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Judge Orders Evidentiary Hearing On Constitutionality of Federal Death Penalty

Posted: February 12, 2016

U.S. District Court Judge Geoffrey Crawford has ordered an evidentiary hearing on Donald Fell's (pictured) challenge to the constitutionality of the federal death penalty. In court filings seeking to bar federal prosecutors from seeking death against him in a pending retrial, Fell has argued that the federal death penalty constitutes cruel and unusual punishment in violation of the Fifth and Eighth Amendments to the U.S. Constitution. Among other grounds, he has asserted that the death penalty no longer comports with contemporaneous U.S. values and that there are significant racial and geographic disparities in the manner in which the federal death penalty has been applied. Fell was sentenced to death in Vermont on federal murder charges, a sentence he could not have received in state court because Vermont does not have the death penalty. His conviction was overturned because of juror misconduct, and he is facing a retrial in 2017. In the order calling for a hearing, Judge Crawford wrote, "Preliminarily, and with an open mind about the arguments recently made by both sides, the court is looking at the constitutional challenge to the death penalty." He said that, despite efforts in the 1970s to remedy constitutional problems, "40 years later the question of a systemic violation of the Eighth Amendment remains."

 

Texas Prisoner Seeks Supreme Court Review of Death Sentence Tainted By Racial Bias

Posted: February 11, 2016

Duane Buck, who was sentenced to death after a defense expert witness testified that Buck could pose a future danger to society because he is black, has asked the U.S. Supreme Court to grant him a new sentencing hearing because of his lawyer's ineffectiveness. Buck is one of six defendants whose Texas capital trials were identified by a Texas Attorney General's report as having been tainted by race-based testimony by psychologist, Dr. Walter Quijano. The other five were granted new sentencing hearings after the Texas Attorney General agreed that the “infusion of race as a factor for the jury to weigh in making its determination violated [the defendant's] constitutional right to be sentenced without regard to the color of his skin.” However, after a change in the elected Attorney General, Texas opposed a new sentencing for Mr. Buck. During Buck's sentencing trial, the prosecution asked Quijano - whom it had used as a witness in other cases - if, "the race factor, black, increases the future dangerousness for various complicated reasons." Buck's lawyer did not object, and Quijano replied, "yes." As Buck stated in a documentary about his case, "He was basically saying because you’re black, you need to die. My lawyer didn’t say anything and nobody else, you know, the prosecutor or the judge, nobody did. It was like an everyday thing in the courts." The state and federal courts rejected Buck's prior challenge based on the prosecutor's conduct, suggesting the fault lay with the defense. Buck's attorneys now argue that his trial lawyer's failure to object to Quijano's testimony constituted ineffective assistance of counsel, in violation of his Sixth Amendment rights. The lower courts turned down that appeal as well, and Buck filed this petition for writ of certiorari asking the U.S. Supreme Court to review his case.

 

Texas Board Confirms Disbarment of Prosecutor for Misconduct in Anthony Graves Case

Posted: February 10, 2016

The disciplinary board of the Texas State Bar rejected an appeal on February 9 from Charles Sebesta, the prosecutor whose misconduct led to the wrongful conviction of Anthony Graves (pictured, r.). The board's decision disbarring Sebesta for what it called "egregious" misconduct is now final. Anthony Graves was convicted in 1994 on the false testimony of Robert Carter, who claimed Graves was his accomplice. Graves was exonerated in 2010 and filed a complaint against Sebesta in 2014. Sebesta was disbarred for eliciting Carter's false statements and withholding exculpatory evidence from Graves' defense. The disciplinary board made an initial ruling to revoke Sebesta's law license in 2015, but he appealed the ruling on technical grounds. Graves lauded the board's decision, saying, “The bar stepped in to say that’s not the way our criminal justice system should work. This is a good day for justice.”

 

Majority of Floridians Prefer Life Sentence to Death Penalty, 73% Would Require Unanimous Jury Vote for Death

Posted: February 9, 2016

In the wake of a U.S. Supreme Court decision striking down Florida's death-sentencing procedures, a new poll shows that nearly two thirds of Floridians now prefer some form of life sentence to the death penalty and nearly three-quarters favor requiring the jury to unanimously agree on the sentence before the death penalty can be imposed. The poll by Public Policy Polling found that 62% of respondents preferred some form of life in prison over the death penalty for convicted murderers, while 35% preferred the death penalty. A plurality (38%) preferred life without parole coupled with restitution payments, while an additional 24% preferred either life without parole or life with parole eligibility after 40 years. The poll comes shortly after the Supreme Court declared Florida's sentencing scheme unconstitutional in Hurst v. Florida because it permitted judges, rather than juries, to determine whether the prosecution had proven factors that make a defendant eligible for the death penalty. It left open a second question as to whether jury recommendations for death had to be unanimous. As the Florida legislature considers its response to Hurst, the poll showed broad support across the political spectrum for requiring jury unanimity in sentencing. Overall, 73% of Floridians supported a unanimity requirement, including 70% of Republicans and Independents and 77% of Democrats. A Tampa Bay Times investigation this week raised questions as to the reliability of non-unanimous death sentences. The paper reported that death sentences imposed after non-unanimous jury recommendations were far more likely to be overturned and posed serious risks to the innocent. 18 of the 20 Florida exonerations for which jury data was available (90%) involved non-unanimous jury recommendations, including 3 cases in which judges overrode jury recommendations for life sentences. Stephen Harper of the Florida Center for Capital Representation at Florida International University College of Law, responded to the polling results, saying, "The state legislature should follow Floridians’ lead and support a unanimous jury requirement in capital cases. Failing to do so will leave Florida’s death penalty statute vulnerable to additional costly litigation."

 

BOOKS: "Confronting the Death Penalty: How Language Influences Jurors in Capital Cases"

Posted: February 8, 2016

In her new book, Confronting the Death Penalty: How Language Influences Jurors in Capital Cases, Marshall University Anthropology Professor Robin Conley examines "how language filters, restricts, and at times is used to manipulate jurors' experiences while they serve on capital trials and again when they reflect on them afterward." Conley spent fifteen months in ethnographic fieldwork observing four Texas capital trials and interviewing the jurors involved. She analyzes the language used in those trials, as well as written legal texts, to gain a greater understanding of how jurors go about making the decision for life or death. She also explores the questioning jurors undergo as to their beliefs about the death penalty, characterizing it as "socialization into killing." She writes that death penalty trials involve a number of communication practices - such as "dehumanizing references to defendants that stymie empathy between them and jurors, written and oral instructions that allow jurors to deny their personal involvement in defendants' deaths" - that create distance between jurors and defendants and "deny the humanistic side of legal decision-making."  In the book's conclusion, she writes of the importance of this type of language for the maintenance of the death penalty: "It is the words with which attorneys address potential jurors during voir dire, the written instructions on which jurors rely in the deliberation room, and the talk about defendants throughout the trial that maintain the persistent operation of the death penalty. By subverting other forms of experience, moreover, particular, authoritative modes of language allow jurors to send defendants to their deaths."

 

California Inmate Raises Innocence Claims As State Seeks to Resume Executions

Posted: February 5, 2016

As California's new lethal injection protocol moves the state towards resuming executions, Kevin Cooper (pictured, left) is seeking clemency from Gov. Jerry Brown on the grounds that he is innocent. Cooper - one of 18 death-row prisoners who have exhausted their court appeals and face execution - was sentenced to death for the 1983 murders of a married couple, their 10-year-old daughter, and the daughter's 11-year-old friend. However, evidence that was suppressed as a result of police and prosecutorial misconduct raises serious questions as to his guilt. The key witness against Cooper was the 8-year-old son of the murdered couple, who was gravely injured, but survived the attack. On the day of the murders, the boy said that three white or Hispanic men had committed the killings, and after seeing photos of Cooper on television, he told his grandmother and a sheriff's deputy that Cooper - who is black - was not the killer. After subsequent interrogations by deputies, in which they misrepresented his recollections, he later identified Cooper as the sole killer and testified to that effect at Cooper's trial. Cooper's lawyers were denied an opportunity to cross-examine him. Prosecutors also presented evidence at trial that shoeprints from the crime scene had to belong to Cooper, because he had recently escaped from prison and the prints matched prison-issued shoes that weren't available to the public. A warden from the prison, however, had provided investigators with information rebutting that assertion, but prosecutors hid the warden's statements from the jury. Police also illegally destroyed blood-splattered pants given to them by a woman who believed her husband had been involved in the murders, eliminating an essential piece of evidence that could have helped Cooper prove his innocence. Finally, independent testing of a blood sample that the state claimed had been drawn from Cooper found two different sets of DNA, meaning that the sample had either been contaminated or deliberately altered. In 2009, the U.S. Court of Appeals for the Ninth Circuit upheld Cooper's conviction, but five judges wrote a strong dissent detailing the misconduct and concluding that it was, "highly unlikely that Cooper would have been convicted," without it.

 

Death Cases in Limbo As Florida, Delaware Courts Consider Ramifications of U.S. Supreme Court Decision

Posted: February 4, 2016

Capital cases are on hold in Florida and Delaware as their state courts consider the impact of the recent U.S. Supreme Court ruling in Hurst v. Florida. The Hurst decision ruled that Florida's sentencing procedure was unconstitutional because a judge, rather than a jury, determined the aggravating factors that made a case eligible for a death sentence. The Florida Supreme Court has already delayed one Florida execution to decide whether, and to what extent, the ruling should be applied retroactively. It's decision is expected to affect the cases of more than 300 prisoners on Florida's death row. At the same time, in the absence of a lawful mechanism to conduct capital trials, Florida trial judges are delaying new trials or removing the death penalty from the case. In Delaware, one of only two states besides Florida that doesn't require a unanimous jury to impose a death sentence, Superior Court Judge Paul Wallace has asked the Delaware Supreme Court to rule on whether Hurst affects death penalty cases in that state. In requesting review by the Supreme Court, Wallace cautioned that "Delaware's capital cases must proceed only under sentencing procedures that comport with federal and state constitutional requirements for the determination of a potential sentence of death." More than two dozen capital trials - including four that are scheduled to begin in the next several months - could be put on hold if the Delaware Supreme Court agrees to take up the issue. The Florida Supreme Court stayed the February 11 execution of Cary Michael Lambrix while it decides how the decision will affect those already on death row. Meanwhile, the Florida House Criminal Justice Committee approved a measure to narrowly address the problems found in Hurst by requiring a unanimous agreement of the jury on at least one aggravating factor while the Senate is considering legislation to require unanimous jury agreement on both aggravating cirumstances and the recommendation of death. 

 

National Registry of Exonerations Reports Record 58 Homicide Exonerations in 2015, Including 5 from Death Row

Posted: February 3, 2016

A report released on February 3 by the National Registry of Exonerations (NRE) reported that a record 149 defendants were exonerated in 2015, including 58 convicted of homicide, also a record for exonerations in a single year. Overall, 39% of last year's exonerations were in homicide cases. Using slightly different criteria than DPIC's exoneration list, the NRE reported five exonerations of defendants who had been sentenced to death. The NRE report also reported a number of cases in which police or prosecutors had pursued capital charges or threatened suspects or witnesses with the death penalty. In several cases, the threat of a death sentence led to false confessions or guilty pleas, including the 2007 wrongful conviction of Bobby Johnson (pictured at his release) in Connecticut. Johnson, who has an IQ of 69 and is barely literate, was 16 years old when he was arrested. According to the report, Johnson confessed to the murder "[a]fter two interrogation sessions—during which the detectives lied and said there was physical evidence linking Johnson to the crime, and falsely told him he could get the death penalty but that they would get him probation instead." His attorney conducted no investigation, and Johnson was sentenced to 38 years. He was exonerated in 2015 after new attorneys were able to present forensic evidence linking the murder weapon to another suspect. Another 2015 exoneree, Shawn Whirl, who was wrongfully convicted in Illinois in 1991, was tortured into giving a false confession and pled guilty to avoid the death penalty. In yet another case, Hannah Overton was charged with capital murder and sentenced to life without parole for the alleged "salt poisoning" murder of her foster son. In her case, Texas prosecutors withheld from the defense exculpatory information about the levels of salt in the child's blood, and medical evidence later indicated that there was no murder at all, but that the child's death was linked to a genetic disorder. The report credits some of the growth in the number of exonerations to prosecutors' increased willingness to revisit convictions, evidenced by the increasing number of Conviction Integrity Units within prosecution offices, but cautioned that the performance of these unit's nationwide "has been highly variable and some have been criticized as mere window dressing."

 

Missouri Paid More Than $250,000 in Cash to Executioners, With No Tax Documentation

Posted: February 2, 2016

Missouri has paid state executioners $284,551.84 in cash since November 2013, without providing notification of the payments to tax authorities, according to a BuzzFeed News investigation. The payments, mostly in envelopes filled with $100 bills, were intended to keep the identities of execution team members hidden from the public by limiting the paper trail. However, Missouri's Department of Corrections failed to file 1099 forms with the IRS for the cash payments, potentially contributing to tax evasion and violating federal tax law that requires issuance of 1099s for contractor payments of $600 or more. George Lombardi, director of the Department of Corrections, confirmed that Missouri paid execution team members in cash without issuing 1099s, but defended the practice to the Missouri legislature, saying, "It is my understanding that giving 1099s to these individuals would reveal who they were, and would mean the end of the death penalty, because these individuals wouldn’t do it." A February 2015 audit by the Missouri Auditor's Office found that prison officials also failed to comply with state administrative procedures concerning documentation of the payments. The auditors reported that "[t]he DOC did not record the amount of the cash payments on receipt forms signed by execution team members and did not always require the exchange of the cash payments to be acknowledged by a witness signature, as required by DOC procedures." Discrepancies in state documentation of the payments continued even after the audit, as some state forms - called “confidential execution team member receipts” - were left entirely blank, others lacked a witness signature, and many of the witnesses signed the receipts on different days than did the prison employee who is believed to have delivered the cash envelopes. BuzzFeed found evidence that Arizona and Oklahoma also make cash payments to executioners in the interest of concealing their identities, but Arizona has supplied the appropriate tax forms and Oklahoma's payments may be below the threshold required for issuing 1099s.

 

Georgia's First Scheduled Execution of 2016 Reflects History of Arbitrariness

Posted: February 1, 2016

Brandon Astor Jones (pictured), the first person Georgia plans to put to death in 2016, is two weeks short of his 73rd birthday, has been on death row for 35 years, and shows signs of dementia. If his latest appeals and his application for clemency are denied, he will be the oldest person Georgia has ever executed. Jones' case raises questions of proportionality and discriminatory application of the death penalty. He and his co-defendant Van Solomon - both African American - were sentenced to death in 1980 for killing a white gas station store clerk during a robbery. Jones denies shooting the clerk and prosecutors never determined who fired the fatal shot. His lawyers argue that the death penalty is so infrequently imposed for robbery-murders that the practice has "fallen into complete extinction." Jones' death sentence was initially overturned because jurors in his first trial had improperly consulted a Bible during deliberations. He was resentenced to death in the late 1990s. Solomon was executed in 1985. Stephen Bright, president of the Southern Center for Human Rights, said "We have this very strange situation now in which these people sentenced to death a long time ago — and who managed to get through all the stages of review — are now being executed.” Bright said the defendants in these "zombie case[s] ... almost certainly would not be sentenced to death today." Like Jones, all 5 inmates executed in Georgia in 2015 had been convicted at least 15 years earlier, before the establishment of the Georgia Capital Defender office. Each were provided counsel through an underfunded, ad hoc system. By contrast, no one was sentenced to death in Georgia last year. Psychologists have described Jones as exhibiting a “lifelong pattern of behavior consistent with childhood-onset bipolar disorder,” with signs of PTSD rooted in “physical, sexual, and emotional trauma” from persistent child abuse at home and in a notorious state reformatory to which he was sent as a teen.

 

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