Death Penalty Information Center en-US Fri, 14 Jun 2019 19:07:00 -0400 Sun, 16 Jun 2019 10:59:05 -0400 Death Penalty Information Center Launches New Website Fri, 14 Jun 2019 19:07:00 -0400 Death Penalty Information Center The Death Penalty Information Center has modernized and expanded its award-winning website. On June 14, 2019, DPIC launched its redesigned website, culminating a two-year project that involved the transfer and reorganization of information on the Center’s more than 7,000 webpages. Among the most notable additions of the new website are 20 interactive Tableau graphics, including States With and Without the Death Penalty, Prisoners on Death Row, and a number of graphics on executions, exonerations, and grants of clemency. The graphics will allow users to filter information in a variety of new ways, including narrowing by year or range of years, geography, race, sex, and, for some graphics, race of victim. The website launch is the first reconceptualization of the DPIC website.

The new DPIC website was designed by Richmond, Virginia-based software company Foster Made, which also designed a new DPIC database to track and analyze information on death sentencing and executions in the United States. “We are thrilled and excited—and of course a little nervous—about the new website,” said DPIC Executive Director Robert Dunham. “We wanted to preserve the brilliant work created by [former Executive Director] Dick Dieter over the course of the 23 years he ran DPIC, while making the website more user friendly and more visually appealing. We think Foster Made did a terrific job and we encourage users to check out the new site and experiment with the new interactive graphics.”

DPIC hopes that the new, sleeker design of the website will help visitors find information and resources more easily. Visitors may encounter small challenges in the early days of the new site, including unavoidable issues with the site’s internal search function as Google gradually incorporates the new site into its search results. To assist visitors in navigating the new website, DPIC has prepared a guide to the site. The webguide highlights the new locations of DPIC’s most popular pages, including Upcoming Executions and States With and Without the Death Penalty. It explains the navigation menus, which divide many of our topics into “Policy Issues” and “Facts & Research.” Policy Issues includes major topics of debate related to the death penalty, including arbitrariness, innocence, and costs. Facts & Research includes pages that are less theoretical and more specific, including sentencing data, murder rates, and recent legislation. The navigation menu also makes it easier to find information on executions, death row, and state-by-state data. The guide also contains a brief introduction to the interactive graphics and a glossary of essential terms used throughout the website.

The launch of the redesigned website is only the beginning of DPIC’s efforts to improve the quality and accessibility of its resources. The database that currently provides information on executions and exonerations will be expanded in the coming months to include information on death sentences imposed across the United States. As DPIC completes its death-row census of the status of every death sentence imposed in the country since 1973, new interactive tables and graphics will allow visitors to examine death-sentencing patterns and trends at the national, state, and county levels. “The new website and database have enormous potential that we are just beginning to unleash,” Dunham said. “Its greatest asset may well be empowering the imaginations of journalists, advocates, and the general public to look at the death-penalty data in new and enlightening ways to ensure that opinions are formed and public policy decisions are made on this important issue based on facts rather than on myths.”

Death-Row Prisoner Alleges North Carolina Prosecutors Used Racist Training Document to Strike Black Jurors Thu, 13 Jun 2019 15:00:00 -0400 Death Penalty Information Center A North Carolina death-row prisoner is seeking a new trial based on allegations that prosecutors in his case used a training document steeped in racist stereotypes to manufacture pretextual reasons to exclude African Americans from serving on his jury. In a June 4, 2019 court filing in the appeal of Russell William Tucker (pictured), two national experts say that the Forsyth County prosecutors unconstitutionally exercised their discretionary juror challenges on the basis of race to strike all five black jurors from his case. Bryan Stevenson, executive director of the Equal Justice Initiative, says that the prosecution’s use of pre-prepared reasons contained in the training document shows that the “race neutral” justifications the prosecution offered for their strikes were pretextual. Dr. Ibram X. Kendi, an historian and the director of the Antiracist Research and Policy Center at American University, says that the reasons extracted from the training handout are outgrowths of false white supremacist myths about African Americans and “themselves evince racial bias.”

Tucker was sentenced to death in February 1996 for the 1994 murder of a K-Mart security guard. In selecting the jury in his case, prosecutors David Spence and Robert Lang relied on a document, “Batson Justifications: Articulating Juror Negatives,” distributed in a prosecutorial training session to offer facially race-neutral justifications if the prosecutor’s use of discretionary jury strikes were challenged. Both prosecutors and defense lawyers may peremptorily challenge a limited number of jurors to remove them from the jury pool and they do not have to give a reason for doing so. However, those strikes may not be used to remove jurors because of their race, and in 1986, the U.S. Supreme Court ruled in Batson v. Kentucky that if the defense challenges a strike, the prosecutor must provide a race-neutral explanation for doing so. Tucker’s petition alleges that prosecutors used language directly from the training document to justify their strikes, citing jurors’ “monosyllabic” replies, “body language,” or their opinion that the juror had “no stake in the community.”

In an affidavit supporting Tucker’s petition, Stevenson called “[t]he North Carolina Batson Justifications handout … another example of the common prosecutorial response to Batson: prosecutors came up with ways to conceal racial bias, and avoid findings of Batson violations, by developing ‘reasons’ that would likely be deemed race-neutral, and therefore, acceptable to reviewing courts.” Stevenson said that, despite appearing race-neutral, “many of the listed reasons are based on longstanding racist stereotypes that have been used to deny rights to Blacks for centuries.” Kendi—whose National Book Award-winning book Stamped from the Beginning traces the roots of anti-black racist ideas from colonial times to the modern era—described many of the reasons contained in the training handout as a modern application of the same types of language used to justify Jim Crow policies, segregation, and voter suppression. “[M]any of the reasons listed on the Batson Justifications handout and offered to the court as ‘race neutral’ reasons to remove Blacks from Mr. Tucker’s jury were not race neutral at all,” he wrote in an affidavit. “Instead, many of the listed reasons are based on longstanding racist stereotypes that have been used to deny rights to Blacks for centuries.”

Racial discrimination in jury selection remains a widespread problem in death-penalty cases, despite the Supreme Court’s ruling in Batson. A Michigan State University study of North Carolina prosecutorial jury strikes or acceptances of more than 7,400 jurors from 173 capital cases tried over a twenty-year period showed that prosecutors across the state consistently struck African-American jurors at approximately twice the rate of other jurors. Yet a 2016 study of Batson challenges in North Carolina found that, “[i]n the 114 cases decided on the merits by North Carolina appellate courts, the courts have never found a substantive Batson violation where a prosecutor has articulated a reason for the peremptory challenge of a minority juror.” A 2015 New Yorker article on the discriminatory tactics used by prosecutors highlighted the same training document that is being challenged in Tucker’s appeal. The issue has reached the U.S. Supreme Court several times in recent years. In May 2016, the U.S. Supreme Court granted a new trial to death-row prisoner Timothy Foster after finding that Georgia prosecutors had invented pretextual reasons for striking every black juror from his case. On March 20, 2019, the U.S. Supreme Court heard oral argument in Flowers v. Mississippi, an appeal from a Mississippi prisoner who had been tried six times. Over the course of his six trials, prosecutors removed all but one black juror. The Court has not yet issued a decision in that case.

(Michael Hewlett, Court papers: Training document designed to exclude black jurors in murder case, Winston-Salem Journal, June 8, 2019; Jacob Biba, N.C. Prosecutors Were Taught How to Remove Blacks From Juries. That Might Save Russell William Tucker’s Life, Indy Week/The Appeal, September 5, 2018; Michael Hewlett, Motion: Prosecutors used race in jury selection in Winston-Salem murder trial involving killing of Kmart security guard, Winston-Salem Journal, July 29, 2018.) Read the filing in North Carolina v. Russell William Tucker. See Race and Prosecutorial Misconduct.

Ohio House Passes Bill to Bar the Death Penalty for Defendants with Serious Mental Illness Wed, 12 Jun 2019 16:24:00 -0400 Death Penalty Information Center The Ohio House of Representatives has overwhelmingly approved a bill that would ban the death penalty for offenders who were seriously mentally ill at the time of the offense. House Bill 136, sponsored by Rep. Brett Hillyer (R – Uhrichsville, pictured), passed the House by a vote of 76-17 on June 5, 2019 with bipartisan support and was referred to the Senate Judiciary Committee on June 11. Hillyer’s bill would remove the death penalty as a sentencing option for defendants who can show they had schizophrenia, schizoaffective disorder, bipolar disorder, or delusional disorder that “significantly impaired [their] capacity to exercise rational judgment” at the time of the crime. It also provides a one-year time frame for prisoners currently on death row to seek to have their death sentences overturned on grounds of serious mental illness. Defendants with serious mental illness who are convicted of aggravated murder would be subject to a maximum sentence of life without parole.

The bill is backed by a broad coalition of supporters that include the National Alliance on Mental Illness Ohio, the Ohio Psychiatric Physicians Association, the Ohio State Medical Association, the Ohio Public Defender, former Ohio attorney general Jim Petro, and former Ohio Supreme Court justice Evelyn Stratton. The measure addresses one of the 56 death-penalty reforms recommended by the Ohio Supreme Court Death Penalty Task Force in 2014. Hillyer, who said the bill was drafted in consultation with Justice Stratton, stressed that the bill “isn’t about guilt or innocence. You can still be found guilty of the capital offense of aggravated murder,” he said. Ohio state law and the U.S. constitution also bar the death penalty for offenders diagnosed with intellectual disability (formerly, mental retardation) and those who committed the offense as juveniles.

The Ohio Prosecuting Attorneys Association has opposed the mental illness exemption, arguing that it could be abused by defendants who are not seriously mentally ill. The association’s executive director, Louis Tobin, criticized the proposal as benefiting only people “whose mental illness is so weak that they were unable to create reasonable doubt in the mind of even one single juror” that they were not guilty by reason of insanity.

The U.S. Supreme Court has repeatedly distinguished between legal defenses such as not guilty by reason of insanity that excuse an individual from guilt and those that exempt an accused from execution. There is no current constitutional prohibition against executing those with serious mental illness. While individuals who have become mentally incompetent after conviction may not be executed if they lack a rational understanding of why they are to be executed, that narrow limitation includes only a small subset of condemned prisoners with serious mental illness. Expressing support for the bill, state Rep. Bill Seitz (R – Cincinnati) asked, “Isn’t it worth being absolutely certain that we’re only executing the people who are truly depraved[,] … the worst of the worst?” “We need to have the strike zone as narrow as possible,” Seitz said. “I believe support for the death penalty might drop to zero if we continue to be indiscriminate in who we allow to be put to death in Ohio.”

Ohio is one of ten states to consider a serious mental illness exemption bill in 2019 but would be the first death-penalty state to pass such an exemption. In January, the Virginia State Senate passed a bill to ban the death penalty for defendants with severe mental illness, but the bill died in committee in the House. The American Bar Association issued a white paper in 2016 urging states to end executions of people with severe mental illness.

(Jim Provance, Ohio House votes to eliminate death penalty for those with 'serious mental illness', Toledo Blade, June 5, 2019; Laura Hancock, Ohio House passes bill banning executions of people with ‘serious mental illness’ during crime, Cleveland Plain Dealer, June 5, 2019; Ohio House approves death penalty ‘mental illness’ bill, Associated Press, June 5, 2019.) See Mental Illness and Recent Legislative Activity.

Supreme Court Grants Review of Arizona Death-Penalty Case Tue, 11 Jun 2019 21:15:42 -0400 Death Penalty Information Center The U.S. Supreme Court has granted review of an Arizona death-penalty case in which the state courts first refused to consider a defendant’s mitigating evidence and then denied his request for a jury sentencing hearing after his death sentence was overturned. The Court on June 10, 2019 granted the petition for writ of certiorari filed by Arizona death-row prisoner James Erin McKinney (pictured) 26 years after he was first sentenced to death.

In 1993, McKinney was convicted for a double murder committed during the course of a burglary. At that time, Arizona law provided for a jury trial on guilt or innocence and a separate penalty-phase trial in front of a judge. In his penalty-phase hearing, McKinney presented mitigating evidence of a terrifying childhood replete with instability, abuse, and neglect. The evidence from his early childhood showed that his mother was repeatedly forced to flee from his alcoholic father. McKinney and his siblings lived in “squalor” in a house littered with dirty diapers, sharing a room with livestock and going to school in “dirty clothes that reeked of urine from being on the bedroom floor with the animals.” McKinney “suffered regular and extensive physical, verbal, and emotional abuse.” His stepmother regularly beat him and his siblings, leaving marks and bruises. Often, they were locked out of the house for hours without food and water. According to testimony from a psychologist, McKinney was diagnosed with PTSD “resulting from this horrific childhood.” The trial judge found that McKinney's childhood was “beyond the comprehension of most people,” but refused to consider any of that evidence as a result of Arizona Supreme Court caselaw requiring mitigating evidence to be have a direct causal connection to the crime. Without that evidence, the trial judge sentenced McKinney to death.

In June 2002, the U.S. Supreme Court declared the state’s judicial sentencing procedures unconstitutional, ruling in Ring v. Arizona that capital defendants had a right to a jury determination of all facts upon which a death-sentence could be imposed. However, the Court later ruled in Schriro v. Summerlin that it would enforce Ring only in cases that had not yet completed direct review at the time Ring was decided. The Arizona state courts upheld McKinney’s conviction and death sentence, but the U.S. Court of Appeals for the Ninth Circuit reversed his sentence, holding that Arizona’s requirement that mitigating evidence be “causally connected” to the crime violated the U.S. Supreme Court’s long established 1982 decision in Eddings v. Oklahoma. The appeals court ruling also affected every other Arizona death-penalty case in the 15-year time period in which the state courts unconstitutionally limited mitigating evidence.

The Ninth Circuit returned the case to the Arizona courts for resentencing, but rather than giving McKinney a new sentencing hearing, Pima County prosecutors asked the Arizona Supreme Court to conduct its own independent review of his sentence. McKinney argued that resentencing by the court would violate his right under Ring to have a jury decide the aggravating and mitigating evidence in his case. The Arizona Supreme Court sided with the prosecutors and independently reweighed the aggravating and mitigating evidence. Affording little weight to McKinney's PTSD, the court resentenced him to death. McKinney’s Supreme Court petition argued that Arizona’s refusal to provide him a jury sentencing violated his rights under Ring and Eddings and deviated from the approach of other state and federal courts that had uniformly required jury resentencing in similar circumstances.

Ben Cohen of the Promise of Justice Initiative, which filed an amicus brief in support of McKinney, called the decision to hear the case “a positive sign that the court is not going to throw up its hands and ignore unconstitutional death sentences.” John Mills of Phillips Black, a non-profit law practice that also submitted an amicus brief, said McKinney’s case “presents an opportunity to reaffirm the importance of juries in weighing the evidence about whether an inmate should live or die.” The Court’s resolution of the issue could affect resentencing procedures in more than twenty other cases.

(Jordan S. Rubin, Divided on Death Penalty, Justices to Hear Capital Case, Bloomberg Law, June 10, 2019; Erika Williams, High Court to Clarify Appeals Standard in Death-Penalty Cases, Courthouse News, June 10, 2019; Jose Moreno, U.S. Supreme Court to hear Chandler death penalty case, Arizona Republic, June 10, 2019.) See U.S. Supreme Court.

Complaint Alleges that Prosecutor in Alfred Dewayne Brown’s Case Knowingly Hid Evidence of Innocence Mon, 10 Jun 2019 19:49:53 -0400 Death Penalty Information Center A special prosecutor in Harris County, Texas, has filed a complaint with the Texas State Bar Office of Chief Disciplinary Counsel against former Assistant District Attorney Daniel Rizzo, alleging that Rizzo intentionally concealed exculpatory evidence crucial to the exoneration of former death-row prisoner Alfred Dewayne Brown (pictured). Brown was wrongfully convicted and sentenced to death in 2005 for a robbery murder in which a store clerk and responding police officer were shot to death. Brown claimed that phone records would show he was at his girlfriend’s apartment at the time of the murder. Rizzo withheld the records from the defense, then abused grand jury proceedings to jail Brown’s girlfriend until she agreed to implicate Brown. Brown was exonerated in 2015 after the phone records came to light. An investigation by Special Prosecutor John Raley later led to an official declaration that Brown is “actually innocent.”

In early June 2019, Raley filed what the Houston Chronicle described as a “scathing grievance” with the Texas state bar alleging that “Rizzo was aware of exculpatory evidence and chose not to produce it to the defense and the court.“ He accused Rizzo of engaging in “significant misconduct” by “withhold[ing] from the court and defense counsel evidence likely to acquit Brown and then press[ing] forward in seeking the death penalty.” Raley said “Mr. Rizzo’s misconduct in the Brown case raises substantial questions regarding his honesty, trustworthiness, and fitness to be a lawyer. ... Mr. Brown, an innocent man, spent nearly 12 years on death row because of the misconduct of Daniel Rizzo.”

As Special Prosecutor, Raley issued a report — commissioned by the Harris County District Attorney’s Office —advocating for Brown’s exoneration. The report, issued in March 2019 after more than 1,000 hours of investigation into Brown’s case, found “[b]y clear and convincing evidence, [that] no reasonable juror would fail to have a reasonable doubt about whether Brown is guilty of murder. Therefore his case meets the legal definition of ‘actual innocence.’” Harris County District Attorney Kim Ogg and Harris County District Court Judge George Powell subsequently made official declarations of Brown’s “actual innocence,” paving the way for Brown to receive state compensation for the years in which he was wrongfully imprisoned. Raley’s report documented that Rizzo concealed “crucial evidence” of phone records that supported Brown’s alibi that he had been at his girlfriend’s apartment at the time of his alleged crime. A copy of the records were discovered by police officer Breck McDaniel in his garage during Brown’s appeals.

In 2003, in preparation for Brown’s trial, Officer McDaniel obtained the phone records for Brown’s girlfriend’s apartment in an effort to disprove Brown’s alibi. Instead, the records showed that Brown had, as he claimed, called his girlfriend at work at a time that made it impossible for him to have been involved in the murder of Houston Police Officer Charles Clark. McDaniel sent an email to Rizzo informing him of the phone records. When that email was uncovered in 2018, District Attorney Kim Ogg filed a Bar complaint against Rizzo. Rizzo claimed he never read the email and had not been aware of the records. Raley’s complaint rejected Rizzo’s version of events, explaining that, while Rizzo had not replied to the email, he made a change to a subpoena that McDaniel had requested, demonstrating that he in fact read the email.

Rizzo has denied concealing the evidence. His lawyer, Chris Tritico, wrote, “There is more credible evidence that supports that Breck McDaniel suppressed what he clearly thought was exculpatory evidence, but did not understand was inculpatory evidence, after all it was in HIS GARAGE. If the District Attorney wants to set a cop killer free they can do so without laying it on the back of a 27-year public servant.” “For Rizzo to call Brown a ‘cop killer’ at this stage reveals both his desperation and his bias,” Raley replied. “Rizzo was fully aware of the existence of the exculpatory evidence, decided not to produce it, and pretended that it did not exist.”

In the complaint, Raley wrote that he “cannot imagine anything in the practice of law more horrible than executing an innocent man.” “Rizzo’s unethical and illegal actions resulted in an innocent man being sent to death row,” he said. “Fortunately, an extra copy of the records was found and produced before Brown was executed. If our justice system is to work properly, the State Bar of Texas must hold prosecutors who hide evidence of innocence accountable for their conduct.”

(Keri Blakinger, Special counsel files grievance against ex-prosecutor accused of hiding evidence in Alfred Dewayne Brown death row case, Houston Chronicle, June 5, 2019; Angela Morris, Houston Ex-Prosecutor Faces Grievance for Allegedly Helping Send Innocent Man to Death Row, Texas Lawyer, June 7, 2019.) Read John Raley’s Grievance against former Assistant District Attorney Daniel Rizzo. See Prosecutorial Misconduct.

STUDIES: Death-Penalty Trials Contribute to Higher Taxes and Increased Property Crime in Texas Fri, 07 Jun 2019 18:01:51 -0400 Death Penalty Information Center A study of tax rates and crime rates in Texas counties has found that death-penalty trials contribute to higher property tax rates and increased rates of property crime. Alex Lundberg (pictured), an assistant professor of Economics at West Virginia University, analyzed budgetary and crime rate data from Texas counties and found that counties responded to the high cost burden of capital trials by raising property taxes and reducing public safety expenditures. As an example, he cites Jasper County, Texas, which “raised property taxes by eight percent to fund a joint trial for suspects in the 1998 murder of James Byrd. Another Texas county reduced public safety expenditure after voters rejected a property tax increase.” The reduction in public safety spending did not affect violent crime, Lundberg found, but “as counties reduce expenditures on public safety in the two years up to the conclusion of a capital trial, their property crime rate rises by an estimated 1.5%.”

Studies consistently show that death penalty trials are more expensive than non-capital trials in which defendants face a sentence of life without parole. Standard practice calls for two lawyers on each side, and compertently litigated cases involve lengthy jury selection, multiple expert witnesses, and extensive investigation into the defendant’s background to discover and present mitigating evidence intended to persuade the jury to spare a defendant's life. Lundberg’s data showed that Texas “counties bear an average of $1,400,000 in additional expenses coded as ‘judicial’ or ‘legal’ in the two years up to the conclusion of a trial (or $700,000 in a one-year window).” He examined county data because “[a] few activities, such as hearing automatic appeals, housing death row inmates, and, occasionally, assigning public defenders to indigent defendants, are covered by the state, but the bulk of the expense falls on the county in which a capital trial takes place.” To cope with the high cost of death-penalty trials, “counties meet the cost of trial in two ways. The first is by increasing property taxes. The data show property tax rates increase by an average of 2% in years with a capital trial (as a percent of a percentage). When multiplied by the mean market value across counties, the increase yields an additional $660,000 in tax revenue. The second response is a drop in public safety expenditure. Court records do not provide trial start dates, but capital trials can take more than a year to complete. With the median length of time between the date of the offense and the conclusion of trial as an approximate guide, counties reduce public safety expenditures by $2,800,000 in the two years up to the conclusion of a capital trial (or $1,400,000 in a one-year window).”

Lundberg concludes that moving the cost of the death penalty to the state level might be more sustainable for counties. “By housing more costs at the state level, counties would no longer face stark tradeoffs in trials, taxes, and public expenditures. The National Right to Counsel Committee supports a similar policy for indigent defense. According to the Committee, over 50% of indigent defense expenses fall on counties in sixteen states, including Texas. Aside from reducing the opportunity cost of trial for counties, a shift in the financial burden from counties to the state may improve the quality of indigent defense, which is frequently poor.” He writes, “As the public finance of the death penalty currently stands, the opportunity cost of trial is relatively high. Citizens in Texas face both higher taxes and crime to ultimately fund a small number of executions.”

(Alex Lundberg, On the Public Finance of Capital Punishment, West Virginia University – Department of Economics, April 5, 2019.) See Costs and Studies.

Bipartisan Effort to Repeal Death Penalty Growing in Pennsylvania Thu, 06 Jun 2019 18:53:00 -0400 Death Penalty Information Center One year after a state task force issued a report calling Pennsylvania’s death penalty seriously flawed and in need of major reform, bipartisan opposition to capital punishment is surfacing in the Commonwealth’s legislature. A group of legislators, led by Lebanon County Republican State Rep. Frank Ryan (pictured, left) and Philadelphia Democrat Chris Rabb (pictured, right), have prepared legislation to repeal Pennsylvania’s death penalty and are circulating the proposal for co-sponsorship. “The odd couple pairing” of legislators Rabb and Ryan—whom veteran Harrisburg reporter John Micek describes as “one of the most progressive Democrats in the state House [and] one of its most conservative members” — “is becoming more commonplace as Republican lawmakers across the country not only reevaluate their support for capital punishment, but also step up to sponsor bills calling for its elimination,” Micek wrote in the Pennsylvania Capital-Star.

Ryan’s reasons for opposing the death penalty — both moral and pragmatic — are typical of the growing number of Republic legislators who are sponsoring abolition bills. Considered a “tax and spending hawk,” Ryan says, “I empathize with victims. But from a public policy standpoint, it’s better to do life in prison without parole than for the state to start picking who is going to die. And from a public policy perspective, I’ve found that the justice system is not as responsive to those with less economic clout.” Ryan also opposes capital punishment on moral grounds, citing his pro-life beliefs. Rabb also cites a range of pragmatic concerns as grounds for abolishing capital punishment. “There's no study that shows that a death penalty is a deterrent,” he said. “There's no study that shows the death penalty is without flaw.” A Reading Eagle study estimated that the cost of Pennsylvania’s death-penalty since the state’s capital punishment law was enacted in 1978 was $816 million higher than the cost of life without parole. “What could we better use $100, $200, $250 million for?” Rabb said. “A lot of stuff.” State Sen. Sharif Street, a Democrat from Philadelphia who will be sponsoring the abolition bill in the Senate, said “[t]he overwhelming cost, disparate application of the death penalty, compounded by human error and its historically arbitrary and racist implementation in our country, make it unfit for any use in an efficient and truly just system.”

Ryan and Rabb both believe the bill will attract bipartisan sponsorship. Ryan, a decorated Marine veteran of the war in Iraq, says “I’ve gotten no blowback from any of my Republican colleagues. I had one say, ‘Oh my god Frank, you’re soft on crime,’ and then he said, ‘By the way, good bill. I’ll co-sponsor it.’” Other Republican legislators have expressed uncertainty about capital punishment. Sen. Pat Stefano, a Republican from Fayette County in the southwest corner of the state said “I am not much in favor of it because it does not deter any criminals. We have to analyze every dollar we spend, and here we’re spending millions and millions of dollars with no effect.” Nonetheless, he said, “I’d prefer that we keep it on the books so prosecutors can use it as a bargaining tool.”

More than half of the 408 people sentenced to death since Pennsylvania reinstated the death penalty have had their sentences reversed on appeal, with most resentenced to life in prison or a term of years. Six people have been exonerated – twice as many as have been executed – and other likely innocent death-row prisoners whose convictions were overturned in the courts have been released after pleading no contest to crimes they say they did not commit. The rate at which Pennsylvania prosecutors have sought the death penalty has fallen by more than 70% since 2004 and juries imposed one new death sentence in 2018, a record-low.

Pennsylvania is the only remaining Northeastern state to authorize the use of the death penalty, and Governor Tom Wolf has imposed a moratorium on executions. All three states along the Commonwealth’s southern border – Delaware, Maryland, and West Virginia – also have abolished capital punishment.

(Deb Erdley, Death penalty repeal movement surfaces in Pa. Legislature, Tribune-Review, May 31, 2019; John L. Micek, Study: Republicans are abandoning the death penalty in record numbers, Pennsylvania Capital-Star, May 3, 2019; Katie Meyer, PA's death penalty opposition gets a bipartisan push, WITF, April 30, 2019.) See Recent Legislative Activity.

BOOKS: “Grace Will Lead Us Home” Explores the Aftermath of Charleston Shooting Wed, 05 Jun 2019 17:19:53 -0400 Death Penalty Information Center Four years after the racially motivated murders of nine African-American parishioners at the historic Emanuel African Methodist Episcopal Church in Charleston, South Carolina on June 17, 2015, a new book by Charleston Post and Courier reporter Jennifer Berry Hawes explores the aftermath of the killings and the extraordinary narrative of grace and forgiveness it produced. As a reporter for the Post and Courier, Hawes covered the story of white supremacist Dylann Roof’s murder of the churchgoers and the court proceedings that led to his death sentence. In Grace Will Lead Us Home, released on June 4, 2019, Hawes examines the continuing impact of the murders on the victims’ families, the Charleston community, and the nation. Her book describes the murders within the historical context of race relations in South Carolina, including Charleston’s history of slavery and Jim Crow, and the debates spawned by the shooting about issues such as the display of the Confederate flag. Through interviews with survivors and survivors and victims’ family members, she explores the role of forgiveness in the AME Church and the family divisions that resulted from the murders. She also addresses the ways in which Roof’s capital trial further traumatized those affected by the shooting.

Hawes was part of the Post and Courier reporting team that won the Pulitzer Prize and the Polk Award for its 2014 investigative series on domestic violence, Till Death Do Us Part, and was a 2019 Pulitzer finalist for a series of articles, An Undying Mystery, on the racial injustice that led to South Carolina’s wrongful execution of 14-year-old George Stinney for the deaths of two white girls. In Grace Will Lead Me Home, she “wanted to provide people with a more complex, better understanding of what happened in Charleston.” “The narrative of forgiveness” that emerged from the statements by victims’ family members at Roof’s bond hearing was “an absolutely beautiful, inspiring moment [that] came to define this tragedy,” she said. But in the months and years that followed, “the lives of the people who were most directly affected were changed in so many ways.” Interviewed by NPR’s Joshua Johnson, Hawes described the family members’ statements of forgiveness less as sympathy for Roof than as healing for them. “It’s to keep hate from corroding the soul. It’s to keep me from drowning in malice. … The whole idea was that this is something I can do for myself so that I can move on as a human being. And for people who are Christians, it’s to move toward God and to move forward in their faith,” she said.

In its review of Grace Will Lead Me Home, The New York Times says, Hawes’s effort “to write as comprehensive an account as possible [of the impact of the killings] largely succeeds — if sacrificing, invariably, some depth for breadth. Still, she lands the book with moral force and great feeling, writing about the soil that could produce both the Emanuel Nine and a Dylann Roof.” Kirkus Reviews described the book as “[a]t once horrifying and inspiring, engaging and thought-provoking” and called it “a definitive must-read about the Charleston tragedy.”

The Charleston tragedy and writing the book caused Hawes to rethink how mass violence affects society. In an interview with MacMillan Library, she said: “I have since come to think of mass shootings as akin to tossing a rock into a pond. The initial impact disrupts the surface in obvious ways. But then ripple upon ripple of disruption spreads from that impact. This is what happens after these events, and happened here, from divisions among families and the church to divisions within families grappling with so much pain.” She has noticed hopeful developments since the shooting, such as joint Bible studies that bring together people of different races and police efforts to engage with the community. On the other hand, she says, “our legislators have failed so far to pass meaningful policy changes needed to address the enormous racial disparities that persist here in everything from education to housing to healthcare.” As a result, “the wounds of slavery and Jim Crow remain unhealed.”

(Jennifer Berry Hawes, Grace Will Lead Us Home, St. Martin’s Press, 2019; Parul Sehgal, ‘Grace Will Lead Us Home,’ an Intimate Look at Forgiveness, Anger and Trauma After the Charleston Massacre, The New York Times, May 21, 2019; Grace Will Lead Us Home, Kirkus Review, March 3, 2019; An Interview With Jennifer Berry Hawes, MacMillan Library, March 8, 2019; Joshua Johnson interviews Jennifer Berry Hawes and Pastor William H. Lamar IV, Forgiveness After A Massacre In Charleston, 1A, June 4, 2019 (audio).) See Books, Victims, Race, and Religion.

Alabama Woman Impregnated While in County Jail Awaiting Death-Penalty Trial Tue, 04 Jun 2019 16:12:38 -0400 Death Penalty Information Center An Alabama woman who may have been raped by guards has given birth after being impregnated in the Coosa County jail while awaiting trial on capital murder charges. LaToni Daniel (pictured), an honorably discharged Army National Guard veteran who has been in pretrial custody without bail for more than seventeen months, had been prescribed sedatives in the prison for a supposed seizure disorder, and the medication prolonged her sleep. She first learned she was pregnant in December 2018 after having been transferred to a new jail, and she gave birth to a baby boy in late May. Daniel’s lawyers said she had no memory of having sex while in jail.

Daniel was prescribed sedatives for the first time after she was arrested. However, according to Daniel’s brother, Terrell Ransaw, she “never had any seizures before she went to jail.” Mickey McDermott, a lawyer who is representing Daniel in a potential civil suit, said Daniel “has no memory of having sex at all, so what we’re assuming based on the information we have is that with some of the medication, she was knocked out and someone raped her. ... She’s reported she’s a rape victim and no one is investigating.” Under Alabama law, it is illegal for jail employees to have sex with prisoners, even if it is consensual. The father of the child is unknown.

Daniel was transferred from Coosa County jail to Talladega County jail in December and Coosa County Sheriff Terry Wilson told Talladega officials to give Daniel a pregnancy test. Talladega County Chief Deputy Joshua Tubbs told The Appeal that Daniel had been moved as a result of “an ongoing investigation.” In March, Daniel requested bail so she could give birth and recover outside of the jail while awaiting trial, but a bail determination was not made before she gave birth. Daniel had been indicted on capital murder charges in April 2018, and Alabama law requires judges to presume capital defendants guilty for the purposes of setting bail. In capital cases, the minimum bail is $50,000. She says she was in a car when her boyfriend and co-defendant, Ladaniel Tuck, robbed and shot an elderly white man, 87-year-old Thomas Virgil Chandler. It is undisputed that Daniel – who court records describe as an alleged getaway driver – did not kill anyone, and she maintains that she did not know Tuck intended to kill Chandler. Alabama allows death sentences for accomplices in murder cases that also involve robbery, kidnapping, rape, or burglary. Jon Taylor, Daniel’s defense lawyer in the criminal case, told The Appeal he found it “somewhat surprising that it came out of the grand jury as capital murder and even more surprising they’re going after the death penalty. There’s nothing in my mind that [says] she should qualify for the death penalty. … I believe it was unknowing conduct and I believe she was acting under duress.”

The charges against Daniel are even more out of the ordinary because of the declining use of the death penalty in Alabama. Alabama imposed three death sentences in 2018, down from a peak of 25 in 1998. Coosa County prosecutors have sought only one death sentence in the last five years, and the defendant in that case was not sentenced to death. Alabama has executed 18 African-American prisoners for killing white victims and only one white prisoner for killing an African-American victim. Both Daniel and Tuck are African American.

(Lauren Gill, AN ALABAMA WOMAN GOT PREGNANT WHILE IN JAIL. SHE HAS NO MEMORY OF HAVING SEX., The Appeal, May 31, 2019; Alabama Media Group, Family of Army vet wants to know how she got pregnant in jail for murder,, May 16, 2019; Michael Harriot, Alabama Woman Incarcerated for 17 Months Doesn't Know How She Ended Up Pregnant, The Root, May 14, 2019; Ashley Remkus, Family of pregnant Alabama jail inmate: ‘We just want a fair investigation’, Birmingham News/, May 14, 2019.) See Women.

Ten Years After Landmark Study, Junk Science Still Pervasive in Death-Penalty Cases Mon, 03 Jun 2019 19:45:50 -0400 Death Penalty Information Center In 2009, the National Academy of Sciences (NAS) released a landmark report titled Strengthening Forensic Science in the United States: A Path Forward, in which it raised significant questions about the validity of every forensic science discipline except DNA analysis. The report concluded, “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” In a report for The Intercept, journalists Liliana Segura and Jordan Smith assess the meager progress in forensic science in the decade following the release of the NAS report and explore how politics, tradition, and inertia have contributed to an “ongoing crisis within forensic science that remain[s] woefully unresolved.”

Forensic science, including fingerprint analysis, hair analysis, bite mark comparison, and arson investigation, is widely used in criminal prosecutions, but it has been found to contribute to wrongful convictions in a startling number of cases. A 2017 DPIC review of 34 death-row exonerations found that junk science contributed to nearly one-third (32.4%) of those wrongful convictions. An FBI review of hair analysis found that analysts had made erroneous statements in at least 33 death penalty cases, but many of those never had an opportunity for reconsideration – by the time the report was released, nine of those defendants had been executed and five had died of other causes. Segura and Smith explain, “high-profile forensics scandals and a rising tally of exonerations have made it hard for even the most stubborn forensic experts to ignore the problem of junk science.”

In 2016, a follow-up report by the President’s Council of Advisors on Science and Technology warned, “Without appropriate estimates of accuracy, an examiner’s statement that two samples are similar — or even distinguishable — is scientifically meaningless: It has no probative value and considerable potential for prejudicial impact. Nothing — not training, personal experience nor professional practices — can substitute for adequate empirical demonstration of accuracy.” Yet, to the dismay of Harry Edwards, a senior judge on the U.S. Court of Appeals for the District of Columbia who co-authored the NAS report, law enforcement and prosecutors have actively opposed reform. “The group that surprised me the most were prosecutors,” he said. “Not just at Department of Justice, but prosecutors generally. Because I would’ve assumed, in my naïve way, that they would’ve welcomed a report saying we need more and better research to validate these practices, and to make them better. Because that serves both prosecutors and defendants well. … I think a number of them were worried that if you took the report seriously and started doubting some of what they had been doing, this would open cases that they thought were long gone.”

Edwards particularly noted the problems with bite-mark evidence. “I was flabbergasted when I listened to the person that was testifying about bite marks,” he recalled. “There were no studies of any consequence on validation, reliability, and I didn’t have to be a scientist to understand that what he was saying was fragile, at best.” Bite-mark evidence relies on two assumptions, Smith and Segura explain: “First, that human dentition, like DNA, is unique; second, that skin is a suitable medium for recording this uniqueness. The problem is that neither premise has been proven true; in fact, scientific research conducted to date has suggested the opposite — and that bite-mark matching is an entirely subjective affair.” It has been implicated in 31 wrongful convictions, and a study that asked 39 analysts certified by the American Board of Forensic Odontology to examine 100 case studies found that they unanimously agreed on whether the evidence was a human bite mark in only four cases. The Texas Forensic Science Commission concluded “there is no scientific basis for stating that a particular patterned injury can be associated to an individual’s dentition,” and recommended a moratorium on its use. Despite this evidence, several leaders in forensic odontology have dug in their heels. One dentist, Dr. Robert Dorion, called the focus on wrongful convictions “fake news,” and asserted, without evidence, that wrongful convictions connected to bite marks “had ceased.”

In the ten years since the NAS report, a few reforms have been made, including the National Commission on Forensic Science banning its practitioners from using the misleading phrase “reasonable degree of scientific certainty” in their testimony. Judge Edwards said, “we’re not where we ought to be” in terms of implementing reform. Most particularly, he is disappointed that a key recommendation from the report has not been adopted: the formation of a “national group that was independent, separate from law enforcement, that oversees forensic science. That hasn’t happened,” he said.

(Liliana Segura and Jordan Smith, BAD EVIDENCE: Ten Years After a Landmark Study Blew the Whistle on Junk Science, the Fight Over Forensics Rages On, The Intercept, May 5, 2019.) See Innocence.

Citing Conflict With Florida Death-Penalty Ruling, Aramis Ayala Will Not Seek Re-Election As State Attorney Fri, 31 May 2019 20:52:00 -0400 Death Penalty Information Center Aramis Ayala (pictured), the first African American elected as a state attorney in Florida, will not seek re-election as Orange-Osceola County State Attorney. Citing conflicts with the Florida Supreme Court’s pronouncements on capital prosecutions, Ayala announced in a Facebook video on May 28, 2019 that she would not pursue a second term as state attorney. “It’s time for me to move forward and to continue the pursuit of justice in a different capacity,” she said.

Ayala gained renown — and in other circles, notoriety — for her announcement early in her tenure that her office would never seek the death penalty, saying it “is not in the best interests of this community or in the best interests of justice." Then-Governor Rick Scott responded by removing Ayala from 29 murder cases and reassigning them to Lake County State Attorney Brad King, an avid death-penalty supporter. The Florida Black Caucus and the family of a murder victim in one of the reassigned cases opposed Scott’s decision, which had both racial and political implications. Scott, who lost the popular vote in both Orange and Osceola Counties, was criticized for substituting his views for those of the local predominantly Democratic electorate, taking decision-making authority away from a duly elected African American woman, and reassigning that power to a white-male Republican.

Ayala challenged Scott’s action in court but, in August 2017, the Florida Supreme Court upheld his reassignment of the cases. The court ruled that Scott had acted “well within the bounds of the Governor’s broad authority.” In the video announcing her reelection decision, Ayala said that after that decision, “it became abundantly clear to me that death penalty law in the state of Florida is in direct conflict with my view and my vision for the administration of justice.”

In response to the Florida Supreme Court’s decision, Ayala created a death penalty review panel to evaluate cases and decide whether to seek a death sentence. The first capital prosecution authorized by that panel resulted in a plea deal in which Emerita Mapp received a sentence of life without parole. None of the new murder cases that Scott removed from Ayala’s office has resulted in a death sentence. Ayala’s announcement video highlighted her accomplishments as prosecutor, including “rais[ing] the standard of prosecutorial accountability” and improving the diversity of the prosecutor’s office. Two candidates have announced plans to run for state attorney in Ayala’s district in 2020: Democrat Ryan Williams and Republican Kevin Morenski.

Scott’s action in removing cases from Ayala drew comparisons to New York Governor George Pataki’s removal of Bronx District Attorney Robert Johnson in 1996 after Johnson said he would not seek the death penalty in the killing of a Bronx police officer. Johnson was the state's only African-American District Attorney at the time and had indicated his opposition to using the death penalty. Pataki took no action in any cases prosecuted by Robert Morgenthau, the long-time Manhattan District Attorney, who was white and also had announced he would never seek the death penalty.

(Monivette Cordeiro and Jeff Weiner, Aramis Ayala won’t seek re-election as Orange-Osceola state attorney; Belvin Perry may enter race, Orlando Sentinel, May 28, 2019; Louis Bolden, Orange-Osceola State Attorney Aramis Ayala will not seek re-election, Click Orlando, May 28, 2019.) See New Voices and Florida.

New Hampshire Becomes 21st State to Abolish Death Penalty Thu, 30 May 2019 22:52:38 -0400 Death Penalty Information Center Overriding a veto by Governor Chris Sununu, the New Hampshire legislature has repealed the state’s death-penalty statute. With a 16-8 supermajority, the May 30, 2019 vote of the New Hampshire Senate equaled the two-thirds required to override a gubernatorial veto. One week earlier, the state House had voted to override with a 247-123 supermajority. The override vote made New Hampshire the 21st state to abolish capital punishment and the ninth to do so in the last 15 years. Half of all U.S. states, including every northeastern state, now either have a moratorium on executions or have abolished capital punishment. The one person on New Hampshire’s death row, Michael Addison, is not affected by the new law, which applies only to future cases.

Rep. Renny Cushing (D–Hampton), whose father and brother-in-law were murdered in separate incidents, sponsored the bill and lauded the legislature’s action. “I think it's important the voices of family members who oppose the death penalty were heard, the voices of law enforcement who recognize that the death penalty doesn’t work in terms of public safety, and the voices of the people in the state that know the death penalty is an abhorrent practice were all heard today by the Legislature,” he said. Sen. Bob Giuda (R–Warren), a former FBI agent, called the death penalty a “ghastly” practice that was at odds with his pro-life principles. Voting to override the veto, Giuda said: “I think we’re better than that. I choose to move our state forward to remove the death penalty.”

During the Senate debate on the override, death penalty supporters echoed Governor Sununu’s arguments that the death penalty was necessary to support police. The state’s single death sentence was imposed for the murder of Manchester police officer Michael Briggs. Democratic Sen. Lou D'Allesandro, who represents Manchester said that influenced his support for the governor’s veto. “Our law enforcement people see this as a deterrent,” he said. "I believe strongly we have to … support them." Sen. Sharon Carson (R–Londonderry) invoked the Addison case as grounds to uphold the veto. “If you think you’re passing this today and Mr. Addison is still going to remain on death row, you are confused,” she said. “Mr. Addison’s sentence will be converted to life in prison.”

Statistics show that the death penalty does not have a measurable effect on the rate at which police officers are killed. Legislators who supported repeal also cited other issues such as costs and discrimination among their reasons for overriding the governor’s veto. Sen, Melanie Levesque (D – Nashua) called the death penalty “archaic, costly, discriminatory, and violent. This is time to end it,” she said. Sen. Harold French (R–Franklin) said, he was voting to override the veto “because this vote is about our state and about what kind of state we are all going to be a part of.”

This was the second consecutive year in which the legislature had voted to abolish the death penalty and Governor Sununu had vetoed the attempted repeal. In 2018, the Senate fell two votes short of overriding the veto. The state also came close to abolishing the death penalty in 2014, when a repeal bill failed on a tie vote in the Senate, and in 2000, when Governor Jeanne Shaheen vetoed an abolition bill.

(N.H. Abolishes Death Penalty, As Legislature Overturns Governor's Veto, New Hampshire Public Radio, May 30, 2019; Holly Ramer, New Hampshire repeals death penalty as Senate overrides veto, Associated Press, May 30, 2019; Ethan DeWitt, Senate overrides Sununu ending death penalty in New Hampshire, Concord Monitor, May 30, 2019.) Read the Statement of DPIC Executive Director Robert Dunham concerning the New Hampshire override vote. See Recent Legislative Activity and States With and Without the Death Penalty.

Philadelphia Death-Row Exoneree Harold Wilson Dies at 61 Wed, 29 May 2019 14:58:00 -0400 Death Penalty Information Center Harold Wilson, exonerated in 2005 sixteen years after his wrongful conviction and death sentence for a triple murder in a Philadelphia crack house, has died. He had recently suffered a series of strokes that were further complicated by pneumonia. His risk of stroke and the complications that followed had been worsened by the Posttraumatic Stress Disorder he developed as a result of the 17 years he faced the death penalty, most spent in solitary confinement on death row. He died on May 18, 2019. He was 61 years old.

After his exoneration, Mr. Wilson became a vocal advocate for the abolition of capital punishment, working with the death-row exoneree group Witness to Innocence and speaking at events across the country. Kirk Bloodsworth, the nation’s first death-row DNA exoneree and now executive director of Witness to Innocence, called the 6’4” Wilson “a mountain of a man, not just in stature. That was his heart. The way he’d speak and the passion he had in his heart made him twice the size he was.”

In June 1996, Wilson came within eight days of execution when Pennsylvania Governor Thomas Ridge scheduled his execution for July 11. DPIC executive director Robert Dunham, then director of the Pennsylvania Capital Case Resource Center, obtained a stay of execution and recruited counsel to represent Wilson in his challenge to his conviction and death sentence. At the time Wilson was tried, the Philadelphia public defenders were not authorized to represent defendants in homicide cases and defendants were represented by notoriously underfunded and unprepared court-appointed lawyers, Dunham said. A Philadelphia court overturned Wilson’s death sentence in August 1999, finding that his appointed lawyer had failed to investigate and present available mitigating evidence.

While Wilson’s appeal was pending, District Attorney Lynne Abraham released a jury selection training videotape in which Jack McMahon—Wilson’s trial prosecutor and then a candidate for D.A. against Abraham—taught Philadelphia prosecutors techniques to exclude African Americans from jury service. Wilson became the first Philadelphia death-row prisoner to challenge his conviction based on the evidence in the training tape. The trial court refused to consider that challenge because he had presented a jury discrimination claim (before the tape was known to exist) in his direct appeal. However, the Pennsylvania Supreme Court returned the case to the trial court for a hearing on the issue, and on January 17, 2003 the court granted Wilson a new trial.

By then, the Defender Association of Philadelphia was handling capital cases and its homicide unit represented Wilson on his retrial. DNA testing of the killer’s jacket revealed blood from four people — the three victims and an unidentified person who was not Wilson. Philadelphia prosecutors retried him anyway. The first retrial ended in a mistrial when prosecutors left inflammatory crime scene photos on the bar of the jury box in clear view of the jurors. The second trial ended in an acquittal on November 15, 2005.

Wilson began advocating for criminal justice reform and the abolition of the death penalty. “The criminal justice system has a lot of problems, and Harold knew that,” Bloodsworth said, “and [he] knew there were many others left behind.” “The death of this wonderful, gentle man is another reminder of the lifetimes that have been lost and the lives that have been destroyed by a broken policy that, as currently administered, has proven itself incapable of reliably distinguishing between the innocent and the guilty or of eliminating arbitrary factors such as race, geography, and poverty from the calculus of who lives and who is sentenced to die,” said Dunham in a statement. Wilson, Dunham said, “believed [the death penalty] was fatally flawed, irredeemably unfair, and immoral. He brought that message powerfully to the world and it is a message he told me he wanted others to continue to shout from the rooftops.”

(Semantha Malamed, Sentenced to death 3 times in 1989, Philly exoneree Harold Wilson dies at 61, Philadelphia Inquirer, May 29, 2019.) Read the Statement of DPIC Executive Director, Robert Dunham. See Innocence and Pennsylvania.

Amended Bill to Limit Oregon’s Death Penalty Easily Passes State Senate Tue, 28 May 2019 20:08:41 -0400 Death Penalty Information Center An amended bill to narrow the circumstances in which the death penalty may be imposed in Oregon has easily passed the state senate. On May 21, 2019, by a vote of 18-9, the Oregon Senate passed SB 1013, which would limit the state’s use of capital punishment to three aggravating circumstances and eliminate speculation about a defendant’s future dangerousness from a jury’s capital sentencing deliberations. The bill would allow prosecutors to pursue the death penalty for only three crimes: acts of terrorism in which at least two people are killed, the murder of a child younger than age 14, and murder committed in prison by a person already incarcerated for a previous murder conviction. Under Oregon’s current law, 12 aggravating factors can make a murder death-eligible. The bill also revises the state’s death-penalty jury instructions to remove a question about whether the defendant presents a future risk of danger. The proposal now advances to the state House, where the prospects for its passage are considered good.

The bill’s chief sponsor, Sen. Floyd Prozanski (D-Eugene), offered a range of reasons why he believed the legislature should limit Oregon’s death penalty. He said capital punishment has not been shown to be a deterrent, 60% of Oregon’s death sentences have been overturned, and the average death penalty case costs $1.4 million, as compared to an average cost of $335,000 for a non-death penalty murder case. Prozanski said the elimination of the jury question on future dangerousness was designed to reduce the arbitrariness of capital sentencing decisions.

Studies have shown that predictions of future dangerousness are unscientific and notoriously inaccurate. A 2016 study of Oregon prisoners convicted of aggravated murder between 1985 and 2008 showed that “jurors’ predictions of future violent conduct appeared ‘to be completely unrelated to the actual commission of such acts’” and that “[m]ost capital offenders, whether sentenced to death or placed in the general prison population after being sentenced to life without parole or obtaining relief from a death sentence, do not commit serious acts of violence while in prison.” The study also found that defendants who were sentenced to life, defendants who were sentenced to death, and defendants whose death sentences were reversed and were resentenced to life had virtually identical low rates of serious violence while in prison. A 2004 Texas study of 155 capital cases in which expert witnesses predicted that the defendant would be a future danger found that those predictions were wrong 95% of the time.

Oregon is one of four states with a governor-imposed moratorium on executions. Governor John Kitzhaber first announced the moratorium in November 2011, saying that “Oregon has an expensive and unworkable system that fails to meet basic standards of justice.” In February 2015, in her first press conference since taking office, current Governor Kate Brown — who was reelected in November 2018 — said she would continue the moratorium. Only two people have been executed in Oregon since voters reinstated capital punishment in 1984. Both waived their appeals and “volunteered” for execution.

The proposed bill would apply only to future cases and would not affect the 33 prisoners currently on Oregon’s death row. Because Oregon’s death penalty was adopted in a voter referendum, it can only be abolished by popular vote. The original version of SB 1013 had limited the use of the death penalty to multiple killings committed during an act of terrorism.

(Audrey Wieber, Measure 11 reform, other criminal justice bills move forward, Salem Reporter, May 21, 2019; Noelle Crombie, Oregon Senate approves bill to limit death penalty; now heads to House, Oregon Live, May 21, 2019.) See Recent Legislative Activity.

Former North Carolina Death-Row Prisoner Charles Ray Finch Freed After 43 Years Fri, 24 May 2019 19:23:20 -0400 Death Penalty Information Center A North Carolina man wrongly convicted and sentenced to death based upon false forensic testimony and an eyewitness identification manipulated by police misconduct has been freed from prison after 43 years. On May 23, 2019, federal district court judge Terrence Boyle ordered North Carolina to release former death-row prisoner Charles Ray Finch (pictured with his members of his legal team) from custody, five months after a unanimous panel of the U.S. Court of Appeals for the Fourth Circuit found Finch “actually innocent” of the murder. Finch, now 81 years old, was freed from Greene Correctional Institution in Maura, North Carolina, that afternoon. Finch’s daughter, Katherine Jones-Bailey, was two years old when he was convicted and sentenced to death. “I knew the miracle was going to happen,” she said about her father’s release. “I just didn’t know when.”

Following the appeals court ruling, Finch’s lawyers from the Duke Wrongful Convictions Clinic filed a motion in federal district court seeking his immediate release. The North Carolina Attorney General’s office joined in the motion. The district court formally overturned Finch’s conviction and gave Wilson County prosecutors 30 days to decide whether to retry him. With no credible evidence of guilt, a retrial is considered unlikely. If charges are not refiled, Finch will become the 166th former U.S. death-row prisoner to have been exonerated since 1973. He will be the second death-sentenced prisoner to have waited more than four decades to be exonerated. In March 2019, Clifford Williams, Jr. was exonerated in Florida 42 years after his wrongful conviction and death sentence.

Finch was convicted in 1976 of murdering a grocery store clerk during an attempted robbery. He was sentenced to death under the mandatory death-sentencing statute then in effect in North Carolina. A state forensic witness testified at the trial that the victim had died from two shotgun wounds, and a shotgun shell was found in Finch’s car. A store employee who saw the killer flee the scene told police that the killer had been wearing a three-quarter length jacket. An eyewitness later identified Finch in three different lineups. Shortly thereafter, the U.S. Supreme Court struck down the sentencing statute and, in 1977, the North Carolina Supreme Court vacated Finch’s death sentence and resentenced him to life in prison.

In 2013, testimony by Dr. John Butts, then North Carolina's Chief Medical Examiner, revealed that the victim had been killed by a pistol, not a shotgun and North Carolina State Crime Laboratory Special Agent Peter Ware, the forensic scientist manager for the lab’s firearm toolmark section, testified that the bullet found at the scene and the shell found in Finch’s car did not come from the same firearm. Finch also presented testimony that the eyewitness identification procedures had been unduly suggestive. In an interview, Finch told WNCN-TV, “[w]hen I was picked up, they didn't question me or nothing. They put me there in a line-up. Straight in a line-up. And they put me in a line-up with a black leather coat on.” Chief Deputy Tony Owens claimed that he had put the jacket on another man in the lineup, but photos the defense had discovered showed that Finch was the only person in the three lineups wearing a coat. “That’s one of the highlights at the evidentiary hearing,” said Jim Coleman, Finch’s long-time lawyer and the director of the Duke Wrongful Convictions Clinic. “[W]e were able to expose that [Owens] had lied about the line-up and he had dressed Ray in a coat and he was the only one wearing a coat in the line-up.”

Coleman and the clinic have represented Finch for fifteen years, and Finch was the clinic’s first client. “We have students who work their hearts out on these cases,” Coleman said. “We feel an enormous sense of vindication.”

(Olivia Neeley, Judge orders Finch to be released, The Wilson Times, May 23, 2019; Ken Smith and Matthew Burns, Wrongfully convicted Wilson man freed after four decades in prison,, May 23, 2019; Russ Bowen, Charles Finch speaks with CBS 17 ahead of potential release from prison, WNCN, May 21, 2019. Photo by Zak Dahlheimer, WNCN; provided courtesy of Mr. Dahlheimer and WNCN.) See Innocence and Prosecutorial Misconduct.

Florida Executes Mentally Ill Vietnam Veteran Diagnosed with “Traumatic Brain Disease” Thu, 23 May 2019 21:26:36 -0400 Death Penalty Information Center Florida has executed Bobby Joe Long (pictured), a mentally ill Vietnam veteran with service-related traumatic brain injuries, after the U.S. Supreme Court on May 23, 2019 declined to review his case. Long had asked the Court to halt his execution to address “[w]hether an individual who suffers from severe mental illness is exempt from execution under the Eighth Amendment. In 1980, Long received a diagnosis of “Traumatic Brain Disease” from the Veterans Administration as a result of injuries sustained during his military service. He also had a history of several traumatic head injuries during his childhood. Following his diagnosis, he was discharged and given a “service-connected disability rating,” but received little or no treatment from the military or the VA for his brain damage. Four years later, he killed eight women in an eight-month span, including the murder for which he was sentenced to death. At Long’s trial, medical experts testified that his injuries had damaged the areas of the brain responsible for judgment and behavior control.

Long’s petition for review—one of three he filed in the Court during the pendency of his death warrant—urged the Court to prohibit the execution of people with severe mental illness, saying, “[t]he same lessened moral culpability cited by Atkins [which prohibited the execution of people with intellectual disability] and Roper [which prohibited the execution of juvenile offenders] in finding the intellectually disabled and juveniles ineligible for execution applies with equal force to individuals with severe mental illness.” His lawyers argued that “[s]evere mental illness, like intellectual disability, is a persistent and frequently debilitating medical condition that impairs an individual’s ability to make rational decisions, control impulses, evaluate information, and function properly in society. Because severely mentally ill defendants have a lessened moral culpability, because their impairments ‘jeopardize the reliability and fairness of capital proceedings,’... and because their diminished capacity negates the retributive and deterrent goals of capital punishment, they should be held categorically ineligible to receive the death penalty.”

Florida’s Catholic bishops had called on Governor Ron DeSantis to grant clemency for Long, citing both Long’s mental illness and the Church’s teachings against capital punishment. In a letter to the governor, the Florida Catholic Conference wrote that, “[a]lthough [Long] caused much harm, society has been safe from his aggressive acts in the decades of his incarceration. Without taking his life, society can be protected while he endures the alternative sentence of life without the possibility of parole.” The letter called attention to “the multiple traumas [Long] experienced throughout his life,” including a motorcycle accident he suffered in 1974. “That incident profoundly affected him and his behaviors,” the Florida conference said, and “contributed to his receiving a disability rating from the military, from which he was honorably discharged.”

Long was the eighth person executed in the United States in 2019 and the first in Florida. He is the 1498th person put to death in the U.S. since executions resumed in 1977.

Long’s petition also argued that executing him after he has already spent 33 years in prison violates the constitutional ban on double jeopardy because Florida authorized two punishments for first-degree murder at the time of his trial—death or life with eligibility for parole after 25 years—and he had already served the equivalent of the statutorily prescribed sentencing alternative. He also filed petitions seeking review of Florida’s execution protocol and its clemency process.

(Florida Catholic Conference asks governor to halt execution of serial killer, Catholic News Agency, May 21, 2019; Petition for a Writ of Certiorari, Long v. Inch, U.S. Supreme Court, May 20, 2019.) Read DPIC’s report, Battle Scars: Military Veterans and the Death Penalty. See U.S. Supreme Court, Mental Illness, and U.S. Military.

Two Foreign Nationals Receive New Trials as U.S. Supreme Court Declines to Hear State Death-Penalty Appeals Wed, 22 May 2019 22:55:24 -0400 Death Penalty Information Center Two foreign nationals who were sentenced to death in unrelated cases will receive new trials after the U.S. Supreme Court declined to hear appeals of lower court rulings overturning their convictions. Jose Echavarria (pictured, left), a Nevada prisoner originally from Cuba, and Ahmad Issa (pictured, right), an Ohio prisoner originally from Jordan, each were awarded new trials by federal appellate court decisions in 2018. The states petitioned the Supreme Court seeking review of the cases, but on May 20, 2019, the Court denied the petitions, allowing the lower court rulings to stand. Echavarria and Issa were among 130 foreign nationals from 35 countries under sentence of death across the United States.

Echavarria, who was sentenced to death in Clark County, Nevada for the 1990 killing of FBI agent John Bailey during an attempted bank robbery, was granted a new trial on his claim that his trial had been tainted by judicial bias. Echavarria fled to Mexico after the crime, and later alleged that he had been tortured and beaten by Mexican police until he confessed. He moved to suppress the confession, but the trial judge, Jack Lehman, denied the motion. Unknown to the defense, Lehman had been the subject of an FBI investigation into issues of possible corruption, fraud, and perjury and that investigation had been conducted by Agent Bailey. The FBI ultimately referred the case to state authorities in 1988, who brought no charges against the judge. Lehman met with the prosecutor and the lawyer representing Echavarria’s co-defendant prior to trial, asking whether they wanted him to recuse himself. According to the U.S. Court of Appeals for the Ninth Circuit, “Judge Lehman did not fully explain … the nature and extent of the FBI’s investigation,” and neither party requested recusal. Echavarria’s counsel did not learn about the FBI investigation until well after trial and sentencing.

The Ninth Circuit ruled that Judge Lehman’s participation in the trial created “a constitutionally intolerable risk of bias” that violated Echavarria’s right to due process. It wrote that “[a]n average judge in [Lehman’s] position would have feared that rulings favoring Echavarria, tipping the outcome towards acquittal or a sentence less than death, could cost him his reputation, his judgeship, and possibly his liberty.” The court found that “the risk of bias was extraordinary in both its nature and severity … [and] was obvious to all who had complete information about Agent Bailey’s investigation.” It upheld a federal district court ruling that vacated Echavarria’s conviction and death sentence and required the state to retry or release Echavarria. This was the second case in two years in which the Supreme Court had been asked to intervene in a Clark County case alleging judicial bias. In 2017, the Court reversed a Nevada court ruling that had upheld the capital conviction of Michael Rippo after a judge who was the subject of a federal bribery investigation in which Clark County prosecutors were playing a role refused to recuse himself from the trial.

Issa was granted a new trial by the Ohio federal courts based on Hamilton County prosecutors’ improper use of hearsay evidence. Issa was convicted of capital murder for allegedly hiring Andre Miles to kill Maher Khriss, Issa’s boss, at the behest of Khriss’ wife, Linda. Miles also killed Zaid Khriss, Maher’s brother, when he shot Maher. Miles, Issa, and Linda Khriss were all charged with aggravated murder. Linda Khriss was acquitted in a trial in which Miles—who had received a life sentence in his trial—testified against her. Miles subsequently refused to testify at Issa’s trial and the trial court allowed Cincinnati prosecutors to instead present testimony from two friends of Miles, who said Miles had told them that Issa had hired him to kill someone. The U.S. Court of Appeals for the Sixth Circuit found that this testimony violated the Confrontation Clause of the Sixth Amendment, which states, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

The two cases illustrate the heightened risks facing foreign nationals in state courts in the U.S. Six foreign nationals have been exonerated from U.S. death rows since the 1990s, three of them since December 2017. Overall, there has been one exoneration for about every nine executions in the U.S. However, for foreign nationals on death row, there has been one exoneration for every 6.17 executions. Foreigners facing capital charges in the U.S. are also frequently denied their right to consular assistance, which is guaranteed under the Vienna Convention on Consular Relations. International human rights courts have ruled that the U.S. has breached its treaty obligations by allowing states to impose death sentences on more than fifty foreign nationals without providing them access to consular assistance.

(Echavarria v. Filson, U.S. Court of Appeals for the Ninth Circuit, July 25, 2018; Issa v. Bradshaw, U.S. Court of Appeals for the Sixth Circuit, September 21, 2018; Order List, U.S. Supreme Court, May 20, 2019.) See Foreign Nationals.

Supreme Court Denies Review in Death-Penalty Case Where Texas Judge Rubberstamped Prosecution’s Findings Tue, 21 May 2019 22:43:50 -0400 Death Penalty Information Center The U.S. Supreme Court has declined to review a case in which the Texas courts decided a death-row prisoner’s appeal by adopting the prosecution’s fact findings and legal arguments word-for-word without providing the defendant’s lawyer any opportunity to respond. In a May 20, 2019 ruling, the Court without comment denied the petition for writ of certiorari filed by Ray Freeney (pictured), thereby permitting the Harris County prisoner’s conviction and death sentence to stand. The decision was the latest in a series of cases in which the Court has refused to take up the issue of state-court rulings that are verbatim copies of proposed orders written entirely by the prosecution. In June 2018, researchers at the University of Texas School of Law Capital Punishment Center exposed the systemic rubberstamping of prosecutors’ pleadings in Harris County capital cases. The researchers found that county judges had adopted prosecutors’ proposed findings of fact verbatim in 96% of 191 capital cases in which factual issues had been contested. Harris County has executed 129 men and women, more than double the number executed in any other county in the United States and more than have been executed in any state in the country other than Texas.

In a Washington Post op-ed, columnist Radley Balko said Freeney’s case not only raises questions about the practice of judges rubberstamping prosecutorial findings, but also “test[s] the absurd, outer limits of AEDPA’s deference to state courts.” AEDPA is the Anti-Terrorism and Effective Death Penalty Act, the habeas corpus amendments passed by Congress in 1996. Those amendments have significantly reduced federal courts’ ability to review and redress violations of a state defendant’s right to a fair trial and sentencing by requiring federal judges to give a high level of deference to state court findings. Balko explains, “to get a federal court to review a state court’s ruling, a defendant must show not only that the state court (and the state courts that upheld the ruling) were wrong, but that the prevailing ruling was either ‘contrary to, or involved an unreasonable application of, clearly established Federal law,’ or an ‘unreasonable determination of the facts in light of the evidence presented.’ Put plainly, you must convince the federal courts not only that the state courts were wrong, but also that they were unreasonably wrong.”

When Ray Freeney’s case came before Texas District Court Judge Renee Magee, his appeal lawyers sought a new sentencing hearing because his trial lawyers had failed to investigate and present to the jury evidence that Freeney suffered from mental illness and had been the victim of chronic child abuse. Judge Magee, who had spent 19 years as a prosecutor in the Harris County District Attorney’s Office, asked for briefs, and received 204 proposed findings of fact from the prosecution, based on over 800 pages of testimony. The next day, she adopted the factfinding verbatim. Freeney’s defense attorneys were never given an opportunity to respond, or to submit their own brief containing new evidence to support their claim that his trial attorneys had provided inadequate counsel. The University of Texas study has demonstrated that “rubberstamping” of prosecutors’ proposed orders is common in Harris County, particularly in cases in which the judge was a former county prosecutor. But Feeney’s case stood out even more in that Judge Magee provided his lawyers no opportunity to respond to the prosecution’s proposed disposition of the case. “When you have such egregious inattention to facts and lack of stewardship of constitutional rights as we’ve seen in Harris County,” Balko said, “the entire system begins to look like a farce.”

Under AEDPA, rubberstamped findings are routinely treated with the same level of deference as findings that judges wrote themselves. Balko explains that, “under the controlling case law for the [Texas federal courts], ‘a full and fair hearing is not a precondition to presumption of correctness to state habeas court findings of fact.’” “The message sent to state judges by the Fifth Circuit in Mr. Freeney’s case was clear,” says Richard Bourke, one of Freeney’s attorneys. “You don’t need to consider the defense’s legal arguments. You don’t need to consider the defense’s evidence. You don’t even need to wait until the defense has presented either. You can just rubber stamp the state’s brief. And you needn’t worry about the Fifth Circuit overruling you.”

Rubberstamping “isn’t even all that uncommon. In some parts of the country, it’s routine,” Balko said. In several 2016 articles for The Marshall Project, Andrew Cohen noted court decisions “ghostwritten” by prosecutors in Alabama, Georgia, Kentucky, Louisiana, Ohio, Pennsylvania, South Carolina, and Texas. On May 16, 2018, Texas executed Juan Castillo after a Bexar County judge denied him an evidentiary hearing on his claim that prosecutors had presented false testimony to secure his conviction. The judge adopted the prosecution's proposed findings and order verbatim—changing only the signature line on the order—without permitting Castillo’s lawyers to submit proposed findings or to respond to the prosecution’s submission. Alabama attempted to execute Doyle Hamm in February 2018 after state courts had adopted word-for-word an 89-page order written by the state attorney general’s office one business day after receiving the prosecution’s proposed order, without removing the word “proposed” from the title of the order.

(Radley Balko, A death penalty case shows the absurdity of the worst crime bill from the ’90s, The Washington Post, May 20, 2019; Radley Balko, In America’s leading death-penalty county, judges routinely outsource their written opinions to prosecutors, The Washington Post, June 26, 2018; Jordan M. Steiker, James W. Marcus, and Thea J. Posel, The Problem of Rubber Stamping in State Capital Habeas Proceedings: A Harris County Case Study, Houston Law Review, Volume 55, Number 4: Frankel Lecture 2018.) See U.S. Supreme Court and Arbitrariness.

Alabama Governor Calls Life “Precious” and “Sacred,” Then Denies Clemency to Michael Samra Mon, 20 May 2019 20:50:00 -0400 Death Penalty Information Center Alabama Governor Kay Ivey has drawn criticism for denying clemency and presiding over the execution of Michael Samra (pictured) on May 16, 2019, one day after issuing a statement calling Alabama a pro-life state and declaring life “precious” and “sacred.” On May 15, Ivey signed into law a bill that criminalizes abortion, saying that the new law “stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.” After Samra’s execution the following evening, her office issued a statement that “Alabama will not stand for the loss of life in our state, and with this heinous crime, we must respond with punishment. ... This evening justice has been delivered to the loved ones of these victims, and it signals that Alabama does not tolerate murderous acts of any nature.”

Ivey’s actions prompted rebukes from liberal and conservative quarters and renewed the question of whether one who supports capital punishment can be considered “pro-life.” “It’s a contradiction that I always observed,” said Hannah Cox, the national manager of Conservatives Concerned About the Death Penalty. Supporting the death penalty, Ms. Cox told The New York Times, is “a stance that cheapens the pro-life argument.” Krisanne Vaillancourt Murphy, executive director of the Catholic Mobilizing Network, an anti-death penalty advocacy group, said “[p]ro-life values are meaningless when they are inconsistent.” She said that “[t]he sanctity of human life applies to each and every person, innocent and guilty,” and that a person’s dignity “is not lost even after the commission of very serious crimes.”

Ivey’s actions also were criticized in articles in The Los Angeles Times and CNN. Los Angeles Times opinion writer Scott Martelle highlighted some of the seven executions Ivey has overseen, including Walter Moody, the oldest person executed in the U.S., and Domineque Ray, a Muslim prisoner who was denied the presence of his imam during his execution. “Apparently, Ivey’s not averse to returning some of God’s sacred gifts,” Martelle wrote. “If Ivey had the courage of her convictions, she would use her authority as governor to grant clemency to [the] 181 people facing execution in Alabama. That act would … remove the cloud of hypocrisy hovering over Montgomery.” In a CNN commentary, Jay Parisi wrote: “The anti-abortion movement raises a question about capital punishment that must be answered. If the 25 white men who voted in the Alabama senate for a near-total ban on abortion were really serious about the ‘right to life,’ would they not have simultaneously banned capital punishment? The death penalty is a clear violation of this right ….” Parisi called it “deeply ironic that the seven states that have passed tighter abortion laws are also actively open to killing live human beings by lethal injection or electrocution.”

The week before Samra’s execution, Cox authored a commentary for Newsmax in which she critiqued the “inconsistency” and “hypocrisy” of arguments by people who identify themselves as pro-life, yet support capital punishment. “[A]s a Christian,” she wrote, “I believe that all life has inherent value that cannot be won or lost by anything we do, but rather that is based on all being created in the image of God.” She addressed the oft-repeated reasoning that only innocent life deserves to be protected, explaining, “there are countless innocent people caught up in the criminal justice system, and certainly on death rows. To date, one person has been exonerated from death row for every ten executions. You cannot buttress your belief in capital punishment with the reasoning that you only think innocent life should be protected." Cox said, “The vast majority of people who commit harm were first victimized numerous times — often as children — before they became violent. ... You cannot say you care about the lives of young children and want to protect them from harm, and then believe they should be executed when they are harmed and end up perpetuating the cycle of violence.”

Cox told The New York Times that the pro-life dialogue about the death penalty continues to shift, notwithstanding the events in Alabama. Growing conservative opposition to capital punishment, she said, is evidenced by the introduction of Republican-sponsored bills to repeal the death penalty in 11 state legislatures in 2019.

(Hannah Cox, Pro-Life Views Fall Flat When They Aren't Consistent, Newsmax, May 10, 2019; Adeel Hassan and Alan Blinder, Alabama Executes a Murderer a Day After Banning Abortions, The New York Times, May 16, 2019; Scott Martelle, Alabama’s antiabortion governor urges respect for life, will oversee a 7th execution, The Los Angeles Times, May 16, 2019; Jay Parini, Alabama's 'pro-life' governor is a hypocrite, CNN, May 17, 2019.) See Executions and New Voices.

New Podcast: Emmy- and Oscar-Award Winning Director Edward Zwick on His New Film, Trial By Fire Fri, 17 May 2019 14:50:58 -0400 Death Penalty Information Center In the latest episode of the Discussions with DPIC podcast, Emmy- and Oscar-winner Edward Zwick speaks about his new movie, Trial By Fire. The film, which Zwick co-produced and directed, tells the story of Cameron Todd Willingham, who was convicted and sentenced to death in 1992 for the deaths of his three children in a house fire that prosecutors wrongly claimed had been intentionally set. As Willingham’s execution approached in 2004, evidence came to light that arson investigators had relied on flawed and outdated methods. The trial prosecutor also withheld evidence that a jailhouse informant who claimed that Willingham had confessed to him had been provided favorable treatment in exchange for implicating Willingham.

Willingham’s case featured what Zwick called a “catalog” of problems: “it had the withholding of exculpatory evidence, it had junk science, it had jailhouse snitches who would testify in exchange for reduced sentences, [and] it had a piss-poor public defender.” In an interview with DPIC’s Managing Director, Anne Holsinger, Zwick describes why he decided to tell Willingham’s story, what he learned from the experience, and how he hopes the film will affect audiences. Trial By Fire opens on May 17, 2019.

Trial By Fire is largely based on an investigative article of the same name written by David Grann and published in The New Yorker in 2009. Zwick called Grann’s account of the case a “categorical denunciation of everything that was wrong with the prosecutions in death-penalty cases.” The movie focuses on the relationship between Willingham (Jack O’Connell) and his penpal, Elizabeth Gilbert (Laura Dern). Gilbert worked with the filmmakers and offered them access to her correspondence with Willingham. Zwick said he chose to portray that relationship because it was a “beautiful juxtaposition to the horrors of the case.” He expressed gratitude to Gilbert for sharing the letters, which he said showed the “internal workings and the value of a man’s life, so he was more than just a statistic.” He also said that the friendship between Willingham and Gilbert humanized the story and helped the film avoid being didactic. “People go to the movies because they want to invest in the characters and in the relationships. They don’t go to the movies to learn about issues, but that doesn’t say that they can’t have both.”

Zwick characterized Willingham’s story as embodying the systemic problems in the way the death penalty is carried out in the United States. “In a system that cannot be guaranteed to be infallible, if a single innocent person has been put to death, that more than justifies getting rid of the death penalty,” he said. Capital punishment, he said, is emblematic of the inequities in the criminal justice system at large: “The death penalty sits on top of the pyramid of charging and sentencing and trials, and that if it is so flawed and revealed to be unjust and if its absurdities can be so accepted, how then can we reform the rest of the system, before dealing with it?” The interview concluded with a discussion of the filmmaker’s hopes for how the audience will respond to the movie. “I know that it’s a Pollyanna-ish notion that a single film can do anything that affects policy itself. What it can do is add a set of images and a warm-bloodedness and a personal understanding of something that an audience might have only understood in more philosophical or political terms.” Storytelling can be part of cultural “paradigm shifts,” he said, noting that pop culture depictions of same-sex relationships helped shape public opinion on same-sex marriage. “Change happens," Zwick said, "but how it happens and when it happens, and the rate at which it happens is unpredictable, and all that one can do in any kind of activist cause is to keep your head down and keep doing the work that you do because you are committed to that change.”

(Discussions with DPIC, Interview with Trial By Fire Director Edward Zwick, May 17, 2019.) See Podcasts.