Arbitrariness

New Study Explores "Systemic Deficiencies" in High-Use Death Penalty Counties

As states and counties across the United States are using the death penalty with decreasing frequency, a new report issued by the Fair Punishment Project on August 23 explores the outlier practices of 16 U.S. counties that are bucking the national trend and disproportionally pursuing capital punishment. These jurisdictions, representing one-half of one percent of all U.S. counties or county equivalents, are the only locales in the United States to have imposed five or more death sentences since 2010. Six of the counties are in Alabama and Florida, the only two states that still permit non-unanimous death verdicts. Five are located in highly-populated Southern California counties that have been the focus of repeated allegations of prosecutorial misconduct. The others include Caddo (LA), Clark (NV), Dallas (TX), Harris (TX) and Maricopa (AZ), all of which have been criticized for systemic inequities in their administration of the death penalty. Part one of the report examines the "systemic deficiencies" that contribute to the high number of death sentences in these counties and provides detailed analysis of the circumstances in 8 of the counties (a second part of the study, examining the remaining 8 counties, will be released in September). The report finds that these counties frequently share at least three types of structural failings: "a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion." The study found that these in turn "regularly produce two types of unjust outcomes which disproportionately impact people of color: the wrongful conviction of innocent people, and the excessive punishment of persons who are young or suffer from severe mental illnesses, brain damage, trauma, and intellectual disabilities." 

Diverse Range of Voices Call for Sparing Jeff Wood, Who Never Killed Anyone, from Execution in Texas

As his August 24 execution date approaches, Jeffrey Wood's case has garnered mounting attention from groups and individuals calling on the Texas Board of Pardons and Paroles and Gov. Greg Abbott to commute Wood's sentence. These diverse voices include a conservative Texas state representative, a group of evangelical leaders, and the editorial boards of the New York Times, the Washington Post, and several Texas newspapers, among others. Wood (pictured) was convicted under Texas' "law of parties," but he neither killed nor intended for anyone to be killed and, his supporters say, was not even aware the robbery in which a codefendant killed a store clerk was going to occur. His trial also featured misleading testimony from Dr. James Grigson, who had been expelled from psychiatric associations because of his unethical testimony regarding the potential future dangerousness of capital defendants. Republican state representative Jeff Leach, a long-time death penalty supporter, said "Jeffery Lee Wood’s case has caught my attention unlike any death row inmate in my time in office has. ...I simply do not believe that Mr. Wood is deserving of the death sentence. I can’t sit quietly by and not say anything." Leach has spoken with Gov. Abbott's office and the parole board about the case and is urging other legislators to contact the board in support of commutation before the board votes on Wood's clemency petition on Monday. Gov. Abbott also received a petition from a group of evangelical Christian leaders, who said "Our faith compels us to speak out in this case, where a looming execution date threatens the life of an individual with significant mental impairments who never should have been sentenced to death." The 49 religious leaders also noted the disproportionality of Wood's sentence: "As the getaway driver, Wood committed a crime, but not one deserving the death penalty." A New York Times editorial also urged clemency for Wood and sharply critiqued the law of parties. "The Law of Parties stands as a grotesque demonstration of how utterly arbitrary capital punishment is," it said. "The only true course for justice in Texas is for the law to be scrapped and Mr. Wood’s life to be spared." Wood's supporters say they will deliver a petition to Gov. Abbott and the parole board Friday with thousands of signatures seeking commutation of Wood's sentence. Texas last commuted a death sentence in 2007 in the case of Kenneth Foster, a getaway driver who, like Wood, had been convicted under the law of parties. [UPDATE: On August 19, the Texas Court of Criminal Appeals granted a stay of execution to permit Wood to litigate his claims that the prosecution had presented false scientific evidence and that the use of false testimony from Dr. Grigson violated due process.]

As Council Reviews Kentucky's Criminal Justice Policies, Former Prosecutors, Judge Urge Repeal of Death Penalty

Kentucky's recently-formed Criminal Justice Policy Assessment Council will be examining the state's criminal code, and is expected to examine a wide range of criminal justice issues—including the death penalty—in the first major overhaul of Kentucky's criminal code since the 1970s. The council, which was formed by Gov. Matt Bevin, includes legislators, judges, criminal justice experts, and religious leaders, charged with producing a list of recommendations for Kentucky lawmakers. One council member, Bishop William Medley, of the Catholic Diocese of Owensboro, has expressed moral opposition to the death penalty, and received backing for repealing the punishment from some in the courts and the prosecution bar. Circuit Judge Jay Wethington, a former prosecutor who prosecuted death penalty cases told the Messenger-Inquirer that he was "going to side with ... Bishop Medley" on that issue, but for different reasons. "We need to get rid of the death penalty," he said. "We spend too much money for the results." Meanwhile, three former Kentucky prosecutors wrote an op-ed for Louisville's Courier-Journal urging abolition of the death penalty. Joseph Gutmann (pictured), Stephen Ryan, and J. Stewart Schneider discussed the results of a recent University of Kentucky poll, which found that a large majority (72.4%) of Kentuckians support a moratorium on executions. They noted that support for the death penalty has risen since 2011, when the American Bar Association released a study that found serious problems with Kentucky's application of the death penalty. At that point, 62% of Kentuckians favored a suspension of executions. They conclude, "These poll results make it clear that Kentuckians’ concern about the fairness of the state’s criminal justice system is growing. As we have written before, replacing the death penalty with life without parole is the best approach for our state – protecting public safety, providing justice to the families of victims, removing the possibility that an innocent person will be executed and saving limited tax dollars."

Defense Lawyers, Former Prosecutors, and Constitutional Rights Groups File Amicus Briefs in Buck v. Davis

Five groups, representing defense lawyers, former prosecutors, and organizations devoted to protecting constitutional liberties have filed amicus briefs in the U.S. Supreme Court in support of Texas death row prisoner Duane Buck. Buck was sentenced to death when a psychiatrist presented by his own lawyer said he posed a greater potential danger to society because he is Black, and the case attained widespread notoriety after the new Texas attorney general failed to honor a commitment by his predecessor not to oppose a new sentencing hearing. On August 4, the National and Texas Associations of Criminal Defense Lawyers, a group of former prosecutors, the Lawyers' Committee for Civil Rights Under Law, and the Constitutional Accountability Center joined the National Black Law Students Association (NBLSA) in submitting briefs arguing that Buck's rights were violated by the racial arguments made at his trial. The NBLSA said, "Whether by a judge, a prosecutor, or defense counsel, an appeal to a jury based on racial prejudice poisons our system of justice." The Lawyers Committee for Civil Rights Under Law stated, "Mr. Buck was entitled to have his dangerousness assessed on an individualized basis based on his personal attributes. Instead he received a death sentence tainted by four hundred years of racial stereotyping invoked by a witness who was supposed to testify on his behalf." The former state and federal prosecutors, who include former Texas Governor and Attorney General Mark White, former Attorneys General from Virginia, Tennessee, North Carolina, and Ohio, and the second-chair prosecutor from Buck's trial, highlighted Texas' refusal to provide Buck a new sentencing hearing, even though it had included him on a list of defendants whose trials were tainted by similar testimony by the same psychologist, and every other one of those defendants had received new sentencing hearings. "To backtrack on an ethical obligation and decision to grant relief to a defendant in any context is extraordinary; it is particularly so here, where the purpose of backtracking was to defend the propriety of a capital sentencing hearing tainted by racist testimony," they said. The Court is scheduled to hear argument in Buck v. Davis on October 5. 

Texas Prisoner Who Did Not Kill Anyone Challenges Execution, Use of False Psychiatrist Testimony to Condemn Him to Die

Lawyers for Jeffery Wood (pictured), a Texas death row prisoner who is scheduled to be executed August 24 despite undisputed evidence that he has never killed anyone, have filed a new petition in state court challenging his death sentence on multiple grounds. They argue that Wood cannot be subject to the death penalty because he neither killed nor intended for anyone to be killed and was not even aware the robbery in which a codefendant killed a store clerk was going to occur. They also challenge his death sentence on the gounds that it was obtained based upon false and scientifically baseless testimony from a discredited psychiatrist that Wood would pose a future danger to society. Wood was convicted of capital murder under the Texas doctrine called the "law of parties," which employs an usually broad interpretation of accomplice liability to make a defendant liable for the acts of others. He was sentenced to death for his alleged role in the murder of a store clerk in 1996 committed by another man, Daniel Reneau, while Wood was outside sitting in a truck. Reneau was executed in 2002. Wood says he and Reneau had planned to rob the store the previous day, but that he had backed out. According to Wood, he did not know Reneau still planned to rob the store, or that Reneau had a gun with him. Jared Tyler, one of Wood's attorneys, said, "I believe that no person in the history of the modern death penalty has been executed with as little culpability and participation in the taking of a life as Mr. Wood." Wood's appeal also alleges that his right to due process was violated when the state presented false and misleading testimony from psychiatrist James Grigson, who earned the nickname "Dr. Death" for testifying in numerous Texas capital cases that the defendant would "certainly" or "absolutely" or "with 100% certainty" commit future acts of violence, including several cases in which defendants later turned out to be innocent. Three years before Wood's hearing, Grigson was expelled from the Texas Society of Psychiatric Physicians and the American Psychiatric Association for ethical violations involving making psychiatric diagnoses without having examined capital defendants, predicting with certainty that they would engage in future violent acts, and basing those predictions on hypothetical questions posed by the prosecution that contained "grossly inadequate" information. Nonetheless, based on a prosecution hypothetical question and without having evaluated Wood, Grigson testified that Wood would "certainly" pose a continuing threat to society. Wood's jury was never told that Grigson had been expelled for similar conduct or that the professional associations had determined that his practices were unethical and unscientific.[UPDATE: On August 19, the Texas Court of Criminal Appeals granted a stay of execution to permit Wood to litigate his claims that the prosecution had presented false scientific evidence and that the use of false testimony from Dr. Grigson violated due process.]

Policy Platform of The Movement for Black Lives Calls for "An End to Capital Punishment"

On August 1, The Movement for Black Lives issued a 40-point policy platform that includes a call for the abolition of capital punishment. The platform, which was written or endorsed by more than 60 activist groups including the Black Lives Matter Network, describes its purpose as "articulat[ing] our vision of a fundamentally different world." The portion of the platform seeking "an end to capital punishment" calls the death penalty "morally repugnant," and links it to the legacy of race-based lynchings against Blacks in the U.S. "The death penalty devalues Black lives," it states, going on to describe capital punishment as "geographically discriminatory," "expensive," and "randomly and arbitrarily sought by prosecutors." The document also raises concerns about the issue of innocence, noting that 156 people have been exonerated from death row, and capital punishment's connections to mental health and trauma, stating, "many people on death row have mental illnesses, cognitive limitations, severe trauma histories, and prior criminal records, often directly related to racial bias and poverty." Other recommendations related to criminal justice include demilitarization of police, an end to privatization of prisons, and an end to solitary confinement. The platform also contains sections addressing issues related to reparations, economic justice, political access, and investment in Black communities. “We recognize that not all of our collective needs and visions can be translated into policy, but we understand that policy change is one of many tactics necessary to move us towards the world we envision, a world where freedom and justice is the reality,” said M Adams, the co-executive director of Madison, Wisconsin-based Freedom, Inc. and one of the authors of the platform.

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.

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