Arbitrariness

ARBITRARINESS: One Defendant Executed, Another In Limbo For Same Crime

Jerry Martin (pictured, r.) was executed in Texas on December 3 for killing a correctional officer during an escape attempt in 2007. Meanwhile, John Falk (l.), who also participated in the escape and was reportedly driving the car that struck and killed the officer, has not even been convicted six years after the crime. Falk's original trial was declared a mistrial due to problems with the jury instructions, and it is possilbe another trial will not be allowed. (He remains incarcerated for life on his original charge.) Martin waived his appeals and said he had tried to escape from prison out of a sense of hopelessness.

Counties with Large Death Rows Often Correlates With Prosecutorial Misconduct

Radley Balko, writing in the Huffington Post, has examined more closely some of the counties identified in DPIC's recent report, The 2% Death Penalty, as using the death penalty the most. Balko found that many of those high-use counties have a pattern of prosecutorial misconduct and other problems. For example, Philadelphia County has sent more inmates to death row than any other county in Pennsylvania. However, a study of criminal cases overturned in the state because of prosecutorial misconduct found over 60% of the cases came from Philadelphia. Duval County, Florida, has the largest per capita death row in the nation, but recently elected a head public defender who ran on a platform of cutting funding to public defense and billing indigent defendants who are acquitted. In the California counties of Santa Clara and Riverside, courts had to review thousands of cases due to prosecutors' failure to disclose exculpatory evidence, including fraud by a crime lab technician. In some instances, this misconduct hid the actual innocence of the defendant, such as that of Ray Krone in Maricopa County, Arizona, who was sentenced to death after prosecutors withheld crucial evidence.

NEW VOICES: Deputy Editor Dissents from Toledo Blade's Support for Death Penalty

Jeff Gerritt is the Deputy Editor of the Toledo Blade, a paper which has supported Ohio's death penalty for years. Disagreeing with the paper's Editor, Gerritt called for repeal of the death penalty in the state, noting the risk of executing the innocent, "Wrongly convicting anyone constitutes a horrible injustice, but executing the wrong person eliminates any chance of reversing the error. Nationwide, more than 140 people awaiting execution have been exonerated. Mistakes are far more likely in cases involving poor defendants, who usually don’t have adequate legal counsel." He also pointed to the racial unfairness of the death penalty: "In Ohio, for example, more than half of the death-sentenced defendants since 1981 have been African-Americans, even though African-Americans make up less than 13 percent of the population. Eighteen African-Americans have been executed in Ohio under the 1981 law — 35 percent of the total." He concluded, "The evidence points to one verdict: Capital punishment should die in Ohio." Read the full op-ed below.

Texas Court of Criminal Appeals Denies New Hearing for Duane Buck

In a 6-3 decision on November 20, the Texas Court of Criminal Appeals denied a request from death row inmate Duane Buck for a new sentencing hearing, despite the fact that racially prejudicial statements had been made during his trial. While the jury was being asked to consider if Buck would be a future danger to society, a psychologist testified that African Americans commit a disproportionate number of criminal offenses. Buck's case was one of seven identified in 2000 by then-Texas Attorney General John Cornyn in which testimony linking race to future dangerousness was impermissibly used. The other six defendants received new sentencing hearings, but Buck did not because his case was still in the early stages of appeal. Three judges dissented, writing, "The record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness at the punishment stage." Buck's attorneys said they will appeal: "We will ask the U.S. Supreme Court to review the important due process and equal protection issues at stake in Mr. Buck’s case, and we are hopeful that the Supreme Court will intervene to right this unequivocal wrong," they said.

Sotomayor Critiques Alabama Sentencing in Supreme Court Dissent

The U.S. Supreme Court declined to hear an appeal from Alabama death row inmate Mario Woodward, who was sentenced to death in 2008 despite a jury's 8-4 recommendation for a life sentence. Alabama is one of only three states that allow a judge to override a jury's sentencing recommendation for life to impose a death sentence; Florida and Delaware also allow the practice, but death sentences by judicial override are very rare in those states. Justice Sonia Sotomayor voted to hear the case, saying the Court should reconsider Alabama's death sentencing procedure. In an opinion joined in part by Justice Stephen Breyer, Sotomayor said 26 of the 27 cases since 2000 in which judges imposed death sentences over a jury's recommendation for life came from Alabama, including some in which the vote for life was unanimous. She speculated that Alabama's elected judges may face political pressures to appear harsh in their use of the death penalty that unelected judges in other states do not face. “What could explain Alabama judges' distinctive proclivity for imposing death sentences in cases where a jury has already rejected that penalty?," she wrote. "The only answer that is supported by empirical evidence is one that, in my view, casts a cloud of illegitimacy over the criminal justice system: Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures." She cited instances in which judges used their death sentences as part of their electoral campaigns.

EDITORIALS: New Hampshire's Concord Monitor Calls for Death Penalty Repeal

The Concord Monitor of New Hampshire called for repeal of the state's death penalty in a recent editorial. The paper contrasted the case of Michael Addison, the state's only death row inmate, to that of John Brooks, who was convicted of hiring three hitmen to kill a handyman, whom Brooks believed had stolen from him. Brooks received a sentence of life without parole. The Monitor noted, "Brooks was rich and white; Addison was poor and black.... Addison’s victim had the full force of New Hampshire law enforcement watching every twist and turn of the case; Brooks’s victim was little known and quickly forgotten. Different lawyers, different juries, different cases. But it’s difficult not to step back and wonder about the fairness of it all." Addison's death sentence was recently upheld by the New Hampshire Supreme Court. The editorial concluded by calling for repeal legislation in 2014, saying, "New Hampshire hasn’t used its death penalty in more than 70 years. We will be a better, fairer, more humane state without it." Read the full editorial below.

NEW VOICES: President Carter Calls for Halt to Executions

Former President Jimmy Carter spoke recently about the death penalty in an interview with The Guardian in advance of his appearance at the American Bar Association's symposium on capital punishment in Atlanta on November 12. As governor of Georgia, Carter signed the revised death penalty law that the Supreme Court upheld in Gregg v. Georgia (1976), but he told the paper, "In complete honesty, when I was governor I was not nearly as concerned about the unfairness of the application of the death penalty as I am now. I know much more now. I was looking at it from a much more parochial point of view – I didn’t see the injustice of it as I do now." He said he is particularly concerned about the arbitrariness of death sentences, “In America today, if you have a good attorney you can avoid the death penalty; if you are white you can avoid it; if your victim was a racial minority you can avoid it. But if you are very poor or mentally deficient, or the victim is white, that’s the way you get sentenced to death.” Carter said the Supreme Court should put a hold on executions and reconsider the death penalty: “It’s time for the Supreme Court to look at the totality of the death penalty once again. My preference would be for the court to rule that it is cruel and unusual punishment, which would make it prohibitive under the US constitution.”

POSSIBLE INNOCENCE: Florida Supreme Court Overturns Conviction and Death Sentence Based on New Evidence

In a 5-2 decision, the Florida Supreme Court overturned the murder and sexual battery convictions and death sentence of Roy Swafford (pictured), who has been on death row since 1988. The court said in its decision that "No witness, DNA, or fingerprints link Swafford to the victim or the murder weapon. The newly discovered forensic evidence regarding the alleged sexual battery changes the very character of the case and affects the admissibility of evidence that was heard by the jury." Retesting of evidence from the case indicated that, contrary to earlier tests, a chemical found in semen was not present on the victim, suggesting that she was not sexually assaulted before the murder. The prosecution had said the assault motivated the murder, so the new evidence removes the likely motive. The Supreme Court also said that jurors did not hear evidence about another suspect who matched descriptions of the murderer, owned a car that matched the one used in abducting the victim, and owned the same type of gun used in the murder. Swafford's attorney, Terri Backhus, summed up the decision, saying, “Not only did the court say he gets a new trial on the sexual battery and the murder, but the Supreme Court said the trial court should grant a motion for judgment of acquittal on the sexual battery.”

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