U.S. Supreme Court

Arbitrariness Remains Pervasive 40 Years After Court Decision Upholding Capital Punishment

Forty years after the U.S. Supreme Court upheld newly enacted death penalty statutes in Gregg v. Georgia and two other cases, Professor Evan J. Mandery of the John Jay College of Criminal Justice says arbitrariness continues to plague the administration of capital punishment across the United States. In a piece for The Marshall Project, Professor Mandery revisits the death penalty in light of the constitutional defects that led the Supreme Court to overturn existing capital punishment statutes in Furman v. Georgia in 1972. He finds that "[w]hether one interprets the Furman decision to have been about — individually or collectively — excessive racism, a failure to identify the 'worst of the worst' among murderers, the death penalty’s sporadic use, or simple geographical randomness, the 'guided discretion' statutes endorsed in Gregg haven’t remotely fulfilled their promise. Randomness has not been reduced and in many respects has grown substantially worse." On the issue of "sporadic use," Professor Mandery cites studies that show state-level death sentencing rates for eligible crimes of 0.56% (Colorado) to 5.5% (California), both of which are dramatically lower than the 15-20% threshold that had raised concerns in Furman. States' failures to identify the "worth of the worst" murderers is evident, he says, in both the expansion of death-eligible crimes (91.1% of murders in Colorado are eligible under the state's death penalty statute) and studies that found no consistent differences in egregiousness of crimes that received death sentences and those that didn't. "Whatever they may have written, [Justice] Stewart, Stevens and Powell’s true project in Gregg was to rationalize the American death penalty and make sentencing decisions turn on the severity of a defendant’s offense instead of random factors, such as where the crime occurred, or insidious factors, such as race." Mandery says. He concludes: "On the occasion of its 40th anniversary, we can deem that project a complete and dismal failure." 

U.S. Supreme Court Grants New Trial to Louisiana Death Row Inmate

The U.S. Supreme Court issued a per curiam decision on March 7 granting a new trial to Louisiana death row inmate Michael Wearry as a result of multiple acts of misconduct by prosecutors in his case. No physical evidence linked Wearry to the murder. His conviction was based largely on the testimony of an informant, Sam Scott, who came forward two years after the crime with an account that did not match the details of the crime. Scott altered his story over the course of four different statements, and the testimony he gave in court barely resembled his original statement. Undisclosed police records later revealed that another inmate had heard Scott say he wanted to "make sure [Wearry] gets the needle cause he jacked over me." A second witness against Wearry was offered a reduced sentence for an unrelated conviction, but prosecutors falsely told the jury that he had "no deal on the table” and was testifying because the victim’s "family deserves to know” what happened. Wearry presented three alibi witnesses - his girlfriend, his sister, and his aunt - who corroborated his story that he had been at a wedding 40 miles away when the crime occurred, but his attorney failed to further investigate the alibi or call as witnesses any of the wedding guests who did not have close relationships with Wearry. The Court wrote, "Beyond doubt, the newly revealed evidence suffices to undermine confidence in Wearry’s conviction. The State’s trial evidence resembles a house of cards, built on the jury crediting Scott’s account rather than Wearry’s alibi." Justices Alito and Thomas dissented, saying the case should not have been decided without a full hearing. Louisiana police and prosecutors have been found to have engaged in misconduct in numerous death penalty cases, including those of all ten of its death-row exonerees: Johnny Ross, Curtis KylesShareef CousinMichael GrahamAlbert Burrell, John Thompson, Dan BrightRyan Matthews, Damon Thibodeaux, and Glenn Ford.

Former State Chief Justices: Pennsylvania Justice Should Not Have Approved Death as D.A., Then Reviewed Case on Appeal

In a recent Washington Times op-ed, two former state supreme court chief justices argue that a state supreme court justice who, as district attorney, had authorized the capital prosecution of a defendant, should not have later participated as a judge in deciding an appeal in that case. Gerald Kogan (pictured, l.), former chief justice of the Florida Supreme Court, and Michael Wolff (pictured, r.), former chief justice of the Supreme Court of Missouri, joined a number of other former judges who had been prosecutors and former appellate court jurists in filing briefs supporting the position of Philadelphia death-row prisoner Terry Williams in the upcoming U.S. Supreme Court case, Williams v. Pennsylvania. The case, which the Court will hear on February 29, concerns the participation of Pennsylvania Supreme Court Chief Justice Ronald Castille in the prosecution's appeal of a trial court ruling that had overturned Williams' death sentence because of prosecutorial misconduct. The appeals court reversed the trial court and reinstated Williams' death sentence. Kogan and Wolff say that Castille should have recused himself from hearing the appeal. "We, along with many other former judges, have urged the Supreme Court to find that Chief Justice Castille’s prior relationship to the case created an impermissible risk of bias," they say. "As the former district attorney, Chief Justice Castille personally, in a handwritten note, authorized seeking the death penalty for Mr. Williams. Moreover, he used the Williams death verdict to support his campaign for the Supreme Court seat. And finally, considering the case required Chief Justice Castille to evaluate a court’s finding of misconduct against the office over which he formerly presided."

U.S. Supreme Court Reverses 3 Kansas Decisions Overturning Death Penalties

In an 8-1 decision in Kansas v. Carr, the U.S. Supreme Court reversed the decisions of the Kansas Supreme Court granting new sentencing hearings in three capital cases, restoring the death sentences of Jonathan Carr, Reginald Carr, Jr., and Sidney Gleason pending further appellate review. The Kansas Supreme Court had vacated the men's death sentences because the jury had not been informed, as required by the Kansas Supreme Court, that mitigating factors presented during the sentencing proceeding to spare a defendant's life do not need to be proven beyond a reasonable doubt. In his opinion for the Court, Justice Antonin Scalia wrote that such an instruction was not constitutionally required. "Jurors," he said, "will accord mercy if they deem it appropriate, and withhold mercy if they do not." He wrote that on the facts of these cases, there was little possibility that the jury was confused about its role in finding and giving effect to mitigating evidence. The Court also rejected an argument that the Carr brothers should have had separate sentencing proceedings, saying that even if any evidence against the brothers had been improperly admitted, it did not affect the fundamental fairness of their penalty trial. The lone dissenter in the case, Justice Sonia Sotomayor, wrote that the case should not have been reviewed, saying, "Kansas has not violated any federal constitutional right. If anything, the State has overprotected its citizens based on its interpretation of state and federal law." The decision leaves open the possibility that the Kansas courts could revisit these issues under state law.

U.S. Supreme Court Strikes Down Florida's Death Sentencing Scheme

In an 8-1 decision in Hurst v. Florida released on January 12, the U.S. Supreme Court found Florida's capital sentencing scheme in violation of the 6th Amendment, which guarantees the right to trial by jury. "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death," Justice Sonia Sotomayor wrote in the opinion of the Court. The jury and judge in Hurst's case followed Florida's statutory sentencing procedure, which requires only an "advisory sentence" from a jury. Florida does not require the jury to specify the factual basis of its sentencing recommendation. The sentencing judge must give "great weight" to the jury's recommendation, but only the judge ever provides written reasons why a case is eligible for a death sentence. The Court based its decision largely on Ring v. Arizona, a 2002 decision in which it struck down Arizona's sentencing scheme because a judge, rather than a jury, determined the facts necessary to impose a death sentence. While Florida's procedure adds the advisory recommendation that Arizona's lacked, the Court found the distinction, "immaterial." "As with Timothy Ring, the maximum punishment Timothy Hurst could have received without any judge-made findings was life in prison without parole. As with Ring, a judge increased Hurst’s authorized punishment based on her own factfinding. In light of Ring, we hold that Hurst’s sentence violates the Sixth Amendment." 

Supreme Court Petition Alleges Second Conflict of Interest by Same Lawyers Accused of Abandoning Executed Texas Prisoner

 Lawyers for Texas death row prisoner Robert L. Roberson III have filed a petition asking the United States Supreme Court to review whether Seth Kretzer and James W. Volberding - the same appointed lawyers who were accused of abandoning Raphael Holiday, whom Texas executed in November - had a conflict of interest that interfered with Mr. Roberson's right to an independent legal advocate in his federal habeas corpus proceedings challenging his conviction and death sentence. In his petition, Roberson argues that his trial lawyer failed to investigate and present important mitigating evidence in the penalty phase of his case and that Kretzer and Volberding have a conflict of interest that prevented them from properly litigating that claim. Volberding represented Roberson in his state post-conviction appeals and failed to present any claim or evidence relating to counsel's penalty-phase investigative failures. He was then appointed to represent Roberson in federal court, but his prior failure to have challenged trial counsel's penalty-phase performance forfeited that claim unless Roberson could show that Volberding had unreasonably failed to raise the claim in state court. Kretzer was appointed as "supplemental counsel" to review Volberding's performance and failed to challenge Volberding's conduct. However, unkown to Roberson, Kretzer and Volbering had a close professional association, having been jointly appointed as paid co-counsel in a number of capital habeas cases. When Roberson learned of their association, he asked for new "supplemental counsel," which Kretzer and Volberding opposed. Charles Herring, Jr., an ethics expert and author of a treatise on Texas legal ethics and malpractice, and Lawrence J. Fox, former chairman of the ABA Standing Committee on Ethics and Professional Responsibility, say in affidavits supporting Roberson's petition that Volberding and Kretzer have conflicts of interest that should prevent them from representing Roberson. The Court is expected to decide in early December whether to hear Roberson's case. Kretzer and Volberding have written to the Court requesting that it dismiss the petition and permit them to file their own petition raising other issues.

Supreme Court Hears Argument in Georgia Jury Discrimination Case

The U.S. Supreme Court heard oral argument in Foster v. Chatman on November 2. Timothy Foster, an intellectually limited black teenager charged with killing an elderly white woman, was convicted and sentenced to death in 1987 by an all-white jury after Georgia prosecutors struck every black member of the jury pool. Foster argued that prosecutors impermissibly exercised their strikes on the basis of race, in violation of the Court's 1986 decision in Batson v. Kentucky, to keep African Americans off his jury. Press reports described the Court as having "signaled support" for Foster during the course of the argument, with at least six justices indicating that black jurors had been "improperly singled out and kept off the jury." Justice Elena Kagan called the case as clear a violation of the Court's prohibition against racially discriminatory jury selection "as a court is ever going to see." The prosecution's notes of jury selection, obtained through an open records request nearly 20 years after Foster's trial, showed that prosecutors had highlighted in green the names of every black juror, included all 5 black jurors on the top of a list of 6 "definite no's," and ranked black jurors against one another "in case it comes down to having to pick one of the black jurors." In an op-ed in the New York Times, former deputy U.S. Attorney General Larry D. Thompson said prosecutors "routinely ignore" Batson and exclude black jurors for any number of ostensibly "race neutral" reasons. This is problematic, he says, "because interracial juries make fewer factual errors, deliberate longer and consider a wider variety of perspectives than all-white juries." Studies in nine southern death penalty states have documented "rampant" race discimination in jury selection, Thompson writes. However, "Mr. Foster’s case offers a rare instance of extraordinary and well-documented misconduct." Thompson concludes that "A judicial system that allows for obviously discriminatory jury selection is intolerable. If the court cannot establish discrimination in this case, then the lofty language of Batson rings hollow." 

STUDIES: Requiring Jury Unanimity Would Decrease U.S. Death Sentences by 21%

The U.S. Supreme Court heard oral argument on October 13 in Hurst v. Florida, a case challenging provisions in Florida's death penalty statute that do not require jurors to unanimously agree to the facts that could subject a defendant to a death sentence or to reach unanimity before recommending that the judge sentence a defendant to death. Florida is one of just three states that does not require a unanimous jury verdict when sentencing someone to death. A study by the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School found that requiring jury unanimity in Florida, Alabama, and Delaware would have caused a dramatic drop in death sentences over the last 5 years. Overall, the three states would have returned 26 death sentences since 2010, instead of 117 - a 77% drop - and Florida would have imposed 70% fewer death verdicts. The three states that do not require unanimity in death sentencing have produced a disproportionate share of the nation's death sentences, accounting for 28% of all U.S. death sentences since 2010. Had these states followed the sentencing system used by every other death penalty state, the total number of death sentences imposed in the United States  would have decreased by 21%. (Click image for full infographic.)

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