Capital Case Roundup — Death Penalty Court Decisions the Week of October 52020

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.


David McAfee, Death Penalty Not Allowed in Shooting Retrial, First Cir. Rules, Bloomberg Law, October 8, 2020; William Thornton, Court strikes down woman’s death sen­tence in mur­ders of 2 chil­dren in Mobile County, Birmingham News/, October 72020.