U.S. Supreme Court Overturns Pennsylvania Death Penalty Ruling Infected by Judicial Bias

On June 9, the U.S. Supreme Court held in Williams v. Pennsylvania that Terry Williams' (pictured) due process rights were violated when Pennsylvania's Chief Justice refused to recuse himself from the case. Ronald Castille served as Philadelphia District Attorney before being elected to the Pennsylvania Supreme Court. As District Attorney, he personally approved the decision to pursue the death penalty against the 18-year-old Williams, and then, while running for state Supreme Court, touted his record of having "sent 45 people," including Williams, to death row. Nearly 30 years after Williams was sentenced to death, and within a week of his scheduled execution, the Philadelphia Court of Common Pleas heard evidence that prosecutors had presented false testimony from a witness and withheld evidence that it had given favorable treatment to that witness; suppressed evidence that the victim had sexually abused Williams and other boys; and misrepresented to the jury that the victim had been simply a "kind man" who had offered Williams a ride home. After the court overturned Williams' death sentence, Philadelphia prosecutors appealed to the Pennsylvania Supreme Court, where Castille was serving as Chief Justice. Williams' attorneys filed a motion seeking Castille's recusal, but he denied the motion, refused to refer the question to the full court, and voted with the majority of the court to reverse the lower court ruling and reinstate Williams' death sentence. Castille also authored a concurring opinion saying the lower court had stayed Williams' death sentence "for no valid reason," attacking the judge for having “lost sight of [her] role as a neutral judicial officer,” and denouncing Williams' counsel for having an “obstructionist anti-death penalty agenda” and turning postconviction proceedings “into a circus where [they] are the ringmasters, with their parrots and puppets as a sideshow.” The U.S. Supreme Court, in an opinion by Justice Anthony Kennedy, reversed, saying "[a] constitutionally intolerable probability of bias exists when the same person serves as both accuser and adjudicator in a case." Here, the Court ruled, "Chief Justice Castille’s significant, personal involvement in a critical decision in Williams’s case gave rise to an unacceptable risk of actual bias." It further determined that Castille's participation in the case "affected the ... whole adjudicatory framework" of the appeal, and ordered the Pennsylvania Supreme Court to reconsider the appeal. “Today, Terry Williams comes one step closer to the new, fair sentencing hearing he deserves,” said Shawn Nolan, an attorney for Williams, “We’re optimistic that the Pennsylvania Supreme Court will give this case careful consideration and recognize the injustice of Terry’s death sentence.”

Texas Court Stays Execution of Man Convicted with Hypnotically Refreshed Testimony

The Texas Court of Criminal Appeals has granted a stay of execution to Charles Flores (pictured) to permit him to litigate a claim that prosecutors unconstitutionally convicted and sentenced him to death by using unreliable hypnotically refreshed testimony. Texas had scheduled Flores' execution for June 2. Flores, who is Latino, was convicted in 1999 of murdering a 64-year-old white woman in suburban Dallas, and was sentenced to death. Prosecutors presented no physical evidence linking Flores to the murder, and the sole witness who claimed to have seen him at the scene was hypnotized by police before identifying him. She initially told police she had seen two men in a car outside of the victim's home, identifying the driver, Richard Childs, in a police lineup and describing the passenger as a white man with shoulder-length dark hair. However, when she appeared in court 13 months later after having seen photographs of Flores in news reports about the murder, she told prosecutors that she now recognized Flores as the second man. According to an affidavit Flores submitted from psychology professor Steven Lynn, research has linked "hypnotic refreshment" with the creation of false memories. “Clearly, the techniques that were used to refresh [the witness's] memory would be eschewed today by anyone at all familiar with the extant research on hypnosis and memory,” Lynn wrote. The Flores conviction and death sentence are also tainted with issues of race. Police charged both Childs and Flores with the murder. Childs, who is white, confessed to shooting the victim, pled guilty, and was sentenced to a term of 35 years with parole eligibility after 17 years. He was released on parole in April 2016. Flores, though admitting his involvement in the drug trade, professed his innocence of the murder and was tried and convicted. After his court-appointed lawyers failed to present any witnesses on his behalf in the penalty trial, the jury sentenced him to death. "So the white guy who was the trigger guy is out on parole, and the Hispanic guy, who was not the trigger man, is about to be put to death,” Greg Gardner, Flores' current lawyer, told The Texas Tribune in an interview before the stay was issued. “It really is just a mystery.” 178 of the 246 people on Texas's death row as of May 2016 are black or Latino. 

NEW VOICES: Former Chief Justice of North Carolina Supreme Court Questions Constitutionality of Death Penalty

I. Beverly Lake, Jr.—a staunch supporter of North Carolina's death penalty during his years as a State Senator and who, as a former Chief Justice of the North Carolina Supreme Court, repeatedly voted to uphold death sentences—has changed his stance on capital punishment. In a recent piece for The Huffington Post, Lake said he not only supported capital punishment as a State Senator, he "vigorously advocated" for it and "cast my vote at appropriate times to uphold that harsh and most final sentence" as Chief Justice. His views have evolved, he said, primarily because of concerns about wrongful convictions. "My faith in the criminal justice system, which had always been so steady, was shaken by the revelation that in some cases innocent men and women were being convicted of serious crimes," he wrote. However, his concerns about the death penalty are broader than just the question of innocence. Lake says he also questions whether legal protections for people with diminished culpability as a result of intellectual disability, mental illness, or youth, are adequate. "For intellectual disability, we can use an IQ score to approximate impairment, but no similar numeric scale exists to determine just how mentally ill someone is, or how brain trauma may have impacted their culpability. Finally, even when evidence of diminished culpability exists, some jurors have trouble emotionally separating the characteristic of the offender from the details of the crime," he said. He describes the case of Lamondre Tucker, a Louisiana death row inmate who was 18 at the time of the offense and has an IQ of 74, placing him just outside the Supreme Court's bans on the execution of juveniles and people with intellectual diabilities. Lake argues, "Taken together, these factors indicate that he is most likely just as impaired as those individuals that the Court has determined it is unconstitutional to execute." He concludes, "Our inability to determine who possesses sufficient culpability to warrant a death sentence draws into question whether the death penalty can ever be constitutional under the Eighth Amendment. I have come to believe that it probably cannot."

Alabama Prepares to Execute 65-Year-Old Mentally Ill Prisoner Disabled by Several Strokes

UPDATE: The U.S. Court of Appeals for the Eleventh Circuit stayed Madison's execution, ordering oral argument on his competency claim. Previously: Alabama is preparing to execute Vernon Madison (pictured) on May 12, as his lawyers continue to press their claim that the 65-year-old prisoner is incompetent to be executed. Defense lawyers say Madison, whom a trial judge sentenced to death despite the jury's recommendation of a life sentence, suffers from mental illness and has additional cognitive impairments, retrograde amnesia, and dementia as a result of strokes in May 2015 and January 2016. The strokes also have caused a significant drop in Madison's IQ, which now tests at 72, within the range the U.S. Supreme Court has recognized as supporting a diagnosis of intellectual disability. In addition, the strokes have left Madison legally blind. In its 1986 decision in Ford v. Wainwright, the Supreme Court ruled it unconstitutional for states to execute mentally incompetent prisoners, whom it defined as people who do not understand their punishment or why they are to be executed. Madison's lawyers have unsuccessfully argued in Alabama's state and federal courts that, because of his mental impairments, he is unable to understand why the state will execute him. An Alabama trial judge ruled earlier this month that Madison is competent, and the court denied his motion for a stay of execution. On May 6, he presented his competency claim to the federal district court, which denied relief on May 10. Madison's lawyers have appealed that ruling. Madison has been on death row for more than 30 years. His conviction for the murder of a white police officer has been overturned twice, once because prosecutors intentionally excluded black jurors from serving on the case and once because the prosecution presented improper testimony from an expert witness. Last week, the U.S. Supreme Court vacated a decision of the Alabama Court of Criminal Appeals upholding a death sentence imposed on Alabama death row prisoner Bart Johnson, and directed the state court to reconsider the constitutionality of Alabama's death-sentencing procedures. Madison's lawyers have sought review of his case in light of Johnson and are also seeking a stay of execution to permit him to litigate the constitutionality of the state's judicial override provisions. 

Florida Judge Sentences Man to Death Under Sentencing Law That Supreme Court Ruled Unconstitutional

A Florida trial judge in St. Lucie County sentenced Eriese Tisdale to death on April 29 for the killing of a sheriff's sergeant, relying on sentencing procedures from the version of Florida's death penalty law that the U.S. Supreme Court declared unconstitutional in Hurst v. Florida. The jury in Tisdale's case considered the evidence in the penalty phase of Tisdale's trial under the old Florida law, voting 9-3 to recommend a death sentence without specifying the aggravating factors that would make Tisdale eligible for the death penalty. The Supreme Court struck down Florida's sentencing procedure in Hurst because a judge, rather than a jury, made the factual determination of aggravating circumstances that were necessary to impose a death sentence. In response to Hurst, Florida enacted a new law, which went into effect March 7, requiring juries to make unanimous determinations of aggravating factors, and preconditioning any death sentence upon a jury vote of at least 10-2 vote in favor of death. The statute declares "If fewer than 10 jurors determine that the defendant should be sentenced to death, the jury's recommendation to the court shall be a sentence of life imprisonment without the possibility of parole." In those circumstances, the law states, "the court shall impose the recommended sentence." Tisdale's penalty phase was tried in October 2015, before the Supreme Court declared the sentencing procedures unconstitutional, and the jury's 9-3 recommendation for death came before the new law adopted the 10-2 requirement. His lawyers argued that he could not be sentenced to death because the old procedures were unconstitutional and the jury vote did not qualify as a death recommendation under the new law. But a St. Lucie County judge ruled that the jury's unanimous vote to convict Tisdale for the murder of a law enforcement official amounted to a unanimous finding of an aggravating circumstance, accepted the jury's 9-3 death recommendation, and sentenced Tisdale to death. Tisdale is the first person sentenced to death in Florida since the new law went into effect.

Ruling Expected on Arizona Execution Hold, Amid Systemic Problems With Arbitrariness, Lethal Injection

Arizona's last execution, the botched lethal injection of Joseph Wood in July 2014, sparked controversy and legal challenges to the state's lethal injection procedure, and came at a time when Arizona was struggling not only with the logistics of carrying out executions, but also broader issues of fairness and costs. In a sweeping piece for The Arizona Republic, Michael Kiefer, who witnessed Wood's execution, describes the historical and legal background that led up to Arizona's current hold on executions.  He describes how Arizona's list of statutory aggravators — factors that make a case eligible for the death penalty — became so expansive that then-Governor Jan Brewer vetoed a proposed aggravator in 2014 because she worried it would make the death penalty law unconstitutionally broad and vague. Kiefer notes Arizona's 42% reversal rate in capital cases, meaning that 129 of the 306 death sentences in the state were reversed or remanded by higher courts. Nine people have been exonerated in Arizona, and one, Jeffrey Landrigan, was executed despite test results weeks before his execution that found DNA from two different men, but not Landrigan, on the victim's clothing. Landrigan was executed in 2010 using lethal injection drugs imported illegally from London. The U.S. Drug Enforcement Administration later seized the remaining drugs, causing Arizona to switch first to pentobarbital and later to midazolam, the first drug in Wood's botched execution. U.S. District Judge Neil Wake halted all executions in Arizona, asking the state to clearly specify what drugs it has and how it intends to carry out executions. His ruling is expected soon.

Supreme Court Asked to Review Texas' Use of Factors Based on a Fictional Character to Reject Death Row Prisoner's Intellectual Disability Claim

Bobby James Moore (pictured) faces execution in Texas after the state's Court of Criminal Appeals rejected his claim of intellectual disability in September 2015, saying he failed to meet Texas' “Briseño factors” (named after the Texas court decision that announced them), an unscientific seven-pronged test which a judge based on the character Lennie Smalls from John Steinbeck's "Of Mice and Men." In doing so, the appeals court reversed a lower court's ruling that tracked the scientific diagnostic criteria set forth by medical professionals, which found that Moore had intellectual disability. On April 22, the U.S. Supreme Court will conference to decide whether to hear Moore's case. Moore's lawyers argue, supported by briefing from national and international mental health advocates, that he has intellectual disability and that the non-scientific standard employed by Texas in denying his intellectual disability claim violated the Court's 2014 ruling in Hall v. Florida. In 2002, the Supreme Court ruled in Atkins v. Virginia that the 8th Amendment prohibits the use of the death penalty against persons with mental retardation, now known as intellectual disability. But Atkins left it to the states to adopt procedures for determining whether defendants were intellectually disabled. Hall struck down Florida's strict IQ cutoff for determining intellectual disability because it "disregards established medical practice." Texas is the only state that uses the Briseño factors, which include whether the crime required forethought or planning, whether the person is capable of lying effectively, and whether the defendant is more of a leader or a follower. The state court disregarded Moore's clear history of intellectual disability, documented since childhood, and IQ scores ranging from the low 50s to the low 70s, in favor of Texas' idiosyncratic method.

Supreme Court to Consider Hearing Texas Capital Case Where Expert Said Defendant Posed Greater Danger Because He Was Black

UPDATE: The Supreme Court docket indicates that its conferencing of Mr. Buck's case, originally set for April 22, has been rescheduled. The Court is now scheduled to considering the case on April 29. PREVIOUSLY: On April 22, the U.S. Supreme Court is scheduled to confer on whether to review the case of Duane Buck (pictured), who was sentenced to death in Harris County, Texas after a psychologist testified that he posed an increased risk of future dangerousness because he is black. In the case, the defense presented psychologist, Walter Quijano, as its own witness, even though he had previously testified in other cases to a supposed link between race and future dangerousness. During cross-examination, the prosecution asked Quijano - without objection by the defense - whether "the race factor, black, increases the future dangerousness for various complicated reasons." Quijano replied, "yes." The prosecution then returned to this race-based testimony during its closing argument in calling for the jury to sentence Buck to death. Buck is one of six defendants who a Texas Attorney General's report identified as having unfair capital-sentencing hearings that were tainted by Quijano's race-based testimony, and the only one to be denied a new sentencing hearing. Courts initially rejected Buck's claim of prosecutorial misconduct for presenting race-based evidence and argument on the grounds that Buck's own lawyer had presented the witness. However, the lower courts then denied relief when he subsequently presented the argument that his lawyer had provided ineffective representation on this issue. The case has attracted widespread attention, and several stakeholders in Buck's case, including the second-chair prosecutor from Buck's trial, former Texas Governor Mark White, and a surviving victim have urged that Buck be granted a new sentencing hearing. Linda Geffin, the second-chair prosecutor, said "The state of Texas can't put Mr. Buck to the ultimate punishment without having a fair, just, color-blind sentencing hearing." A bipartisan group of amici have urged the Supreme Court to grant review of what they called the "noxious and deeply prejudicial use of race" in this case. American Bar Association President Paulette Brown recently wrote in the Houston Chronicle, "Obviously, an odious race-based argument is never acceptable, let alone in a criminal case where the defendant's life is at stake. And a defendant whose lawyer invites such racist testimony not only has a strong chance of being sentenced to death but a strong claim of ineffective counsel."