Arbitrariness

Newly Constituted Pennsylvania Supreme Court Upholds Grant of New Trial in Death Penalty Case

On July 19, the newly constituted Pennsylvania Supreme Court unanimously voted to uphold a trial court's order granting a new trial to Philadelphia death row prisoner, Christopher Williams. The court determined that Williams' trial and appellate counsel had been ineffective by failing to investigate and present expert forensic testimony on blood flow and gunshot wounds that would have demonstrated that the version of the murders presented by the prosecution's lead witness was incompatible with the physical evidence. The court also ruled that the trial judge had improperly prevented defense lawyers from cross-examining the state's expert witnesses on key matters. The case was the first time the new court was faced with a lower court judgment granting a capital defendant a new trial. A survey of Pennsylvania capital post-conviction appeals by the Death Penalty Information Center, updated through July 25, 2016, found that the Pennsylvania Supreme Court has issued orders affirming or denying post-conviction requests for new trials by capital defendants 257 times since the Commonwealth enacted its current death penalty statute in 1978. This decision was only the third time in this period that the court had ordered or affirmed the grant of a new trial. By contrast, the court had previously voted more than 99% of the time to uphold capital convictions. It had overturned 12 of the last 13 lower court rulings it had considered since April 2006 that had granted death-row prisoners new trials. The sole exception had been the case of Ronald Champney, in which the court split 3-3, with one vacancy on the court caused by the conviction of a justice for public corruption. The tie vote upheld the decision of the trial court in that case.

Defendant Seeks Supreme Court Review of Prosecutorial Ghostwriting, A Widespread Practice in Capital Cases

Doyle Lee Hamm (pictured), an Alabama death row prisoner, has asked the United States Supreme Court to consider his case after Alabama's state and federal appellate courts upheld an order in which the trial court rejected his appeal by adopting word-for-word an 89-page order written by the state attorney general's office. In a process The Marshall Project's Andrew Cohen described as "a sham," the court dismissed Hamm's appeal one business day after receiving the prosecution's proposed order, without so much as removing the word "proposed" from the title of the order. In 1987, Hamm's jury had taken only 45 minutes to sentence him to death after his lawyer presented a 19-minute case for life that involved just two witnesses—Hamm’s sister and a bailiff. Twelve years later, Hamm’s post-conviction lawyers argued that he had received ineffective assistance of counsel in that penalty hearing and presented the court with extensive mitigating evidence that his trial lawyer had never investigated. This evidence included a childhood diagnosis of borderline mental retardation, school records reflecting Hamm's intellectual deficits, and evidence of seizures, head injuries, and drug and alcohol abuse. Cohen reports that the jury never heard that Hamm was "a barely literate, brain-damaged man with little impulse control, someone who might have been perceived as having diminished criminal responsibility." Yet the attorney general's proposed order, signed by the judge, rejected this evidence as merely "cumulative" of the sparse case for life that had been presented at trial. Cohen reports that the practice of judges adopting opinions or orders written by prosecutors, often without making any substantive changes or even correcting typos, is surprisingly widespread in capital cases. In addition to Alabama, similar "ghostwritten" orders have been documented in states such as Georgia, Kentucky, Louisiana, Ohio, Pennsylvania, South Carolina, and Texas. In one Ohio case, a judge was sanctioned for violating the judicial code of conduct and an inmate's death sentence was vacated after the judge drafted an opinion with prosecutors, but in Hamm's case and many others, opinions written by prosecutors and signed by judges have been upheld in state courts and considered reasonable determinations of fact to which courts must defer in later federal proceedings challenging the constitutionality of capital convictions and death sentences. The U.S. Supreme Court has requested that it be provided the full record of Hamm's case and is scheduled to confer about the case on September 26. It could issue an order as early as October 3, the first Monday of its Fall Term, on whether it will hear Hamm's appeal.

EDITORIAL: San Jose Mercury News Endorses Death Penalty Repeal, Says Competing Measure Would Magnify Inequity

Weighing in on California's competing death penalty ballot initiatives, the San Jose Mercury News editorial board urged voters to support repeal of capital punishment and reject a proposal to speed up executions. The editorial called California's death penalty system, "a failure on every level," noting that the state has spent $4 billion to carry out just 13 executions and the $150 million annual savings the independent Legislative Analysts Office says death penalty abolition would achieve could be better spent "on education, on rehabilitating young offenders or on catching more murderers, rapists and other violent criminals." The editorial also addresses the misperception that the death penalty deters crime: "District attorneys throughout the state argue that the death penalty is a tool to condemn society's most vicious criminals. But this claim flies in the face of actual evidence: For every year between 2008-2013, the average homicide rate of states without the death penalty was significantly lower than those with capital punishment." After describing the racially- and geographically-biased application of the death penalty in California, the editorial argues that Proposition 66, which proposes to speed up executions, "would actually magnify the inequity and sometimes outright injustice in the death penalty's application" by reducing the opportunities to catch mistakes. "In the United States, for every 10 prisoners who have been executed since the death penalty was reinstated in 1976, one person on death row has been set free." Speeding up executions, the editorial says, "is the opposite of what nations concerned with actual justice would do."

40 Years After Key Supreme Court Decision, Constitutional and Practical Problems Plague Death Penalty

The execution of John Conner on July 15 ended a two-month period without executions in the United States, the longest such period in the country since 2007-2008. A range of state-specific issues have contributed to this stoppage, including questions about the constitutionality of state death penalty practices, problems relating to lethal injection drugs and state execution protocols, and the fallout from botched executions. In an article for The American Prospect, Professor Frank Baumgartner outlines research showing that the death penalty, as applied today, remains error-prone, racially biased, and arbitrarily applied. Forty years after the U.S. Supreme Court's decision in Gregg v. Georgia allowed executions to resume, Baumgartner argues, the death penalty continues to fall short of meeting the constitutional requirements set forth by the Court. Baumgartner highlights studies that have found that the approximately one percent of death-eligible homicides that have resulted in executions are not necessarily the worst crimes, but rather, the crimes that happened to occur in jurisdictions that are prone to using the death penalty or that involved a white victim. As Chris Geidner explains in BuzzFeed, only three states - Georgia, Missouri, and Texas - have carried out any executions since January because other states are grappling with legal challenges to their sentencing procedures and lethal injection protocols, inability to obtain lethal injection drugs, or sometimes a combination of several issues. Challenges to the constitutionality of death penalty practices in Florida, Alabama, and Delaware—where non-unanimous jury recommendations for death have accounted for more than 20% of the nation's death sentences—have brought executions to a halt in those states and statutes in Nebraska and Montana may also face constitutional challenges for the role judges play in imposing death sentences in those states. The fallout from botched executions have halted executions in Arizona, Ohio, and Oklahoma. And gubernatorial moratoria and a variety of lethal injection issues have also contributed to the drop in executions. Geidner calls the situation "unprecedented," and predicts that the number of executions in the second half of 2016 will be even lower than the 14 carried out in the first half.

Georgia Prepares to Execute John Conner Despite Evidence of Intellectual Impairment, Traumatic Upbringing

Georgia is continuing with preparations to execute John Conner (pictured) on July 14 after the state's Board of Pardons and Paroles denied his clemency petition and the Georgia Supreme Court denied him a stay of execution. In the clemency proceedings, Conner's attorneys presented evidence that he is intellectually disabled and that he was raised in poverty and extreme violence in a home filled with chronic drug and alcohol abuse and in which sexual and emotional abuse were the norm. Conner's lawyers wrote that, at a young age, he was "indoctrinated into a life that normalized drugs, alcohol, and violence, so much so that he drunkenly beat a friend to death in reaction to a lewd comment." They also said Conner's teachers had identified him as intellectually disabled. Conner's inexperienced trial attorney failed to present any evidence at trial or in the sentencing hearing and his appellate lawyer was not provided any resources to investigate his case. As a result, his lawyers said, neither the jury nor the state appellate courts heard any mitigating evidence of his intellectual impairments and horrifying upbringing, which they say might have changed the jury's sentencing decision. Though a federal court later ruled that his evidence of intellectual impairment did not reach the level of disability that would render him ineligible for execution, his lawyers argued that the court did not consider the mitigating aspects of his intellectual impairments or whether "Mr. Conner's poverty-, violence-, and trauma-filled family background ... should have justified a sentence less than death." On July 12, the Georgia Supreme Court declined to review Conner's claim that his execution more than 34 years after being sentenced to death constitutes cruel and unusual punishment and voted 5-2 to deny him a stay of execution. [UPDATE: Georgia executed Conner shortly after midnight on July 15. It was the sixth execution conducted by the state in 2016, more than in any previous calendar year since executions were allowed to resume in 1976.]

Fair Punishment Project Issues Report on Deadliest Prosecutors

A new report by Harvard Law School's Fair Punishment Project has found that a small number of overzealous prosecutors with high rates of misconduct have a hugely disproportionate impact on the death penalty in the United States. The report, "America's Top Five Deadliest Prosecutors: How Overzealous Personalities Drive the Death Penalty," shows that, by themselves, these prosecutors are responsible for more than 440 death sentences, the equivalent of 15% of the entire U.S. death row population today. Exploring what it calls "the problem of personality-driven capital sentencing," the report details the effects of Joe Freeman Britt of Robeson County, North Carolina; Robert Macy of Oklahoma County, Oklahoma; Donald Myers of the 11th Judicial District of South Carolina; Lynne Abraham of Philadelphia, Pennsylvania; and Johnny Holmes of Harris County, Texas. Britt, Macy, and Myers personally prosecuted a combined 131 cases that resulted in death sentences, while Abraham and Holmes oversaw offices that the report says imposed 108 and 201 death sentences, respectively. They also disproportionately sent innocent people to death row, prosecuting 1 out of 20 of the nation's death-row exonerees. The report found similar patterns involving these prosecutors, including high rates of prosecutorial misconduct, statements and actions that revealed a win-at-all-costs mentality, and a sharp decrease in death sentences once they and their proteges left office. Britt, Macy, and Myers were found to have committed misconduct in one-third to 46% of the death penalty cases they prosecuted. Prosecutors in Abraham's and Holmes' offices were found to have engaged in misconduct, including racially-biased jury selection and failures to disclose favorable evidence. Of the five prosecutors profiled in the report, only Myers—who is not seeking re-election—is still in office. After the other four prosecutors left office, the number of death sentences has declined significantly. Robeson County has imposed two death sentences in the last 10 years, Oklahoma County and Philadelphia County have each imposed three in six years, and Harris County dropped from an average of 12 death sentences a year during Holmes' last decade as prosecutor to one a year since 2008.

Georgia Approaches Record Number of Executions But Hasn't Imposed Death Sentences in Two Years

The pace of executions in Georgia is outstripping the pace of death sentences. While the number of executions this year (5) is equal to the single-year record set in 1987 and 2015, no one has been sentenced to death in more than two years, and prosecutors are rarely seeking death sentences. The last death sentence in Georgia came down in March 2014. The number of notices of intent to seek the death penalty has fallen by more than 60% in the last decade, from 34 in 2006 to 13 in 2015. This year, the death penalty is being sought in only one case - the murder of a priest who had protested against capital punishment and signed a document stating his opposition to the death penalty, even in the event he was violently killed. Brian Kammer, head of the Georgia Resource Center, which represents death row inmates in their appeals, said improving the quality of representation has been crucial in bringing about change: “Had such legal teams with adequate resources been available to these recently executed prisoners at the time they were tried originally, I am confident they would be alive today.” Both defense attorneys and prosecutors said the option of life without parole has had a significant impact. Chuck Spahos, head of the Prosecuting Attorneys’ Council of Georgia, said, “It has made an enormous difference. When you start talking about the expense, the years of appeals and the length of the process that goes on and on and having to put victims’ families through that with no closure, the availability of life without parole with a guilty plea has become an attractive option.” Atlanta criminal defense attorney Akil Secret raised questions of fairness, asking, "If a life-without-parole sentence is sufficient for today’s worst crimes, why isn’t it sufficient for those crimes from the past where death was imposed?" 

Cost of Pennsylvania Death Penalty Estimated At $816 Million, Could Reach $1 Billion

Pennsylvania's taxpayers have paid an estimated $272 million per execution since the Commonwealth reinstated its death penalty in 1978, according to an investigation by The Reading Eagle. Using data from a 2008 study by the Urban Institute, the Eagle calculated that cost of sentencing 408 people to death was an estimated $816 million higher than the cost of life without parole. The estimate is conservative, the paper says, because it assumes only one capital trial for each defendant and it does not include the cost of cases in which the death penalty was sought but not imposed. The total cost may exceed $1 billion. An earlier investigation had estimated a cost of at least $350 million, based on the 185 inmates who were on death row as of 2014, but additional research into the cases that had already been overturned, or in which inmates died or were executed prior to 2014, revealed a total of 408 people who had been sentenced to death. Pennsylvania has carried out only three executions under its current death penalty statute. State Senator Stewart Greenleaf, a Republican and chairman of the Senate Judiciary Committee, said, "We're scratching for every dollar that we can right now. To continue to spend that kind of money is hard to justify." The Eagle's investigation also uncovered geographic disparities in the application of the death penalty. 60% of all death sentences came from just four counties: Philadelphia, Allegheny, York, and Berks. Death sentencing rates also varied dramatically, with about a third of counties handing down zero death sentences, while three (Columbia, Cumberland, and Northumberland) had 5 or more death sentences per 100 murders. Somerset District Attorney Lisa Lazzari-Strasiser, who has filed one death penalty case in five years as District Attorney, said, "I think our system is broken. It doesn't do justice to any one of the stakeholders, in my opinion, not the taxpayers, the victims or the defendants. It doesn't work."

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