EDITORIALS: "America’s Retreat From the Death Penalty"

Following the themes of DPIC's recent 2012 Year End Report, the lead editorial for Jan. 2 in the New York Times concluded that "capital punishment is cruel and unusual" as judged by the country's "evolving standards" of decency and "should be abolished" by the Supreme Court. The Times’s editorial noted the fewer number of states carrying out executions, the lack of any meaningful rationale, the arbitrariness of its application, and the risk of executing the innocent as major problems with the current death penalty. The editors said the primary purposes for imposing capital punishment--deterrence and retribution--"have been seriously undermined by a growing group of judges, prosecutors, scholars and others involved in criminal justice, conservatives and liberals alike." Read the full editorial below.

POSSIBLE INNOCENCE: Federal Judge Orders Virginia To Free Death Row Inmate

On December 26, U.S. District Court Judge Raymond Jackson ordered Virginia to unconditionally free death row inmate Justin Wolfe within 10 days and barred the state from using its key witness in any retrial of Wolfe. Wolfe was convicted of conspiracy in the murder of Daniel Petrole, a fellow drug dealer in northern Virginia. His conviction was based primarily on the testimony of the actual shooter, Owen Barber, who claimed that Wolfe hired him to kill Petrole because of an outstanding debt. In 2010, Barber testified in open court, subject to cross-examination, that his testimony at Wolfe's trial was false, and that Wolfe had nothing to do with Petrole's death. Barber has also admitted that he agreed to implicate Wolfe in order to avoid the death penalty. Judge Jackson held that Virginia had failed to comply with his earlier order to either free Wolfe or retry him within 120 days. He called the state's case a "bungled prosecution," and concluded that the state's withholding of key evidence about Barber from the defense precluded any retrial of Wolfe using Barber's testimony in any form. Barber, who remains in prison, has recently invoked his Fifth Amendment right to remain silent.

INNOCENCE: Florida Death Row Inmate Acquitted at Re-trial

On December 21, Seth Penalver was acquitted of all charges and will be freed from Florida's death row, 13 years after being sentenced to death. He was originally charged with a triple murder and armed robbery that occurred in Broward County in 1994.  His first trial ended with a deadlocked jury.  At his second trial in 1999, he was convicted and sentenced to death. In 2006, the Florida Supreme Court (Penalver v. Florida, No. SC00-1602, Feb. 2, 2006) overturned his conviction because the prosecution had introduced improper evidence at his trial. A co-defendant, Pablo Ibar, was also sentenced to death and remains on death row. A video from the crime scene helped convict Ibar, but images showing another suspect were inconclusive. Penalver has always maintained his innocence. At Penalver's most recent trial, which began 5 months ago, the jury was deadlocked 10-2, and both the prosecution and defense agreed to replace two jurors with alternates who had attended the proceedings. The newly constituted jury began deliberations afresh and found Penalver not guilty of all charges. Penalver is the 142nd person to be exonerated and freed from death row since 1973, and the 24th such person in Florida, the most of any state.

NEW VOICES: Former Texas District Attorneys Say Legislature Should "Seriously Reconsider the Death Penalty"

In a recent op-ed in the Houston Chronicle, former Texas District Attorneys Grant Jones and Sam Millsap (pictured) encouraged the state legislature to reconsider the death penalty. "Both of us have been involved in the execution of men who may well have been innocent," they said, mentioning three cases that "raise serious doubts about the wisdom of continuing the death penalty." Two of the cases, those of Carlos DeLuna and Ruben Cantu, involved possible eyewitness errors. In the third case, Cameron Willingham was executed for setting the house fire that killed his daughters, but new evidence suggests the fire was accidental. Jones and Millsap said Texas is part of a "nationwide trend away from the death penalty" and that "Texans are less willing to take the risk of executing people who are innocent. You see it when they sit on juries. Death sentences in Texas have dropped more than 75 percent since 2002 and remain near historic lows in 2012." They concluded that recent reforms "make the system more accurate, but no one argues that they will catch every mistake....The professionals who administer our justice system cannot guarantee that they will never be without fault." Read the entire op-ed below.

MULTIMEDIA: Peter Jackson's "West of Memphis"--A Compelling Story from Condemnation to Freedom

West of Memphis is a feature-length documentary by Academy-Award winner Peter Jackson, offering a penetrating look into the murder convictions and eventual freeing of the West Memphis Three. Jackson has called it his "most important film." Three teenagers, Damien Echols, Jason Baldwin, and Jessie Misskelley, were convicted of killing three young boys in West Memphis, Arkansas, in 1993. Echols was sentenced to death after a trial that painted the defendants as steeped in satanic rituals. Subsequent DNA evidence did not connect them to the crime scene. After almost two decades of steadfastly claiming their innocence, and the constant work of a large community of activists, celebrities such as Eddie Vedder and Natalie Maines of the Dixie Chicks, and their legal team, the defendants were released in 2011, accepting a guilty plea in which they maintained their innocence. “West of Memphis” will debut in select theaters on December 25.  View the trailer.

POSSIBLE INNOCENCE: Science Helps Texas Death Row Inmate Win New Trial

On December 5, the Texas Court of Criminal Appeals granted (5-3) Cathy Lynn Henderson a new trial based on recent scientific developments about the death of a baby who had been in her care. At one point, Henderson had been two days from execution. The appeals court accepted the factual findings of a district judge who ruled earlier this year that no reasonable juror would have convicted Henderson if presented with new scientific discoveries related to the death of Brandon Baugh. The appeals court stopped short of finding actual innocence, but granted Henderson a new trial. The prosecution’s star trial-witness, former medical examiner Roberto Bayardo, changed his initial diagnosis, explaining that advancements in the understanding of pediatric head injuries now indicate that relatively short falls onto a hard surface could produce injuries similar to those he discovered during the baby's 1994 autopsy. Henderson had claimed the baby died after slipping from her arms and falling onto a concrete floor.

RECENT LEGISLATIVE ACTIVITY: Bill Introduced in Texas Aims to Restrict Informant Testimony in Death Penalty Cases

Texas Representative Harold Dutton recently filed a bill that would prevent prosecutors in death penalty cases from using testimony from informants or from alleged accomplices of the defendant if the testimony was obtained in exchange for leniency, immunity or other special provisions. If passed, the bill would make Texas among the first states to ban such testimony. Alexandra Natapoff, a professor at Loyola of Los Angeles Law School, said, “The use of criminal informants is a massive source of error in our most serious cases…. Criminal informants have strong incentives to lie and very few disincentives to lie, because criminal informants are almost never punished.” Anthony Graves, the most recent death row inmate to be exonerated in Texas, was condemned primarily because of the testimony of an alleged accomplice, who later admitted to committing the crime alone.

Texas Releases Partial DNA Test Results in Hank Skinner Case

The Texas Attorney General's Office has released partial results of DNA testing long requested by attorneys for death row inmate Hank Skinner. Although the results are incomplete and reveal the presence of another unknown person, the state is claiming the tests confirm Skinner's involvement in the murder of his live-in girlfriend, Twila Busby, and her two adult sons in 1993. Skinner had been seeking additional DNA testing since 2000 even while execution dates had been scheduled, but his requests had been denied until the defense attorneys and the state finally reached an agreement in 2012. According to a statement from Skinner's attorney, Rob Owen, "We will remain unable to draw any strong conclusions about whether the DNA testing has resolved the stubborn questions about Hank Skinner’s guilt or innocence until additional DNA testing has been completed, and the data underlying that DNA testing has been made available to our experts for a detailed review," he said. A jacket found at the scene of the crime containing blood spattering was lost by the police and DNA testing could not be done on this piece of evidence.  DNA testing after conviction has contributed to 300 exonerations in the United States, including 18 from death row.  There have been 44 DNA exonerations in Texas alone.