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Georgia Set to Execute Man Despite Serious Juror Misconduct that No Court Has Ever Reviewed

Posted: December 5, 2016

Georgia plans to execute William Sallie (pictured) on December 6 in a case his attorneys argue is tainted by egregious juror misconduct that no court has considered because Sallie missed a filing deadline during a period in which he was unrepresented and Georgia provided him no right to a lawyer. It is a case that Andrew Cohen, a Fellow at the Brennan Center for Justice and long-time legal analyst, says "should shock the conscience of every person who believes [in] due process of law." Sallie was convicted of killing his father-in-law and wounding his mother-in-law during a 1990 custody fight with his estranged wife. Because the case involved domestic violence, divorce, and a custody battle, potential jurors were questioned about their experiences with those issues in an effort to eliminate possible bias. One juror lied about her background, which included four contentious divorces, child custody and support fights, and family violence. Although the trial judge had presided over three of the juror's four divorce proceedings -- including one said to have involved dramatic scenes in the courtroom -- he failed to remove her from the jury. During questioning, the same juror stated that she would follow Biblical law over Georgia law, which Cohen says also should have disqualified her from serving in the case. However, over the objections of Sallie's attorney, the judge permitted her to serve and the Georgia courts rejected this challenge to the juror on appeal. During the course of the trial, the juror then carried on an extramarital affair with a male juror, and law enforcement personnel were dispatched to her house after the trial to tell the man his wife had been looking for him. The judge subsequently informed Sallie's lawyers of that affair, but in the 15 months before filing a motion for a new trial, they did nothing to investigate the juror and did not raise her marital history or in-trial misconduct as an issue. The juror later said in an affidavit that she had pressured six other jurors into voting for a death sentence for Sallie. No appeals court has heard evidence of the juror misconduct because Sallie missed a filing deadline by eight days during a period when he had no lawyers representing him. Former Georgia Supreme Court Chief Justice Norman S. Fletcher decried Georgia's failure to provide death row inmates with attorneys throughout the appeals process, saying that "[f]undamental fairness, due process and the prohibition against cruel and unusual punishment require the courts to provide an attorney throughout the entire legal process to review a death sentence. Virtually every capital-punishment state has this safeguard. Georgia is an outlier." In his clemency petition, Sallie's attorneys argue, “The determination of a death sentence must occur only with the most pristine and careful proceedings uncorrupted by bias and dishonesty. That simply did not happen here.”

 

OUTLIER COUNTIES: Dallas County, Texas Imposing Fewer Death Sentences After Years of Discrimination

Posted: December 2, 2016

With 55 executions since the 1970s, Dallas County, Texas, ranks second among all U.S. counties -- behind only Harris County (Houston), Texas -- in the number of prisoners it has put to death. It is also among the 2% of counties that account for more than half of all prisoners on death row across the country, and produced seven new death sentences and one resentence between 2010 and 2015, more than 99.5% of all U.S. counties during that period. Dallas County has a long history of prosecutorial misconduct and racial discrimination, evidenced most tellingly in its biased jury selection practices. Long-time Dallas District Attorney Henry Wade, whose tenure in office spanned the years 1951 to 1987, once told an assistant prosecutor, “If you ever put another n****r on a jury, you’re fired.” An office manual first written in 1963 instructed Dallas County prosecutors not to “take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.” In 2005, the U.S. Supreme Court took notice of what Justice Anthony Kennedy described as a "culture of discrimination" that was “suffused with bias against African-Americans," and overturned the capital murder conviction of Thomas Joe Miller-El because prosecutors removed 10 of the 11 Black potential jurors on the basis of race. 51 people have been exonerated of serious crimes in Dallas County since 1989, including Randall Dale Adams, who had been sentenced to death after witnesses for the prosecution committed perjury at his trial. Dallas has shown signs of change in recent years. No new death sentences have been imposed since 2013. That year, District Attorney Craig Watkins said he would advocate for the Texas legislature to pass a Racial Justice Act, permitting death row prisoners to challenge their sentences based upon statistical evidence of racial discrimination. Former Assistant District Attorney James Fry said in 2009 that concerns about innocence had changed his views on the death penalty: "For years I supported capital punishment, but I have come to believe that our criminal justice system is incapable of adequately distinguishing between the innocent and guilty. It is reprehensible and immoral to gamble with life and death."

 

Missouri is Disproportionately Producing Federal Death Sentences Amidst Pattern of Inadequate Representation

Posted: December 1, 2016

Federal capital defendants are disproportionately sentenced to death in Missouri compared to other states, with 14.5% of the 62 prisoners currently on federal death row having been prosecuted in Missouri's federal district courts. By contrast, a DPIC analysis of FBI Uniform Crime Reporting Statistics shows that Missouri accounted for only 2.26% of murders in the United States between 1988, when the current federal death penalty statute was adopted, and 2012. Not surprisingly, an article in The Guardian by David Rose reports that, since the 1990s, the chances that a defendant will be sentenced to death in a Missouri federal court are significantly greater than in other federal jurisdictions. Rose suggests that the questionable performance of defense counsel and repeated failures to investigate and present mitigating evidence relating to the backgrounds and life histories of Missouri federal capital defendants has significantly contributed to that disparity. Though federal funding for defense attorneys is more generous than state funding, Rose says the federal death penalty system shows evidence of the same failures in representation that so often appear in state death penalty cases. Four of the nine prisoners sentenced to death in Missouri were represented by the same lawyer, Frederick Duchardt. In the three cases of Duchardt's clients that have reached the appeals stage, all three raised claims of ineffective assistance of counsel. In each case, Duchardt failed to employ a mitigation specialist, in violation of American Bar Association guidelines. Mitigation specialists investigate a client's background to find evidence that may convince a jury to impose a sentence less than death. Duchardt's clients all suffered serious abuse during their childhoods. One had an IQ of 68, placing him on the threshold of intellectual disability. Another had been diagnosed with psychosis, bipolar disorder, and post-traumatic stress disorder. None of these issues were presented to the jury, a decision Duchardt later claimed was "strategic," but which his client's appeal attorneys argue was a result of failure to prepare or investigate. Professor Sean O'Brien of the University of Missouri Law School, described the appointment of counsel for indigent defendants as a "lottery," saying, "Many defendants lose that lottery, and they get a lawyer more worried more about pleasing the court and the prosecutor than about fighting for the client. Those are the ones who die. When one lawyer produces nearly half the federal death sentences in a state, there’s a problem."

 

U.S. Supreme Court Hears Argument in Texas Intellectual Disability Case

Posted: November 30, 2016

During argument November 29 in the case of Moore v. Texas, the U.S. Supreme Court expressed skepticism about Texas' idiosyncratic method of deciding whether a capital defendant has Intellectual Disability and is therefore ineligible for the death penalty. A trial court, applying the criteria for Intellectual Disability established by the medical community, found that Bobby James Moore (pictured) was not subject to the death penalty. However, the Texas Court of Criminal Appeal reversed that ruling in 2015, saying that Moore did not qualify as intellectually disabled under Texas' “Briseño factors” (named after the Texas court decision that announced them), an unscientific seven-pronged test based in part on the character Lennie Smalls from John Steinbeck's "Of Mice and Men." Moore's attorney, Clifford Sloan, argued that "Texas is very extreme and stands alone" in rejecting clinical standards used by the medical community to determine Intellectual Disability and replacing them with “nonclinical” and “anti-scientific” criteria. Five justices seemed sympathetic to Moore's case, raising concerns about the arbitrariness of allowing states to set their own criteria for deciding who is intellectually disabled. Justice Ruth Bader Ginsburg said, "You're opening the door to inconsistent results ... something that we try to prevent from happening in capital cases." Justice Stephen Breyer said that, without nationwide uniformity, there will be "disparities and uncertainties" and "people who are alike treated differently." Justices Elena Kagan and Sonya Sotomayor questioned whether application of the Briseño factors excluded some individuals whom clinicians would regard as being intellectually disabled. Justice Anthony Kennedy asked Texas Solicitor General Scott Keller whether the purpose of Texas' system was to "really limit" the definition of intellectual disability. When Keller said that was not the intent, Kennedy asked, "But isn't that the effect?" The Court is expected to rule on the case by June 2017.

 

Florida Supreme Court Orders Re-Sentencing, Suggesting Hurst May Affect Many Florida Cases

Posted: November 29, 2016

On November 23, the Florida Supreme Court overturned the death sentence imposed by a judge on Richard Franklin after his jury split 9-3 in recommending he receive the death penalty for a 2012 murder. "In light of the non-unanimous jury recommendation to impose a death sentence," the court found that the death sentence violated Franklin's right to have a unanimous jury determination of all facts necessary to impose a death penalty and that the violation could not be excused as harmless. The court ordered that Franklin be given a new sentencing hearing. Although the court did not rule on any case other than Franklin's, the decision suggests that the court will order new sentencing hearings in at least several dozen cases involving prisoners whose non-unanimous death sentence were still pending on direct appeal at the time of the U.S. Supreme Court's ruling in Hurst v. Florida in January 2016. In Hurst, the U.S. Supreme Court struck down Florida's death sentencing scheme because key sentencing facts were determined by a judge, rather than a jury. In October, the Florida Supreme Court interpreted that decision as requiring that the jury unanimously recommend the death penalty before the trial judge could impose capital punishment. The Florida Supreme Court's description of Franklin's claim as a "Ring-Hurst claim" further suggests that the court may order new sentencing hearings for approximately 170 death row prisoners whose sentences became final since Ring v. Arizona, a 2002 U.S. Supreme Court decision requiring that a jury, rather than a judge, determine the existence of aggravating facts making a defendant eligible for the death penalty. The court has yet to rule on whether it will apply the constitutional protections recognized in Hurst to all death row prisoners, irrespective of their sentencing date, which could require resentencing of up to 290 people. Earlier, the court upheld judge-imposed death sentences when the defendant waived his right to a jury or the sentence followed a unanimous jury recommendation for death. According to retired Florida Supreme Court Chief Justice Harry Lee Anstead, "Tragically, in the 13 years since Ring, some 47 persons have been executed in Florida under an unconstitutional statute. Had the U.S. Supreme Court accepted review of a Florida case soon after Ring, those executions may arguably not have occurred – at least not until further review for harmless error, waiver or some other possible argument by the state was first evaluated."

 

Judge Grants Dylann Roof's Request to Represent Himself in Federal Death Penalty Trial

Posted: November 28, 2016

U.S. District Court Judge Richard M. Gergel granted a request on November 28 from Dylann Roof (pictured), the 22-year-old charged with the murders of  nine members of the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, to represent himself in his federal capital trial. Judge Gergel described Roof's decision as “strategically unwise,” but said, “It is a decision you have the right to make.” A criminal defendant's right to self-representation was established by the Supreme Court in 1975 in Farretta v. California, a non-capital case where the Court held that a defendant may waive his right to counsel provided such waiver is knowing, voluntarily, and intelligent. In Roof's trial, the judge had temporarily halted jury selection in the trial on November 7, when Roof's attorneys requested a determination of Roof's mental competency to stand trial. After a two-day hearing, which was closed to the public because statements Roof made to a psychologist might taint the trial, Judge Gergel found Roof fit to stand trial. Jury selection is set to begin on November 28th, with 516 potential jurors reporting to the courthouse for questioning. After Roof's federal trial, the state of South Carolina also plans to try him. He faces a death sentence in both trials. While the Supreme Court has not addressed whether a capital defendant may waive his right to counsel, death penalty experts have argued that such defendants should not be allowed to represent themselves, because of the complexity of capital cases and the finality of the sentence. Cornell Law Professor John Blume wrote, "when it comes to a criminal defendant facing society's ultimate punishment, the defendant's more symbolic interests in dignity and autonomy are outweighed by the criminal justice system's interests, as well as society as a whole's interests, in accuracy and fairness." Last year, a Kansas judge permitted White Supremacist Frazier Glenn Cross to represent himself in a case in which he was charged with murders at a Kansas City Jewish Community Center. His lawyers had intended to present a mental health defense to the murders. After a controversial trial punctuated by outbursts by the defendant, the jury sentenced Cross to death.

 

NEW VOICES: Special Olympics Chair Urges Supreme Court to Strike Down Texas' 'Horrific' Criteria for Determining Intellectual Disability

Posted: November 23, 2016

Timothy Shriver (pictured), the Chairman of the Special Olympics, has called on the U.S. Supreme Court to end Texas' "use of stigmatizing stereotypes" in determining whether a defendant has Intellectual Disability and is therefore ineligible for execution. On November 29, the Court will hear argument in Moore v. Texas, a case challenging Texas' use of the “Briseño factors”—a set of unscientific criteria based in part on the fictional character of Lennie Smalls from the novel "Of Mice and Men"—to determine whether capitally charged prisoners have significant impairments in adaptive functioning that could qualify them for an Intellectual Disability diagnosis. In a column in TIME magazine, Shriver called Texas' method of adjudicating Intellectual Disability "horrific." He wrote, "[t]he inaccurate Texas standard reinforces one of the most damaging stereotypes about people with intellectual disability—that they can’t be 'good' at anything." In Moore's case, the judge relied on the fact that Moore was able to play pool and earned money mowing lawns as evidence that he did not really have an intellectual disability. Shriver applauded the Supreme Court's 2002 decision, Atkins v. Virginia, which barred the death penalty for defendants with Intellectual Disability. His article highlights some of the reasons people with Intellectual Disability should be exempt from execution: "people with intellectual disabilities have abilities but also challenges: they are less able to advocate for themselves; more likely to be coerced into behaviors they don’t understand; less likely to understand the implications of their actions and at higher risk for unreliable trials and wrongful convictions." Shriver encouraged the Court to bolster that protection by ending Texas' practices, which he said contravene established medical and clinical criteria: "It’s time for the Supreme Court to remind our nation that the Constitution and the vision of rights it embodies have no place for ill-informed and deadly stigmas."

 

Circuit Court Overturns South Carolina Death Sentence for Prosecutor's Racially Inflammatory Argument

Posted: November 22, 2016

The U.S. Court of Appeals for the Fourth Circuit has upheld a federal district court's decision ordering a new sentencing hearing for Johnny Bennett, a black man who was sentenced to death by an all-white South Carolina jury in a trial tainted by a prosecutor's racially-inflammatory cross-examination and argument. Bennett was prosecuted by Donald Myers (pictured), known as “Death Penalty Donnie” for having sent 28 South Carolina defendants to death row. In response to defense argument at Bennett's sentencing proceedings in 2000 that Bennett would not pose a future danger to society if incarcerated for life, Myers repeatedly invoked violent animal references, calling Bennett "King Kong on a bad day," a “caveman,” a “mountain man,” a “monster,” a “big old tiger,” and “[t]he beast of burden.” Earlier in the trial, Meyers had elicited irrelevant testimony that a white witness whom Bennett had assaulted when he was a juvenile had dreamt of "being chased by black savages." The prosecuter also gratuitously asked a witness about sexual relations Bennett had had with a "blonde-headed" prison guard. A juror later described Bennett as "just a dumb ni**er." The South Carolina Supreme Court upheld Bennett's sentence, saying that the "King Kong" comment was “not suggestive of a giant black gorilla who abducts a white woman, but rather, descriptive of [Bennett’s] size and strength as they related to his past crimes.” It ruled that the jurors comments did not show that he was “racially biased at the time of the ... trial.” In March 2016, a federal district court overturned Bennett's sentence, saying that Myers had "made multiple statements clearly calculated to excite the jury with racial imagery and stereotypes." The District Court judge called Myers' arguments "a not so subtle dog whistle on race that this court cannot and will not ignore." Judge J. Harvie Wilkinson, writing the Fourth Circuit opinion called Myers' comments "unmistakably calculated to inflame racial fears and apprehensions on the part of the jury." He wrote, "It is impossible to divorce the prosecutor’s 'King Kong' remark, 'caveman' label, and other descriptions of a black capital defendant from their odious historical context. And in context, the prosecutor’s comments mined a vein of historical prejudice against African-Americans, who have been appallingly disparaged as primates or members of a subhuman species in some lesser state of evolution." John Blume, who represented Bennett in the Fourth Circuit argument, said it was "antithetical to the criminal justice system for a prosecutor to pander to an all-white jury's racial fears and implicit biases."

 

OUTLIER COUNTIES: Los Angeles County Has Nation's Largest—And Still Expanding—Death Row

Posted: November 21, 2016

Los Angeles County, California is the home of the nation's largest death row, one that statistics show continues to rapidly grow. In January 2013, Los Angeles was responsible for more death row prisoners than any other county in the United States, and it has ranked as one of the two most prolific counties in imposing new death sentences each year since. The 31 death sentences imposed in the county between 2010 and 2015 are more than any other U.S. county imposed during that period and the four death sentences it has imposed so far in 2016 are more than have been imposed in any other county. According to the Fair Punishment Project report, "Too Broken to Fix," the Los Angeles death sentences exhibit serious racial disparities: 94% of the 31 death sentences imposed between 2010 and 2015 were directed at defendants of color. Although African Americans commit fewer than one-third of all Los Angeles County homicides, they comprised 42% of those condemned to death in this period. 45% of the new death sentences were imposed on Latino defendants, 6% against Asian Americans or Asian Pacific Islanders. Only two death sentences were imposed on White defendants during this period. Not surprisingly, a 2014 study found that White jurors in southern California were significantly more likely to recommend death sentences for Latino defendants than White defendants, especially when only weak mitigating evidence was presented. But that is precisely what the evidence suggests occurs in many Los Angeles County capital cases. The Los Angeles County Public Defender's Office, which handles half of all capital cases in the county, assigns its most experienced attorneys to death penalty cases and its clients are rarely sentenced to death. Of the 30 Los Angeles County death penalty appeals decided by the California Supreme Court between 2006 and 2015, just one defendant was represented by the public defender's office and three clients of the Alternate Public Defender, which takes about 20% of cases, were sentenced to death. However, court appointed attorneys—who handle the remaining 30% of capital defendants—accounted for 26 death verdicts, or 87% of the death sentences imposed in the county. While the public defenders presented one week's worth of mitigating evidence in the one case in which their client was sentenced to death, private attorneys averaged just 2.4 days of mitigation on their cases in the same period, including a number of cases in which they presented less than a day of mitigating evidence. Two Former Los Angeles County District Attorneys, Gil Garcetti and John Van de Camp, have changed their views on the death penalty and spoken out about the risk of executing innocent people, the high cost of capital punishment, and the emotional toll on victims' families. (Click map to enlarge.)

 

BOOKS: "The Case of Rose Bird," and the Continuing Power of Money in Judicial Elections

Posted: November 18, 2016

In 1986, California voters removed Rose Bird, the state's first female supreme court chief justice, from office after conservative groups spent more than $10 million in a recall effort that portrayed her as "soft on crime," emphasizing her court opinions overturning death sentences that had been unconstitutionally imposed. Ten years later, Tennessee Supreme Court Justice Penny White lost a retention election after death penalty proponents and other conservative groups targeted her for voting with the court majority in a 3-2 decision overturning a death sentence that had been imposed in a rape-murder case. Similar efforts to remove justices from state supreme courts in Kansas and Washington failed in the November 8, 2016 elections. As recent events illustrate the continuing power of money in judicial elections, a new book, The Case of Rose Bird: Gender, Politics, and the California Courts, chronicles Bird's career and the repeated efforts to remove her from office. A recent report from the Brennan Center for Justice suggests that outside money continues to play an outsized role in judicial elections today. The Brennan Center found that this year, TV spending in state supreme court races set a record of $19.4 million. Seventeen of the 20 groups that spent money on such elections this cycle do not disclose their donors, making it difficult to identify the people and groups weighing in on judicial races. But in Kansas, four of the five justices facing reelection were targeted for their decision to overturn the death sentences of Reginald and Jonathan Carr, and in the Washington Supreme Court retention election, business interests attempted to portray Justice Charlie Wiggins as "enabling predators." Both efforts to remove the justices failed. In Kansas, outside groups spent approximately $1.7 million on TV ads, but while a group calling itself Kansans for Justice attempted to oust the justices, another group called Kansans for Fair Courts spent almost equal amounts supporting retention. All five justices were reelected, but the four who were targeted by ads averaged about 56% support, as compared to 71% of the vote for the fifth justice, who was not the focus of TV ads. Alicia Bannon, Senior Counsel at the Brennan Center's Democracy's Program, said, "This unprecedented flood of spending from outside special interests and secretive donors is undermining faith in the fairness of our courts and the promise of equal justice for all."

 

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