the murder and he presented twelve alibi witnesses who testified that he was elsewhere when the murder occurred. The sole evidence against him came from cross-racial identifications by three white strangers who had been inside the dimly lit bar during the crime and who picked out a photograph of Brooks, who is black, from a police photo array.

Later investigation into the case by the Innocence Project New Orleans uncovered two major items of exculpatory evidence that prosecutors had withheld from the defense at the time of Brooks’ trial. Fingerprints from the perpetrators had been recovered from two beer cans at the bar, but they did not match Brooks. A prosecutor had written a note about the fingerprint results—indicating that the prosecution had direct knowledge of the evidence when it did not disclose it to the defense, in violation of Brady v. Maryland. Police had also investigated a related robbery that took place less than a block away immediately before the bar robbery, but prosecutors failed to disclose that two black witnesses to that crime had been shown a picture Brooks and did not identify him as the perpetrator.

Studies have found that cross-racial eyewitness identifications are less reliable than identifications within racial groups. According to Innocence Project New Orleans, 29 of Louisiana’s 57 exonerations have involved eyewitness misidentification. The National Registry of Exonerations reports that, as of October 2019, 25% of homicide exonerations nationwide involved mistaken witness identifications. Mistaken identifications have contributed to seven of Louisiana’s 11 death-row exonerations. 71% of homicide exonerations nationwide and all 11 in Louisiana involved some form of official misconduct.

After U.S. Supreme Court Orders Further Review, Federal Appeals Court Overturns Death Sentences of Two Brain Damaged Prisoners Tue, 22 Oct 2019 17:02:00 -0400 Death Penalty Information Center A federal appeals court has overturned the death sentences imposed on two brain damaged death-row prisoners in cases separately sent back for further review by the U.S. Supreme Court. On October 15, 2019, the U.S. Court of Appeals for the 11th Circuit ordered a new sentencing hearing for Alabama death-row prisoner James McWilliams. Two days later, another three-judge panel of the 11th Circuit granted a new penalty hearing to Georgia death-row prisoner Lawrence Jefferson. Both men had been sentenced to death in 1986 and later challenged their death sentences because their juries had not heard evidence of their brain damage. State and federal courts had turned down the appeals for both men but—for different reasons—the U.S. Supreme Court reversed those rulings and directed the lower courts to reconsider the issues in the cases.

In Response to Court Order, Alabama Releases Heavily Redacted Execution Protocol Mon, 21 Oct 2019 16:27:00 -0400 Death Penalty Information Center Under court order, Alabama has released for the first time a copy of the state’s previously confidential execution protocol. The 17-page document—filed on October 16, 2019 in the U.S. District Court for the Northern District of Alabama federal court —purports to detail “the responsibilities and procedures for the reception of a condemned inmate, for confinement, and for execution and day of execution preparation” as of April 2019.

The heavily redacted protocol identifies the drugs used by the state in executions and outlines the execution process but contains no information on the source of execution drugs or the titles or qualifications of prison personnel involved in carrying out the execution. The document produced to the court also blacks out in its entirety the information prison personnel are to record in the log of each execution.

The federal court ordered the Alabama Department of Corrections to release the protocol in response to a lawsuit brought by three media outlets—the Associated Press, The Montgomery Advertiser, and the Alabama Media Group. The media outlets sought public disclosure of the protocol and other judicial records relating to the state’s failed attempt to execute Doyle Lee Hamm in February 2018.

Corrections officials and Hamm had reached a confidential settlement agreement of his challenge to the state’s execution process after Hamm submitted to the court a graphic medical report that detailed the execution team’s failure for nearly 2½ hours to set an intravenous line to carry out his execution. After calling off the execution, Corrections Commissioner Jeffrey Dunn told the media he “wouldn’t characterize what we had tonight as a problem,” saying only that the state had complied with its execution protocol. As part of the settlement of Hamm’s lawsuit, the parties had agreed to seal from the public the court records in the case.

In May 2018, Chief Judge Karon Owen Bowdre found that “how Alabama carries out its executions … [is] a matter of great public concern,” and ordered the state to disclose the protocol to the media outlets. The public’s “common law right of access to the sealed records,” she said, outweighed Alabama’s arguments to keep the records secret. In March 2019, the U.S. Court of Appeals for the Eleventh Circuit upheld Bowdre’s decision. In an opinion for a unanimous three-judge panel, Judge Charles Wilson wrote that the contents of the protocol were part of the court record of the case and “the public has a valid interest in accessing these records to ensure the continued integrity and transparency of our governmental and judicial offices.”

Death Penalty Information Center Executive Director Robert Dunham criticized the lack of detail in the protocol released to the public. “[The document] lacks critical information and redacts other important information that leaves Alabama executions secret and unaccountable,” Dunham said.

Julius Jones Clemency Petition Garners Support from Civil Rights and Faith Leaders, Criminal Justice Experts Fri, 18 Oct 2019 16:08:00 -0400 Death Penalty Information Center Lawyers for Oklahoma death-row prisoner Julius Jones (pictured) have petitioned the Oklahoma Pardon and Parole Board for clemency, arguing that Jones was wrongly convicted and that his trial was tainted by racial bias. The petition, filed on October 15, 2019, has drawn support from a diverse range of civic, civil rights, and faith leaders and criminal justice experts.

Jones, who is black, was convicted and sentenced to death by a nearly all-white jury for the 1999 killing of a white businessman. Jones’ court-appointed trial lawyers failed to call any of several available alibi witnesses, did not cross-examine his co-defendant, Christopher Jordan, and did not call Jones to testify on his own behalf. An eyewitness description of the shooter matched Jordan’s appearance, not Jones’. Jordan made a deal with prosecutors to testify against Jones and served 15 years. Years after the trial, a juror reported that another juror had made racist comments, including saying “they should just take the n****r out and shoot him behind the jail.” The reporting juror said she had told the judge about the comment at the time, but no action was taken.

The clemency petition was accompanied by letters of support from faith and civil rights leaders, and Oklahoma County commissioner, Witness to Innocence, and Oklahomans for Criminal Justice Reform. They join the Oklahoma NAACP, Congressional Black Caucus, and Oklahoma Representative George Young, who had previously raised concerns about Jones’ case. In addition, the Catholic Archbishop of Oklahoma City Paul S. Coakley issued a statement supporting Jones’ clemency application and reality television celebrity Kim Kardashian West posted a tweet asking her 62 million twitter followers to ask the pardon board and Governor Kevin Stitt to give “careful and thoughtful consideration” to Jones’ petition.

Jones was prosecuted under the administration of the late “Cowboy Bob” Macy, who sent 54 people to death row during the 21 years he served as Oklahoma County District Attorney. A ThinkProgress report in 2015 chronicled the history of misconduct in capital prosecutions during that era. Oklahoma County is the only county in the United States outside of Texas to have executed more than 41 prisoners since the death penalty was reinstituted in the United States in the 1970s. A DPIC analysis of death row and execution data has found that the county has the highest number of prisoners executed or facing execution per capita of any county with a combined 25 or more death row prisoners/executions.

ABA Urges Nevada Supreme Court to Bar Death Penalty for People with Severe Mental Illness Thu, 17 Oct 2019 11:42:00 -0400 Death Penalty Information Center The American Bar Association has urged the Nevada Supreme Court to prohibit the use of the death penalty against people who are severely mentally ill. In a friend-of-the-court brief filed October 3, 2019 in the case of death-row prisoner Siaosi Vanisi, the ABA argued that imposing the death penalty on people with severe mental illness serves no legitimate penological purpose and asked the court to “categorically prohibit the execution of individuals who were suffering from severe mental illness at the time of their crimes.”

Vanisi was convicted and sentenced to death in 1999. Prior to trial, his lawyer raised concerns about Vanisi’s mental health, advising the court that that the prosecution and defense had “received various reports regarding some bizarre behavior” by Vanisi, “[f]rom talking gibberish to washing himself in his own urine to dancing naked.” The court ordered a competency evaluation but ruled that Vanisi was competent to stand trial.

After the first trial ended in a mistrial, Vanisi continued to engage in bizarre behavior and refused to cooperate with counsel. He was convicted and sentenced to death at his second trial. Two mental health experts have since diagnosed Vanisi with Schizoaffective Disorder “that greatly impairs his cognitive, emotional and behavioural control.” His current lawyers report that his severe mental illness has continued to cause difficulties in their attempts to defend him on appeal.

The ABA amicus curiae brief argues that executing people with severe mental illness serves the goals of neither retribution nor deterrence, that people with severe mental illness are more vulnerable to false confession and less able to assist counsel with their case, and that existing legal protections do not adequately address these problems. It says the same reasons the U.S. Supreme Court cited for exempting people with intellectual disabilities from execution apply equally to persons with severe mental illness and that “[t]here is no principled basis to treat individuals suffering from severe mental illness differently.”

The ABA issued a white paper in 2016 supporting a death penalty exemption for people with severe mental illness, and it has supported legislative efforts to enact such an exemption. In the Vanisi brief, the ABA concludes that an exemption “accounts for the fact that severe mental illness jeopardizes the reliability and fairness of capital proceedings and it recognizes that the public has branded executing the severely mentally ill as wrong."

Mixed Signals From Uganda as Officials Advocate, then Disavow, Death Penalty For LGBTQ Conduct Wed, 16 Oct 2019 14:26:00 -0400 Death Penalty Information Center Facing a potential backlash from major aid donors, Uganda’s president has attempted to distance his government from legislative efforts to reintroduce a bill that would make consensual same-sex acts punishable by the death penalty and criminalize “promotion and recruitment” of homosexuality. The so-called “Kill the Gays” bill previously promoted by government officials would greatly expand the punishment of homosexuality under Ugandan law. The proposed bill is a more draconian version of a law struck down in 2014 by Uganda’s Constitutional Court after Parliamentary leaders had illegally secured passage of the bill in a vote conducted without a quorum.

On October 10, 2019, Uganda’s Ethics and Integrity Minister Simon Lokodo, had announced plans to adopt the anti-gay measure within weeks to halt what he described as a rise in “unnatural sex” in the country. “Our current penal law is limited. It only criminalizes the act,” Lokodo said. “We want it made clear that anyone who is even involved in promotion and recruitment has to be criminalized. Those that do grave acts will be given the death sentence.” President Yoweri Museveni initially expressed support for the bill and Lokodo said the administration had “mobilized [members of Parliament] in big numbers.” However, after international aid donors including the European Union, the United States, the World Bank, and the Global Fund said they were “monitoring” the legislation and expressed support for the rights of LGBTQ people, Museveni’s government retreated.

Use of the death penalty as a tool of anti-gay discrimination has raised global human rights concerns. In October 2017, the United Nations Human Rights Council adopted a resolution condemning the use of the death penalty for apostasy, blasphemy, adultery, and consensual same-sex relations. In March 2019, the Kingdom of Brunei decreed that adultery and homosexual sex were criminal acts punishable by death by stoning, but it backed down from the measure after a significant international backlash. On November 3, South Dakota plans to execute Charles Rhines despite evidence that jurors considered his homosexuality during their deliberations and some voted to sentence him to death because imposing a life sentence in an all-male prison “would be sending him where he wants to go.”

A spokesperson for President Museveni told Reuters on October 14 that the government had “no plans … to introduce a law like that.” “We have the penal code that already handles issues of unnatural sexual behavior so there is no law coming up,” senior press secretary Don Wanyama said.

Dr. Phil Airs Two-Part Investigation of Rodney Reed Case Tue, 15 Oct 2019 11:02:00 -0400 Death Penalty Information Center The case of Texas death-row prisoner Rodney Reed (pictured, right), who is facing execution in Texas on November 20, 2019 despite powerful evidence of innocence, is attracting national attention from unusual sources. On October 10 and 11, the syndicated television show Dr. Phil devoted two episodes to an investigation of the innocence claims in Reed’s case.

“I don’t think it’s a question of whether he’s guilty or not guilty,” host Dr. Phil McGraw (pictured, left) said. “I think the question is, has he had a fair trial with a full airing of all of the evidence. And I think the answer to that question, in my opinion, is not just ‘no’ but ‘hell no.’”

Reed, who is represented by the Innocence Project and is seeking DNA testing of evidence he says will exonerate him, was convicted and sentenced to death for the murder of Stacey Stites. Reed says he and Stites were involved in a secret relationship for about five months prior to her death. Over the course of two hours, Dr. Phil featured clips from his own in-person interview with Reed, as well as appearances by Reed’s mother and brother, his attorney Bryce Benjet, forensic experts, and a cousin of the victim. The episodes describe problems with the forensic science in the case and explore the theory that Stites may have been killed by her fiancé, police officer Jimmy Fennel, who was later convicted of abducting and raping a woman while on duty.