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Texas Court Stays Execution of Man Convicted with Hypnotically Refreshed Testimony

The Texas Court of Criminal Appeals has granted a stay of execution to Charles Flores (pictured) to permit him to litigate a claim that prosecutors unconstitutionally convicted and sentenced him to death by using unreliable hypnotically refreshed testimony. Texas had scheduled Flores' execution for June 2. Flores, who is Latino, was convicted in 1999 of murdering a 64-year-old white woman in suburban Dallas, and was sentenced to death. Prosecutors presented no physical evidence linking Flores to the murder, and the sole witness who claimed to have seen him at the scene was hypnotized by police before identifying him. She initially told police she had seen two men in a car outside of the victim's home, identifying the driver, Richard Childs, in a police lineup and describing the passenger as a white man with shoulder-length dark hair. However, when she appeared in court 13 months later after having seen photographs of Flores in news reports about the murder, she told prosecutors that she now recognized Flores as the second man. According to an affidavit Flores submitted from psychology professor Steven Lynn, research has linked "hypnotic refreshment" with the creation of false memories. “Clearly, the techniques that were used to refresh [the witness's] memory would be eschewed today by anyone at all familiar with the extant research on hypnosis and memory,” Lynn wrote. The Flores conviction and death sentence are also tainted with issues of race. Police charged both Childs and Flores with the murder. Childs, who is white, confessed to shooting the victim, pled guilty, and was sentenced to a term of 35 years with parole eligibility after 17 years. He was released on parole in April 2016. Flores, though admitting his involvement in the drug trade, professed his innocence of the murder and was tried and convicted. After his court-appointed lawyers failed to present any witnesses on his behalf in the penalty trial, the jury sentenced him to death. "So the white guy who was the trigger guy is out on parole, and the Hispanic guy, who was not the trigger man, is about to be put to death,” Greg Gardner, Flores' current lawyer, told The Texas Tribune in an interview before the stay was issued. “It really is just a mystery.” 178 of the 246 people on Texas's death row as of May 2016 are black or Latino. 

Nebraska Supreme Court Hears Challenge to Death Penalty Referendum

The Nebraska Supreme Court heard oral argument on May 25 in a challenge to the proposed November referendum that could reverse the state legislature's 2015 repeal of the death penalty (vote results pictured left). Christy and Richard Hargesheimer, who oppose the death penalty, are challenging the documents submitted by Nebraskans for the Death Penalty, the organization supporting the referendum, on the grounds that the group violated state law when they failed to list Governor Pete Ricketts as a sponsor of the referendum. Nebraska state law requires proponents of a ballot initiative to disclose all of the sponsors of the proposed referendum. Ricketts vetoed the legislature's 2015 repeal of the death penalty, but the legislature voted 30-19 to override his veto. Ricketts then personally contributed $200,000 and, in combination, he and his father donated approximately one-third of all the money raised by Nebraskans for the Death Penalty to gather the signatures needed to place the referendum on the ballot. Much of the argument Wednesday focused on the definition of who is a "sponsor" for the purposes of a referendum campaign. Alan Peterson, an attorney for the Hargesheimers, said the sponsor is the primary initiating force, "the initiator, the instigator." Attorneys for Nebraskans for the Death Penalty argued that the sponsor is someone willing to take legal responsibility for the petition paperwork and said Peterson's definition was "unworkable and would chill involvement in the democratic process." Peterson also argued that a key document required to place the referendum on the November ballot had been filed improperly because it was not an affidavit or sworn statement, as required by Nebraska law. A trial court ruled in February in favor of Nebraskans for the Death Penalty, leading to the Hargesheimer's appeal.

Advocates Say California Ballot Initiative to Limit Death Penalty Appeals Risks Executing the Innocent

As California prosecutors and law enforcement officials submitted signatures backing a ballot initiative intended to speed up the state's dysfunctional death penalty appeals process, a coalition of innocence advocates and wrongfully convicted exonerees warned that the proposal will substantially increase the risk that California will execute an innocent person. The initiative, sponsored by district attorneys with major funding by the state's prison guards’ union, would respond to appellate delays caused by the state's failure to timely meet its obligation of providing legal representation to hundreds of death row prisoners by mandating that lawyers who are deemed qualified to handle capital appeals must accept court appointments in these cases. The initiative also would impose time limits on appellate briefing and review of death penalty cases. The proposal would continue a legislative cap on the number of lawyers the Habeas Corpus Resource Center -- the state's institutional capital defender with the most experience in capital representation -- may hire and limit the types of assistance the center may provide to other lawyers appointed to handle these cases. Orange County District Attorney Tony Rackauckas, whose office has been been disqualified from prosecuting one capital case and is under fire for withholding information from defense lawyers and lying to courts about its use of prison informants, said the crimes for which defendants have been sentenced to death "are so horrendous there is no real punishment other than the death penalty that will bring justice in those cases.” He described the submission of the signatures as a “really good day for the victims of crimes across California.” But innocence advocates and exonerees disagree. Alex Simpson, Associate Director of the California Innocence Project, said “California’s legal process in death penalty cases exists for a reason: to make sure that innocent people aren’t executed. This measure guts these important protections by applying unrealistic and arbitrary timelines, greatly increasing the chance that we send an innocent person to the death chamber and allow a guilty person a free pass to victimize again.” Barry Scheck, Director of the national Innocence Project in New York, warned that "California would be making a grave and irreversible mistake by approving this initiative." And Randy Steidl, one of the nation's 156 death row exonerees and current Board President of Witness to Innocence, summed up the problems he sees with the initiative, saying "This initiative will lead to the execution of innocent people just like me.” 

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NEW VOICES: Former Chief Justice of North Carolina Supreme Court Questions Constitutionality of Death Penalty

I. Beverly Lake, Jr.—a staunch supporter of North Carolina's death penalty during his years as a State Senator and who, as a former Chief Justice of the North Carolina Supreme Court, repeatedly voted to uphold death sentences—has changed his stance on capital punishment. In a recent piece for The Huffington Post, Lake said he not only supported capital punishment as a State Senator, he "vigorously advocated" for it and "cast my vote at appropriate times to uphold that harsh and most final sentence" as Chief Justice. His views have evolved, he said, primarily because of concerns about wrongful convictions. "My faith in the criminal justice system, which had always been so steady, was shaken by the revelation that in some cases innocent men and women were being convicted of serious crimes," he wrote. However, his concerns about the death penalty are broader than just the question of innocence. Lake says he also questions whether legal protections for people with diminished culpability as a result of intellectual disability, mental illness, or youth, are adequate. "For intellectual disability, we can use an IQ score to approximate impairment, but no similar numeric scale exists to determine just how mentally ill someone is, or how brain trauma may have impacted their culpability. Finally, even when evidence of diminished culpability exists, some jurors have trouble emotionally separating the characteristic of the offender from the details of the crime," he said. He describes the case of Lamondre Tucker, a Louisiana death row inmate who was 18 at the time of the offense and has an IQ of 74, placing him just outside the Supreme Court's bans on the execution of juveniles and people with intellectual diabilities. Lake argues, "Taken together, these factors indicate that he is most likely just as impaired as those individuals that the Court has determined it is unconstitutional to execute." He concludes, "Our inability to determine who possesses sufficient culpability to warrant a death sentence draws into question whether the death penalty can ever be constitutional under the Eighth Amendment. I have come to believe that it probably cannot."

Federal Court Ruling Permits Arizona Lethal Injection Challenge to Move Forward, Keeps Executions on Hold

U.S. District Court Judge Neil Wake ruled on May 18 that a lethal injection challenge brought by Arizona death row prisoners may move forward, preventing Arizona from carrying out any executions before the reported expiration date of its supply of a key execution drug. Arizona has said that it is unable to replenish its supply of midazolam, an anti-anxiety medication that a number of states have used as a sedative in multi-drug lethal injection procedures. The death row prisoners are challenging the state's use of midazolam in conjunction with a paralytic drug, saying that "midazolam is not reliable as a sedative, which means the paralytic will mask the inmate’s pain." Judge Wake called the argument "plausible on its face," and said that it was not blocked by earlier U.S. Supreme Court rulings. Baze v. Rees had reviewed the constitutionality of a drug protocol that had employed an anesthetic that, unlike midazolam, "would render the inmate insensate to pain caused by the paralytic and the potassium chloride." Wake also said that the Supreme Court's decision in Glossip v. Gross—which involved midazolam but was decided at a preliminary stage of a challenge brought by Oklahoma death row prisoners, without a full evidentiary record—did not control the outcome of this case because the Arizona inmates "will present substantial new evidence challenging midazolam’s efficacy as a sedative." The judge also criticized the state's conduct in carrying out six separate executions, saying, "In recent history, the Department has deviated from its published execution procedures in ways ranging from minor to fundamental. It has deviated in the course of an execution without explanation." Judge Wake said that Arizona's "unlimited major deviations" from its execution protocol, and its claim that the state had unfettered discretion to deviate from its protocol at any time, "threaten serious pain." The ruling paves the way for further litigation on the prisoners' claims that Arizona's protocol violates the Eighth Amendment ban on cruel and unusual punishment. However, the court dismissed other claims brought by a coalition of media groups that the state's denial of information about the drugs violated the First Amendment. Previously, Arizona had used drugs believed to have been illegally brought into the country to execute Richard Landrigan. The FDA impounded a later shipment of drugs that it said Arizona had attempted to import from India in violation of federal law.

Support for the Death Penalty by Republican Legislators No Longer a Sure Thing

One year after the Nebraska legislature voted to repeal the death penalty and overrode a gubernatorial veto of that measure, actions in legislatures across the country suggest that the state's efforts signalled a growing movement against the death penalty by conservative legislators and that support for the death penalty among Republican legislators is no longer a given. Reporting in The Washington Post, Amber Phillips writes that Republican legislators in ten states sponsored or co-sponsored legislation to repeal capital punishment during the current legislative sessions. She reports that although these repeal bills have not become law, they have made unprecedented progress in several states. In Utah, a repeal bill sponsored by Sen. Stephen Urquhart (pictured)—a former death penalty proponent who supported the state's firing squad law—came closest, winning approval in the state Senate and in a House committee. Missouri's bill saw floor debate in the Senate, and Kentucky's received a committee hearing for the first time in 40 years. An effort to return death penalty support to the platform of the Kansas Republican Party failed by a vote of 90-75, and the Kansas College Republicans passed a resolution calling for the abolition of the death penalty, highlighting a generational divide on the issue. Dalton Glasscock, former president of Kansas College Republicans, said, "My generation is looking for consistency on issues. I believe if we say we're pro-life, we need to be truly pro-life, from conception to death." The National Association of Evangelicals also changed their stance on the issue, acknowledging "a growing number of evangelicals," who now call for abolition. Though a majority of Republicans still support the death penalty, Phillips writes that "it's notable that a year after we wondered whether Nebraska was an anomaly or the start of a trend, there's plenty of evidence to suggest that conservative opposition to the death penalty may indeed be a trend -- a small but growing one."

On 100th Anniversary of Notorious Waco Lynching, Research Shows Link Between Lynching and Capital Punishment

100 years ago, Jesse Washington, a 17-year-old black farmhand accused of murdering his white female employer was lynched on the steps of the Waco, Texas courthouse (pictured), moments after Washington's trial ended and only seven days after the murder had occurred. The gruesome lynching took place in front of law enforcement personnel and 15,000 spectators, none of whom intervened to end the violence. Washington, whom reports indicate may have been intellectually disabled, initially denied involvement in the murder, but then purportedly confessed to police. A mob of 500 vigilantes searched the county prison in an unsuccessful attempt to find Washington, whom the sheriff had moved to other counties for his safety. An estimated 2,500 people—many carrying guns and threatening to lynch Washington—packed the courtroom during the short trial. As the jury read the guilty verdict and before the judge could record its death sentence, a man reportedly yelled, “Get the n****r,” and the crowd descended on Washington, carrying him out of the courthouse with a chain around his neck, while others attacked him with bricks and knives. The incident became a turning point in anti-lynching efforts and contributed to the prominence of the NAACP. Ignored for decades, Washington's lynching recently gained local attention and prompted a condemnation by the Waco City Council and McLennan County commissioners in 2006. Studies have shown that counties that historically have had high numbers of lynchings continue to have higher levels of homicide, police violence against racial minorities, disproportionate sentencing of black defendants, and more frequent use of capital punishment. A 2005 study in the American Sociological Review found that the number of death sentences, and especially the number of death sentences for black defendants, was higher in states with histories of lynching. “What the lynching proved about our community was that African-American men and women were not viewed as humans or equal citizens,” Peaches Henry, president of the Waco NAACP said. “While they no longer hang people upon trees, we do see situations where African-American lives are not valued.” McLennan County, where Washington was lynched, ranks among the 2% of U.S. counties that are responsible for more than half of all death sentences in the United States. 

Pfizer Announces Restrictions to Keep States From Using Its Medicines in Executions

On May 13, the pharmaceutical company Pfizer announced that it would impose strict distribution controls to block states from obtaining and using its medicines in executions. In a statement, the company said, "Pfizer makes its products to enhance and save the lives of the patients we serve. Consistent with these values, Pfizer strongly objects to the use of its products as lethal injections for capital punishment." With Pfizer's announcement, every major pharmaceutical company that produces drugs that have been used in lethal injections has voiced opposition to involvement in executions. The pharmaceutical companies are joined by medical organizations including the American Pharmacists Association, the International Academy of Compounding Pharmacies, and the American Medical Association, which all oppose their members' participation in executions. “It’s very significant that the pharmaceutical industry is speaking with a unified, singular voice,” said Megan McCracken, a lawyer at the Death Penalty Clinic at the University of California Berkeley School of Law. “Saying we don’t want our products used this way and actually taking steps to ensure that they aren’t." Pfizer's announcement will make it more difficult for states to obtain lethal injection drugs on the open market and through drug redistributors. The unavailability of execution drugs from these sources has driven states to seek alternative, and in some cases illegal, sources for these drugs, and has caused legal challenges in numerous states.

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