Arbitrariness

NEW VOICES: John Grisham Asks-- Why is Teresa Lewis on Death Row?

Acclaimed author John Grisham recently published an op-ed in the Washington Post questioning why Teresa Lewis is facing the death penalty when both her co-defendants, two men who actually committed the killings, were given life-without-parole sentences.  According to Grisham, the judge who sentenced Lewis to death mistakenly believed that she was the “mastermind” behind the killings. However, it has now been revealed that her IQ of 72 makes her borderline intellectually disabled, that she suffered from a dependent personality disorder and other addictions, and that she lacked the basic skills necessary to organize a conspiracy to commit murder for hire. Grisham wrote, “In this case, as in so many capital cases, the imposition of a death sentence had little do with fairness. Like other death sentences, it depended more upon the assignment of judge and prosecutor, the location of the crime, the quality of the defense counsel, the speed with which a co-defendant struck a deal, the quality of each side's experts and other such factors. In Virginia, the law is hardly consistent." Read full op-ed below.

REPRESENTATION: Kentucky Inmate Faces Execution Despite Sham Trial

Gregory Wilson is scheduled for execution in Kentucky on September 16, despite having been represented by woefully unqualified and unprepared attorneys in his death penalty trial.  It took over a year for the trial judge to find an attorney to take Wilson’s case. Wilson was indigent, and the maximum state fee for a capital-murder representation was $2,500. The judge even put a note on his courthouse door, saying: "PLEASE HELP. DESPERATE. THIS CASE CANNOT BE CONTINUED AGAIN."  Eventually, two lawyers agreed to take the case: John Foote, who had never tried a felony (much less a capital) case, and William Hagedorn, a semi-retired lawyer who gave as his office number the phone of the local bar, "Kelly's Keg."  Hagedon volunteered to be lead counsel for free, even though he had no office, no staff, no copy machine and no law books. According to witnesses, Wilson’s lawyers came and went during trial, and attorney Hagedorn was absent more than half the time. The lawyers failed to interview and subpoena witnesses, investigate evidence collected by police, or contact certain family members who would have testified on behalf of sparing Wilson’s life. Stephen Bright, president of the Southern Center for Human Rights, said that Wilson’s case is a "travesty of justice and among the worst examples he's ever seen of a defendant tried for his life with unqualified counsel."

EDITORIALS: “The last man to die”

A recent editorial in the Greensboro, NC, News & Record indicated that capital punishment may be "on its last legs" in North Carolina. "In practice," the editorial stated, "the death penalty nearly is eradicated. It is complicated, costly and no longer trusted."  According to the paper, use of the death penalty has been in steady decline. In 1999, 25 defendants were sentenced to death and another 16 were added the following year. In 2009, there were only two new death sentences in the state and only two so far in 2010. Juries and prosecutors have gravitated more to sentences of life without parole. There has been a hold on executions in the state because of challenges to the lethal injection protocols and because of concerns about the arbitrary implementation of the punishment. The last execution was in 2006.  Some inmates are on death row for less heinous crimes than those committed by people who received life sentences. The editorial concluded, “Locking someone up for the rest of his natural life - often 50 years or more - not only protects the public, it allows for errors to be discovered and corrected. Execution does not.”  Read full editorial below.

NEW VOICES: North Carolina District Attorneys Support Moratorium on Executions

Seth Edwards, president of the North Carolina Conference of District Attorneys, said that he supported a moratorium on the execution of any death row inmates whose cases include evidence from the State Bureau of Investigation. "[W]e need to make sure the issues are resolved in the SBI crime lab," Edwards said. "I just feel like the public right now is skeptical."  Last month, a government audit showed that the lab had tampered with evidence and issued false reports in over 230 criminal convictions, including capital cases.

The scandal at the SBI lab and recent studies revealing racial disparities in jury selection and sentencing in death penalty cases have raised concerns among others in the state regarding the reliability of the justice system in North Carolina. A group of supporters for Melvin Lee White, a death row inmate convicted before revelations about the crime lab began to appear, is asking that he be given a new trial or that at least his sentence be reduced to life. White has always maintained his innocence.

Pennsylvania's Costly Death Penalty Produces Nothing in Return

Pennsylvania Governor Edward Rendell has signed 113 execution warrants during his two terms in office, yet it appears likely that he will leave office in a few months without seeing any of them carried out. Since the state reinstated the death penalty in 1978, only three men have been executed, all of whom had waived their appeals. Inadequate funding for criminal defense may be one of the primary reasons for this de facto moratorium. Since 1978, state and federal courts have overturned 124 death penalty cases on post-conviction review, mostly because of inadequate representation. (Other reasons cited include prosecutorial misconduct, racial discrimination in jury selection, and improper argument and jury instructions).  When the cases are retried, almost all result in a life sentence.  Robert Dunham, a federal defender, said, “So long as Pennsylvania systematically fails to adequately provide resources at trial, cases will be reversed [in] post-conviction."  Marc Bookman, founder of the Atlantic Center for Capital Representation in Philadelphia, said "an ungodly amount of money" has been spent on the death penalty in the state.  "[I]t's an incredible waste of money," he added.  "We're propping this thing up so that some of our leaders can claim to be tough on law and order."  Pennsylvania has the fourth largest death row in the country.

National Shortage of Drug for Lethal Injections Leads to Stays of Execution

Kentucky Governor Steven Beshear recently held off signing death warrants for two inmates because of a shortage of the drug sodium thiopental, a key component of the state’s lethal injection protocol. Kentucky’s stock of the lethal injection drug expires October 1, and the Department of Corrections does not expect a new supply until early 2011 because the only supplier of this drug in the country, Hospira, is unable to obtain the active ingredient for the drug.  Even when a new supplier for the active ingredient is found, FDA approval will be needed. The governor did set a September 16 date for the execution of Gregory Wilson, which could occur before the state's supply of the drug expires.  In Oklahoma, the state’s Department of Corrections recently tried to substitute another drug for sodium thiopental for the execution of Jeffrey Matthews because of concerns about the purity of the supply on hand. A federal judge stayed the execution of Matthews in order to provide time to study the situation. Attorneys for Matthews challenged the substitution of a new drug as a form of human experimentation.  Almost all states in the country use essentially the same protocol for lethal injections.

North Carolina Crime Lab Audit Too Late for Three Executed Inmates

After an audit of the State Bureau of Investigation (SBI) conducted by former FBI agents at the request of North Carolina's attorney general, it was revealed that officials withheld blood evidence affecting 269 defendants. The report listed three death penalty cases that resulted in executions. Although each of the executed defendants confessed to the crimes, such confessions are sometimes suspect and evidence withheld by the state might have at least led to a lesser sentence. Desmond Carter, who was executed in 2002, was represented by attorneys who were inexperienced and unqualified to handle his capital case. The attorneys never evaluated and challenged the SBI evidence, only assuming the evidence was true. Another impacted case was that of John Hardy Rose, who confessed to killing his neighbor. Ken Rose, his attorney (no relation), said there was doubt as to whether his crime was premeditated or impulsive. Rose said he believes previously undisclosed negative results of a test for blood could have been used to secure a life sentence or a second-degree murder conviction for his client, who was executed in 2001. The final executed defendant was Joseph Timothy Keel.  His lawyers are still exploring how the withheld evidence might have affected his case. Jay Ferguson, one of the lawyers, lamented, “[T]here are no do-overs with the death penalty. We can’t go back and fix these errors.”

North Carolina Bureau of Investigation Charged With False Reports, Including in Capital Cases

A government-ordered audit of the North Carolina State Bureau of Investigation found that the agency falsely reported blood evidence in dozens of cases, including three that ended in executions. The inquiry, ordered by Attorney General Roy Cooper, found that SBI agents improperly aided prosecutors for over a 16-year period, calling into question convictions in 230 criminal cases. Duane Deaver, a veteran SBI analyst who performed the work in five particularly troubling cases, has been suspended pending further investigation.  According to the audit, SBI lab reports omitted or overstated important information about test results that would have been favorable to the defense. The report blames the flaws on "poorly crafted policy, inattention to reporting methods which permitted too much analyst subjectivity; and ineffective management and oversight.”  The state Supreme Court ruled in 1992 that lab notes are evidence that should be made available to the defense. According to the report, however, “that did not happen for several reasons, including a mindset, led by a section chief, that the lab’s main customer was law enforcement.” North Carolina's News & Observer just completed a four-part investigative series into the SBI entitled "Agents' Secrets: Junk Science, Tainted Testimony at SBI."

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