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Judge Orders Evidentiary Hearing On Constitutionality of Federal Death Penalty

U.S. District Court Judge Geoffrey Crawford has ordered an evidentiary hearing on Donald Fell's (pictured) challenge to the constitutionality of the federal death penalty. In court filings seeking to bar federal prosecutors from seeking death against him in a pending retrial, Fell has argued that the federal death penalty constitutes cruel and unusual punishment in violation of the Fifth and Eighth Amendments to the U.S. Constitution. Among other grounds, he has asserted that the death penalty no longer comports with contemporaneous U.S. values and that there are significant racial and geographic disparities in the manner in which the federal death penalty has been applied. Fell was sentenced to death in Vermont on federal murder charges, a sentence he could not have received in state court because Vermont does not have the death penalty. His conviction was overturned because of juror misconduct, and he is facing a retrial in 2017. In the order calling for a hearing, Judge Crawford wrote, "Preliminarily, and with an open mind about the arguments recently made by both sides, the court is looking at the constitutional challenge to the death penalty." He said that, despite efforts in the 1970s to remedy constitutional problems, "40 years later the question of a systemic violation of the Eighth Amendment remains."

Texas Prisoner Seeks Supreme Court Review of Death Sentence Tainted By Racial Bias

Duane Buck, who was sentenced to death after a defense expert witness testified that Buck could pose a future danger to society because he is black, has asked the U.S. Supreme Court to grant him a new sentencing hearing because of his lawyer's ineffectiveness. Buck is one of six defendants whose Texas capital trials were identified by a Texas Attorney General's report as having been tainted by race-based testimony by psychologist, Dr. Walter Quijano. The other five were granted new sentencing hearings after the Texas Attorney General agreed that the “infusion of race as a factor for the jury to weigh in making its determination violated [the defendant's] constitutional right to be sentenced without regard to the color of his skin.” However, after a change in the elected Attorney General, Texas opposed a new sentencing for Mr. Buck. During Buck's sentencing trial, the prosecution asked Quijano - whom it had used as a witness in other cases - if, "the race factor, black, increases the future dangerousness for various complicated reasons." Buck's lawyer did not object, and Quijano replied, "yes." As Buck stated in a documentary about his case, "He was basically saying because you’re black, you need to die. My lawyer didn’t say anything and nobody else, you know, the prosecutor or the judge, nobody did. It was like an everyday thing in the courts." The state and federal courts rejected Buck's prior challenge based on the prosecutor's conduct, suggesting the fault lay with the defense. Buck's attorneys now argue that his trial lawyer's failure to object to Quijano's testimony constituted ineffective assistance of counsel, in violation of his Sixth Amendment rights. The lower courts turned down that appeal as well, and Buck filed this petition for writ of certiorari asking the U.S. Supreme Court to review his case.

Texas Board Confirms Disbarment of Prosecutor for Misconduct in Anthony Graves Case

The disciplinary board of the Texas State Bar rejected an appeal on February 9 from Charles Sebesta, the prosecutor whose misconduct led to the wrongful conviction of Anthony Graves (pictured, r.). The board's decision disbarring Sebesta for what it called "egregious" misconduct is now final. Anthony Graves was convicted in 1994 on the false testimony of Robert Carter, who claimed Graves was his accomplice. Graves was exonerated in 2010 and filed a complaint against Sebesta in 2014. Sebesta was disbarred for eliciting Carter's false statements and withholding exculpatory evidence from Graves' defense. The disciplinary board made an initial ruling to revoke Sebesta's law license in 2015, but he appealed the ruling on technical grounds. Graves lauded the board's decision, saying, “The bar stepped in to say that’s not the way our criminal justice system should work. This is a good day for justice.”

Majority of Floridians Prefer Life Sentence to Death Penalty, 73% Would Require Unanimous Jury Vote for Death

In the wake of a U.S. Supreme Court decision striking down Florida's death-sentencing procedures, a new poll shows that nearly two thirds of Floridians now prefer some form of life sentence to the death penalty and nearly three-quarters favor requiring the jury to unanimously agree on the sentence before the death penalty can be imposed. The poll by Public Policy Polling found that 62% of respondents preferred some form of life in prison over the death penalty for convicted murderers, while 35% preferred the death penalty. A plurality (38%) preferred life without parole coupled with restitution payments, while an additional 24% preferred either life without parole or life with parole eligibility after 40 years. The poll comes shortly after the Supreme Court declared Florida's sentencing scheme unconstitutional in Hurst v. Florida because it permitted judges, rather than juries, to determine whether the prosecution had proven factors that make a defendant eligible for the death penalty. It left open a second question as to whether jury recommendations for death had to be unanimous. As the Florida legislature considers its response to Hurst, the poll showed broad support across the political spectrum for requiring jury unanimity in sentencing. Overall, 73% of Floridians supported a unanimity requirement, including 70% of Republicans and Independents and 77% of Democrats. A Tampa Bay Times investigation this week raised questions as to the reliability of non-unanimous death sentences. The paper reported that death sentences imposed after non-unanimous jury recommendations were far more likely to be overturned and posed serious risks to the innocent. 18 of the 20 Florida exonerations for which jury data was available (90%) involved non-unanimous jury recommendations, including 3 cases in which judges overrode jury recommendations for life sentences. Stephen Harper of the Florida Center for Capital Representation at Florida International University College of Law, responded to the polling results, saying, "The state legislature should follow Floridians’ lead and support a unanimous jury requirement in capital cases. Failing to do so will leave Florida’s death penalty statute vulnerable to additional costly litigation."

BOOKS: "Confronting the Death Penalty: How Language Influences Jurors in Capital Cases"

In her new book, Confronting the Death Penalty: How Language Influences Jurors in Capital Cases, Marshall University Anthropology Professor Robin Conley examines "how language filters, restricts, and at times is used to manipulate jurors' experiences while they serve on capital trials and again when they reflect on them afterward." Conley spent fifteen months in ethnographic fieldwork observing four Texas capital trials and interviewing the jurors involved. She analyzes the language used in those trials, as well as written legal texts, to gain a greater understanding of how jurors go about making the decision for life or death. She also explores the questioning jurors undergo as to their beliefs about the death penalty, characterizing it as "socialization into killing." She writes that death penalty trials involve a number of communication practices - such as "dehumanizing references to defendants that stymie empathy between them and jurors, written and oral instructions that allow jurors to deny their personal involvement in defendants' deaths" - that create distance between jurors and defendants and "deny the humanistic side of legal decision-making."  In the book's conclusion, she writes of the importance of this type of language for the maintenance of the death penalty: "It is the words with which attorneys address potential jurors during voir dire, the written instructions on which jurors rely in the deliberation room, and the talk about defendants throughout the trial that maintain the persistent operation of the death penalty. By subverting other forms of experience, moreover, particular, authoritative modes of language allow jurors to send defendants to their deaths."

California Inmate Raises Innocence Claims As State Seeks to Resume Executions

As California's new lethal injection protocol moves the state towards resuming executions, Kevin Cooper (pictured, left) is seeking clemency from Gov. Jerry Brown on the grounds that he is innocent. Cooper - one of 18 death-row prisoners who have exhausted their court appeals and face execution - was sentenced to death for the 1983 murders of a married couple, their 10-year-old daughter, and the daughter's 11-year-old friend. However, evidence that was suppressed as a result of police and prosecutorial misconduct raises serious questions as to his guilt. The key witness against Cooper was the 8-year-old son of the murdered couple, who was gravely injured, but survived the attack. On the day of the murders, the boy said that three white or Hispanic men had committed the killings, and after seeing photos of Cooper on television, he told his grandmother and a sheriff's deputy that Cooper - who is black - was not the killer. After subsequent interrogations by deputies, in which they misrepresented his recollections, he later identified Cooper as the sole killer and testified to that effect at Cooper's trial. Cooper's lawyers were denied an opportunity to cross-examine him. Prosecutors also presented evidence at trial that shoeprints from the crime scene had to belong to Cooper, because he had recently escaped from prison and the prints matched prison-issued shoes that weren't available to the public. A warden from the prison, however, had provided investigators with information rebutting that assertion, but prosecutors hid the warden's statements from the jury. Police also illegally destroyed blood-splattered pants given to them by a woman who believed her husband had been involved in the murders, eliminating an essential piece of evidence that could have helped Cooper prove his innocence. Finally, independent testing of a blood sample that the state claimed had been drawn from Cooper found two different sets of DNA, meaning that the sample had either been contaminated or deliberately altered. In 2009, the U.S. Court of Appeals for the Ninth Circuit upheld Cooper's conviction, but five judges wrote a strong dissent detailing the misconduct and concluding that it was, "highly unlikely that Cooper would have been convicted," without it.

STUDIES: Ohio Executions Reveal Vast Racial, Gender, and Geographic Inequities

"Ohio’s death penalty is plagued by vast inequities" grounded in race, gender, and geography, according to a new University of North Carolina study. UNC-Chapel Hill political science professor Frank Baumgartner examined the 53 executions Ohio has conducted since resuming capital punishment in the 1970s. His study found "quite significant" racial, gender, and geographic disparities in Ohio's executions that, Baumgartner said, "undermine public confidence in the state’s ability to carry out the death penalty in a fair and impartial manner." The data showed that Ohio was 6 times more likely to execute a prisoner convicted of killing a white female victim than if the victim was a black male. Although 43% of Ohio murder victims are white, 65% of Ohio executions involved the murder of white victims. Similarly, while only 27% of Ohio murder victims are female, 52% of all executions involved cases with female victims. The study also discovered significant geographic disparities in Ohio executions. More that half of the state's executions were concentrated in just 4 counties, while more than 3/4 of Ohio counties have not produced any executions. Lake County had an execution rate that was 11 times the statewide average. Although the state's three most populous counties (Cuyahoga, Franklin, and Hamilton) have similar murder rates, Hamilton's .60 executions per 100 homicides was more than double the rate in Cuyahoga and nearly 9 times that in Franklin. Sharon L. Davies, Executive Director of the Kirwan Institute for the Study of Race and Ethnicity at The Ohio State University, said that the "race or gender of a victim, and the county of the crime, should not influence who is sentenced to die" and urged "Ohio citizens and lawmakers[to] review the findings of this important research." (Click image to enlarge.)

Missouri Likely to See Change After Historic High in Executions

A decline in executions is likely in Missouri after two years of unusually high numbers. In 2014, Missouri tied with Texas for the most executions in the U.S., and it was second to Texas in 2015. However, changing attitudes about the death penalty--similar to national shifts--are evident in Missouri's sentencing trends: no one was sentenced to death in Missouri in 2014 or 2015, and less than one person per year has been sentenced to death in the past seven years. Moreover, a bill with bi-partisan support has been introduced to repeal the death penalty. It passed the Senate General Laws committee in late January. An editorial in the Columbia Daily Tribune highlighted the political diversity in the legislative support for the measure. Among those who voted the bill out of committee were two Democrats and two Republicans. Sen. Paul Wieland cited his pro-life views as a reason for support, while Sen. Rob Schaaf said, as long as it is "not fairly applied...I'm going to be opposed to the death penalty."

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