Representation

U.S. Supreme Court Grants New Trial to Louisiana Death Row Inmate

The U.S. Supreme Court issued a per curiam decision on March 7 granting a new trial to Louisiana death row inmate Michael Wearry as a result of multiple acts of misconduct by prosecutors in his case. No physical evidence linked Wearry to the murder. His conviction was based largely on the testimony of an informant, Sam Scott, who came forward two years after the crime with an account that did not match the details of the crime. Scott altered his story over the course of four different statements, and the testimony he gave in court barely resembled his original statement. Undisclosed police records later revealed that another inmate had heard Scott say he wanted to "make sure [Wearry] gets the needle cause he jacked over me." A second witness against Wearry was offered a reduced sentence for an unrelated conviction, but prosecutors falsely told the jury that he had "no deal on the table” and was testifying because the victim’s "family deserves to know” what happened. Wearry presented three alibi witnesses - his girlfriend, his sister, and his aunt - who corroborated his story that he had been at a wedding 40 miles away when the crime occurred, but his attorney failed to further investigate the alibi or call as witnesses any of the wedding guests who did not have close relationships with Wearry. The Court wrote, "Beyond doubt, the newly revealed evidence suffices to undermine confidence in Wearry’s conviction. The State’s trial evidence resembles a house of cards, built on the jury crediting Scott’s account rather than Wearry’s alibi." Justices Alito and Thomas dissented, saying the case should not have been decided without a full hearing. Louisiana police and prosecutors have been found to have engaged in misconduct in numerous death penalty cases, including those of all ten of its death-row exonerees: Johnny Ross, Curtis KylesShareef CousinMichael GrahamAlbert Burrell, John Thompson, Dan BrightRyan Matthews, Damon Thibodeaux, and Glenn Ford.

Supreme Court Petition Alleges Second Conflict of Interest by Same Lawyers Accused of Abandoning Executed Texas Prisoner

 Lawyers for Texas death row prisoner Robert L. Roberson III have filed a petition asking the United States Supreme Court to review whether Seth Kretzer and James W. Volberding - the same appointed lawyers who were accused of abandoning Raphael Holiday, whom Texas executed in November - had a conflict of interest that interfered with Mr. Roberson's right to an independent legal advocate in his federal habeas corpus proceedings challenging his conviction and death sentence. In his petition, Roberson argues that his trial lawyer failed to investigate and present important mitigating evidence in the penalty phase of his case and that Kretzer and Volberding have a conflict of interest that prevented them from properly litigating that claim. Volberding represented Roberson in his state post-conviction appeals and failed to present any claim or evidence relating to counsel's penalty-phase investigative failures. He was then appointed to represent Roberson in federal court, but his prior failure to have challenged trial counsel's penalty-phase performance forfeited that claim unless Roberson could show that Volberding had unreasonably failed to raise the claim in state court. Kretzer was appointed as "supplemental counsel" to review Volberding's performance and failed to challenge Volberding's conduct. However, unkown to Roberson, Kretzer and Volbering had a close professional association, having been jointly appointed as paid co-counsel in a number of capital habeas cases. When Roberson learned of their association, he asked for new "supplemental counsel," which Kretzer and Volberding opposed. Charles Herring, Jr., an ethics expert and author of a treatise on Texas legal ethics and malpractice, and Lawrence J. Fox, former chairman of the ABA Standing Committee on Ethics and Professional Responsibility, say in affidavits supporting Roberson's petition that Volberding and Kretzer have conflicts of interest that should prevent them from representing Roberson. The Court is expected to decide in early December whether to hear Roberson's case. Kretzer and Volberding have written to the Court requesting that it dismiss the petition and permit them to file their own petition raising other issues.

Texas Inmate Faces Execution After Appeals Lawyers Abandon His Case

Raphael Holiday (pictured) is scheduled to be executed in Texas on November 18 after appeals lawyers who were appointed to his case unilaterally decided not to seek clemency or pursue additional appeals and then opposed Holiday's efforts to replace them with lawyers who would. James "Wes" Volberding and Seth Kretzer say that they were unable to find new evidence on which to base any appeal and that seeking clemency from Texas Gov. Greg Abbott would give Holiday "false hope" and is pointless. When another attorney, Gretchen Sween, stepped in to help Holiday find new counsel, his current attorneys opposed her efforts to replace them. They then filed a clemency petition prepared so hastily that it twice gives the wrong execution date. The lawyers say they were exercising professional discretion in abandoning efforts to spare Holiday's life, but death penalty experts assert that counsel are required to pursue all available avenues to stop a client's execution. Stephen Bright, a Yale law professor and president of the Southern Center for Human Rights, said that in decades of practice in capital cases he has never seen appointed lawyers fight so vigorously to prevent their client from retaining new counsel. "This seems unconscionable," he said. "Lawyers are often in a position of representing people for whom the legal issues are not particularly strong, but nevertheless they have a duty to make every legal argument they can." Jim Marcus, a University of Texas law professor and veteran death penalty lawyer, agreed that Holiday's attorneys are legally required to continue pursuing appeals: "There’s a difference between saying that’s not a viable strategy or viable claim and abandoning an entire proceeding altogether. The latter is not really permissible ...."

U.S. on Track for Fewest Executions, New Death Sentences in a Generation

Both executions and new death sentences in the United States are on pace for significant declines to their lowest levels in a generation, Reuters reports. With 25 executions conducted so far this year, and only two more scheduled, the United States could have its lowest number of executions since 1991, significantly below the peak of 98 executions in 1999. Only 8 states have carried out executions in the last two years, down from a high of 20, also in 1999. New death sentences, which peaked at 315 in 1996, declined to 73 last year, and that number is expected to drop even further this year. The slowdowns in executions and new death sentences are just two of several indicators that the U.S. is moving away from capital punishment. Reuters reports that these changes come from a combination of factors, including the high cost of death penalty cases, the recent problems surrounding lethal injection, and improved capital representation in high-use states. Texas and Virginia, two of the death penalty states that historically have been the most aggressive in carrying out executions, stand out as examples of the punishment's declining use. Both states have implemented major reforms in indigent defense in recent years, producing dramatic changes in the death penalty landscape. In Texas, which had 48 death sentences in 1999, juries have handed down only three death sentences so far this year. Virginia, which has executed the highest percentage of death row inmates of any state, is on track to have no death sentences for the fourth consecutive year.

Deadliest Prosecutors, Worst Defense Lawyers Linked to High Rates of Death Sentences in Heavy-Use Counties

Prisoners sentenced to death in the small number of U.S. counties that most aggressively pursue the death penalty often suffer the "double whammy" of getting "both the deadliest prosecutors in America and some of the country’s worst capital defense lawyers," according to an article in Slate by Robert L. Smith. In reviewing the the unusally high numbers of death verdicts from 3 counties that are near the top of the nation in disproportionately producing death sentences over the last 5 years, Smith found not only high rates of seeking death but a pattern of inadequate capital defense representation. In Maricopa County, Arizona, the nation's second highest producer of death sentences since 2010, two capital trial lawyers had, between them, represented 10 clients who were sentenced to death. Serious concerns about the quality of representation were also present in the two counties with the nation's highest level of death sentences per capita since 2010, Duval County, Florida, and Caddo Parish, Louisiana. 75% of defendants sentenced to death in Caddo Parish since 2005 were represented at trial by lawyers who would be found unqualified to try capital cases under capital defense standards recently put in place in the state. One Caddo Parish lawyer, Daryl Gold, was trial counsel for nearly 20% of the people sent to death row in Louisiana from 2005 to 2014. He has been suspended from practicing law three times and received 14 private reprimands, and was permitted to continue representing poor defendants in capital cases even though he was barred from taking on private clients. In Duval County, a newly elected public defender fired respected senior capital litigators and installed as deputy chief and head of homicide defense a lawyer, Refik Eler, who has at least 8 former clients on death row - the most of any lawyer in Florida. Eler has already been found ineffective by the Florida Supreme Court in three capital cases for failing to investigate both guilt and penalty issues. 

Pennsylvania Death-Row Prisoners Disproportionately Represented at Trial by Attorneys with Disciplinary Problems

15.1% of capital defendants sentenced to death in Pennsylvania since 1980 were represented at trial by a lawyer who has been disciplined for professional misconduct, and that has risen to 18.2% in the past decade, according to an investigative report by The Reading Eagle. These rates of discipline were between 5 and 6 times higher than the 3% disciplinary rate for Pennsylvania lawyers as a whole over the past 30 years. The disciplinary issues have disproportionately affected minority defendants: 83% of the death-row prisoners who had been represented by lawyers with disciplinary violations were black or Latino. The Eagle's review of more than 300 capital cases also revealed that two thirds of the disciplined lawyers had been found to have provided ineffective representation in at least one case in which their clients had been sentenced to death. Ineffectiveness accounts for nearly 60% of capital case reversals in Pennsylvania and is the most common reason a conviction or death sentence is overturned. In 2004, Pennsylvania created Rule 801, which established minimum experience requirements for attorneys in capital cases. However, the rule contains no quality controls, does not mandate any performance evaluations, and does not set any baseline for attorney compensation. Marc Bookman, director of the Atlantic Center for Capital Representation, said low pay for appointed capital attorneys is part of the problem. "Only the worst lawyers would consider taking these cases on a regular basis because you can't make a living doing it," he said. Pennsylvania is not alone in its high rates of misconduct for lawyers appointed to capital trials. In Texas, one in four death row inmates had been represented by attorneys who were disciplined for misconduct, and in Washington, the same was true of one in five. 

STUDIES: Explaining Virginia's Disappearing Death Penalty

A new study by University of Virginia law professor Brandon Garrett (pictured) shows a dramatic decline in the death penalty in Virginia over the last decade. Virginia has carried out the third highest number of executions since the 1970s and historically has executed a higher percentage of its death-row prisoners than any other state. However, Garrett said there are now fewer than two capital sentencing trials per year and Virginia juries have not imposed any new death sentences since 2011. Reviewing Virginia capital proceedings from 2005 to 2014, Garrett found that "[a]lmost all capital cases are now plea bargained," with only 21 proceeding to a capital sentencing hearing. Juries imposed life sentences in more than half of those cases. Garrett found troubling trends in the evidence used in capital cases, which relied frequently on forms of evidence that have been found to be unreliable or susceptible to abuse, such as unrecorded confessions to police, informant testitmony, or eyewitness identifications. He also found significant geographic disparities in death penalty verdicts. “The ‘new’ Virginia death penalty is almost never imposed and when it is, a death sentence is so freakish that it raises the constitutional concerns with arbitrariness under the Eighth Amendment that U.S. Supreme Court justices have long expressed,” Garrett said. “Virginia may be a bellwether for the future of the American death penalty.” The study also compared sentencing proceedings in the past decade with 20 capital trials from 1996 to 2004 to try to explain the drop in death sentences. Garrett concluded that improved representation - both leading to pleas and in performance at trial - was the primary factor in the decline.   

Former Judge: Pennsylvania Moratorium is "Appropriate" and "Reasonable"

Robert Cindrich, a former U.S. District Judge and U.S. Attorney for the Western District of Pennsylvania, recently wrote an op-ed for the Harrisburg Patriot-News calling Governor Tom Wolf's moratorium on executions in Pennsylvania "appropriate" and "reasonable." Expressing concerns about "multiple, serious problems with the death penalty" in Pennsylvania, Judge Cindrich says Governor Wolf "was absolutely correct" that no executions should take place until the Pennsylvania Advisory Committee and Task Force on Capital Punishment completes its study of the state's death penalty and makes recommendations for reform. In particular, Cindrich is "highly concerned about the fairness of [Pennsylvania's] capital punishment system." He points to "the reversals of most death sentences, the poor compensation of public defenders in capital cases, and the racial bias in Pennsylvania's imposition of death sentences" as areas all "in dire need of improvement." More than half of the 400 death sentences imposed in Pennsylvania have been reversed "due to serious flaws or misconduct at trial," he says, which indicates "that far too many individuals received unfair and unwarranted sentences of death."

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