Arbitrariness

REPRESENTATON: Death Row Inmate Received Bizarre Defense

Phillip Cheatham was represented at his death penalty trial by a lawyer who failed to develop a readily available alibi defense and portrayed Cheatham as a possible killer. The lawyer, Ira Dennis Hawver (pictured at his disbarment hearing, left), presented Cheatham as a drug-dealing killer who would not have left a witness alive to identify him and would have taken fewer shots to kill the victims. Hawyer admitted he might not have jumped through every "American Bar Association hoop" in defending his client. He appeared at his disciplinary hearing before the Kansas Supreme Court dressed as Thomas Jefferson. In overturning Cheatham's conviction in 2013, the state Supreme Court concluded, "Hawver's representation bore a greater resemblance to a personal hobby engaged in for diversion rather than an occupation that carried with it a responsibility for zealous advocacy."

NEW VOICES: Former FBI Director Says People Were Executed Based Partly on Faulty Agency Testimony

William Sessions, former head of the Federal Bureau of Investigation, recently pointed to cases of defendants who were executed based in part on faulty hair and fiber analysis in calling for changes in the use of forensic evidence. In an op-ed in the Washington Times, Sessions told the story of Benjamin Boyle, who was executed in Texas in 1997. His conviction was based on testing conducted by an FBI crime lab that an official review later determined to be unreliable and "scientifically unsupportable." Neither state officials nor Boyle's attorneys were notified of the task force's findings before his execution. In two other cases, inmates were also executed despite findings that their cases were tainted by unreliable forensic testimony from the FBI. Sessions said, "I have no idea whether Boyle was innocent, but clearly, he was executed despite great doubts about his conviction. Such uncertainty is unacceptable, especially in a justice system that still allows the death penalty."

POSSIBLE INNOCENCE: Mississippi Inmate Challenges Bite-Mark Evidence

A new appeal filed on behalf of Mississippi death row inmate Eddie Howard, Jr. presented DNA evidence that calls into question bite-mark evidence used to convict him in 1992. At Howard's trial, Dr. Michael West, a Mississippi dentist who had testified as a forensic expert in numerous cases, said Howard's teeth matched bite marks found on the murder victim. The victim had been buried for three days and exhumed before West examined her. He said he found three bite marks that matched Howard "to a reasonable medical certainty," but presented no photographs or other evidence to support his testimony. According to the Innocence Project, at least 17 people who were convicted of rape or murder based on alleged bite matches have been exonerated since 2000. Dr. West was the expert witness in two of those cases. In 2006, the Mississippi Supreme Court refused to reconsider Howard's case, saying, “Just because Dr. West has been wrong a lot, does not mean, without something more, that he was wrong here.” In 2010, the court granted DNA testing of the murder weapon and other items from the crime scene. That testing, which showed no link to Howard, is the basis for the new appeal.

STUDIES: White Jurors More Likely to Recommend Death Sentences for Latino Defendants

A new study by Professors Cynthia Willis-Esqueda (pictured) of the University of Nebraska-Lincoln (UNL) and Russ K.E. Espinoza of California State University found that white jurors were more likely to recommend a death sentence for Latino defendants than for white defendants in California. Researchers gave case descriptions to 500 white and Latino people who had reported for jury duty in southern California, then asked them to choose a sentence of life without parole or death. The description was based on a real capital case, but each juror was given one of eight scenarios which altered the race and income level of the defendant and the amount of mitigating evidence. White jurors recommended a death sentence about half the time for Latino defendants who were poor, but only one-third of the time for poor white defendants. By comparison, Latino jurors recommended a death sentence only about one-quarter of the time, regardless of the ethnicity or socioeconomic class of the defendant.

Missouri Inmates Were Given Controversial Drug Before Executions

An investigation by St. Louis Public Radio has revealed that Missouri has been administering Midazolam to inmates prior to their execution since November 2013. Midazolam is a sedative that was used in all three of this year's most seriously botched executions in Ohio, Oklahoma, and Arizona. Missouri officials had testified earlier that the state had not used Midazolam in executions and did not plan to use it. New documents, however, show that the drug was given to inmates as a sedative before the execution began, without the presence of witnesses. George Lombardi, director of the Missouri Department of Corrections, said the sedative could be given before an execution at the request of the inmate, the state, or the execution team. In two cases, inmates were given both Midazolam and valium in quantities that one medical expert, Dr. Karen Sibert, said would make it difficult to arouse the prisoner, and would tend to cause someone, "to be so deeply asleep that your airway might obstruct." Cheryl Pilate, an attorney who has represented several death row inmates in Missouri, said, "It’s very disturbing that Midazolam hasn’t been disclosed. State law requires drugs in protocol to be disclosed. There may be a serious violation of state law going on." Noting that in at least one instance Midazolam was administered about 10 minutes before the execution witnesses were ushered in, she added, "The public is denied the opportunity to witness an execution through the press."

POSSIBLE INNOCENCE: Originally Sentenced to Death, Brothers May Now Be Cleared in North Carolina

UPDATE: Both defendants freed after judge overturns convictions. EARLIER: Henry McCollum (l.) and Leon Brown (r.), two brothers who were convicted of murder and sentenced to death in 1984, may soon be freed because of evidence uncovered by the North Carolina Innocence Inquiry Commission. McCollum was 19 and Brown was 15 when they confessed to the rape and murder of 11-year-old Sabrina Buie. Both men are intellectually disabled - McCollum has an IQ in the 60s and Brown has scored as low as 49 on IQ tests. McCollum and Brown have maintained their innocence since their trial, saying they were unaware they were signing a confession. “I’d never been under such pressure, people yelling and screaming at me,” McCollum said of his interrogation. “I was scared, and was just trying to get out of that police station and go home.” In 2010, Brown, who is now serving a life sentence for rape after his murder conviction was thrown out, contacted the Innocence Commission about his case. The Commission found DNA evidence near the crime scene belonging to another man, Roscoe Artis, who was sentenced to death for a crime similar to the one for which McCollum and Brown were sentenced to death. (Artis' sentence was later reduced to life.) On September 2, defense attorneys for Brown and McCollum will present the evidence and ask a Robeson County judge to free both men. Robeson County District Attorney Johnson Britt, who is not opposing the request, said, “The whole case rests on the confessions, and the DNA evidence threw those confessions under the bus.”

Constitutionality of California's Death Penalty to be Reviewed in Higher Court

On July 16, U.S. District Court Judge Cormac Carney (pictured) held that the delays and arbitrariness of California's death penalty system rendered it  unconstitutional. Judge Carney vacated the death sentence of Ernest Jones, who has spent nearly 20 years on death row. On August 21, California Attorney General Kamala Harris announced the state will appeal the ruling to the U.S. Court of Appeals for the Ninth Circuit. Below are excerpts from Judge Carney's ruling:

  • The Eighth Amendment prohibits the imposition of cruel and unusual punishment by the state. Although reasonable people may debate whether the death penalty offends that proscription, no rational person can question that the execution of an individual carries with it the solemn obligation of the government to ensure that the punishment is not arbitrarily imposed and that it furthers the interests of society. 
  • Inordinate and unpredictable delay has resulted in a death penalty system in which very few of the hundreds of individuals sentenced to death have been, or even will be, executed by the State. It has resulted in a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed. And it has resulted in a system that serves no penological purpose. Such a system is unconstitutional.

Arizona Accused of Violating Its Own Protocol in Executions

In the recent prolonged execution of Joseph Wood in Arizona, the state apparently veered from its execution protocol when it employed 15 doses of lethal injection drugs, rather than just a single dose followed by a second application, if necessary, as stated in its regulations. There have been numerous other instances in which the state appeared to depart from its protocol. The U.S. Court of Appeals for the Ninth Circuit criticized the state in 2012, saying Arizona “has insisted on amending its execution protocol on an ad hoc basis,” and that it had a “rolling protocol that forces us to engage with serious constitutional questions and complicated factual issues in the waning hours before executions.” In another instance, the federal public defender office said the Department of Corrections failed to check the criminal background of execution team members and ignored a lack of qualifications. One employee leading the medical team in four executions could not recall inserting an IV since he was trained as an emergency medical technician years earlier. In a 2011 execution, the medical team leader replaced one execution drug with another after concluding that they were "essentially equivalent," based on reading the drug packaging and information on the Internet, according to a suit brought by a death row inmate. Dale Baich, an attorney who represented Joseph Wood, said, “There’s the protocol that’s in place and there’s what happens, and those aren’t necessarily the same thing. What we’ve learned from this execution is that the Department of Corrections was making it up as it went along.”

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