Death Penalty Information Center en-US Wed, 23 Sep 2020 17:24:00 -0400 Wed, 23 Sep 2020 17:56:04 -0400 Federal Government Conducts Sixth Execution Amid Continuing Litigation Over COVID-19 and the Legality of Its Execution Protocol Wed, 23 Sep 2020 17:24:00 -0400 Death Penalty Information Center The federal government conducted its sixth execution in ten weeks on September 22, putting William Emmett LeCroy (pictured) to death amid continuing challenges to the federal execution protocol and to carrying out executions during the COVID-19 pandemic. As federal appeal courts set aside LeCroy’s execution challenges, Christopher Vialva’s lawsuit challenging the legality of the federal execution protocol remains pending in the U.S. Supreme Court, with the Court’s resolution of that issue determining whether his execution occurs as scheduled on September 24.

The federal government’s resumption of executions has been complicated by concerns that the execution protocol adopted by the Department of Justice in 2019 violates the U.S. Constitution and federal statutes and regulatory procedures. A federal lawsuit about the execution protocol prevented the government from restarting executions in December 2019 and resulted in several preliminary injunctions in summer of 2020. Each of those injunctions was later dissolved, either by the federal circuit courts of appeal or by the U.S. Supreme Court, allowing the federal executions to take place.

The weekend before LeCroy’s execution, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia issued several rulings in the federal death-row prisoners’ execution protocol lawsuit. On September 20, 2020, the district court granted the death-row prisoners’ motion for partial summary judgment on their claim that the federal execution protocol violates the Food, Drug, and Cosmetic Act (FDCA), holding that the government’s use of pentobarbital in federal executions violates the FDCA’s premarketing, labeling, and prescription requirements. However, the court denied the prisoners’ motion for a preliminary injunction, ruling that the prisoners had not shown they would suffer irreparable harm as a result of the violation. In refusing to halt future executions, the court relied heavily on the fact that appellate courts had reversed all of the previous injunctions it had issued in the prisoners’ favor.

The district court’s denial of relief also set the stage for federal executions to continue pursuant to an execution protocol that the court has deemed illegal.

ACLU: Documents Show Federal Executions Likely Caused Prison COVID-19 Outbreak Tue, 22 Sep 2020 17:20:00 -0400 Death Penalty Information Center Documents obtained by the American Civil Liberties Union under the Freedom of Information Act show that the federal government’s choice to bring hundreds of people to the federal prison complex in Terre Haute, Indiana to carry out five executions in July and August in the midst of the coronavirus pandemic likely caused a COVID-19 outbreak that has already killed three and hospitalized others.

In a statement issued September 21, 2020, the ACLU blasted federal officials for repeatedly carrying out “super-spreader executions” with no regard for the foreseeable public health dangers those events created. “The government’s rush to kill has caused senseless risk for incarcerated people, prison staff, and everyone who lives in Terre Haute, Indiana,” ACLU Capital Punishment Project director Cassandra Stubbs (pictured) said.

The Federal Bureau of Prisons (BOP) website reports that two people have died from COVID-19 at the Terre Haute prison in the last week. “Those deaths were part of a larger outbreak in the wake of the federal government’s decision to carry out an unprecedented number of executions there these past few months during a deadly pandemic,” Stubbs said.

The documents obtained in response to the ACLU’s August 6 FOIA request for information on the costs and coronavirus impact of the federal executions also show that the Department of Justice failed to take basic precautions against the spread of the virus, the ACLU said. Just days before the three federal executions in July 2020, an ACLU lawsuit uncovered information that a federal Bureau of Prisons (BOP) staff member who was involved in execution preparations had tested positive for COVID-19. Contrary to prior statements made by the BOP, the ACLU said, that prison employee had worked at the Terre Haute facility without a mask. Nonetheless, the ACLU said, the documents show that BOP failed to undertake contact tracing that was sufficient “to identify staff and prisoners at risk from this reckless exposure.”

The disclosed documents also revealed that the BOP failed to conduct adequate testing to determine if people known to have been in contact with the infected prison employee had also become infected. Rather, the documents showed that the BOP permitted several staff members who were exposed to the infected staff member to decline testing. In addition, the ACLU said, “[t]he documents show that BOP has adopted a risky ‘new policy’ that allows infected staff to return to work after just 10 days of no symptoms, without being retested for the virus.”

Stubbs said “[t]he newly disclosed data from the Bureau of Prisons shows the total inadequacy of its efforts to uncover COVID-19 infections among staff and prisoners.” As a result, she said, “the true number of infections is likely much higher than the alarming number of cases reported on its website.”

The only states to have conducted executions during the pandemic — Missouri and Texas — both also experienced COVID-19 outbreaks in the weeks following those executions.

Study Finds Defendants Accused of Killing White Women Are 3 Times More Likely to be Sentenced to Death in Texas Mon, 21 Sep 2020 13:47:00 -0400 Death Penalty Information Center A study of 40 years of Texas death sentences has found that the likelihood that a defendant accused of a death-eligible murder will be sentenced to death is three times greater if the case involves a white female victim.

The study, A Systematic Lottery: The Texas Death Penalty, 1976 to 2016, by Scott Phillips (pictured, left) and Trent Steidley (pictured, right), University of Denver professors in the Department of Sociology and Criminology, compared two groups of Texas murder defendants: those who could have been sentenced to death under Texas law and those who actually were sentenced to death. They found that in 13% of the approximately 9,000 death-eligible cases, defendants had been charged with killing a white female victim. However, white females were victims in 36% of the approximately 1,000 cases in which capital defendants were sentenced to death. They also found that “an execution was 2.8 times more likely in cases with a white female victim than one would expect in a system that is blind to race and gender.”

In their Spring 2020 article in the Columbia Human Rights Law Review, the authors reference Justice Potter Stewart’s concurring opinion in Furman v. Georgia in 1972, which asserted that “death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Returning to that theme in a September 6, 2020 commentary in the Dallas Morning News, Phillips and Steidley write that “if the death penalty is a lightning bolt then killing a white woman in Texas is like standing in an open field with a lightning rod.”

The authors argue that the death penalty is a “systematic lottery” that is “indiscriminate yet discriminatory.” For the most part, Phillips and Steidley found no distinction between the vast majority of cases that did not result in death sentences and the comparatively few that did. One distinction, they said, was “the social characteristics of the victim.”

This race of victim distinction, they argue, raises the same significant constitutional questions about the arbitrariness of capital punishment that led the Court to strike down existing death penalty laws in Furman. But apart from the constitutional ramifications, they write in their Morning News commentary, “the statistical pattern raises an ethical problem that the Black Lives Matter movement has brought to the fore: In the criminal justice system, a crime committed against a white person is often treated as more serious than a crime committed against a Black person. In Texas, the murder of a white woman can rev the engine of retribution. Yet retribution is not justice if the race and gender of the victim influence the outcome of the case.”

By now, the evidence of race-of-victim sentencing disparities is so well established that “[t]o say that killing a white woman increases the chance of a death sentence is about as controversial as saying that smoking increases the chance of cancer.” In this “moment of national reckoning on race and criminal justice,” they say, “[t]he more interesting question is whether change is coming.”

U.S. Supreme Court Justice Ruth Bader Ginsburg, Death Penalty Skeptic, Has Died Sat, 19 Sep 2020 13:48:00 -0400 Death Penalty Information Center Supreme Court Justice Ruth Bader Ginsburg has died. The 87-year-old justice, who repeatedly expressed skepticism about the death penalty but never took the step of saying it was inherently unconstitutional, succumbed to pancreatic cancer on September 18, 2020. Her death immediately threw the future direction of the Court into turmoil.

Appointed by President Bill Clinton in 1993, Ginsburg had been an anchor of the four-justice moderate-to-liberal wing of the Court and had voted in the majority of every 5-4 Court decision this century that favored capital defendants and death-row prisoners. She and Justice Anthony Kennedy provided critical votes in the Court's 6-3 decisions to bar use of the death penalty against people with intellectual disability (Atkins v. Virginia, 2002) and juveniles under age 18 (Roper v. Simmons, 2005), as well as its 5-4 decision in Kennedy v. Louisiana in 2008 that ruled the death penalty a disproportionate punishment for offenses in which no one is killed. Ginsburg also voted with the five-justice majority in two recent decisions — Hall v. Florida and Moore v. Texas — to prevent states from evading the prohibition against executing the intellectually disabled by adopting harsher non-scientific requirements for proving the presence of the disability.

Since DPIC began tracking stays of execution in 2015, no death sentenced prisoner has ever received a stay of execution from the Supreme Court without her vote.

In a 2017 appearance at Stanford University, Ginsburg famously stated: “If I were queen, there would be no death penalty.” Nonethless, while she joined Justice Stephen Breyer in urging the Court to reconsider the constitutionality of capital punishment, she never authored or joined an opinion declaring that the death penalty itself constituted cruel and unusual punishment. Ginsburg explained why in a 2014 interview with the National Law Journal: “I’ve always made the distinction that if I were in the legislature, there’d be no death penalty. ... I had to make the decision was I going to be like Brennan and Marshall who took themselves out of the loop [by saying the death penalty was always unconstitutional]. There have been some good death penalty decisions. If I took myself out, I couldn’t be any kind of contributor to those.”

The practical impact of Justice Ginsburg’s death will be felt immediately in capital cases. In recent years, stays of execution could not issue without the vote of at least one of the conservative members of the Court, and the justices regularly rejected constitutional challenges to execution procedures or denied stays of executions by 5-4 votes. Because tie votes leave undisturbed the decisions of a lower court, the votes of at least two conservative justices are needed for a death-row prisoner to reach the 5-3 threshold now required for the Court to stay an execution.

Psychologist Raises Concerns About Upcoming Federal Execution for Crimes Committed as a Teenager Fri, 18 Sep 2020 15:29:00 -0400 Death Penalty Information Center The federal government intends to execute Christopher Vialva (pictured) on September 24, 2020, the first time in more than 70 years it will have put any teenage offender to death. But according to a prominent cognitive neuropsychologist, the decision to execute Vialva is out of step with what science now knows about the workings of the adolescent brain.

Vialva was 19 years old when he and four co-defendants, aged 15, 16, 16, and 18, killed a Texas couple during a carjacking and robbery. In a September 17 commentary in Bloomberg Law, Dr. Jason Chein, the director of the Temple University Brain Research and Imaging Center, writes that while this was clearly an abhorrent act, “to make a final judgment about a person’s life based on a crime he committed as a teenager is to ignore what the last 20-plus years of research has taught us about the developing brains of teenagers and adolescents.”

Tried in Texas federal district court in 2020, Vialva and his 18-year-old co-defendant Brandon Bernard were sentenced to death. Since then, “researchers have developed new brain imaging technologies that give us insight into the physiological underpinnings for the emotional reactivity and poor decision-making that characterizes teenagers,” Chein says. “This science suggests that no person of this age should be eligible for capital punishment—regardless of their personal history, intellectual capacity, eventual maturity, or the vileness of their crime.”

Chein says the typical teen’s “[d]eficits in the control of emotions and behavior” are magnified during times of stress and are “further heightened in teenagers who have suffered from some form of abuse.” This, he says makes the death penalty particularly inappropriate for teen offenders like Vialva. Vialva's mother was white, and his father was Black. He was raised by his mother in an abusive home and repeatedly denigrated by an overtly racist grandfather and stepfather. Chein notes that Vialva “also shows signs of organic brain damage from a neonatal infection” and had been “kicked out of his childhood home only three days” before the murder.

On August 10, Vialva filed a 100-page habeas corpus petition in federal district court that included challenges to his death sentence based upon his mental age and the constitutionality of executing teen offenders. The district court denied the petition on September 9. Late on September 18, the U.S. Court of Appeals for the Seventh Circuit summarily affirmed the district court's decision and denied Vialva's request for a stay of execution. Vialva is expected seek a stay of execution from the U.S. Supreme Court to to review the court's decision.

Robert DuBoise and Tina Jimerson Exonerated Decades After Wrongful Capital Prosecutions in Florida, Arkansas Thu, 17 Sep 2020 21:11:00 -0400 Death Penalty Information Center A Florida man and an Arkansas woman, convicted of murder in separate cases involving junk science and prosecutorial misconduct, have been exonerated, decades after being wrongfully capitally prosecuted.

Hillsborough Circuit Judge Christopher Nash dismissed all charges against former Florida death-row prisoner Robert DuBoise on September 14, 2020, granting a motion filed by the office of State Attorney Andrew Warren. The motion was the culmination of an investigation by Warren’s Conviction Integrity Unit, the Innocence Project, and the Innocence Project of Florida, which found that DuBoise’s conviction had been the product of scientifically invalid bite-mark testimony, false testimony by a prison informant, and the prosecution’s failure to disclose favorable treatment the informant had received for his testimony. DuBoise had been convicted in 1983 and sentenced to death after his trial judge overrode the jury’s unanimous recommendation for a life sentence. The Florida Supreme Court ruled in 1988 that the trial court had improperly disregarded the jury’s sentencing recommendation, and resentenced DuBoise to life in prison.

Several days earlier, on September 10, a Dallas County, Arkansas judge granted a motion filed by the 13th Judicial District Prosecuting Attorney seeking dismissal of all charges against Tina Jimerson (pictured with members of her defense team from the Center on Wrongful Convictions). Her exoneration followed a unanimous federal appeals court ruling in April 2020 finding that her trial prosecutor — now a justice of the Arkansas Supreme Court — had knowingly withheld and destroyed exculpatory evidence in her case.

NFL Season Begins with Players Outspoken about Death Penalty, Racial Justice Wed, 16 Sep 2020 15:55:00 -0400 Death Penalty Information Center As the 2020 National Football League (NFL) season’s opening weekend began on Sunday, September 13, end zones were painted with the words “End Racism” and “It Takes All of Us.” Six NFL teams remained in locker rooms for the National Anthem, and players and one coach kneeled. After having been accused of blackballing players who peacefully demonstrated during the national anthem, the NFL stated in early September that “[t]he league is committed to integrating important causes vital to players and fans, such as social justice, among others, throughout the season.”

One cause that has attracted the attention of Dallas Cowboys quarterback Dak Prescott (pictured) and Cleveland Browns quarterback Baker Mayfield is that of Oklahoma death-row prisoner Julius Jones. Jones, a Black high school sports star and honors student, was sentenced to death for the 1999 murder of a prominent white Oklahoma City businessman during a carjacking. The case presents significant questions of innocence, official misconduct, and racial bias. Jones has consistently maintained that he had no involvement in the crime, and he is seeking clemency and a new trial in the racially charged case.

In early August 2020, Prescott wrote a letter to Gov. Kevin Stitt and the Oklahoma Pardon and Board Parole voicing support for Jones’ commutation application. Mayfield, who won the Heisman trophy as the nation’s outstanding collegiate football player in 2017 while quarterbacking for the University of Oklahoma, wrote to the governor in June, urging clemency for Jones. He continued his advocacy during the Browns’ season opener on the 13th, wearing a helmet decal bearing Jones’ name.

In his letter to Stitt and the pardon board, Prescott wrote: “I experience injustices firsthand day in and day out, even as an athlete with ‘celebrity status.’ … The treatment of Julius Jones is the kind of miscarriage of justice African American men like myself live in fear of, and that is why I feel compelled to use the influence that God has blessed me with to speak up for what I believe is right and to give a voice to those who cannot speak for themselves.”

Mayfield’s letter described what he said were numerous defects in Jones’ trial. “[A]nother issue that continues to weigh on me,” Mayfield wrote, “is the obvious racial bias that permeated Julius’ arrest, prosecution and conviction.”

DPIC Releases Major New Report on Race and the U.S. Death Penalty Tue, 15 Sep 2020 17:47:00 -0400 Death Penalty Information Center The Death Penalty Information Center has released a major new report on race and the U.S. death penalty, providing an in-depth look at the historical role race has played in the death penalty and detailing the pervasive impact racial discrimination continues to have throughout every stage of a death penalty case today. Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty. released on September 15, 2020, also makes the case for why redressing discrimination in the American death penalty is essential if the United States is serious about creating a fair and just criminal legal system.

In early news coverage of the report, the Associated Press wrote: “The report from the Death Penalty Information Center is a history lesson in how lynchings and executions have been used in America and how discrimination bleeds into the entire criminal justice system. It traces a line from lynchings of old — killings outside the law — where Black people were killed in an effort to assert social control during slavery and Jim Crow, and how that eventually translated into state-ordered executions.”

“The death penalty is inextricably linked to our history of slavery, of lynching, and Jim Crow segregation, and we wanted to put what is happening today in its appropriate context,” DPIC Executive Director Robert Dunham told Associated Press. “[W]hat the data tells us and what history tells us is that they’re all part of the same phenomenon.”

The Memphis Commercial Appeal noted that the report was released in an environment of social upheaval in which “[o]pponents of the death penalty are finding their arguments about the history of state-sanctioned executions fit into a wider discourse about racial injustice amid nationwide protests against police brutality and racism.”

Ngozi Ndulue, DPIC’s Senior Director of Research and Special Projects and the author of the report, agreed. “We have seen more explicit reference to the continued racial discrimination in the death penalty in the last few months," she told the Commercial Appeal. “This is a moment that advocates are really looking for concrete changes and what we’re trying to do with this report — the bulk of it was written before the deaths of Ahmaud Arbery, Breonna Taylor, George Floyd — ties really into the moment of reckoning of racial justice the country is having right now."

Black Legislators, Legal Associations, Faith Leaders, and Community Groups Call for DNA Testing/Intellectual Disability Hearing that Could Take Pervis Payne Off Tennessee’s Death Row Mon, 14 Sep 2020 19:01:00 -0400 Death Penalty Information Center Leaders in the Tennessee African-American community are urging Governor Bill Lee and the state and federal courts to halt the execution of a Black death-row prisoner who may be both innocent and intellectually disabled and who has been denied access to the courts to review those claims.

A growing coalition of state legislators, legal associations, faith leaders, and community groups in Memphis have called for the courts to permit DNA testing that could potentially exonerate Pervis Payne (pictured) in a racially charged murder case. They are also asking the governor to commute Payne’s death sentence or postpone his scheduled December 3, 2020 execution so that the state legislature can address a defect in Tennessee law that has left intellectually disabled death-row prisoners without any legal procedure to establish their ineligibility for the death penalty.

On August 31, 2020, a coalition of African-American groups issued a press release calling on Shelby County District Attorney Amy Weirich to drop her opposition to DNA testing in the case. The organizations — led by the Ben F. Jones Chapter of the National Bar Association, and including the Tennessee Black Caucus of State Legislators, the Memphis Branch of the NAACP, the Memphis Bar Association, 100 Black Men of Memphis, Inc., the National Council of Negro Women (Memphis Chapter), Stand for Children Tennessee, the Memphis Interfaith Coalition for Action and Hope (MICAH), the Church of God in Christ (COGIC) National General Board Member Bishop Brandon Porter, COGIC Bishops Linwood Dillard, Jr. and David Hall, Sr., Hope Fellowship Church Pastor Dr. Timothy Jackson, Jr., Carlos Moore, President-Elect of the National Bar Association, and Just City — criticized as racist the arguments prosecutors had used to condemn Payne for the rape and murder of a white woman, Charisse Christopher, the fatal stabbing of her 2-year-old daughter, and the stabbing of her 3-year-old son, who survived the attack.

Years After Their Death Sentences Were Commuted, Former Death-Row Prisoners in Illinois, Ohio Are Released Fri, 11 Sep 2020 19:37:00 -0400 Death Penalty Information Center Two former death-row prisoners whose sentences were commuted by governors in Illinois and Ohio more than a decade ago have been released from custody.

Renaldo Hudson (pictured) was one of 167 prisoners whose death sentences were commuted to life without parole by Governor George Ryan in January 2003. He was released from Danville Correctional Center on September 2, 2020, after Governor J.B. Pritzker granted him a second commutation, reducing his sentence to time served.

Jeffrey Hill was released on parole on September 1, 2020, after a ruling by the Ohio parole board granting him early release. Governor Ted Strickland had commuted Hill’s death sentence to 25 years to life on February 12, 2009, following the Ohio Parole Board’s unanimous recommendation that he not be put to death.

Both men had been considered model prisoners since their release from death row.

Eight Years After Exoneration, Court Declares Joe D’Ambrosio ‘Wrongfully Imprisoned’ Thu, 10 Sep 2020 15:52:00 -0400 Death Penalty Information Center Eight years after his exoneration from death row, an Ohio trial court judge has declared that Joe D’Ambrosio (pictured) was “wrongfully imprisoned.” The August 31, 2020 ruling by Cuyahoga County Common Pleas Court Judge Michael Russo moves D’Ambrosio one step closer to receiving compensation for the more than two decades he spent on death row as a result of prosecutorial misconduct.

D’Ambrosio first filed suit seeking a declaration of wrongful imprisonment in 2012, after the federal courts had barred his reprosecution because of continuing prosecutorial misconduct. Ohio’s compensation law required an applicant to prove that he or she was released as a result of a post-sentencing or post-imprisonment “error in procedure” or that he/she did not commit the crime. D’Ambrosio alleged both elements, arguing that the prosecution’s continuing suppression of exculpatory evidence, even after his conviction, qualified as a requisite procedural error. Cuyahoga County prosecutors opposed his lawsuit.

Without reaching the innocence issue, Judge Russo ruled that the prosecutorial misconduct in D’Ambrosio’s case supported a wrongful imprisonment declaration. The Ohio Supreme Court summarily reversed, based on an intervening ruling holding that a violation that occurred prior to trial but was not adjudicated until afterwards does not satisfy the statute. D’Ambrosio refiled his claim in 2017, which Cleveland prosecutors again opposed. In May 2019, the Ohio Supreme Court issued an order allowing the suit to go forward.

While that appeal was pending, the Ohio legislature amended the compensation law to explicitly provide that wrongful imprisonment included cases involving the suppression of exculpatory evidence that was discovered “[s]ubsequent to sentencing or during or subsequent to imprisonment.” State prosecutors opposed the legislation, arguing that only those who can definitively prove their innocence should be deemed wrongfully imprisoned. When D’Ambrosio’s case returned to Judge Russo, Cuyahoga County Prosecutor Michael O’Malley argued that the statute was unconstitutional because it applies retroactively.

D’Ambrosio was cautiously optimistic about the declaration of wrongful imprisonment. “It looks good, but I’m not getting excited because I’ve played this roller coaster before,” he said. “The money will never give me back my life, [but] … I need something to retire on.”

The Cuyahoga County Prosecutor’s Office has until September 30 to appeal the decision. O’Malley has not yet announced whether he will appeal.

Texas Death-Row Prisoner Seeks New Trial Citing Hidden Evidence that Prosecutor was Paid to Work for Trial Judge in Same Case Wed, 09 Sep 2020 19:40:00 -0400 Death Penalty Information Center Texas death-row prisoner Clinton Young (pictured), who came within days of execution in October 2017 while prosecutors hid evidence of his innocence, has filed a claim for a new trial based upon previously undisclosed evidence that an assistant district attorney who prosecuted him was simultaneously employed by the trial judge to provide legal advice in his case.

In an Application for Writ of Habeas Corpus Seeking Relief from a Judgment of Death, filed August 13, 2020 in Midland County District Court and the Texas Court of Criminal Appeals, Young’s lawyers detailed a 17-year history in which Assistant District Attorney Ralph Petty served simultaneously as a full-time prosecutor and as a part-time law clerk to Midland County judges. The pleading documents that Petty’s undisclosed activities included serving as a paid judicial clerk on cases in which he also was acting as prosecutor, including in Young’s case — an arrangement the legal blog Law & Crime described as a “patently unethical dual-role.”

The application alleges that during that time, Petty was part of the prosecution team that obtained Young's conviction and death sentence, represented the state in opposing Young's state post-conviction appeals, and obtained a death warrant for Young's execution, all the while acting as a legal advisor to two judges who presided over Young's trial and post-conviction appeals.

Young’s request for a new trial, his lawyers write, “is premised on an irrefutable fact: The trial judge overseeing Petitioner Clinton Young’s conviction and death sentence employed a Midland County prosecutor to be a judicial clerk while that prosecutor was representing the State at Young’s trial.” They argue that this and other facts establish a series of state and federal constitutional violations — including improper ex parte communications, judicial bias, and prosecutorial misconduct — that void Young’s conviction and death sentence and entitle him to a new trial.

Special counsel representing the state of Texas in the matter conceded on August 25 that Young’s conflict-of-interest allegation “presents an issue of substantial merit [that] could possibly be outcome determinative,” and that he should be granted an evidentiary hearing to resolve the issue.

Curtis Flowers Exonerated in Mississippi After Attorney General Drops All Charges Tue, 08 Sep 2020 20:36:00 -0400 Death Penalty Information Center After six trials marred by prosecutorial misconduct and racial prejudice, drawing a scathing rebuke from the U.S. Supreme Court, former Mississippi death-row prisoner Curtis Flowers (pictured with the ankle monitor that had kept him under house arrest) has been exonerated.

On September 4, 2020, nearly 23 years after he was first questionably convicted of a quadruple murder in Winona, Mississippi, the Mississippi Attorney General’s office dropped all charges against Flowers and a Montgomery County trial judge dismissed his indictment with prejudice. The ruling means that local Mississippi prosecutors may never try Flowers a seventh time for the murders.

“Today, I am finally free from the injustice that left me locked in a box for nearly 23 years,” Flowers said in a statement. “I’ve been asked if I ever thought this day would come. … With a family that never gave up on me and with them by my side, I knew it would.”

Flowers is the fifth person sentenced to death in Mississippi to have been exonerated since 1973 and the 171st death-row exoneration nationwide that DPIC has documented during that period.

California Legislature Passes Racial Justice Package Affecting Death-Penalty Practices Fri, 04 Sep 2020 11:00:00 -0400 Death Penalty Information Center In the closing days of its 2020 legislative session, the California legislature passed a trio of racial justice reform bills expected to reduce the influence of racial, ethnic, and socioeconomic bias in the administration of the death penalty in the state with the country’s largest death row.

On August 28, 2020, the California senate gave its final approval to Assembly Bill 2512, which amends California’s death penalty intellectual disability statute to prohibit the use of race-based IQ adjustments in determining a defendant’s or death-row prisoner’s eligibility for the death penalty. On August 31 — the last day to consider bills on the legislature’s COVID-shortened agenda — the senate and the state assembly approved and sent to the governor amended versions of a statewide Racial Justice Act to combat racial discrimination in criminal prosecutions and sentencing and a bill that would fight racial, ethnic, religious, and gender discrimination in jury selection. The latter bill emerged from the senate at 11:40 p.m. and passed the assembly at 11:55 p.m., over efforts by prosecution lobbyists to prevent a vote before the midnight end of the legislative session.

AB-2512 applies to all death penalty cases in which a defendant or death-row prisoner alleges ineligibility for the death penalty because of intellectual disability. AB-2542, the California Racial Justice Act, applies to all criminal cases in which the trial court judgment is issued on or after January 1, 2021. AB-3070, the jury selection reform, takes effect for criminal trials beginning on January 1, 2022 and for civil trials beginning on January 1, 2026.

The bills now go to Governor Gavin Newsom for his signature or veto. On March 13, 2019, Governor Newsom imposed a moratorium on executions in California.

DPIC Analysis: Federal Execution Spree Out of Step with U.S. Death Penalty Trends and Attitudes Thu, 03 Sep 2020 11:00:00 -0400 Death Penalty Information Center At a time in which the United States as a whole and individual states and counties have continued their long-term movement away from the death penalty, the federal government’s current execution spree has established it as an outlier jurisdiction out of step with the practices of the nation as a whole.

The federal government has executed five prisoners in less than two months (click to enlarge map), with two more executions slated for September 22 and 24. No state has carried out any executions in that period and none has any planned before the scheduled end of the federal spree. Two-thirds of the way through 2020, U.S. states are on pace to carry out the fewest executions in 37 years. The federal government has already carried out more executions in 2020 than in any other year since capital punishment resumed in the U.S. in the 1970s.

The disconnect between the federal increase in executions and the decrease in state death-penalty usage has no parallel in modern U.S. history.

The June 2020 Gallup Values and Beliefs poll reported the percentage of Americans who say the death penalty is morally acceptable was the lowest in the 20-year history of the poll. 54% said they found capital punishment morally acceptable, down 17 percentage points since 2006. In March 2020, Colorado became the 22nd U.S. state to abolish capital punishment, and in the first half of the year, Louisiana and Utah marked ten years since their last executions. 34 American states — 68% of the Union — have now either formally abolished the death penalty or not put anyone to death in more than a decade.

Against that trend, the federal government resumed executions on July 14, after a 17-year hiatus.

Books: “When Truth Is All You Have” Tells Story of the Centurion Ministries' Role in the Modern Innocence Movement Wed, 02 Sep 2020 11:00:00 -0400 Death Penalty Information Center When Truth is All You Have, a new memoir by Centurion Ministries founder Jim McCloskey (pictured) tells the story of what many consider to be the birth of the modern innocence movement. The book, written with former USA Today national editor Philip Lerman, and released in July 2020, describes McCloskey’s personal and professional evolution as he created Centurion Ministries in 1983, the first-ever organization dedicated to fighting wrongful convictions in the United States.

Barbara Bradley Hagerty’s review for the Washington Post praises When Truth is All You Have as “a riveting and infuriating examination of criminal prosecutions, revealing how easy it is to convict the wrong person and how nearly impossible it is to undo the error.” Kirkus Review calls it “[a] heartfelt and heart-rending story of fighting wrongful convictions” comprised of “[c]ompassionate tales from a dedicated warrior for justice.”

The book includes 12 case studies of wins and losses, including two men McCloskey believes were innocent who were executed. McCloskey shared a last meal with one of them, Virginia death-row prisoner, Roger Coleman. Fourteen years later, he helped persuade Virginia Governor Mark Warner to authorize posthumous DNA testing, which implicated Coleman. “I'll be haunted until the day I die about whether Roger did it or not,” McCloskey told NPR’s Terry Gross on an episode of Fresh Air that was broadcast July 21, 2020. “I’ve traced Roger Coleman's movements that night from 10 o'clock to 11 o'clock. The time of death was 10:30 to 11:00. … I’ve spoken with everybody he’s spoken to during that one hour, what time he was there, what they talked about. And I don’t know how he had the opportunity or even the motivation to do this.”

The book also recounts the case of Texas death-row prisoner, Kerry Max Cook, a case McCloskey says that tested his faith in God. “I was with Kerry through three retrials throughout the 1990s,” McCloskey told Gross. “The first retrial was a 6-to-6 hung jury. Second retrial, Kerry was re-convicted and sent back to death row. I investigated that case from top to bottom. I sat at the defense table during the trial helping the lawyer. There was no question in my mind that Kerry Max Cook had nothing to do with this. I saw the prosecutors and the police and their witnesses lie after lie after lie. And we had a terrible trial judge who prevented us from introducing exculpatory evidence. The deck was stacked against us, and Kerry goes back to death row. And we have to start all over again.”

Ultimately Cook was freed, after the Texas Court of Criminal Appeals described the case as an “illicit manipulation of the evidence [that] permeated the entire investigation of the murder,” resulting in “a conviction based on fraud.”

McCloskey’s exposé of wrongful convictions is intended to highlight what “a cruel, mindless, mean machine the criminal justice system can be” and how difficult it is to persuade the courts they have convicted — and in some cases condemned — an innocent person. “Once some poor innocent soul is singled out, and law enforcement is convinced of his guilt, the train has left the station,” he writes. “There is no turning back. Truth has been left behind.”

Mississippi Supreme Court Grants New Trial to Eddie Howard, Sentenced to Death by Junk Bite-Mark Evidence Tue, 01 Sep 2020 10:00:00 -0400 Death Penalty Information Center The Mississippi Supreme Court has granted a new trial to death-row prisoner Eddie Lee Howard, Jr. (pictured), finding that the combination of scientifically invalid bite-mark evidence used to convict him and new DNA evidence entitled him to a new trial in the 1992 murder and alleged rape of an 84-year-old white woman.

In an 8-1 decision on August 27, 2020, the court held that the discredited forensic testimony, “along with new DNA testing and the paucity of other evidence linking Howard to the murder, requires the Court to conclude that Howard is entitled to a new trial.”

Howard was first convicted and sentenced to death in 1994 in a trial in which he represented himself. The Mississippi Supreme Court overturned that conviction in 1997 and ordered a new trial. He was convicted and sentenced to death again in a retrial in 2000 at which forensic odontologist Dr. Michael West testified that Howard was the source of bite marks he claimed to have found on the victim’s body during a post-autopsy, post-exhumation examination of her body. Forensic pathologist Dr. Steven Hayne conducted the autopsy in the case and claimed that the victim had been beaten, strangled, stabbed, and raped. His initial autopsy report did not mention bite marks.

Represented by lawyers from the Mississippi Innocence Project and the national Innocence Project, Howard presented DNA evidence during post-conviction evidentiary hearings in 2016. The DNA testing found no evidence of semen or male DNA on the victim’s clothing, bedsheets, or body and no male DNA on the locations on the victim’s body where she supposedly had been bitten. None of the blood or other items tested contained Howard’s DNA. Male DNA found on the knife used by the murderer excluded Howard as the source. Nonetheless, the trial court upheld Howard’s conviction.

The Mississippi Supreme Court reversed. The court wrote that the type of bite-mark identification testimony given by Dr. West in this case would be prohibited under recently revised American Board of Forensic Odontology (ABFO) guidelines “reflect[ing] a new scientific understanding that an individual perpetrator cannot be reliably identified through bite-mark comparison.” Without that testimony, which the court said was central to the prosecution’s case, the remaining evidence was insufficient to sustain Howard’s conviction.

The innocence projects hailed the court’s ruling. “Mr. Howard has been in prison for almost thirty years, almost all of that time on death row, slated to be executed,” Mississippi Innocence Project director Tucker Carrington said in a joint statement issued by the innocence projects on August 28. “It’s now time to bring this case to an end — and to close another door on a disastrous era of injustice in this state.”

Coronavirus Prison Fatalities Surpass Two Decades of Executions; COVID-19 Has Killed More California Death Row Prisoners Than the State Has Executed in 27 Years Mon, 31 Aug 2020 11:00:00 -0400 Death Penalty Information Center More prisoners in the United States have died in the coronavirus pandemic than have been executed in the country in past two decades, new prison data shows, and more California death-row prisoners have been killed by the virus than have been executed in the state since 1993.

Ohio State University Law Professor Douglas Berman reported in his Sentencing Law and Policy blog that as of August 23, 2020, prisons across the United States had confirmed the deaths of 858 prisoners from COVID-19. “This considerable number is sad and disconcerting on its own terms,” Professor Berman wrote, “but it is even more remarkable given that it amounts to more prisoner deaths than has been produced by carrying out formal death sentences in the United States for the entire period from 2001 to 2020. According to DPIC data, there were a total of 839 executions from the start of 2001 through [August 23].”

By August 30, the number of confirmed prisoner deaths in the U.S. from COVID-19 had risen to 931, according to the UCLA Law COVID-19 Behind Bars Data Project. That total equals the number of executions in the country since Alvaro Colambro was put to death in Nevada on April 5, 1999.

California’s death row has been especially hard hit by the prison system’s failure to control the pandemic. An outbreak at San Quentin State Prison has killed at least 12 death-row prisoners, as many as the state has executed since 1993. Prison officials announced on August 19 that a 13th death-row prisoner, Dean Dunlap, died at an outside hospital in late July. The San Bernardino County Coroner’s Department will determine his cause of death. If he died from the coronavirus, the COVID-19 death-row death toll in California will equal the number of executions carried out by the state since the death penalty came back in the 1970s.

Former Florida Death-Row Prisoner Robert DuBoise Freed After DNA Proves His Innocence Fri, 28 Aug 2020 14:32:00 -0400 Death Penalty Information Center A Florida trial court has freed a former death-row prisoner after local prosecutors said new DNA evidence had proven his innocence of the rape and murder for which he was wrongfully convicted and sentenced to death 37 years ago.

Based on junk-science bite-mark evidence and false testimony from a prison informant, Robert DuBoise (pictured with his mother, Myra, following his release) was convicted of raping and murdering 19-year-old Barbara Grams. The jury unanimously recommended that DuBoise be sentenced to life, but his trial judge, Henry Lee Coe III, overrode their recommendation and sentenced DuBoise to be executed in Florida’s electric chair.

DuBoise was released from the Hardee Correctional Institution in Bowling Green, Florida, August 27, 2020, one day after Hillsborough prosecutors and lawyers from the national Innocence Project and the Innocence Project of Florida presented Circuit Judge Christopher Nash with evidence of his innocence. Working with State Attorney Andrew Warren’s Conviction Integrity Unit, the parties told the court that there was in fact no bite mark and that DNA evidence from an untested rape kit excluded DuBoise and implicated two other men.

In February 1988, the Florida Supreme Court overturned DuBoise’s death sentence, ruling that the trial court should not have overridden the jury’s sentencing recommendation and directing that DuBoise be resentenced to life imprisonment. Judge Nash reduced that sentence to time served and set a September 14 hearing date for the presentation of evidence to overturn his conviction.

DuBoise was greeted outside the prison by his mother, Myra, his sister, Harriet, and Innocence Project lawyer, Susan Friedman. After hugging his mother, he spoke to an assemblage of reporters and cameras.

"It’s a beautiful day,” he said.

Ignoring Tribal Sovereignty, Federal Government Executes Native American Death-Row Prisoner Lezmond Mitchell Thu, 27 Aug 2020 19:01:00 -0400 Death Penalty Information Center Over the objections of Native American leaders across the country, the federal government on August 26, 2020 executed Lezmond Mitchell (pictured), the sole Native-American prisoner on federal death row. Mitchell, a Navajo citizen, became the first Native American executed by the federal government for a crime committed against a member of his own tribe on tribal lands.

The Navajo Nation government has long opposed the death penalty as inconsistent with its culture and traditions and repeatedly objected to the U.S. Department of Justice’s decision to seek and carry out the death penalty for a crime committed on its lands. As Mitchell’s execution date approached, the Navajo Nation urged the federal government to respect its sovereignty by granting Mitchell clemency. The National Congress of American Indians, 13 tribal governments, and Native Americans from more than 90 tribes across the country supported Mitchell’s request that his death sentence be commuted to life without parole. However, federal prosecutors pushed forward with his execution, which was carried out even though President Trump and the U.S. Pardon Attorney never issued a decision on his clemency application.

Navajo leaders called the execution “a sad day for family members, relatives, and friends of two Navajo families and for the Navajo Nation as a whole.” In a statement issued on August 27, Navajo Nation President Jonathan Nez and Vice President Myron Lizer wrote: “The Navajo Nation’s position, from the beginning, was to advocate for the sovereign status of the Nation. Our decision not to accept the death penalty in federal cases remains a Navajo decision, but in this instance the federal government ignored the Navajo Nation. This is an affront to our Nation because we should be the ones to decide these matters. The federal government charged a crime that was added in 1994 to the Federal Death Penalty Act and blindsided the Navajo Nation by using this to sidestep the Navajo Nation’s position.”