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Florida Court to Hear Argument on Impact of U.S. Supreme Court Ruling Declaring Death Penalty Process Unconstitutional

Posted: May 5, 2016

On May 5, the Florida Supreme Court will hear oral argument in the case of Timothy Hurst, whose death sentence was overturned in the U.S. Supreme Court's decision Hurst v. FloridaThe state court must determine whether the high court's ruling, which struck down Florida's sentencing scheme, entitles Hurst to a new sentencing hearing, reduces his sentence to life without parole, or requires some other outcome. The case may also decide how the Hurst ruling will affect the nearly 400 people on Florida's death row. Hurst's attorneys say he should have his death sentence reduced because, "persons previously sentenced to death for a capital felony are entitled to have their now-unconstitutional death sentences replaced by sentences of life without parole." That position received support in an amicus brief filed by three former chief justices of the Florida Supreme Court, a former state representative, a former prosecutor, and past presidents of the American Bar Association. The justice and legal experts argue that  Hurst "held Florida's death penalty statute unconstitutional," and that in such circumstances Florida law requires all death sentences imposed under the statute to be reduced to life without parole. The state attorney general's office has argued that state law requires blanket imposition of new sentences only if the death penalty itself is declared unconstitutional, and that Hurst only declared Florida's method of imposing the death penalty unconstitutional. Florida has the nation's second-largest death row, with 396 people as of January 1, 2016, before the state legislature rewrote the sentencing procedure to require a unanimous jury finding of at least one aggravating circumstance, and at least a 10-2 vote to impose a death sentence.

 

Two Capital Cases Involving Innocence Claims Resolved Decades After Conviction

Posted: May 4, 2016

This week, two decades-old cases involving men with innocence claims reached final resolution: Louisiana inmate Gary Tyler (pictured) was released after 42 years in prison and Paul Gatling was exonerated in New York more than 50 years after his wrongful conviction. Both men had once faced the death penalty. Tyler was convicted and sentenced to death for the fatal shooting of a 13-year-old white boy in 1974 during a riot over school integration. A white mob had attacked a bus filled with black students, including Tyler. After the shooting, Tyler was arrested on a charge of disturbing the peace for talking back to a sheriff's deputy. The bus and students were searched, but no weapon was found. Police later claimed to have found a gun on the bus during a later search. That gun turned out to have been stolen from a firing range used by the sheriff's department. Tyler was convicted and sentenced to death by an all-white jury when he was 17 years old. His death sentence was overturned after the U.S. Supreme Court ruled Louisiana's mandatory death penalty statute unconstitutional in 1976, and his life sentence was recently overturned after the Supreme Court barred mandatory life sentences for juvenile offenders. Tyler was released on April 29, after the district attorney's office agreed to vacate his murder conviction, allow him to plead guilty to manslaughter, and receive the maximum sentence of 21 years, less than half the time he had already served. Mary Howell, one of Tyler's attorneys, said, "This has been a long and difficult journey for all concerned. I feel confident that Gary will continue the important work he began years ago while in prison, to make a real difference in helping to mentor young people faced with difficult challenges in their lives." On May 2, 81-year-old Paul Gatling was exonerated. Brooklyn prosecutors charged Gatling with capital murder in 1963 despite the fact that he did not fit the description of the killer and no physical evidence linked him to the killing. He pled guilty to second-degree murder after his lawyer told him he would get the death penalty if the case went to trial. Governor Nelson Rockefeller commuted Gatling's sentence in 1974 and he was released from prison, but he continued to seek exoneration, in part, because his conviction prevented him from voting. Brooklyn District Attorney Ken Thompson, whose Conviction Review Unit reinvestigated the case, said, "Paul Gatling repeatedly proclaimed his innocence even as he faced the death penalty back in the 60s. He was pressured to plead guilty and, sadly, did not receive a fair trial.... We're here because Mr. Gatling would not let go of his demand to be deemed innocent." 

 

U.S. Supreme Court Orders Alabama to Reconsider Constitutionality of Its Death Penalty Sentencing Procedure

Posted: May 3, 2016

The U.S. Supreme Court has vacated a decision of the Alabama Court of Criminal Appeals upholding a death sentence imposed on Alabama death row prisoner Bart Johnson, and has directed the state court to reconsider the constitutionality of Alabama's death-sentencing procedures. Johnson, represented by lawyers from the Equal Justice Initiative (EJI), had challenged the constitutionality of his death sentence, which was imposed by a trial judge after a nonunanimous jury vote of 10-2 recommending a death sentence, as violating the Supreme Court's decision earlier this year in Hurst v. Florida. According to Johnson's Supreme Court pleadings, the trial court had instructed the jury that it did not need to unanimously agree to any particular fact that would have made Johnson eligible for the death penalty, nor did it have to identify for the court any specific aggravating factors that it found to be present in the case. Hurst ruled that Florida's capital sentencing procedures, which permitted critical factual findings necessary to impose a death sentence to be made by the trial judge, rather than the jury, violated the Sixth Amendment right to a jury trial. Johnson's lawyers argued that Alabama's sentencing scheme suffers from the same constitutional defect and that, "[i]n Bart Johnson's case, like in Hurst, the judge imposed the death penalty based on finding two aggravating factors that were not clearly found by the jury." Bryan Stevenson, EJI's executive director, said that the Court's ruling could have systemic implications: "This ruling implicates all [capital] cases in Alabama. We have argued that Alabama's statute no longer conforms to current constitutional requirements. The Court's ruling today supports that view." In March, an Alabama Circuit Judge barred the death penalty in four cases on the grounds that Alabama's sentencing scheme was unconstitutional. The Supreme Court's decision to order reconsideration of Johnson's case could also affect a court challenge currently pending in the Delaware Supreme Court over the constitutionality of its death penalty statute, which employs similar sentencing procedures. Likewise, defense lawyers in Nebraska have argued that the death penalty statute in that state — which has been repealed by the legislature pending the outcome of a ballot initiative in November — impermissibly vests key fact-finding authority in the trial judge, rather than the jury. 

 

Florida Judge Sentences Man to Death Under Sentencing Law That Supreme Court Ruled Unconstitutional

Posted: May 2, 2016

A Florida trial judge in St. Lucie County sentenced Eriese Tisdale to death on April 29 for the killing of a sheriff's sergeant, relying on sentencing procedures from the version of Florida's death penalty law that the U.S. Supreme Court declared unconstitutional in Hurst v. Florida. The jury in Tisdale's case considered the evidence in the penalty phase of Tisdale's trial under the old Florida law, voting 9-3 to recommend a death sentence without specifying the aggravating factors that would make Tisdale eligible for the death penalty. The Supreme Court struck down Florida's sentencing procedure in Hurst because a judge, rather than a jury, made the factual determination of aggravating circumstances that were necessary to impose a death sentence. In response to Hurst, Florida enacted a new law, which went into effect March 7, requiring juries to make unanimous determinations of aggravating factors, and preconditioning any death sentence upon a jury vote of at least 10-2 vote in favor of death. The statute declares "If fewer than 10 jurors determine that the defendant should be sentenced to death, the jury's recommendation to the court shall be a sentence of life imprisonment without the possibility of parole." In those circumstances, the law states, "the court shall impose the recommended sentence." Tisdale's penalty phase was tried in October 2015, before the Supreme Court declared the sentencing procedures unconstitutional, and the jury's 9-3 recommendation for death came before the new law adopted the 10-2 requirement. His lawyers argued that he could not be sentenced to death because the old procedures were unconstitutional and the jury vote did not qualify as a death recommendation under the new law. But a St. Lucie County judge ruled that the jury's unanimous vote to convict Tisdale for the murder of a law enforcement official amounted to a unanimous finding of an aggravating circumstance, accepted the jury's 9-3 death recommendation, and sentenced Tisdale to death. Tisdale is the first person sentenced to death in Florida since the new law went into effect.

 

Texas Inmate Dies Days Before Appeals Court Hearing On His Innocence Claim

Posted: April 29, 2016

On April 24, just days before a Texas federal appeals courts was to hear his case, Max Soffar — who spent 35 years on death row constantly maintaining his innocence — died of liver cancer at the age of 60. No physical evidence linked Soffar to the crime for which he was sentenced to death, and Soffar — a seventh-grade drop-out with brain damage from fetal alcohol syndrome — said that he confessed to police only after hours of coercive questioning. In a 2014 interview, Soffar said, "Everything in those statements that I made does not match the crime scene. It’s all made up off the top of my head." After Soffar's first conviction was overturned in 2006, he tried to present evidence at his retrial that the murder had been committed by another man who was later convicted of similar murders in Tennessee. The trial court excluded the evidence, a witness to whom that man had allegedly confessed did not testify after prosecutors threatened to try him for murder, and Soffar was again convicted and sentenced to death. Soffar then petitioned Governor Rick Perry for clemency in 2014, receiving support from former FBI director William Sessions and former Texas Governor Mark White. The U.S. Court of Appeals for the Fifth Circuit recently granted Soffar permission to appeal the U.S. District Court's 2014 denial of a writ of habeas corpus. His hearing in that appeal was scheduled for April 27. Andrew Horne, an attorney for Soffar, said "[h]is confession was demonstrably false. There was evidence another man committed the crime." Horne added, "Max was very excited about the Fifth Circuit ruling, very optimistic.... I’m glad he’s not suffering anymore, but I’m frustrated that he didn’t get his rights vindicated. He protested his innocence to the last.”

 

STUDIES: Louisiana Death Penalty Staggeringly Error-Prone, Racially Biased

Posted: April 28, 2016

More than 80% of the 241 death sentences imposed in Louisiana since 1976 have been reversed on appeal, and one death row prisoner has been exonerated for every three executions in the state, according to a new study by University of North Carolina-Chapel Hill Professor Frank Baumgartner and statistician Tim Lyman. The study, to be published in the Southern University Law Center’s Journal of Race, Gender and Poverty, also reveals dramatic racial disparities in both the trial and appellate stages of Louisiana death penalty proceedings. The study notes that 155 of the state's 241 death sentences have reached a final resolution: either a reversal or an execution. Of these death sentences, there have been 28 executions (18.1%) and 127 reversals (81.9%) — including 9 exonerations — giving Louisiana a reversal rate nine percentage points higher than the 72.7% average for death penalty cases nationwide. The researchers also found stark racial disparities in Louisiana's death penalty related both to the race of the victim and to the race of the defendant. Cases involving white victims were six times more likely to result in death sentences than cases involving black victims, and black male defendants charged with killing white female victims were 30 times more likely to be sentenced to death than were black male defendants charged with killing black male victims. The study also found that appellate courts were less likely to overturn death sentences in cases involving white victims than those involving black victims, compounding the racial disparities already present in the sentencing stage of the case. As a consequence, a defendant charged with killing a white victim was 14 times more likely to be executed than if the victim was black. The last time Louisiana carried out the death penalty against a white person for a crime involving a black person was in 1752, when the defendant was executed for damaging the property of another white man by stabbing two female slaves. The authors explained, "Race-of-victim effects are powerful at each stage of the death penalty system, accumulating as we move from the original sentence through to execution." Baumgartner said of his findings, “We have to look the death penalty in the eye and understand how it truly does function. Not how we wished it functioned but how it really does function. And every time we do that, it really is disturbing.” (Click image to enlarge, image by The New Orleans Advocate.)

 

Ruling Expected on Arizona Execution Hold, Amid Systemic Problems With Arbitrariness, Lethal Injection

Posted: April 27, 2016

Arizona's last execution, the botched lethal injection of Joseph Wood in July 2014, sparked controversy and legal challenges to the state's lethal injection procedure, and came at a time when Arizona was struggling not only with the logistics of carrying out executions, but also broader issues of fairness and costs. In a sweeping piece for The Arizona Republic, Michael Kiefer, who witnessed Wood's execution, describes the historical and legal background that led up to Arizona's current hold on executions.  He describes how Arizona's list of statutory aggravators — factors that make a case eligible for the death penalty — became so expansive that then-Governor Jan Brewer vetoed a proposed aggravator in 2014 because she worried it would make the death penalty law unconstitutionally broad and vague. Kiefer notes Arizona's 42% reversal rate in capital cases, meaning that 129 of the 306 death sentences in the state were reversed or remanded by higher courts. Nine people have been exonerated in Arizona, and one, Jeffrey Landrigan, was executed despite test results weeks before his execution that found DNA from two different men, but not Landrigan, on the victim's clothing. Landrigan was executed in 2010 using lethal injection drugs imported illegally from London. The U.S. Drug Enforcement Administration later seized the remaining drugs, causing Arizona to switch first to pentobarbital and later to midazolam, the first drug in Wood's botched execution. U.S. District Judge Neil Wake halted all executions in Arizona, asking the state to clearly specify what drugs it has and how it intends to carry out executions. His ruling is expected soon.

 

LAW REVIEW: North Carolina Lacks Constitutionally-Sufficient Proportionality Review

Posted: April 26, 2016

A law review article by Brooks Emanuel (pictured), a Law Fellow at the Equal Justice Initiative, argues that North Carolina's capital punishment statute violates the Eighth and Fourteenth Amendments to the U.S. Constitution because it lacks a meaningful appellate mechanism to prevent the arbitrary and discriminatory application of the death penalty. Citing extensive historical evidence, Emanuel argues that "racial discrimination in North Carolina death sentences was pervasive" in the years leading up to the U.S. Supreme Court's 1972 decision in Furman v. Georgia, which declared existing death penalty statutes unconstitutional. After Furman, North Carolina adopted comparative proportionality review as its primary appellate protection against systemic arbitrariness and discrimination. However, Emanuel says, racially disproportionate capital sentencing continues to be endemic in the state. Examining the North Carolina Supreme Court's proportionality cases, Emanuel argues that the court has failed to provide meaningful proportionality review: "First, the court often does not appear to fulfill its mandate to consider 'similar cases,' instead relying too heavily on the very small group of cases in which death was previously found disproportionate. Second, the review’s lack of transparency is itself unconstitutional in its violation of defendants’ rights to due process." Emanuel argues that evidence from recent Racial Justice Act cases and from its fundamentally flawed proportionality review show that North Carolina has failed to prevent discriminatory sentencing and that systemic arbitrariness and racial disparity persist. Although the U.S. Supreme Court ruled in Pulley v. Harris that a state is not constitutionally compelled to provide comparative proportionality review so long as some mechanism exists for meaningful appellate review, Emanuel notes that North Carolina has selected proportionality review to perform that function and it has failed to do so. For those reasons, he concludes, North Carolina's death penalty is unconstitutional.

 

Missouri Execution Drug Supplier Being Sold After Committing Nearly 2,000 Violations of Pharmacy Regulations

Posted: April 25, 2016

The assets of The Apothecary Shoppe, a Tulsa, Oklahoma compounding pharmacy that provided lethal injection drugs to Missouri, have been auctioned off after the company defaulted on its loans, and is being sold after admitting to nearly two thousand violations of pharmacy regulations, according to a report by BuzzFeed News. Inspectors from the federal Food and Drug Administration and the Oklahoma Board of Pharmacy found that the drug compounder had committed "significant" violations of pharmacy regulations, including engaging in questionable potency, disinfecting, and sterilization practices. State investigators witnessed improper refrigeration, storage, and sterilization practices at the pharmacy and caught the company producing drugs without legitimate medical need, improperly expanding drug expiration dates, and operating during periods in which its lab was not certified. In 2013 and 2014, the pharmacy prepared execution drugs for at least three Missouri executions, receiving cash payments from the Department of Corrections. In challenges to Missouri's lethal injection practices, death-row prisoners – hampered by state execution secrecy provisions – argued in court that “Compounding-pharmacy products do not meet the requirements for identity, purity, potency, efficacy, and safety that pharmaceuticals produced under FDA regulation must meet.” Among the possibilities they listed, were that the drug may not be sterile, may be less potent than it needs to be, or may be contaminated. Missouri responded in its court filings that the condemned prisoners' concerns were speculative and that the inmates did "not make a plausible claim that Missouri’s execution procedure is sure or very likely to cause serious illness or needless suffering and give rise to sufficiently imminent dangers.” The problems found at The Apothecary Shoppe confirmed the prisoners' concerns. 

 

Supreme Court Asked to Review Texas' Use of Factors Based on a Fictional Character to Reject Death Row Prisoner's Intellectual Disability Claim

Posted: April 22, 2016

Bobby James Moore (pictured) faces execution in Texas after the state's Court of Criminal Appeals rejected his claim of intellectual disability in September 2015, saying he failed to meet Texas' “Briseño factors” (named after the Texas court decision that announced them), an unscientific seven-pronged test which a judge based on the character Lennie Smalls from John Steinbeck's "Of Mice and Men." In doing so, the appeals court reversed a lower court's ruling that tracked the scientific diagnostic criteria set forth by medical professionals, which found that Moore had intellectual disability. On April 22, the U.S. Supreme Court will conference to decide whether to hear Moore's case. Moore's lawyers argue, supported by briefing from national and international mental health advocates, that he has intellectual disability and that the non-scientific standard employed by Texas in denying his intellectual disability claim violated the Court's 2014 ruling in Hall v. Florida. In 2002, the Supreme Court ruled in Atkins v. Virginia that the 8th Amendment prohibits the use of the death penalty against persons with mental retardation, now known as intellectual disability. But Atkins left it to the states to adopt procedures for determining whether defendants were intellectually disabled. Hall struck down Florida's strict IQ cutoff for determining intellectual disability because it "disregards established medical practice." Texas is the only state that uses the Briseño factors, which include whether the crime required forethought or planning, whether the person is capable of lying effectively, and whether the defendant is more of a leader or a follower. The state court disregarded Moore's clear history of intellectual disability, documented since childhood, and IQ scores ranging from the low 50s to the low 70s, in favor of Texas' idiosyncratic method.

 

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