Federal Death Penalty

Missouri is Disproportionately Producing Federal Death Sentences Amidst Pattern of Inadequate Representation

Federal capital defendants are disproportionately sentenced to death in Missouri compared to other states, with 14.5% of the 62 prisoners currently on federal death row having been prosecuted in Missouri's federal district courts. By contrast, a DPIC analysis of FBI Uniform Crime Reporting Statistics shows that Missouri accounted for only 2.26% of murders in the United States between 1988, when the current federal death penalty statute was adopted, and 2012. Not surprisingly, an article in The Guardian by David Rose reports that, since the 1990s, the chances that a defendant will be sentenced to death in a Missouri federal court are significantly greater than in other federal jurisdictions. Rose suggests that the questionable performance of defense counsel and repeated failures to investigate and present mitigating evidence relating to the backgrounds and life histories of Missouri federal capital defendants has significantly contributed to that disparity. Though federal funding for defense attorneys is more generous than state funding, Rose says the federal death penalty system shows evidence of the same failures in representation that so often appear in state death penalty cases. Four of the nine prisoners sentenced to death in Missouri were represented by the same lawyer, Frederick Duchardt. In the three cases of Duchardt's clients that have reached the appeals stage, all three raised claims of ineffective assistance of counsel. In each case, Duchardt failed to employ a mitigation specialist, in violation of American Bar Association guidelines. Mitigation specialists investigate a client's background to find evidence that may convince a jury to impose a sentence less than death. Duchardt's clients all suffered serious abuse during their childhoods. One had an IQ of 68, placing him on the threshold of intellectual disability. Another had been diagnosed with psychosis, bipolar disorder, and post-traumatic stress disorder. None of these issues were presented to the jury, a decision Duchardt later claimed was "strategic," but which his client's appeal attorneys argue was a result of failure to prepare or investigate. Professor Sean O'Brien of the University of Missouri Law School, described the appointment of counsel for indigent defendants as a "lottery," saying, "Many defendants lose that lottery, and they get a lawyer more worried more about pleasing the court and the prosecutor than about fighting for the client. Those are the ones who die. When one lawyer produces nearly half the federal death sentences in a state, there’s a problem."

Judge Grants Dylann Roof's Request to Represent Himself in Federal Death Penalty Trial

U.S. District Court Judge Richard M. Gergel granted a request on November 28 from Dylann Roof (pictured), the 22-year-old charged with the murders of  nine members of the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, to represent himself in his federal capital trial. Judge Gergel described Roof's decision as “strategically unwise,” but said, “It is a decision you have the right to make.” A criminal defendant's right to self-representation was established by the Supreme Court in 1975 in Farretta v. California, a non-capital case where the Court held that a defendant may waive his right to counsel provided such waiver is knowing, voluntarily, and intelligent. In Roof's trial, the judge had temporarily halted jury selection in the trial on November 7, when Roof's attorneys requested a determination of Roof's mental competency to stand trial. After a two-day hearing, which was closed to the public because statements Roof made to a psychologist might taint the trial, Judge Gergel found Roof fit to stand trial. Jury selection is set to begin on November 28th, with 516 potential jurors reporting to the courthouse for questioning. After Roof's federal trial, the state of South Carolina also plans to try him. He faces a death sentence in both trials. While the Supreme Court has not addressed whether a capital defendant may waive his right to counsel, death penalty experts have argued that such defendants should not be allowed to represent themselves, because of the complexity of capital cases and the finality of the sentence. Cornell Law Professor John Blume wrote, "when it comes to a criminal defendant facing society's ultimate punishment, the defendant's more symbolic interests in dignity and autonomy are outweighed by the criminal justice system's interests, as well as society as a whole's interests, in accuracy and fairness." Last year, a Kansas judge permitted White Supremacist Frazier Glenn Cross to represent himself in a case in which he was charged with murders at a Kansas City Jewish Community Center. His lawyers had intended to present a mental health defense to the murders. After a controversial trial punctuated by outbursts by the defendant, the jury sentenced Cross to death.

Court Hearing Under Way on Constitutionality of Federal Death Penalty

A court hearing is under way in the capital trial of Donald Fell in a Vermont federal district court challenging the constitutionality of the federal death penalty. This week, death penalty experts testified for the defense about systemic problems Fell's lawyers say may render the federal death penalty unconstitutional. Fell was sentenced to death in 2006, but was granted a new trial because of juror misconduct. The hearing began on July 11 and is scheduled to continue until July 22. Judge Geoffrey W. Crawford, who is presiding over the hearing and is set to preside over Fell's second trial in 2017, said the hearing will, "create a rich, factual record for higher courts with broader authority to rule on the big questions." On Monday, Craig Haney, a psychology professor at the University of California Santa Cruz, discussed research on the effects of solitary confinement, the conditions under which Fell has been held on death row. "According to the National Commission on Correctional Health Care, anything greater than 15 days is inhumane, cruel and degrading treatment," Haney said. On Tuesday, Michael Radelet, a sociology professor at the University of Colorado, testified about the decline of the death penalty both in use and in public opinion, saying, "Attitudes toward the death penalty have changed more rapidly than any other social issue other than gay marriage." Radelet testified that research has disclosed no evidence that the death penalty deters murder or affects overall murder rates. He also emphasized the prevalence and causes of the 156 wrongful capital convictions as a major problem with capital punishment. “Last year six people were released, most having served 25 years. In 2014, seven were released from death row as innocent. One had been in for 30 years," he said. "The number one cause of error is prejudicial prosecutorial testimony. Prosecutorial misconduct, false confessions, fraudulent forensics.”

Judge Orders Evidentiary Hearing On Constitutionality of Federal Death Penalty

U.S. District Court Judge Geoffrey Crawford has ordered an evidentiary hearing on Donald Fell's (pictured) challenge to the constitutionality of the federal death penalty. In court filings seeking to bar federal prosecutors from seeking death against him in a pending retrial, Fell has argued that the federal death penalty constitutes cruel and unusual punishment in violation of the Fifth and Eighth Amendments to the U.S. Constitution. Among other grounds, he has asserted that the death penalty no longer comports with contemporaneous U.S. values and that there are significant racial and geographic disparities in the manner in which the federal death penalty has been applied. Fell was sentenced to death in Vermont on federal murder charges, a sentence he could not have received in state court because Vermont does not have the death penalty. His conviction was overturned because of juror misconduct, and he is facing a retrial in 2017. In the order calling for a hearing, Judge Crawford wrote, "Preliminarily, and with an open mind about the arguments recently made by both sides, the court is looking at the constitutional challenge to the death penalty." He said that, despite efforts in the 1970s to remedy constitutional problems, "40 years later the question of a systemic violation of the Eighth Amendment remains."

The Difficulties in Selecting Impartial Jury for Boston Bombing Trial

According to a recent article in the New Yorker, it has been diffcult selecting a jury for the trial of Dzhokhar Tsarnaev, who is accused of the Boston Marathon bombing. Many of the 1,350 people who filled out a juror questionnaire have been eliminated from service based on their written answers. But even of those who remain, only a few have been found sufficiently impartial regarding Tsarnaev's guilt or innocence and on potential sentences, putting the selection process behind schedule. Eventually, 18 people - 12 jurors and 6 alternates - will be seated for the trial. Most of those questioned so far have said they believe Tsarnaev is guilty. The judge and lawyers must determine whether those people can set aside their opinions to fully consider the evidence presented at trial. One potential juror who was asked whether she could put aside her belief that the defendant is guilty, said, “I think it’s hard. Because if you have a belief in your head … it’s hard to set that aside. I can try to, but I can’t say that it wouldn’t influence my thinking. I don’t know that the brain works that way.” Because the death penalty is possible if Tsarnaev is found guilty, the jurors must also be willing to consider both capital punishment and life in prison. It is also difficult to arrive at an impartial jury because so many potential jurors have connections to the Boston Marathon or to people who were affected by the bombing.

Neuroscience Research Indicates Susceptibility to Influence in Younger Defendants

A growing body of research into adolescent brain development indicates that the brains of even those over the age of 18 continue to physically change in ways related to culpability for criminal offenses. The Supreme Court referred to such scientific evidence regarding those under the age of 18 when it struck down the death penalty for juveniles in 2005 (Roper v. Simmons) and when it recently limited life without parole sentences for juveniles. According to Laurence Steinberg (pictured), a professor of psychology at Temple University, the brain continues a process called myelination into a person's twenties. That process affects planning ahead, weighing risks and rewards, and making complex decisions. This research may yield mitigating evidence for younger defendants, including accused Boston marathon bomber Dzhokhar Tsarnaev. Steinberg's research shows that someone like Tsarnaev, who was 19 at the time of the bombing, may not have the same understanding of his actions as an older adult would. Young adults are particularly susceptible to the influence of peers. “What we know is that this is an age when people are hypersensitive to what other people think of them. It’s also an age when people are trying to figure out who they are, and one way is by identifying with a group. There probably are similarities between the dynamics here and dynamics of antisocial or delinquent gangs. Older, more powerful young adults persuading younger adolescents to do their bidding for them,” Steinberg said. 

VICTIMS: Boston Bombing Trial Could Cause More Trauma

In an op-ed in the Boston Herald, Michael Avery, professor emeritus at Suffolk University Law School, whose sister and niece were murdered 30 years ago, suggested that a plea bargain might be a better ourcome for all concerned in the case of Dzokhar Tsarnaev, the defendant in the Boston Marathon bombing. A trial, he said, would be painful for victims and survivors: "Boston will relive every tortu[r]ous moment of the bombing, over and over, probably for weeks...if Tsarnaev is convicted, we’ll have a second trial on the penalty. The defense lawyers will present evidence in mitigation of the death sentence. We’ll suffer through two Chechen wars, a Russian occupation, and a psychoanalysis of the defendant.” He reflected on his own experience when his sister’s killer was put on trial: "Although I’m a lawyer, I didn’t go, and I didn’t read the Florida papers reporting the evidence. I couldn’t have handled it. My heart goes out to the people who won’t be able to handle the Tsarnaev trial. They won’t be able to avoid the massive publicity.” He urged Attorney General Eric Holder to spare all of Boston further trauma by accepting a guilty plea and a sentence of life in prison. Read the full op-ed below.

NEW VOICES: Federal Judge Underscores the "Heavy Price" of the Death Penalty

In a recent interview, Judge Michael A. Ponsor, who presided over the first federal death penalty trial in Massachusetts in over 50 years, warned that the death penalty comes with a "heavy price" - the risk of executing innocent people: "A legal regime permitting capital punishment comes with a fairly heavy price....where there’s a death penalty innocent people will die. Sooner or later—we hope not too often—someone who didn’t commit the crime will be executed." In 2001, Judge Ponsor oversaw the capital trial of Kristen Gilbert, a nurse who was charged with killing some of her patients. Gilbert was ultimately found guilty and sentenced to life without parole. The judge said the trial made him question the whole process of death sentencing: "The most profound realization I took from Gilbert was that human beings getting together to decide whether someone should be executed, even when they are supervised by a judge, will make mistakes."

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