Arbitrariness

Withheld Evidence Could Risk Innocent Lives

In a recent op-ed in the Denver Post, Colorado defense attorney David Lane argued that examples of the state withholding important evidence in capital murder cases should be grounds for reconsidering the death penalty: "The death penalty in Colorado is a fatally flawed government program. The alternative is life with no possibility of parole. Jurors for many years have expressed a preference for that severe sanction, which is actually less costly than the death penalty." Lane cited a recent ruling by the Colorado Court of Appeals affirming the reversal of David Bueno's first-degree murder conviction, in which a death sentence had been sought, because the state failed to turn over evidence about other suspects. (Lane represents one of the co-defendants in the case.) Neither of the prosecutors responsible was disciplined for this breach of conduct, and one has since been elected the District Attorney of El Paso County. Lane also highlighted the cost to Colorado taxpayers: "[B]ecause of the built-in costs for a death penalty case, likely over $1 million was wasted in a failed effort to kill Bueno." Read the full op-ed below.

Changing Views of Supreme Court Justices on the Death Penalty

Andrew Cohen, writing in The Atlantic, recently examined the evolution in thinking on the death penalty among Supreme Court Justices. Cohen noted that Justices John Paul Stevens (pictured), Lewis Powell, and Harry Blackmun all upheld new death-penalty statutes in Gregg v. Georgia (1976), thereby ushering in a return to capital punishment. All three, however, later said the death penalty under these statues was not being applied constitutionally. Justice Powell told his biographer, "I have come to think that capital punishment should be abolished." In a 1994 dissenting opinion, Justice Blackmun famously said, "I no longer shall tinker with the machinery of death." Justice Stevens sharply criticized the death penalty because of problems in the areas of wrongful convictions, racial bias, jury selection, and prosecutorial power. Cohen also noted the evolution in Justice Sandra Day O'Connor's views on the death penalty. However, he found no Justices who went from opposing the death penalty to supporting it.

Georgia Man Who Faced Death Sentence Acquitted After 29 Years

Timothy Johnson was acquitted of murder charges and released from prison in Georgia on December 5, twenty-nine years after being charged with a murder and robbery at a convenience store. Johnson had originally pled guilty to the crimes in exchange for the prosecution's agreement not to seek the death penalty. The Georgia Supreme Court overturned his conviction in 2006 because he was not properly informed of his constitutional protection against self-incrimination and his right to confront witnesses against him. The jury deliberated for only about an hour before rendering the acquittal. His family greeted him upon his release. “My heart is overwhelmed for him,” said his uncle, Willie Wilson. “I’m just elated.”

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.

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