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."

Why Missouri is an Outlier in Execution Trends

As national execution numbers drop to historic lows and a growing number of states halt executions or repeal the death penalty altogether, Missouri has recently increased the number of executions it is carrying out and overtaken Texas for the highest per-capita execution rate. Missouri and Texas have carried out all of the last 15 executions in the U.S. and 80% of executions through September 1 of this year. A report by The Marshall Project explores why Missouri is bucking national trends, highlighting the availability of execution drugs, Missouri's political climate, and the lack of adequate defense resources. While shortages of lethal injection drugs have slowed executions in many states, Missouri has managed to stockpile pentobarbitral for use in executions. Because of state secrecy laws, the source of the drug is unknown, and state officials will not confirm whether the drug is produced by a compounding pharmacy or obtained from another source, such as a veterinary supplier or overseas manufacturer. The governor and attorney general of Missouri have pushed to move executions forward, using the death penalty to establish "tough-on-crime" credentials as Democrats in a politically conservative state. Courts have also contributed to the unusual situation in Missouri. The state Supreme Court, which sets execution dates, scheduled one execution per month to make up for holds due to drug shortages. Finally, underfunding and heavy caseloads have created what defense attorneys are calling a "crisis" in capital representation. Missouri was ranked 49th of the 50 states in per-capita spending on indigent defense in 2009. In March, the American Bar Association Death Penalty Assessment Team told the Missouri Supreme Court, "The current pace of executions is preventing counsel for the condemned from performing competently. "

Delaware Prosecutor Suspended for Misconduct in Capital Trial

The Supreme Court of Delaware voted unanimously on July 27 to suspend former Deputy Attorney General R. David Favata as a result of his misconduct during a recent capital trial. With a single dissent as to the length of the suspension, the Court banned Favata from the practice of law for six months and one day for intentional misconduct during the capital trial of Isaiah McCoy. Earlier this year, the state Supreme Court overturned McCoy's conviction and death sentence and ordered a new trial because of Favata's misconduct. The court found that Favata had committed seven distinct ethical violations in McCoy's case, including vouching for the testimony of a key government witness, repeatedly belittling McCoy as he attempted to represent himself at trial, and lying to the judge about attempting to intimidate McCoy. At one point, Favata objected to defense questioning of the victim's girlfriend and during the objection told the jury that McCoy had "shot her boyfriend." During a break in the proceedings, Favata commented in front of McCoy about a mafia code of silence, and said he would put a detective back on the stand to tell everyone that McCoy was a snitch. After McCoy raised the matter with the court, Favata lied about making these comments, prompting a court officer to pass a note to the judge saying that McCoy was telling the truth. Favata also repeatedly disparaged McCoy's attempt to represent himself, saying "The trouble with dealing with somebody with a limited education and no legal education is he doesn't clearly understand what he's reading." The prosecutor also demeaned McCoy by telling him to "start acting lke a man" and criticizing his attire, saying "You can dress him up. He’s still a murderer.” The case was the second time since 2014 that Delaware courts granted a new trial for prosecutorial misconduct in a capital case. In May 2014, Jermaine Wright won a new trial after 21 years on death row when prosecutors and police withheld exculpatory evidence about possible alternate suspects in a case in which no forensic or eyewitness evidence linked Wright to the crime.

NEW VOICES: Kareem Abdul-Jabbar Urges Abolition of Death Penalty

In his column for TIME Magazine, basketball hall of famer, author, and filmmaker Kareem Abdul-Jabbar broadly explores the state of the death penalty In the United States and concludes that life without parole is the better option for American society. Stating that "[t]he primary purpose of the death penalty is to protect the innocent," Abdul-Jabar notes that there is a significant difference between the death penalty's goal in theory and its application in practice. "While it’s true that the death penalty may protect us from the few individuals it does execute," he says, "it does not come without a significant financial and social price tag that may put us all at an even greater risk." Abdul-Jabbar points to the death penalty's financial cost, the risk of executing the innocent, and racial and economic disparities in its application. Financially, he says, "[t]his isn’t a matter of morality versus dollars. It’s about the morality of saving the most lives with what we have to spend. Money instead could be going to trauma centers, hospital personnel, police, and firefighters, and education...The question every concerned taxpayer needs to ask is whether or not we should be spending hundreds of millions of dollars on executing prisoners when life without parole keeps the public just as safe but at a fraction of the cost." His column discusses the "high probability that we execute innocent people," citing the more than 140 people exonerated from death row and a recent study indicating that 4% of people sentenced to death may be innocent. Abdul-Jabbar also describes racial bias in capital sentencing, and the problem of inadequate representation, saying, "[t]his lack of fair application is why some opponents of the death penalty consider it unconstitutionally cruel and unusual punishment." He concludes, "we can’t let our passion for revenge override our communities’ best interest...With something as irrevocable as death, we can’t have one system of justice for the privileged few and another for the rest of the country. That, more than anything, diminishes the sanctity of human life."

Representation Improves, Death Sentences Dramatically Drop in Virginia

The number of people sentenced to death in Virginia has plummeted from 40 in the years 1998-2005 to only 6 from 2006 through April 2015. A recent study suggests that improvements in capital representation in the state may have played a significant role in that dramatic change. In 2004, Virginia established four regional capital defender offices, which are completely devoted to handling death penalty cases. The year before the defender offices opened, Virginia juries imposed 6 death sentences, but have not imposed more than 2 in any year since.  This mirrors the experience in other jurisdictions in which defendants have been represented by institutional capital defenders. In addition to better outcomes at trial, "[a] capable and vigorous defense no doubt accounts — at least in part — for the increased willingness of prosecutors to resolve capital cases short of death," University of Virginia law professor John G. Douglass said in his study.

BOOKS: "Examining Wrongful Convictions"

A new book, Examining Wrongful Convictions: Stepping Back, Moving Forward, explores the causes and related issues behind the many wrongful convictions in the U.S. Compiled and edited by four criminal justice professors from the State University of New York, the text draws from U.S. and international sources. Prof. Dan Simon of the University of Southern California said, ''This book offers the most comprehensive and insightful treatment of wrongful convictions to date," noting that it delves into topics such as the wars on drugs and crime, the culture of punitiveness, and racial animus, as they relate to mistakes in the justice system. The editors note that, "[The] essential premise of this book is that much of value can be learned by 'stepping back' from the traditional focus on the direct or immediate causes and consequences of wrongful convictions," with the hope of moving forward by "probing for the root causes of miscarriages of justice."

U.S. Supreme Court Grants Missouri Inmate New Attorneys for Federal Appeal

On January 20 the U.S. Supreme Court (7-2) granted Missouri death row inmate Mark Christeson new attorneys to assist him in pursuing his federal appeal. Christeson's appointed attorneys missed a crucial filing deadline for his federal appeal, not even meeting with him until a month after the deadline. New attorneys offered to represent Christeson, arguing that his current attorneys had a conflict of interest, since advocating for him would mean admitting their own error. The District Court and Court of Appeals both denied the request for substitution of counsel, and Christeson's execution date was set for Oct. 29, 2014. The Supreme Court granted a stay, and, in deciding the case, wrote, "[Christeson's original attorneys'] contentions here were directly and concededly contrary to their client's interest, and manifestly served their own professional and reputational interests." Fifteen former judges filed a brief in support of Christeson, saying, "[O]ur system would be broken indeed if it did not even provide him with an opportunity, assisted by conflict-free counsel, to present his case to a federal court."

Supreme Court Allows Defendant to Present All Grounds Showing Ineffective Counsel

On January 14, the U.S. Supreme Court (6-3) handed down a ruling in Jennings v. Stephens, a capital case from Texas dealing with ineffective assistance of counsel. The Court held that when a defendant wins relief in a lower federal court and the state appeals, the defendant may offer theories rejected by the lower court as part of his defense of the relief granted. He does not have to file a new appeal on that rejected theory. In his initial federal appeal (habeas corpus), Robert Jennings had presented three instances of ineffective assistance of counsel. The District Court granted him relief based on two of them, but rejected the third. The state appealed the decision to the U.S. Court of Appeals for the Fifth Circuit, and Jennings presented all three instances in his defense. The Fifth Circuit said it did not have jurisdiction to consider the third claim because Jennings' lawyers had not obtained a "certificate of appealability." Justice Scalia wrote the majority opinion. Jennings' case will be returned to the Fifth Circuit to consider his third claim of ineffectiveness.