Capital Case Roundup — Death Penalty Court Decisions the Week of October 26, 2020

NEWS (10/30/20) — Florida: The Florida Supreme Court has upheld the conviction and death sentence of Jonathan Lawrence in an opinion that removed yet another appellate safeguard for the state’s death-row prisoners. In the case, the new far-right majority of the court ended the 50-year-old practice of conducting an independent proportionality review of a death sentence to determine whether the verdict was disproportional to the sentences imposed in other capital cases.

The Florida Supreme Court instituted proportionality review in the 1970s after the U.S. Supreme Court had struck down all existing death penalty statutes because of the arbitrary and capricious manner in which they were applied. The Florida court asserted that the decades-old review violated Florida statutory and constitutional law. In a strong dissent, Justice Jorge Labarga wrote that the court’s decision “eliminates a fundamental component of this Court’s mandatory review in direct appeal cases.”

Since January, the appeals court has retroactively reversed a requirement that juries must unanimously agree that a defendant should be sentenced to death before the court can impose the death penalty, eliminated a century-old standard of review that was designed to protect defendants in cases based solely on circumstantial evidence, and retroactively reversed a decision that required Florida courts to reconsider death-row prisoners’ claims of intellectual disability that the state courts had previously rejected based upon an unconstitutionally restrictive definition of intellectual impairment.

NEWS (10/30/20) — Pennsylvania: The full U.S. Court of Appeals for the Third Circuit has declined to reconsider a panel ruling that Pennsylvania may not continue to hold a prisoner in death-row solitary confinement during the period in which prosecutors appeal a federal district court’s decision overturning his conviction or death sentence. On September 1, a divided three-judge panel ruled In Porter v. Pennsylvania Department of Corrections that Ernest Porter had a procedural due process right to no longer be subject to indefinite solitary confinement.

The panel further ruled that the 33 years Porter has been held in solitary confinement ­­— including 17 years since the district court first vacated his death sentence in 2003 — violated the Eighth Amendment prohibition against cruel and unusual punishment. However, the court dismissed Porter’s claim for damages based upon that violation, granting qualified immunity to state officials on the grounds that the constitutional right had not yet been clearly established. Porter has never received any disciplinary infractions during his more than three decades on death row.

NEWS (10/27/20) — Alabama: The U.S. District Court for the Northern District of Alabama has granted habeas corpus relief to William Marshall, holding that Marshall’s trial counsel provided ineffective representation when they failed to present any mitigating evidence to spare their client’s life. Even with that failure, one the jurors in Marshall’s case voted for life, but the trial judge imposed a death penalty under a provision of Alabama law that permits a death sentence based upon a jury’s non-unanimous sentencing recommendation.

The court asserted that the failure to present any mitigating evidence in a defendant’s case for life is not automatically ineffective, but that in Marshall’s case, lead counsel ignored clear mental health mitigating evidence and retained an investigator who “had never previously investigated family members for a death penalty case.” Counsel was provided a psychological report that contained evidence that his client had experienced a significant history of childhood trauma and abuse, but nevertheless failed to “seek medical records, school records, or social services records from Marshall’s childhood … that he admitted he knew may have had some mitigation potential.” Counsel also failed to follow up on this information or present the mitigating evidence that was already available from the incomplete psychological assessment he had authorized and “failed to uncover any documentation of Marshall’s adult life, including military records, probation records, and medical records.”

The Alabama state courts ruled against Marshall, asserting that counsel’s failures were justified because Marshall’s family purportedly was unwilling to help in the investigation. The federal district court reversed, pointing to the existence of “multiple red flags indicating readily available and compelling mitigation evidence, as well as leads on where to find that

evidence.” The court said “No reasonable attorney would have failed to investigate Marshall’s background further.”

NEWS (10/27/20) — Pennsylvania: The Pennsylvania Supreme Court has, for the second time, reversed a Philadelphia court’s denial of Russell Cox’s claim of intellectual disability and remanded for further consideration of his claim.

The trial court required Russell Cox to prove adaptive deficits through psychometric testing, disregarding the testimony of lay witnesses concerning his deficits. After surveying U.S. Supreme Court decisions on intellectual disability, the Pennsylvania Supreme Court noted that state standards for assessing intellectual functioning and adaptive deficits “must rely heavily upon the current expressions and practices of the medical community, rather than upon politically created rules divorced from medical expertise.” Standardized tests are not “the sole means to ascertain a person’s adaptive behaviors,” the court said, returning the case to the trial court to review Cox’s claim under an appropriate standard.