Arbitrariness

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."

Another Death Row Inmate Offers Scientific Evidence to Dispute Arson Charge

Another death row inmate is challenging his conviction with new evidence that the charge of arson in his case was based on faulty science.  Daniel Dougherty, a Pennsylvania man who faces execution for setting a fire that killed his children in their home in 1985, has always maintained his innocence.  In 2006, Dougherty filed an appeal with the Pennsylvania Supreme Court containing the reports of two arson investigators who re-examined his case and found no conclusive indicators of arson. In 2004, Texas executed Cameron Todd Willingham, who was also convicted of starting a fire that killed his children in their home. Last month, the Texas Forensic Science Committee admitted in a preliminary report that flawed arson science was used in the Willingham case. Until the early 1990s, guidelines for determining arson were largely based on imprecise criteria used by fire investigators with little formal training.  In 1992, the National Fire Protection Association released its first arson guidebook, based on years of simulations and studies. Both Willingham and Dougherty were convicted based on reports prepared prior to the release of this new guidebook. Dougherty was not convicted until 15 years after the fire that killed his children.  His second wife, with whom he was having a custody dispute, claimed that he admitted to setting the blaze. His first wife, and the mother of the deceased children, does not believe that Dougherty committed this crime.

After Two Trials With Grossly Inadequate Representation, Death Row Inmate is Allowed to Plead and Leave State

James Fisher, who spent 27 years on Oklahoma’s death row, was recently released to a re-entry program at the Equal Justice Initiative (EJI) in Montgomery, Alabama, after he accepted a plea agreement with prosecutors. Fisher, who is now working at EJI, had been sentenced to death twice, and in both instances, higher courts overturned his death sentence after finding that his defense attorneys provided him inadequate representation. His first lawyer, E. Melvin Porter, was unwilling or unable to reveal holes evident in the state's case. According to a federal appeals court, Porter exhibited "actual doubt and hostility" about his client's defense and failed to present a closing argument, even though the state's case was “hardly overwhelming.” Porter later admitted that, at the time, he considered homosexuals to be “among the worst people in the world” and considered Fisher a “very hostile client.” John Albert, Fisher’s second lawyer, later admitted that at the time of the trial, he was drinking heavily and abusing drugs, and once even physically threatened Fisher. Court records also show that Albert all but ignored defense material concerning the case and failed to sufficiently challenge the testimony of the state’s primary witness. Fisher instructed his new lawyer to seek a plea deal with prosecutors, avoiding a third trial. In an exchange for his freedom, he agreed to plead guilty to first-degree murder, to complete a comprehensive re-entry program in Alabama, and to never return to Oklahoma.

Ohio Governor and Attorney General Urge DNA Testing in Death Row Case

Ohio Governor Ted Strickland and Attorney General Richard Cordray recently urged prosecutors in seven criminal cases to allow DNA testing that could either prove innocence or confirm the defendant's guilt. The seven cases include one man currently on death row, Tyrone Noling, two inmates serving long sentences, three men who are no longer in prison but want to clear their names, and a man who died in prison in 2006. Gov. Strickland said, “I really think it's irrational not to take advantage of methods that could establish either guilt or innocence when those technologies are available to us. I can think of no good argument why anyone would be denied DNA testing if, in fact, there is a reasonable or relevant opportunity to bring clarity to whether or not someone is guilty of a crime."  In all seven cases, prosecutors have resisted the DNA testing and judges have declined to grant it.

Alabama Inmate May Face Execution Because of Mailroom Mix-Up

Cory Maples, an inmate on Alabama’s death row, may pay for a simple clerical error with his life. When copies of an Alabama court ruling in his case were sent to the New York law firm handling his appeals, both copies were returned unopened because the firm's attorneys representing Maples had left the firm. By the time the error was discovered, Maples’s time to appeal had expired. So far, the firm has failed to persuade a federal appeals court to waive the deadline for filing an appeal.  Maples's new attorney is arguing that Maples should not be penalized for a mistake he did not commit. Prof. Deborah Rhode, an authority on indigent defense and legal ethics at Stanford, said, “Maples’s case is a textbook illustration of why the doctrine of imputing responsibility to the client for a lawyer’s mistake is so out of touch with reality.”  Alabama is the only state that does not provide lawyers for all indigent death row inmates to challenge their convictions. Hence, defendants rely on volunteer attorneys, often from out of state, to fill the gap, and that contributed to the confusion.

First North Carolina Death Row Inmates File Appeal Under Racial Justice Act

Five men on North Carolina’s death row filed motions to have their death sentences reduced to life without parole based on data that indicate racial disparities in the state’s justice system. These cases are the first to request application of North Carolina’s Racial Justice Act, which allows the use of statewide or regional statistical studies to challenge a death sentence because of racial bias. In all five cases, the victims in the underlying murder were white and the defendants were black.  Moreover, prosecutors struck eligible blacks from the juries in these cases at greater rates than whites. In some cases, prosecutors struck eligible black jurors while accepting similar white jurors. Ken Rose, staff attorney at the Center for Death Penalty Litigation (CDPL), said, “We would like to live and practice in a system where race does not matter. But the results show that white victims are valued more highly than black ones, and that black jurors are being denied their right to serve. This evidence of racial bias cannot be ignored.”

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