Capital Case Roundup — Death Penalty Court Decisions the Week of November 302020

NEWS (12/​4/​20) — Nevada: The Nevada Supreme Court has over­turned the death sen­tence imposed on Mexican for­eign nation­al Carlos Gutierrez. In a 4 – 3 rul­ing, the court held that Nevada had vio­lat­ed the Vienna Convention on Consular Relations when police and pros­e­cu­tors failed to noti­fy Gutierrez of his rights to con­sular assis­tance by his gov­ern­ment. The court fur­ther held, based upon exten­sive mit­i­gat­ing evi­dence pre­sent­ed with the assis­tance of the Mexican gov­ern­ment in his post-con­vic­tion pro­ceed­ings, that the denial of con­sular assis­tance had been prejudicial. 

Justices Ron Parraguirre, James Hardesty, and Lidia Stiglich dis­sent­ed. Justice Parraguirre wrote that the 2004 opin­ion of the International Court of Justice in Avena and Other Mexican Nationals v. United States of America find­ing vio­la­tions of the right to con­sular noti­fi­ca­tion in more than fifty death-penal­ty cas­es involv­ing Mexican nation­als is not bind­ing on this court and says noth­ing about this state’s statu­to­ry pro­ce­dur­al bars.” The dis­senters fur­ther said the treaty claim did not involve a new­ly dis­cov­ered right and should have been raised by Gutierrez’s lawyers before the Avena deci­sion. Finally, they assert­ed, Nevada law lim­its relief in sec­ond or suc­ces­sive post-con­vic­tion claims to vio­la­tions of con­sti­tu­tion­al rights. The Vienna Convention claim, they wrote, involves a treaty vio­la­tion, not a constitutional violation. 


NEWS (12/​3/​20) – Florida: The Florida Supreme Court has upheld the death sen­tences imposed on Gerhard Hojan in his cap­i­tal resen­tenc­ing tri­al for the 2002 mur­ders of two employ­ees at a Waffle House restau­rant. Hojan had been uncon­sti­tu­tion­al­ly sen­tenced to death in 2003 after he waived his right to present mit­i­gat­ing evi­dence and three mem­bers of his jury vot­ed for life. 

The Florida Supreme Court over­turned Hojan’s death sen­tences in 2017 and remand­ed the case for a new sen­tenc­ing tri­al. This time the jury unan­i­mous­ly rec­om­mend­ed the death penal­ty. Hojan raised two issues on appeal, that his defense coun­sel had been pre­vent­ed from pos­ing a hypo­thet­i­cal ques­tion to deter­mine whether jurors would auto­mat­i­cal­ly impose a death sen­tence on a per­son con­vict­ed of pre­med­i­tat­ed mur­der and that his death sen­tence was dis­pro­por­tion­ate. The court denied his jury selec­tion claim, rul­ing that coun­sel had been able to ask oth­er ques­tions to ascer­tain poten­tial juror bias. Applying its recent deci­sion in Lawrence v. State that aban­doned the 50-year prac­tice of con­duct­ing com­par­a­tive pro­por­tion­al­i­ty review, the court sum­mar­i­ly reject­ed Hojan’s proportionality claim.


NEWS (12/​2/​20) – Georgia: The U.S. Court of Appeals for the 11th Circuit has dis­missed Georgia death-row pris­on­er Michael Nances chal­lenge to the state’s lethal-injec­tion pro­to­col. The court ruled that the fed­er­al civ­il rights statute was an inap­pro­pri­ate vehi­cle for con­sid­er­ing method-of-exe­cu­tion chal­lenges when a pris­on­er pro­pos­es an alter­na­tive method of exe­cu­tion that is unavail­able and would effec­tive­ly nul­li­fy his death sentence. 

Nance had alleged that Georgia’s lethal injec­tion process con­sti­tut­ed cru­el and unusu­al pun­ish­ment and pre­sent­ed the fir­ing squad as an alter­na­tive exe­cu­tion method. Because fir­ing squad is not autho­rized under Georgia law, the court held that Nance’s pro­posed alter­na­tive would have the effect of nul­li­fy­ing his death sen­tence. Such chal­lenges, the court said, must be brought in a habeas cor­pus peti­tion, rather than under a civ­il rights statute. 

On December 3, the U.S. District Court for the Middle District of Alabama issued an order direct­ing Willie B. Smith III and the state of Alabama to sub­mit briefs on whether the cir­cuit’s rul­ing in Nance required the court to dis­miss Smith’s method-of-exe­cu­tion chal­lenge. Smith is sched­uled to be exe­cut­ed February 112021


NEWS (12/​1/​20) – Texas: By a 7 – 2 vote, the en banc U.S. Court of Appeals for the Seventh Circuit has denied Alfred Bourgeois’ motion to recon­sid­er a three-judge panel’s deci­sion that had refused on pro­ce­dur­al grounds to con­sid­er his claim that he is inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. The vote to deny recon­sid­er­a­tion also lift­ed a stay of exe­cu­tion that had been in place in his case. 

Bourgeois is sched­uled to be exe­cut­ed December 11. On December 3, he filed a peti­tion for writ of cer­tio­rari and motion for stay of exe­cu­tion in the U.S. Supreme Court seek­ing a clin­i­cal­ly appro­pri­ate review of his intel­lec­tu­al dis­abil­i­ty claim. The only court to con­sid­er Bourgeois’ intel­lec­tu­al dis­abil­i­ty claim denied it using a def­i­n­i­tion of intel­lec­tu­al dis­abil­i­ty that the Supreme Court lat­er declared unconstitutional.


NEWS (11/​30/​20) – Tennessee: The Tennessee Court of Criminal Appeals has vacat­ed a court-approved agree­ment to resen­tence death-row pris­on­er Abu-Ali Abdur’Rahman to life. The inter­me­di­ate appeals court held that the Davidson County tri­al court lacked juris­dic­tion to resen­tence Abdur’Rahman with­out first mak­ing a deter­mi­na­tion that he was legal­ly enti­tled to post-con­vic­tion relief from his con­vic­tion and death sentence.

Abdur’Rahman had unsuc­cess­ful­ly chal­lenged his con­vic­tion on the grounds that a tri­al pros­e­cu­tor who had a his­to­ry of racial dis­crim­i­na­tion in the exer­cise of jury chal­lenges had uncon­sti­tu­tion­al­ly exclud­ed Black jurors from his case because of their race. He attempt­ed to renew that chal­lenge in light of the U.S. Supreme Court’s 2016 deci­sion in Foster v. Chapman, which over­turned a Georgia death-row prisoner’s con­vic­tion because of dis­crim­i­na­to­ry jury selec­tion prac­tices. The coun­ty dis­trict attor­ney gen­er­al con­ced­ed that Abdur’Rahman’s death sen­tence was a prod­uct of racial dis­crim­i­na­tion and reached a plea agree­ment in which Abdur’Rahman would be resen­tenced to life in prison. The appeals court returned the case to the Davidson County Court to deter­mine whether Abdur’Rahman is enti­tled to sen­tenc­ing relief under the lim­it­ed grounds allowed by the state’s post-conviction statute. 


NEWS (11/​30/​20) – California: The California Supreme Court has upheld the first-degree mur­der con­vic­tions and death sen­tences imposed on Chester Turner for the mur­ders of ten women between 1987 and 1996. The court over­turned an addi­tion­al charge of fetal mur­der, say­ing the only evi­dence pre­sent­ed to estab­lish the via­bil­i­ty of the fetus at the time of death had been inad­mis­si­ble hearsay testimony.