Capital Case Roundup — Death Penalty Court Decisions the Week of August 10, 2020

NEWS (8/​14/​20) — Alabama: The Alabama Court of Criminal Appeals has affirmed a low­er court rul­ing grant­i­ng a new tri­al to death-row pris­on­er Steven Petric based upon his lawyer’s inef­fec­tive rep­re­sen­ta­tion at tri­al. Petric had been con­vict­ed and sen­tenced to death in 2009 for a rape and mur­der in sub­ur­ban Birmingham two decades earlier. 

Prosecutors said DNA evi­dence from semen and cig­a­rette butts linked Petric to the crime, and they pre­sent­ed exten­sive evi­dence argu­ing that Petric had raped and mur­dered a woman he had been dat­ing in Illinois. In February 2018, a Jefferson County cir­cuit court over­turned Petric’s con­vic­tion, find­ing that his tri­al lawyer, Charles Salvagio, had unrea­son­ably failed to inves­ti­gate the Illinois case and failed to rebut the pros­e­cu­tion’s claims by show­ing that the jury had acquit­ted Petric after video footage showed he had been else­where when those crimes were com­mit­ted. The court fur­ther found that Salvagio had unrea­son­ably promised the jury dur­ing his open­ing state­ment that the defense would show that anoth­er man who knew the vic­tim had com­mit­ted a sim­i­lar mur­der, with­out hav­ing reviewed the record of the oth­er case. At the close of the prosecution’s case against Petric, they pro­vid­ed the defense with a DNA report that cleared the alter­nate sus­pect of the oth­er mur­der, leav­ing coun­sel with­out a defense. 

NEWS (8/​14/​20) — Indiana: The Indiana State Police and fed­er­al death penal­ty pro­test­ers have reached a set­tle­ment of the pro­test­ers’ law­suit seek­ing an injunc­tion against ISP erect­ing exe­cu­tion-day road­blocks pre­vent­ing pro­test­ers from hold­ing a vig­il and demon­strat­ing with­in sight of the Terre Haute prison where the exe­cu­tions are tak­ing place. The law­suit, filed by the ACLU of Indiana on behalf of Death Penalty Action, the Indiana Abolition Coalition, Providence of Saint-Mary-of-the-Woods Indiana, and indi­vid­ual pro­test­ers, called the police road­blocks a ​“clear vio­la­tion” of pro­test­ers’ First Amendment rights.

Under the terms of the set­tle­ment, the state police will no longer ​“erect road­blocks or oth­er bar­ri­ers” in the vicin­i­ty of the prison ​“that would pre­vent plain­tiffs and their mem­bers from gath­er­ing near and with­in sight of the entrance to the Federal Correctional Complex in Terre Haute so that plain­tiffs and their mem­bers may engage in protest activ­i­ties pri­or and sub­se­quent to the exe­cu­tions that take place with­in the Federal Correctional Complex.” The pro­test­ers agreed to with­draw the law­suit and to not seek attorney fees.

NEWS (8/​14/​20) — North Carolina: By a 4 – 3 vote, the North Carolina Supreme Court has resen­tenced death-row pris­on­er Marcus Robinson to life in prison, rul­ing that the rein­state­ment of his death sen­tence fol­low­ing the legislature’s retroac­tive repeal of the state’s Racial Justice Act vio­lat­ed North Carolina’s con­sti­tu­tion­al pro­hi­bi­tion against twice plac­ing a per­son in jeop­ardy of life.

After an exten­sive evi­den­tiary hear­ing, a Cumberland County tri­al court ruled on April 22, 2012 that Robinson had proven that race was a sub­stan­tial fac­tor in the impo­si­tion of his death sen­tence. The North Carolina Supreme Court returned the case to the tri­al court to pro­vide pros­e­cu­tors an addi­tion­al oppor­tu­ni­ty to chal­lenge Robinson’s evi­dence. The state leg­is­la­ture then amend­ed the law to lim­it the cir­cum­stances under which Racial Justice Act relief could be grant­ed. When relief was grant­ed to three more death-row pris­on­ers under the amend­ed act, the leg­is­la­ture then repealed the RJA altogether. 

The court major­i­ty wrote: ​“Once Robinson’s death sen­tence was vacat­ed under the RJA, Article I, Section 19 of the North Carolina Constitution barred the rein­state­ment of his cap­i­tal sen­tence.” DPIC will dis­cuss the deci­sion in more detail in a forth­com­ing What’s New feature.

NEWS (8/​14/​20) — Virginia: After twice hav­ing been direct­ed by a fed­er­al appeals court to review Thomas Porter​’s claim that a biased juror sat on the pan­el that con­vict­ed him and sen­tenced him to death, a judge of the U.S. District Court for the Eastern District of Virginia has again denied Porter’s habeas cor­pus peti­tion. Senior Judge Henry E. Hudson reject­ed Porter’s claim, rul­ing that Porter had not proven that a juror who did not dis­close that he had a broth­er and three cousins who worked in law enforce­ment; that two oth­er broth­ers, his son, and his niece had been arrest­ed or charged with crim­i­nal activ­i­ty; and that one of his broth­ers had been assault­ed twice and his par­ents killed in a car acci­dent by a dri­ver alleged to have been drunk was ​“impar­tial [sic] due to actual bias.” 

In deny­ing Porter a new tri­al, Hudson wrote that the juror, Bruce Treakle, ​“did not repeat­ed­ly lie or inten­tion­al­ly con­ceal mate­r­i­al infor­ma­tion in [jury ques­tion­ing] to secure a spot on the jury.” It was the third time that Hudson — a for­mer Commonwealth Attorney for Arlington, Virginia who report­ed­ly once said ​“I live to put peo­ple in jail” — has dis­missed Porter’s chal­lenges to his con­vic­tion and death sentence. 

In August 2014, Hudson grant­ed Virginia pros­e­cu­tors’ motion to dis­miss Porter’s habeas peti­tion with­out address­ing the juror bias claim. The U.S. Court of Appeals for the Fourth Circuit returned the case to Hudson with direc­tions to rule on the claim. In April 2016, Hudson sum­mar­i­ly dis­missed the juror bias claim with­out an evi­den­tiary hear­ing, say­ing it ​“lacks mer­it.” The Fourth Circuit reversed that judg­ment and remand­ed the case a sec­ond time, this time direct­ing that Hudson con­duct an evi­den­tiary hear­ing before decid­ing the issue.

NEWS (8/​10/​20) — California: The California Supreme Court upheld the con­viction and death sen­tence of two Los Angeles County death-row pris­on­ers, in cas­es aris­ing out of unre­lat­ed mur­ders of four victims.

Anh The Duong was sen­tenced to death on three counts of first-degree mur­der in a quadru­ple killing after an argu­ment in an El Monte, California night­club in 1999. He also was con­vict­ed of one count of sec­ond-degree mur­der. The direct appeal deci­sion came 17 years after Duong’s tri­al in 2003. The court reject­ed Duong’s claim that pre­tri­al pub­lic­i­ty made it impos­si­ble for him to get a fair tri­al in Los Angeles County, not­ing that ​“eight print arti­cles about the case pub­lished over a peri­od of more than three years” did not con­sti­tute the type of ​“sen­sa­tion­al and exten­sive” cov­er­age that would make it impos­si­ble to receive a fair tri­al in the county.

Alfonso Morales was sen­tenced to death for the mur­ders of four mem­bers of a fam­i­ly, three of whom were stabbed to death and the fourth, an eight-year-old girl, who was sex­u­al­ly assault­ed and asphyx­i­at­ed. The court denied Morales’ chal­lenge to the prosecution’s use of a crime-scene recon­struc­tion wit­ness whose train­ing con­sist­ed of gram­mar school and high school math and sci­ence cours­es, one col­lege-lev­el course in physics for health sci­ences, a 40-hour course on blood spat­ter, and trained for six months in the coro­ners, where he con­duct­ed no autop­sies. The court found the claim waived by counsel’s fail­ure to object at tri­al and, alter­na­tive­ly, ruled that any error was harmless.

The defen­dants may ask the U.S. Supreme Court to review their cas­es or they can start the state post-con­vic­tion process. California death-row pris­on­ers face a mul­ti-year wait for the appoint­ment of post-con­vic­tion coun­sel, and state and fed­er­al post-con­vic­tion review of cap­i­tal cas­es typ­i­cal­ly takes well over a decade once coun­sel is appointed.