Delaware

Delaware

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.

Delaware Governor Announces Support for Death Penalty Repeal

Calling the death penalty "an instrument of imperfect justice," Governor Jack Markell (pictured) of Delaware announced on May 7 that he will sign the death penalty repeal bill under consideration in the state legislature if the bill reaches his desk.  The Delaware Senate passed repeal in April by a vote of 11-9. The House Judiciary Committee is expected to hold a hearing soon. Markell had not previously taken a stance on abolishing the death penalty. Upon announcing his decision, he said, "This is not an easy issue. My thinking has changed and I just wanted to give it very careful consideration." The Governor cited recent exonerations and flawed testimony in capital cases as reasons why he believes repeal should pass. "I know this is a really difficult issue for members of the General Assembly," the governor said. "I hope that after considering the arguments as I have, they will reach the same conclusion that I have."  Recent studies of Delaware's death penalty have revealed significant racial disparities in capital sentencing in the state.  More than three-quarters of Delaware's death-row inmates are black or Latino.  No state with more than one death-sentenced defendant has a higher percentage of racial minorities on its death row.

NEW VOICES: Warden Says Death Penalty Imposes "Immeasurable Burden" on Correctional Officers

Former prison warden, Frank Thompson, has urged repeal of Delaware's death penalty.  In an op-ed for The News Journal of Delaware, the former warden, who has personally overseen two executions, describes "the immeasurable burden that th[e execution] process places on correctional officers" and the trauma experienced by correctional officers who must carry out executions. Thompson says, "Many of us who have taken part in this process live with nightmares, especially those of us who have participated in executions that did not go smoothly. Correctional officers who carry out execution can suffer from post-traumatic stress, drug and alcohol addiction, and depression." He explains that capital punishment does nothing to "increase the safety of prison staff or inmates." "Every warden in America knows the established protocols that effectively keep prisons safe for corrections staff and inmates," he says. "These include programs to treat inmates with alcohol and drug dependency or mental illnesses, appropriate inmate-to-staff ratios for the proper supervision of prisoners, adequate activities and work programs, and effective classification systems that provide guidance on how to properly house and program inmates...I am not aware of and have not heard of a single prison administrator who would trade any of these programs or resources in order to keep the death penalty." Thompson concludes by calling on the Delaware legislature to "repeal its death penalty and lead the way on smarter crime prevention policy by reinvesting the millions of dollars that the state currently spends on capital punishment into programs that will actually improve public safety." Read the full op-ed below.

American Bar Association Calls for Unanimous Juries and Greater Transparency in Execution Process

On February 9, the House of Delegates of the American Bar Association unanimously passed two resolutions calling for unanimous juries in capital sentencing and greater transparency in lethal injection procedures. Resolution 108A stated: "Before a court can impose a sentence of death, a jury must unanimously recommend or vote to impose that sentence," and, "The jury in such cases must also unanimously agree on the existence of any fact that is a prerequisite for eligibility for the death penalty and on the specific aggravating factors that have each been proven beyond a reasonable doubt." Currently, some states, including Florida, Alabama, and Delaware, allow a jury to recommend a death sentence without unanimity. Resolution 108B called for all death penalty jurisdictions "to promulgate execution protocols in an open and transparent manner and require public review and comment prior to final adoption of any execution protocol, and require disclosure to the public by all relevant agencies of all relevant information regarding execution procedures." As lethal injection drug restrictions have caused states to seek out new sources of drugs, many states have adopted secrecy policies surrounding their lethal injection process. 

STUDIES: The Effects of Judge vs. Jury Sentencing

Judge
(Click left image to enlarge). A new study by researchers at Cornell University examined the effects of Delaware's decision to transfer capital sentencing authority from the jury to the judge at trial. The study used data from capital cases between 1977 and 2007, during which time Delaware made the shift to judge sentencing--one of very few states to employ that procedure. According to the study, "Judges were significantly more likely to give a defendant the death sentence than were juries." During the era when Delaware relied on juries for sentencing, about 20% of capital cases resulted in death sentences. In the era when it relied solely on judges, 53% of the cases were given death sentences. Today, the state has a hybrid model in which a jury must unanimously find the existence of at least one aggravating factor beyond a reasonable doubt to make a case death eligible. The jury then makes a sentencing recommendation to the judge, which is given appropriate consideration.

STUDIES: Murder of Female Victims More Likely to Result in Death Sentence

A recent study by researchers at Cornell Law School found that the gender of the murder victim may influence whether a defendant receives the death penalty. Using data from 1976 to 2007 in Delaware, the study found that in cases with female victims, 47.1% resulted in death sentences, while in those involving male victims, only 32.3% were sentenced to death. The researchers looked at a number of factors other than the victim's gender that might have affected sentencing decisions, including the heinousness of the crime, whether there was a sexual element to the murder, and the relationship between defendant and victim. The study found that some of the gender effect in sentencing could be explained by factors other than just the gender of the victim. Crimes involving sexual violence were more likely to result in a death sentence, as were crimes in which the victim and defendant knew one another, and victims of both of those types of crimes are more likely to be women.

NEW RESOURCES: Latest "Death Row, USA" Now Available

The latest edition of the NAACP Legal Defense Fund's Death Row, USA shows the total death row population continuing to decline in size. The U.S. death-row population decreased from 3,108 on April 1, 2013, to 3,095 on July 1, 2013. The new total represented a 12% decrease from 10 years earlier, when the death row population was 3,517. The states with the largest death rows were California (733), Florida (412), Texas (292), Pennsylvania (197), and Alabama (197). In the past 10 years, the size of Texas's death row has shrunk 36%; Pennsylvania's death row has declined 18%; on the other hand, California's death row has increased 17% in that time. The report also contains racial breakdowns on death row. The states with the highest percentage of minorities on death row were Delaware (78%) and Texas (71%), among those states with at least 10 inmates. The total death row population was 43% white, 42% black, 13% Latino, and 2% other races.

Sotomayor Critiques Alabama Sentencing in Supreme Court Dissent

The U.S. Supreme Court declined to hear an appeal from Alabama death row inmate Mario Woodward, who was sentenced to death in 2008 despite a jury's 8-4 recommendation for a life sentence. Alabama is one of only three states that allow a judge to override a jury's sentencing recommendation for life to impose a death sentence; Florida and Delaware also allow the practice, but death sentences by judicial override are very rare in those states. Justice Sonia Sotomayor voted to hear the case, saying the Court should reconsider Alabama's death sentencing procedure. In an opinion joined in part by Justice Stephen Breyer, Sotomayor said 26 of the 27 cases since 2000 in which judges imposed death sentences over a jury's recommendation for life came from Alabama, including some in which the vote for life was unanimous. She speculated that Alabama's elected judges may face political pressures to appear harsh in their use of the death penalty that unelected judges in other states do not face. “What could explain Alabama judges' distinctive proclivity for imposing death sentences in cases where a jury has already rejected that penalty?," she wrote. "The only answer that is supported by empirical evidence is one that, in my view, casts a cloud of illegitimacy over the criminal justice system: Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures." She cited instances in which judges used their death sentences as part of their electoral campaigns.

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