Innocence

Death Row Exonerees Speak Out on State Death Penalty Ballot Questions

As voters get set to cast ballots on death penalty questions in California, Nebraska, and Oklahoma, U.S. death row exonerees from across the country have been scouring those states in an effort to inform the public of the risks of wrongful executions. On September 19, 17 of the nation's 156 death-row exonerees appeared at a California press conference advocating approval of Proposition 62, which would replace the death penalty with life without parole plus restitution, and defeat of Proposition 66, which seeks to place limits on the capital appeals process. Many, including California exoneree Shujaa Graham (pictured), Florida exoneree Juan Melendez, Arizona exonerees Ray Krone and Debra Milke, and Louisiana exoneree Damon Thibodeaux urged a no vote on Prop. 66, arguing that they would have been executed without the chance to prove their innocence if a measure like it had been effect when they were sentenced to death. A few days earlier, Illinois exoneree Randy Steidl and Ohio exoneree Kwame Ajamu spoke to the Oklahoma Republican Liberty Caucus, a group described by its chairman, Logan County Commissioner Marven Goodman, as "disenfranchised conservatives" who, as a result of their distrust of government regulation are questioning the death penalty. Steidl and Ajamu told the caucus about their wrongful capital convictions and raised concerns about the effects of limitations on judicial review under Oklahoma ballot question 776, which would bar Oklahoma courts from ruling that the imposition of the death penalty constituted cruel or unusual punishment or "contravene[d] any provision of the Oklahoma Constitution." Steidl, who was wrongfully convicted in Illinois in 1987 and exonerated in 2004, stressed the importance of appellate review in securing his exoneration: "Without the judicial review I finally got, I’d be dead today or at least be languishing in prison," he said. "I really believe that Oklahoma’s track record so far is not very pretty when you’ve got 10 people that’s been exonerated." And in Nebraska, Maryland's Kirk Bloodsworth, the first former death row prisoner to be exonerated by DNA, taped an ad on behalf of Retain A Just Nebraska, the advocacy committee opposing a voter referendum that could overturn the state legislature's repeal of Nebraska's death penalty. In the ad, Bloodsworth says: "You could free a man from prison, but you cannot free him from the grave. You can not un-execute someone. ... If it can happen to an honorably discharged marine with no criminal record or criminal history, it could happen to anybody in America.”

OUTLIER COUNTIES: Legacy of Racism Persists in Caddo Parish, Which Had Nation's Second-Highest Number of Lynchings

The death-sentencing rate per homicide in Caddo Parish, Louisiana was nearly 8 times greater between 2006 and 2015 than the rest of the state, making a parish with only 5% of Louisiana's population responsible for 38% of the death sentences imposed statewide. Caddo currently has more people on death row than any other parish in the state. Known as "Bloody Caddo," the parish had the second highest number of lynchings of any county in the nation. The Confederate flag flew in front of the steps to the courthouse until 2011 (pictured), where a monument to the Confederacy still stands. Inside that courthouse, 80% of defendants sentenced to death between 2010 and 2015 were Black, and no White person has ever been executed for killing a Black person in Caddo Parish. Caddo received national attention in 2015 when Acting District Attorney Dale Cox said he believed the state needed to "kill more people." Cox was personally responsible for one-third of the death sentences in Louisiana from 2010 to 2015. His controversial statements were in response to questions about the exoneration of Glenn Ford, a Black man convicted by an all-White jury, who spent 30 years on death row for a crime he did not commit. Ford's case illustrated many of the factors that have contributed to the overproduction of death sentences in Caddo Parish: racial bias in jury selection and the application of death sentences, inadequate representation, and official misconduct. A 2015 study by Reprieve Australia found that prosecutors used peremptory strikes against 46% of Black jurors, but only 15% of other jurors. One Black prospective juror was removed from a jury pool in 2009 for objecting to the presence of the Confederate flag in front of the courthouse. Like Ford, who was represented by two appointed attorneys who had never represented a criminal defendant at trial, most Caddo Parish defendants have not received adequate representation. In the last decade, 75% of people sentenced to death in Caddo Parish were represented by at least one lawyer who does not meet recently-imposed standards for capital attorneys. Official misconduct, like the false police testimony in Ford's trial, has also contributed to the high number of death sentences in Caddo. In 2014, Dale Cox wrote a memo regarding the capital trial of Rodricus Crawford in which he stated that Crawford, "deserves as much physical suffering as it is humanly possible to endure before he dies." Crawford was convicted and sentenced to death for allegedly killing his infant son, despite medical evidence that the child actually died of pneumonia. Caddo prosecutors have a history of seeking death against the most vulnerable Black defendants: Lamondre Tucker and Laderrick Campbell were 18 years old at the time of their offenses and both had IQs in the intellectually disabled range; Corey Williams, who was 16 and removed from death row after being found to be intellectually disabled, is still serving a life sentence despite powerful evidence that his confession was coerced and that others committed the offense for which he was condemned. In November 2015, Caddo Parish elected its first Black District Attorney, James E. Stewart, Sr., who pledged, "to bring professionalism and ethics back to the district attorney’s office." 

Wrongful Capital Convictions May Be More Likely in Cases of Judicial Override, Non-Unanimous Death Verdicts

New data suggests that states that capital sentencing statutes that permit judges to impose death sentences by overriding jury recommendations for life or after juries have returned non-unanimous recommendations for death may increase the risk of wrongful executions. In an article in the Yale Law Journal Forum, lawyers Patrick Mulvaney and Katherine Chamblee of the Southern Center for Human Rights report that in Alabama, the only state that still permits judges to override a jury's recommendation for life, override cases account for less than a quarter of death sentences but half of death row exonerations. They say that this may be a result of "residual doubt" among jurors, which they describe as “a state of mind that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty,’” often resulting from weaker or more suspect evidence of guilt. Research has shown that when juror have such doubts, they are substantially more likely to vote for a life, as did jurors in the cases of Alabama death row exonerees Larry Randal Padgett (9-3 jury vote for life) and Daniel Wade Moore (pictured, left, 8-4 vote for life) and current death row prisoner Shonelle Jackson (unanimous jury life recommendation). Non-unanimous jury recommendations for death also appear to pose similar problems. Of Alabama's six death row exonerations, 83% involved either judicial override (3 cases) or non-unanimous jury votes for death (2 cases, including Anthony Ray Hinton, pictured, right). Data from Florida reveals a similar pattern: of the 20 death row exonerations for which information on the jury vote is available, 90% involved a non-unanimous recommendation for death, including three judicial overrides of jury recommendations for life. In 1984, U.S. Supreme Court Justice John Paul Stevens raised concerns about judicial override and wrongful convictions that are now supported by data: “It may well be that the jury was sufficiently convinced of petitioner’s guilt to convict him, but nevertheless also sufficiently troubled by the possibility that an irrevocable mistake might be made . . . that [it] concluded that a sentence of death could not be morally justified in this case.” Statutes permitting judicial override or non-unanimous jury recommendations for death have been under increased scrutiny since the U.S. Supreme Court's decision in Hurst v. Florida in January 2016. Hurst struck down Florida's sentencing statute saying, "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." Florida's legislature responded by ending judicial override and requiring juries to unanimously find aggravating circumstances in capital cases, though they may still make non-unanimous sentencing recommendations. The Delaware Supreme Court struck down its sentencing statute in light of Hurst in August 2016, leaving Florida and Alabama as the only states that still permit non-unanimous jury receommendations of death.  

Mississippi Attorney General Tries to Remove Defense Lawyers Who Challenged Suspect Bitemark Evidence

Attorneys for Mississippi death row prisoner Eddie Lee Howard (pictured) are seeking to prove his innocence and challenging the questionable expert bite mark testimony that persuaded jurors to convict him and sentence him to death in 1992. As part of the attack on that evidence, Howard's lawyers recently deposed Michael West, the discredited forensic odontologist who testified against Howard and many other defendants in the 1990s, primarily in Mississippi and Louisiana. A two-part story by Washington Post columnist Radley Balko recounts the combative deposition in which defense lawyers systematically picked apart the credibility of West's testimony in Howard's case, and the apparent retaliatory efforts by the office of Mississippi's attorney general to remove the lawyers from the case after they asked that charges against Howard be dropped. West, who was belligerent, openly contemptuous, and profane during the deposition, was popular as a prosecution expert witness because he purported to be able to match marks to a single individual, excluding all other possible suspects through an idiosyncratic technique that, he said, he alone was capable of using and could reveal bite marks that other experts couldn't find. In the mid-1990s, Newsweek and 60 Minutes profiled West and raised questions about the veracity of his techniques. He was later expelled from three professional organizations, and several people he testified against have later been proven innocent, including Kennedy Brewer, who was exonerated in 2008 after DNA evidence implicated another suspect, who then confessed to the crime. Bitemark claims such as those made by West were the subject of stinging criticism in a 2009 report of the National Academies of Science, Strengthening Forensic Science in the United States: A Path Forward. The report criticized the field of forensic odontology as lacking any "evidence of an existing scientific basis for identifying an individual to the exclusion of all others" and "lack[ing] valid evidence to support many of the assumptions made by forensic dentists during bite mark comparisons.”

OUTLIER COUNTIES: Maricopa, Arizona—"Outrageously Exploited Power," "Crippled" Defense, and Five Exonerations

Maricopa County, Arizona imposed 28 death sentences between 2010 and 2015 and, as described in a BuzzFeed news analysis of a new report on outlier death penalty practices, "stands out for its stark examples of the problems found across the counties that most often sentence people to death." The report, Too Broken to Fix, by Harvard University's Fair Punishment Project, studied the nation's 16 most prolific death-sentencing counties and found that Maricopa County exhibited systemic problems with extreme prosecutorial misconduct, deficient defense representation, racial bias, excessive punishment, and innocence. The county's top prosecutor, Andrew Thomas, pursued capital charges at nearly double the rate of his predecesssor after winning election in 2004. His pattern of gross misconduct led a three-member panel of the Arizona Supreme Court to disbar him in 2012 for having "outrageously exploited power, flagrantly fostered fear, and disgracefully misused the law.” Three Maricopa prosecutors who served under Thomas accounted for more than one-third of all capital cases the Arizona Supreme Court has been called upon to review on direct appeal since 2006, "amass[ing] findings of improper behavior in eight [cases]." The excessive number of capital prosecutions in Thomas' tenure created a "capital case crisis" that "crippled the county's public defender system" and left a dozen murder defendants without lawyers. Four lawyers who were appointed accounted for nearly a quarter of all Arizona death cases that have reached the state supreme court since 2006. One Marciopa defense attorney, Herman Alcantar, represented five pretrial capital defendants at once, making it almost impossible for him to adequately represent his clients. In one of those cases, a month before trial, he had not filed any substantive motions or met with his client in over a year. Nathanial Carr represented four people now on death row, and spent less than two days presenting mitigation for each one. He wrote that one client, who had an IQ of 72, "looks like a killer, not a retard." In the six years covered by the Fair Punishment Project's report on outlier counties, 57% of Maricopa's death sentences were imposed on people of color. In that same period, no people of color were sentenced to death anywhere else in Arizona. Five Maricopa County death row inmates have been exonerated. Ray Krone (pictured) was convicted on junk science testimony after a prosecutor falsely claimed, "bite marks are as unique as fingerprints." He was later exonerated by DNA testing. Debra Milke spent 22 years on death row before her case was reversed and the state courts barred the prosecution from retrying her because of extensive official misconduct. An appellate court called her case, "a severe stain on the Arizona justice system."

Pennsylvania Death Row Inmate Granted New Trial on Innocence-Related Claims; Capitally-Charged Inmate Exonerated

Two Philadelphia, Pennsylvania capital cases involving men who have long asserted their innocence reached major milestones on August 23, with one winning an appeal granting him a new trial and a jury acquitting a second in his retrial. Both cases involved allegations of serious police and prosecutorial misconduct. James Dennis (pictured), who has been on the Commonwealth's death row for nearly 25 years, was granted a new trial by the U.S. Court of Appeals for the Third Circuit after prosecutors withheld evidence that supported his claims of innocence. Anthony Wright, who was capitally tried but received a sentence of life without parole when the jury split 7 for death, 5 for life on the penalty verdict, was exonerated after 25 years. Dennis was convicted and sentenced to death for the 1991 murder of a 17-year-old in Philadelphia. The full federal appeals court voted 9-4 on Tuesday to uphold a district court ruling granting Dennis a new trial, reversing an earlier decision by a three-judge appellate panel. Writing for the majority, Judge Marjorie O. Rendell said, "Evidence suppressed by the prosecution—a receipt corroborating Dennis' alibi, an inconsistent statement by the Commonwealth's key eyewitness, and documents indicating that another individual committed the murder—effectively gutted the Commonwealth's case against Dennis. The withholding of these pieces of evidence denied Dennis a fair trial in state court." On the same day, a jury acquitted Anthony Wright in a retrial for another 1991 Philadelphia murder. Prosecutors had initially sought the death penalty when Wright was convicted in1993, but did not pursue the death penalty after agreeing that DNA evidence entitled Wright to a new trial. DNA testing of semen found at the crime scene excluded Wright and identified another perpetrator who recently died in prison in South Carolina. Wright's attorneys say police pressured him into signing a confession and falsely claimed that a set of bloody clothes they reportedly "found" in Wright's bedroom in his mother's house belonged to Wright, when in fact they belonged to the victim and contained DNA from the actual killer. Peter Neufeld, co-director of the Innocence Project, said "DNA testing proved not only that Mr. Wright is absolutely innocent but also that law enforcement fabricated evidence against him." Grace Greco, the jury forewoman for Wright's retrial, said, "I'm angry. The evidence was there that he did not commit this crime. The city should never have brought this case. I'm just happy that today's verdict will let Tony move on with the rest of his life."

EDITORIAL: San Jose Mercury News Endorses Death Penalty Repeal, Says Competing Measure Would Magnify Inequity

Weighing in on California's competing death penalty ballot initiatives, the San Jose Mercury News editorial board urged voters to support repeal of capital punishment and reject a proposal to speed up executions. The editorial called California's death penalty system, "a failure on every level," noting that the state has spent $4 billion to carry out just 13 executions and the $150 million annual savings the independent Legislative Analysts Office says death penalty abolition would achieve could be better spent "on education, on rehabilitating young offenders or on catching more murderers, rapists and other violent criminals." The editorial also addresses the misperception that the death penalty deters crime: "District attorneys throughout the state argue that the death penalty is a tool to condemn society's most vicious criminals. But this claim flies in the face of actual evidence: For every year between 2008-2013, the average homicide rate of states without the death penalty was significantly lower than those with capital punishment." After describing the racially- and geographically-biased application of the death penalty in California, the editorial argues that Proposition 66, which proposes to speed up executions, "would actually magnify the inequity and sometimes outright injustice in the death penalty's application" by reducing the opportunities to catch mistakes. "In the United States, for every 10 prisoners who have been executed since the death penalty was reinstated in 1976, one person on death row has been set free." Speeding up executions, the editorial says, "is the opposite of what nations concerned with actual justice would do."

Bo Cochran, Acquitted in 1997 After 19 Years on Alabama's Death Row, Dies at 73

James Willie "Bo" Cochran, who spent 19 years on Alabama's death row for a killing he did not commit, has died at age 73. His lawyer, Richard Jaffe, said that Mr. Cochran and his case "are reasons why the death penalty does not work. He did not kill anyone, was wrongfully convicted and found innocent because he had lawyers that took up his cause."  Mr. Cochran, who is black, was found guilty and sentenced to death for the murder of a white grocery store clerk. His jury, which was composed of 11 white and one black jurors, had been told that the victim had followed Cochran out of the store after a robbery and that, after police had arrived on the scene, Cochran shot the clerk, leaving his body under a trailer in a nearby mobile home. There were no eyewitnesses to the actual murder. Cochran was arrested nearby with a gun that had not been fired. Cochran won a new trial after proving that prosecutors unconstitutionally removed black jurors from his case on the basis of race. He presented testimony from former prosecutors that the DA's office had a pattern of striking black jurors, had a philosophy that prospective black jurors "were anti-police, anti-establishment and should not be left on juries, if at all possible,” and that race was a factor in these strikes, "particularly where you had a white victim and a black defendant․" On retrial, Cochran was acquitted after presenting evidence that the victim had been accidentally shot by two officers responding to the robbery, who then panicked and moved the body under the trailer, where it was discovered by other officers. After Cochran's acquittal, he and Jaffe made frequent appearances to talk about the case. Jaffe described Cochran as "never bitter, always grateful." He called Cochran's life "a story of redemption and forgiveness," exemplifying the lesson that "We can be forgiving, no matter what happens to us. He truly touched a lot of lives. We loved Bo. He'll be missed." 

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