Arbitrariness

STUDIES: Electoral Pressures Influence Judges' Decisions in Capital Cases

"[E]lectoral pressures influence judges' decisions in capital cases," according to a new report by the Brennan Center for Justice at the New York University School of Law. That report, How Judicial Elections Impact Criminal Cases, surveyed numerous empirical studies that had reviewed the effects of judicial elections on outcomes in criminal cases. The vast majority of criminal defendants - including capital defendants - face elected judges at trial and on appeal. According to the report, 87% of state judges face election, and 94% of felony convictions are tried in state courts. The report found that "the pressures of upcoming re-election and retention campaigns make judges more punitive toward defendants in criminal cases" in general, but that these pressures also produced identifiable effects in death penalty cases. First, electoral pressures affected trial judges in capital cases. "In Alabama, with its unique system of judicial override, trial judges are more likely to impose death over jury verdicts of life imprisonment during election years," the report said. The report also found that "appellate judges facing re-election are more inclined to affirm death sentences, and less inclined to dissent from orders affirming them." Referencing a recent Reuters study, the report said states with elected supreme court justices had substantially lower rates of reversing death sentences on appeal than states with appointed justices. Justices who ran against other candidates for office were the least likely to vote to reverse a death sentence (11%), and those who faced retention elections reversed only 15% of the time. Justices who were appointed were comparatively more likely to vote to reverse death sentences (26%). The report concludes, "Empirical studies across states, court level, and method of election find that proximity to re-election makes judges more punitive — more likely to impose longer sentences, affirm death sentences, and even override life sentences to impose death. Without reform, terms of incarceration and executions will continue to be determined, in part, by the decision-maker’s proximity to re-election."

Missouri Supreme Court Overturns Conviction of Reginald Clemons

The Missouri Supreme Court ruled 4-3 on November 24 to vacate the conviction and death sentence of Reginald (Reggie) Clemons (pictured), who has been on death row for 22 years for the interracial rape and murder of two sisters. The court said that Clemons, did not receive a fair trial because of prosecutorial misconduct. In particular, the court was troubled by what it concluded was a deliberate failure by prosecutiors to provide Clemons' defense with evidence that he had been beaten to elicit a confession. “The record includes substantial, credible evidence that Mr Clemons’ confession was coerced by physical abuse inflicted by the police that would require that his confession be suppressed," Chief Justice Patricia Breckenridge wrote. The court said that the prosecution's misconduct was even more prejudicial in this case because, after withholding evidence of the beating by police, it then filed a motion to bar the defense from arguing that Clemons confession had been coerced, successfully asserting that the evidence at trial did not support an inference that police had beaten Clemons. The court's decision relied heavily on the findings of a Special Master who reviewed the case in 2013. Clemons also raised the issue of his sentence being disproportionate to those of the other men involved in the crime. Of the four defendants in the case, Clemons and two other black men received death sentences, while the one white defendant is now out on parole. The court declined to address the issue of proportionality because the other evidence was sufficient to overturn Clemons' conviction. A 2012 report by The Guardian identified 21 discrepancies in the prosecution's case against Clemons, including, among others, that the prosecution never disclosed the existence of a rape kit that could have identified the perpetrator and presented no evidence from the rape kit at trial; presented testimony in a co-defendant's trial that another person actually pushed the sisters off a bridge into the Mississippi River; and that prosecutors discriminatorily exercised their discretionary strikes to prevent seven black jurors from sitting on the case. The state of Missouri has 60 days from the ruling to decide whether to retry Clemons.

Sexually Abused Teen Who Killed His Abuser Faces Execution Despite Inadequate Defense, Judge's Conflict of Interest

Terry Williams was barely 18 when he killed Amos Norwood, a man who had been sexually abusing him since Williams was 13. A recent article in Mother Jones discusses how the Philadelphia District Attorney's office - which championed the cause of sexual abuse victims during landmark prosecutions of several clergy abuse cases - is aggressively seeking to execute Williams, employing the very stereotypes about abuse victims it publicly rejected in the clergy trials. At the time of those trials, D.A. Seth Williams said "[a]s we have learned, it is extremely difficult for sexual abuse victims to admit that the assault happened, and then to actually report the abuse to authorities can be even harder for them." But in Terry Williams' case, the office has argued both that his silence discredits his claim of having been repeatedly sexually abused and that the killing was a product of  "gay-prostitute rage." Williams never met his court-appointed lawyer until the day before his trial and, not trusting the lawyer, did not reveal his history of sexual abuse. Philadelphia prosecutors knew that WIlliams had been sexually abused before and had evidence that Norwood had made sexual advances toward other young boys. Nevertheless, prosecutors removed references to Norwood's abusive proclivities from several witness statements before providing sanitized versions of those statements to Williams' defense. In a separate case, the same prosecutor, Andrea Foulkes, had tried Williams for the murder of Herbert Hamilton, who had paid Williams for sex when Williams was a teenager. In that trial, the jury acquitted Williams, who was 17 at the time of that killing, of first-degree murder, after hearing evidence of Hamilton's relationship with Williams and convicted him of the lesser charge of third-degree murder. Judge Teresa Sarmina wrote, "The third degree verdict in the Hamilton case, colored Ms. Foulkes' decisions when she prosecuted [Williams] for the murder of Amos Norwood." Despite her awareness of Norwood's sexual proclivities, Foulkes told the jury Williams had killed him "for no other reason but that a kind man offered him a ride home." Pennsylvania Supreme Court Chief Justice Ronald Castille - the former Philadelphia D.A. - refused to recuse himself from WIlliams' appeal, even though Castille had personally authorized Williams' prosecution and, during his judicial election campaign, had trumpeted his record of sending 45 people to death row. Norwood's widow joined more than 350,000 people in supporting Williams' bid for clemency, but the pardons board's 3-2 recommendation for clemency fell short of the state's unanimity requirement. Terry Williams faced an execution date of March 4, 2015, but was granted a reprieve when Gov. Tom Wolf announced a moratorium on the death penalty in February. In October 2015, the U.S. Supreme Court agreed to hear Williams' challenge to Castille's participation in his appeal.

Caddo Parish Elects First Black District Attorney As Spotlight Shines on Death Penalty and Jury Selection Controversies

Caddo Parish, Louisiana, known nationally for its aggressive pursuit of the death penalty, has elected its first black District Attorney. In a November 21 runoff election conducted against the backdrop of controversial remarks about the death penalty by the current DA and a threatened civil rights lawsuit over systemic racial discrimination by Caddo Parish prosecutors in jury selection, former judge James E. Stewart, Sr. defeated current Caddo Parish prosecutor Dhu Thompson, 55% to 45%. Ten days before the election, the Roderick and Solange MacArthur Justice Center announced that it intends to sue Caddo Parish over the District Attorney's office's practice of striking black citizens from juries at three times the rate of other jurors. James Craig, co-director of the New Orleans-based non-profit law center, called the racially-biased jury strikes "a blight on our criminal justice system." A recent study by the human rights group Reprieve Australia had revealed that Caddo prosecutors used peremptory strikes against 46% of black jurors but only 15% of other jurors. (Click image to enlarge.) The study showed that Thompson's exercise of juror challenges was even more racially disproportionate, striking more than half of all prospective black jurors but fewer than 1 in 6 of all other jurors. Craig said that the announcement of the suit was not intended to influence the election: "This is not a problem of one person. This is a culture that needs to be acknowledged and changed...In the absence of concrete, specific changes in the office’s culture and approach to jury selection, this practice will continue under the administration of either of the two final candidates for district attorney. For this reason, no matter who prevails in the special election this month, the MacArthur Justice Center will proceed with the federal civil rights lawsuit that we are preparing to file." The suit is seeking an injunction to block practices that result in under-representation of blacks on juries. In his election-night victory remarks, Stewart pledged "to bring professionalism and ethics back to the district attorney’s office." 

5 Georgia Executions Emblematic of Systemic Problems With State's Death Penalty

Georgia is scheduled to execute Marcus Johnson (pictured) on November 19 despite ongoing concerns about his innocence. The execution would be Georgia's fifth since December 2014 - each raising serious questions about systemic problems in Georgia's application of the death penalty. In a commentary for The Marshall Project, Sara Totonchi, executive director of the Southern Center for Human Rights, says these cases "are emblematic" of death sentences imposed before Georgia's statewide capital defense office opened in 2005 and "encapsulate what’s wrong with capital punishment in Georgia." In December 2014, Georgia executed Robert Wayne Holsey, whose drunk lawyer failed to investigate and present mitigating evidence that Holsey had an IQ of 70 and had been seriously abused as a child. The lawyer was later imprisoned and disbarred for misconduct in another case. Andrew Brannan, a decorated Vietnam veteran with bi-polar disorder who was declared 100% disabled by the Veterans Administration as a result of combat-related PTSD, was executed in January, the first U.S. execution in 2015. The jury was never heard details of Brannan's military service or disability. Two weeks later, Georgia executed Warren Hill, a man with intellectual disabilities. A judge found that Hill had proven his disability by a "preponderance of the evidence," the standard of proof required by every other death penalty state, but Georgia requires defendants to prove intellectual disability "beyond a reasonable doubt." Even after the state's doctors admitted that Hill met this higher standard, the state and federal courts refused to consider this evidence on technical procedural grounds and Hill was executed. Kelly Gissendaner's execution in September hghlighted a different type of arbitrariness: she was executed for planning to murder her husband, while her boyfriend, who actually committed the killing, made a deal with prosecutors to serve a life sentence and will be eligible for parole in seven years. Finally, Marcus Johnson's case raises concerns that Georgia may be executing an innocent man. The DNA evidence from the murder scene that was tested was inconclusive, other blood evidence was not tested, and none of Johnson's DNA was found on or in the car where the victim's body was found. The trial judge wrote to the Georgia Supreme Court that the evidence in Johnson's case "does not foreclose all doubt respecting the defendant’s guilt."

Texas Inmate Faces Execution After Appeals Lawyers Abandon His Case

Raphael Holiday (pictured) is scheduled to be executed in Texas on November 18 after appeals lawyers who were appointed to his case unilaterally decided not to seek clemency or pursue additional appeals and then opposed Holiday's efforts to replace them with lawyers who would. James "Wes" Volberding and Seth Kretzer say that they were unable to find new evidence on which to base any appeal and that seeking clemency from Texas Gov. Greg Abbott would give Holiday "false hope" and is pointless. When another attorney, Gretchen Sween, stepped in to help Holiday find new counsel, his current attorneys opposed her efforts to replace them. They then filed a clemency petition prepared so hastily that it twice gives the wrong execution date. The lawyers say they were exercising professional discretion in abandoning efforts to spare Holiday's life, but death penalty experts assert that counsel are required to pursue all available avenues to stop a client's execution. Stephen Bright, a Yale law professor and president of the Southern Center for Human Rights, said that in decades of practice in capital cases he has never seen appointed lawyers fight so vigorously to prevent their client from retaining new counsel. "This seems unconscionable," he said. "Lawyers are often in a position of representing people for whom the legal issues are not particularly strong, but nevertheless they have a duty to make every legal argument they can." Jim Marcus, a University of Texas law professor and veteran death penalty lawyer, agreed that Holiday's attorneys are legally required to continue pursuing appeals: "There’s a difference between saying that’s not a viable strategy or viable claim and abandoning an entire proceeding altogether. The latter is not really permissible ...."

Forensic Pseudoscience and the Death Penalty

In light of the FBI's acknowledgement in April that flawed forensic testimony by its expert hair-comparison analysts had tainted at least 268 cases, including 32 death penalty cases, forensic science is coming under increased scrutiny. A commentary in the Boston Review argues that "mounting horror stories," including instances of crime-lab "corruption and dysfunction, have created a moment of crisis in forensic science." Referencing "scores of individual cases in which forensic science failures have led to wrongful convictions" and highlighting the wrongful execution of Cameron Todd Willingham in Texas based upon scientifically invalid arson testimony, the commentary questions the continued high degree of confidence accorded forensic science testimony in the courts. A 2009 report by the National Academy of Sciences (NAS) sharply critiqued many of the techniques used by forensic examiners, saying, "Many forensic tests—such as those used to infer the source of tool marks or bite marks—have never been exposed to stringent scientific scrutiny." Even widely-accepted practices like fingerprint matching had no mechanism for independent confirmation, relying entirely on the examiner's opinion. Ultimately, the NAS report concluded, "With the exception of nuclear DNA analysis . . . no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source." Yet even DNA evidence can be tainted by faulty practices or intentional malfeasance. Close affiliations between forensic laboratories and police or prosecutors raise concerns of bias. As former FBI investigator Frederic Whitehurst put it, forensic scientists can "run into a sledgehammer" when their findings contradict the theory that prosecutors are trying to advance.

Appeals Court Overturns Challenge to California Death Penalty on Procedural Grounds

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit has overturned a California federal district court decision that had declared California's death penalty unconstitutional, saying that the issue presented "a novel constitutional rule" that was beyond the power of the federal courts to address in a habeas corpus proceeding. The appeals court did not address the constitutionality of California's death penalty, saying that because of technical procedural rules "we may not assess the substantive validity of [this] claim." U.S. District Court Judge Cormac Carney had ruled in 2014 in the case of Ernest D. Jones that the lengthy delays and arbitrariness in California's death penalty system rendered it unconstitutionally cruel and unusual. Judge Susan P. Graber (pictured), who wrote the 9th Circuit's decision, said, "Many agree with petitioner that California’s capital punishment system is dysfunctional and that the delay between sentencing and execution in California is extraordinary." However, she said "the purpose of federal habeas corpus is to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing re-examination of final judgments based upon later emerging legal doctrine." California has the largest death row in the nation, but has carried out only 13 executions since 1978, and none since 2006. Jones has been on California's death row since 1995. The appeals court decision sends the case back to the district court to address other challenges to the constitutionality of Jones' conviction and death sentence that Judge Carney did not decide when he declared California's death penalty unconstitutional. 

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