Arbitrariness

Missouri Juror Describes Pressure to Vote for Death

UPDATE: Winfield's execution was stayed on June 12 because of state interference with the clemency process. EARLIER: John Winfield is scheduled to be executed in Missouri on June 18 despite an affidavit submitted by one of the jurors at his trial stating she was pressured to switch her sentencing vote from life in prison to death. Kimberly Turner, who served on Winfield's jury in 1998, recently described the jury's initial deliberations: "Another juror and I had voted for life without the possibility of parole. That was my vote. In my heart, that has always been my vote." In Missouri, a jury recommendation for death must be unanimous; if just one juror votes for a life sentence, the defendant is sentenced to life. When the jury told the court they were unable to reach a unanimous sentencing verdict, they were told to continue deliberating. "Even though I had voted for life without parole," Turner said, "when an officer of the Court told me to keep deliberating, I thought that I had to. It was Friday afternoon and the other jurors were tired of being sequestered and wanted to go home. They were pressuring me and the other life vote to change our votes to death...As the afternoon went on, the other jurors wore me down. I had not wanted to keep deliberating, but after the order to continue, I did not know how long I was supposed to keep defending my vote for life...So I changed my vote to death. It is a decision that has haunted me."

EDITORIALS: Connecticut's The Day Calls for Retroactive Death Penalty Repeal

When Connecticut abolished the death penalty in 2012, it did so prospectively, leaving its death row population in place. Now, Connecticut newpaper The Day is calling on the state to "have the courage and consistency to outlaw government sanctioned killing in all instances." The editorial first highlights the paper's longstanding opposition to capital punishment, saying "It remains our position that a state-sponsored execution disproportionately targets minorities, has no deterrent value, cannot be undone if there is a mistake and is a barbaric act that lowers the state to the level of the killer." It then draws on recent events to point out the practical problems with Connecticut's execution method, lethal injection. "The Department of Correction has confirmed it has none of these drugs and no way to obtain them because many domestic and foreign drugmakers, including those in the 28-nation European Union, have objected to using their products in executions." The editorial closes by mentioning the ongoing court case challenging the consitutionality of Connecticut's current death penalty law, saying "The likelihood is that none of the 12 [men on death row] will ever be executed and some court, state or federal, will find, as Michael Courtney, the state's head of the Office of Public Defender, has said, "there is nothing more arbitrary and capricious" than the present situation in which a person committing a capital felony on April 24, 2012, the day before Connecticut abolished capital punishment, can be executed while the person committing the exact same crime the next day cannot." Read the full editorial below.

Blue Ribbon Panel Recommends Extensive Changes to Death Penalty

On May 7, the Constitution Project released a new report, Irreversible Error, calling for reforms in many aspects of the death penalty system. The Project's Death Penalty Committee, which consists of renowned experts on capital punishment, made suggestions for reducing the risk of executing the innocent and improving the fairness of capital cases from arrest and interrogation, through prosecution and appeals, to the execution procedure itself. "Without substantial revisions -- not only to lethal injection, but across the board -- the administration of capital punishment in America is unjust, disproportionate and very likely unconstitutional," said committee member Mark Earley, a Republican and former Attorney General of Virginia. Among the 39 recommendations in the report were increased access and improved standards for forensic testing, videotaping of interrogations in homicide investigations, and exemptions for the severely mentally ill. In capital sentencing, the report recommended requiring a unanimous jury vote for death before a death sentence could be imposed. Virginia Sloan, President of the Constitution Project, said, "Some of the members of the Committee believe that the range of punishments may include death; others do not. But they all agree that no one should be denied basic constitutional protections, including a competent lawyer, a fair trial and full judicial review of any conviction and sentence. The denial of such protections heightens the danger of wrongful conviction and sentencing."

President Obama Orders Review of Death Penalty

President Obama has ordered Attorney General Eric Holder to review the application of the death penalty in the U.S. following the failed execution of Clayton Lockett in Oklahoma on April 29. The President noted concerns about innocence and racial bias: “In the application of the death penalty in this country, we have seen significant problems — racial bias, uneven application of the death penalty, you know, situations in which there were individuals on death row who later on were discovered to have been innocent because of exculpatory evidence. And all these, I think, do raise significant questions about how the death penalty is being applied.” The Department of Justice was already reviewing federal execution protocols. Brian Fallon, a spokesman for the Justice Department, said, “At the president’s direction, the department will expand this review to include a survey of state-level protocols and related policy issues.” The President called the events in Oklahoma, in which the inmate regained consciousness and apprarently suffered before dying of a heart attack, "deeply disturbing."

CLEMENCY: Ohio Governor Commutes Death Sentence, Citing 'Troubling Irregularities'

On April 30 Ohio Governor John Kasich commuted the death sentence of Arthur Tyler to life in prison without the possibility of parole. The decision followed a recommendation for clemency from Cuyahoga County prosecutor Tim McGinty. Following a hearing on the case, the Ohio Parole Board recommended commutation of Tyler's sentence to life with parole: six of the eleven members recommended immediate parole eligibility for Tyler, and the remaining five favored a sentence of 33 years to life, which would have made Tyler parole eligible in two years. In his commutation announcement, Kasich said, “The questions that continue around this case are fundamental and the irregularities in the court proceedings are troubling." Tyler's co-defendant, Leroy Head, confessed to the crime but testified that Tyler was the triggerman, securing himself a lesser sentence. Head was released from prison in 2008. McGinty cited Head's "evolving statements" as a "cause for concern" in asking for clemency for Tyler, and the Parole Board agreed, adding that a sentence with parole eligibility, "would also make Tyler’s sentence more proportionate to the sentence imposed upon Head."

Supreme Court: Kentucky Death Sentence May Be Flawed, But Not 'Unreasonable'

On April 23 the U.S. Supreme Court reinstated the death sentence of Kentucky inmate Robert Woodall, reversing an earlier ruling by the U.S. Court of Appeals for the Sixth Circuit. At Woodall's trial, his attorney asked the judge to instruct the jury not to draw any negative inference from the fact that Woodall had not testified in the sentencing phase. The judge refused to give the instruction. The 6th Circuit held that the failure to instruct the jury was a violation of Woodall's right to remain silent. Justice Antonin Scalia, writing for the Court in White v. Woodall, did not say the Kentucky judge acted properly, but only that federal courts must give exceptional deference to state courts, only overturning them when they act "unreasonably." In a dissent joined by two other Justices, Justice Stephen Breyer wrote that "The 'normal rule' is that Fifth Amendment protections (about the right to remain silent) apply during trial and sentencing."

REPRESENTATION: Georgia Inmate With Drunk Lawyer Facing Execution

The Georgia Board of Pardons and Paroles will soon consider the clemency petition of Robert Holsey describing a near complete failure in the judicial process that sent him to death row in 1997. As Marc Bookman described in the latest edition of Mother Jones, Holsey was assigned a lawyer, Andy Prince, who consumed a quart of vodka every night of the trial. While preparing Holsey's case, he was arrested in an incident after pointing a gun at a black neighbor and using a racial slur. Despite charges of assault, disorderly conduct, and public drunkenness stemming from the racially-charged crime, he was allowed to stay on as defense attorney for a black defendant facing charges of murdering a white police officer. Prince failed to communicate with his co-counsel, Brenda Trammell, who had never tried a capital case, leaving her to perform a complex cross-examination with little time to prepare. She also gave the case's closing argument after almost no notice. Prince failed to present mitigating evidence regarding Holsey's intellectual disabilities and the severe abuse he suffered as a child. A juror from Holsey's trial later said in an affidavit that he would have spared Holsey's life had he heard such evidence. However, state and federal appeals courts have held that, even without the failings of the defense team, the outcome would probably have been the same.

On Eve of Execution, Oklahoma Courts Can't Agree on Who Has Power to Stay

UPDATE: (4/21). The Oklahoma Supreme Court (5-4) has stayed the executions of Lockett and Warner. Earlier:In a 3-2 decision on April 18, the Oklahoma Court of Criminal Appeals (OCCA) said it could not grant a stay of execution to two death row inmates facing imminent execution because they had not filed a proper motion. Earlier, the Oklahoma Supreme Court said the OCCA should be the court to grant a stay, especially since there were unsettled questions about the constitutionality of the state's execution law. The two inmates, Clayton Lockett (l.) and Charles Warner (r.), have argued that the "veil of secrecy" surrounding Oklahoma's lethal injection protocol is unconstitutional. A lower court ruled in their favor in March. Vice-Presiding Judge Clancey Smith of the OCCA dissented from the 3-2 ruling, saying, "I would grant a stay to avoid irreparable harm as the appellants face imminent execution. I would do so in consideration of the appellants' rights, to avoid the miscarriage of justice, and in comity with the Supreme Court's request for time to resolve the issues pending before it." Attorneys for Lockett and Warner have filed an additonal appeal to the state Supreme Court, stating, "The Oklahoma Court of Criminal Appeals (OCCA) has repeatedly disavowed any authority to stay Appellants’ executions, even in the face of this Court’s direct ruling to the contrary. It simply cannot be that no court in this State has the power to enter a stay of execution in this case. Such a result would close the courts of justice to Appellants, in violation of the Oklahoma Constitution."

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