NEWS (10/​5/​20) — Washington, D.C.: The 2020 – 2021 U.S. Supreme Court term opened on October 5 with the Court declin­ing to review chal­lenges to more than 30 death-penal­ty court deci­sions.

The only death-penal­ty deci­sion that elicit­ed com­ment from a mem­ber of the Court was the denial of Warren Henness’ peti­tion for cer­tio­rari chal­leng­ing Ohio​’s exe­cu­tion pro­to­col. Henness’ exe­cu­tion chal­lenge had been denied by an Ohio fed­er­al dis­trict court, and the U.S. Court of Appeals for the Sixth Circuit had affirmed that decision. 

Justice Sonia Sotomayor authored a state­ment con­cern­ing the denial of cer­tio­rari ​“to address the Sixth Circuit’s nov­el and unsup­port­ed con­clu­sion that pain is con­sti­tu­tion­al­ly tol­er­a­ble so long as it is no worse than the suf­fer­ing caused by a botched hang­ing.” Justice Sotomayor explained that the fact that hang­ing was a tra­di­tion­al method of exe­cu­tion did not make it the con­sti­tu­tion­al stan­dard against which oth­er exe­cu­tion meth­ods are judged. Rather, she wrote, the risk of suf­fer­ing caused by a state’s exe­cu­tion method must be judged against the risks posed by read­i­ly avail­able alter­na­tive meth­ods of execution.

The Court also denied review of a peti­tion for cer­tio­rari filed by death-row pris­on­ers Richard Jordan and Ricky Chase (pic­tured) chal­leng­ing the con­sti­tu­tion­al­i­ty of Mississippi​’s three-drug lethal injec­tion pro­to­col. The Supreme Court has pre­con­di­tioned con­sti­tu­tion­al chal­lenges to the cru­el­ty of a state’s exe­cu­tion method upon a show­ing by the pris­on­er that the state has a ​“known and avail­able alter­na­tive” method of exe­cu­tion that is less like­ly to result in severe pain. To meet this Court-cre­at­ed require­ment, Jordan and Chase argued that a one-drug lethal injec­tion pro­to­col was less like­ly to lead to a tor­tur­ous death and sought dis­cov­ery from states that used one-drug pro­to­cols to prove that the method was fea­si­ble and read­i­ly avail­able. However, when they sought infor­ma­tion from Georgia regard­ing its abil­i­ty to obtain drugs to car­ry out its one-drug exe­cu­tion, the state moved to quash the sub­poe­na. Saying that Jordan and Chase were seek­ing ​“irrel­e­vant infor­ma­tion,” the U.S. Court of Appeals for the Eleventh Circuit had affirmed a dis­trict court order quash­ing the subpoena. 

In an inno­cence case that has gained nation­al atten­tion, the Court declined to review a peti­tion for writ of cer­tio­rari filed by Florida death-row pris­on­er James Dailey. Dailey’s peti­tion for cer­tio­rari alleged that Pinellas County pros­e­cu­tors had uncon­sti­tu­tion­al­ly with­held excul­pa­to­ry infor­ma­tion that the lead police inves­ti­ga­tor in the case had offered incen­tives to poten­tial jail­house infor­mants to entice them into tes­ti­fy­ing against him and that his code­fen­dant had con­fessed to com­mit­ting the crime alone. He argued that the Florida Supreme Court had improp­er­ly adju­di­cat­ed his claims, includ­ing impos­ing a require­ment that defense coun­sel act with ​“due dili­gence” to dis­cov­er infor­ma­tion they should have known the pros­e­cu­tion had unconstitutionally withheld. 

Dailey has a sec­ond peti­tion still pend­ing in the Court seek­ing review of the Florida courts’ appli­ca­tion of state hearsay rules to pre­vent him from pre­sent­ing evi­dence of his co-defendant’s recent confession. 

The Court also declined to review the case of Briley Piper, the only per­son on South Dakota​’s death row. Piper had plead­ed guilty and waived his right to a jury sen­tenc­ing. His peti­tion for writ of cer­tio­rari assert­ed that his waiv­er was not know­ing and intel­li­gent, that Piper’s lawyer pro­vid­ed inef­fec­tive rep­re­sen­ta­tion in his pre-tri­al advice regard­ing the plea and sen­tenc­ing waiv­er and in the penal­ty-phase, and that a dif­fer­ent time­line for the mur­der that the same pros­e­cu­tor pre­sent­ed in a co-defendant’s sep­a­rate tri­al should have been admit­ted in Piper’s defense as a pri­or admis­sion by the state. 

NEWS (10/​8/​20) – Puerto Rico: The U.S. Court of Appeals for the First Circuit has barred the fed­er­al gov­ern­ment from seek­ing the death penal­ty in the retri­al of Alexis Candelario-Santana, whom the tri­al court had sen­tenced to life after the jury divid­ed in its vote on life or death. The court ruled that sub­ject­ing Candelario to a sec­ond cap­i­tal tri­al after his con­vic­tion was over­turned on appeal would vio­late the Double Jeopardy Clause of the Fifth Amendment. 

In October 2009, nine peo­ple were killed after gun­men opened fire at the open­ing-night par­ty of a mini-mar­ket and bar in Sabana Seca, Puerto Rico. Candelario was con­vict­ed as one of the gun­men. After being instruct­ed that the court would impose a life sen­tence if the jury did not unan­i­mous­ly agree on life with­out parole or the death penal­ty, the jury returned with a non-unan­i­mous sen­tenc­ing ver­dict. Without instruct­ing the jury to delib­er­ate fur­ther to see if it could reach a unan­i­mous out­come, the court dis­charged the jury and imposed a life sen­tence. The U.S. Supreme Court ruled In Sattazahn v. Pennsylvania that the pros­e­cu­tion may cap­i­tal­ly retry a defen­dant who over­turns his or her con­vic­tion after a hung jury results in a court-imposed life sen­tence. The cir­cuit court dis­tin­guished Sattazahn, how­ev­er, not­ing that the tri­al judge in Candelario’s case had pre­ma­ture­ly dis­missed the jury with­out pro­vid­ing it suf­fi­cient oppor­tu­ni­ty to deter­mine whether it could reach una­nim­i­ty. Consequently, there had been no man­i­fest neces­si­ty to declare a sen­tenc­ing mis­tri­al, and the Fifth Amendment barred sub­ject­ing Candelario to jeop­ardy of death a sec­ond time in his retrial.

NEWS (10/​6/​20) – Alabama: The Alabama Court of Criminal Appeals has vacat­ed the death sen­tence imposed on Heather Leavell-Keaton, rul­ing that the tri­al court had failed to pro­vide her an oppor­tu­ni­ty to make a state­ment to the court before it deter­mined whether to accept the jury’s non-unan­i­mous rec­om­men­da­tion to sen­tence her to death. The court returned the case to the Mobile County tri­al court to per­mit Leavell-Keaton to allo­cate — pro­vide a state­ment not sub­ject to cross-exam­i­na­tion — before the judge imposes sentence. 

Leavell-Keaton and her com­mon-law hus­band, John DeBlase, were sen­tenced to death in 2015 for the mur­der of DeBlase’s two chil­dren. She was one of five women on Alabama’s death row and the first woman ever sen­tenced to death in Mobile County. The court sen­tenced her to death fol­low­ing an 11 – 1 jury sen­tenc­ing rec­om­men­da­tion. Alabama is the only state in the coun­try that per­mits a judge to impose the death penal­ty based upon a non-unan­i­mous jury vote. Only California (21) and Texas (6) have more women on death row.