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STUDIES: At Least 201 Florida Death Row Prisoners May Be Eligible for Resentencing, 134 Had Non-Unanimous Juries

A new study reports that at least 201 Florida death row prisoners—including at least 134 whom judges sentenced to death after juries had returned non-unanimous sentencing recommendations—may be eligible for resentencing hearings as a result of recent rulings by the United States and Florida Supreme Courts declaring the state's death sentencing practices unconstitutional. In 2016, the U.S. Supreme Court struck down Florida's statute in Hurst v. Florida, ruling that it unconstitutionally denied defendants the right to have juries decide whether the prosecution had proven key facts necessary to impose the death penalty. Later in the year, in Hurst v. State, the Florida Supreme Court also struck down the statute for permitting judges to impose death sentences without a unanimous jury recommendation for death. In a pair of rulings issued in December 2016, Asay v. State and Mosley v. State, the court applied that decision to any defendant whose death sentence was finalized after the U.S. Supreme Court ruling Ring v. Arizona, in 2002. The authors of the study, Michael Radelet (pictured), a sociology professor at the University of Colorado-Boulder, and G. Ben Cohen, a capital litigator in New Orleans, Louisiana, caution that the 134 non-unanimous post-Ring death verdicts that they have identified "are not the only cases that may require resentencing, as defendants may have different claims arising from other constitutional deficiencies in the Florida statutes." Their study shows that ten counties account for nearly 60% of Florida's death row, more than 60% of those sentenced to death since Ring, and 62% of the known non-unanimous verdicts and will most heavily bear the cost of resentencing these defendants. The counties with the largest numbers of affected prisoners are also among the 2% of U.S. counties responsible for a majority of people on death row nationwide. Duval County has 31 defendants who may be eligible for resentencing, of whom at least 26 had a non-unanimous jury. The same is true of 11 of 12 affected defendants from Miami-Dade County, 8 of 12 from Broward County, and 7 of 11 from Seminole County. The authors point out that the constitutional failures of Florida's statute have been evident for many years, and that earlier acknowledgement of these problems could have saved the state from the costly resentencing hearings it now faces: "The significant cost of resentencing all of these individuals under a constitutional scheme was very predictable at the time of Ring in 2002, and was also foreseen by at least some experts who examined the post-Furman statute that was enacted in 1972." They conclude that "In 2017, the Florida legislature will need to make changes in the Florida death penalty statute that were predictable when the statute was first passed in 1972, and inevitable when the U.S. Supreme Court released Ring v. Arizona in 2002. Finally, they will need to acknowledge that Ring has rung."

Federal Magistrate Judge Rules Ohio Lethal Injection Protocol Unconstitutional

After receiving evidence during a five-day hearing, U.S. Magistrate Judge Michael R. Merz ruled on January 26 that Ohio's lethal injection process will create a substantial and objectively intolerable risk of serious harm in violation of the Eighth Amendment. Based on that ruling, the court issued a preliminary injunction staying the executions of Ronald Phillips, Raymond Tibbetts, and Gary Otte. Ohio has not conducted an execution since January 2014, when it used a combination of the drugs midazolam and hydromorphone in the 26-minute long botched execution of Dennis McGuire. In January 2015, Ohio changed its protocol and removed the controversial drug midazolam, only to announce in October 2016 that it had changed course and would use midazolam in upcoming executions as part of a three-drug protocol. Ohio's proposed protocol consisted of: midazolam, a sedative the state claimed would anesthetize the prisoner; then a drug that causes complete muscle paralysis and consequently suffocation; followed by potassium chloride to ultimately stop the heart. The second and third drugs will cause excruitating pain and suffering if given to a person who is not properly anesthetized. Numerous medical experts have asserted that midazolam does not anesthetize a person sufficiently to prevent experiencing intense pain from the other drugs, but a number of states have nevertheless continued to use the drug in executions. In addition to Ohio, Arizona, Oklahoma, and Alabama all have conducted visibly problematic executions with midazolam. Florida, which has carried out more executions with midazolam than any other state, recently changed its protocol to abandon use of the drug. Judge Merz credited the testimony of scientific experts, finding that "midazolam does not have the same pharmacologic effect on persons being executed as the barbiturates thiopental sodium and pentobarbital." The magistrate judge rejected Ohio's argument that midazolam would cause the prisoner to forget any pain he might experience during the execution, writing, "That does not mean the pain was not inflicted and the Supreme Court has yet to tell us that inflicted pain that is not remembered does not count as severe pain for Eighth Amendment purposes." Under the doctrine of "judicial estoppel," the court also blocked the state from using the proposed second and third drugs because it had relied on abandoning their use as grounds for winning a prior lawsuit in 2009. The court said applying the estoppel rule was necessary to "prevent[] a party from abusing the judicial process through cynical gamesmanship." 

Texas Prisoner Seeks Stay of Execution Based on Claims of Innocence, Discriminatory Jury Selection, Junk Science

Alleging wrongful prosecution, Texas death row prisoner Terry Edwards (pictured), who is scheduled for execution on January 26, is seeking a stay of execution and an opportunity to present new evidence that his case was tainted by racially-discriminatory jury selection, prosecutorial misconduct, and false and misleading forensic testimony. Edwards was prosecuted by Dallas County assistant district attorney Thomas D'Amore, who, the defense says, was lead prosecutor in at least three other cases in which defendants were exonerated after similar misconduct was disclosed. The Dallas DA's office fired D'Amore in 2006. Edwards, who had no prior history of violence, says that he was not the triggerman in a robbery-murder that prosecutors say he committed with his cousin, and that the prosecution presented false expert testimony to bolster its claim that he was the killer. The cousin—who has an extensive history of violent recidivism—was charged with both murders but then permitted to plead guilty to only robbery, and is now eligible for parole. A state forensic analyst initially testified that no gunshot residue was detected on Edwards' hands when they were tested immediately after the crime. She changed her testimony on cross-examination, stating that one of three chemical elements associated with gunshot residue was found on Edwards hands and that he could have sweated or wiped away the other two. A former FBI agent who later reviewed the case has called that explanation "scientifically unsupportable," explaining that the components of gunshot residue increase or decrease together, and that particles from gunshot residue contain at least two of the three elements that are tested, making it impossible to wipe away two of the elements without wiping away the third. D'Amore and the same state forensic analyst were involved in the 1995 trial of Richard Miles, who was exonerated in 2012 after his lawyers found similar flaws in the analyst's forensic testimony. Defense lawyers also contend that D'Amore withheld evidence that eyewitnesses saw Edwards’ cousin inside the restaurant at the time of the murders and fleeing out the front door. Citing evidence strikingly similar to that presented in the recent Supreme Court case Foster v. Chatman, Edwards' lawyers also argue that his conviction by an all-White jury was the unconstitutional product of racial discrimination.

Anesthesiologist Says Lethal Injection Creates Moral Dilemma for Physicians

Lethal injection as practiced in U.S. executions "is an impersonation of medicine populated by real doctors who don't acknowledge the deception," Dr. Joel Zivot (pictured), an anesthesiologist and associate professor of anesthesiology at Emory University School of Medicine, writes in an op-ed for CNN. Setting aside the question of the rightness or wrongness of capital punishment itself, he says, "it's time to reject lethal injection" as the method of execution. Dr. Zivot's op-ed describes how the medicalization of executions has created an ethical problem for doctors. He cites as an example the recent Virginia execution of Ricky Gray, which used midazolam and potassium chloride from a compounding pharmacy, along with a paralytic drug. He calls lethal injection, "a trick of chemistry" that "does not cause a cruelty-free death," explaining, "Virginia used a paralytic drug that may obscure the failure of midazolam to create the sort of deep unconsciousness contemplated by lethal injection proponents." He says that, because lethal injection "approximates a medical act," it "fall[s] within the purview of physicians who now find themselves wittingly or unwittingly cast in the role of execution adviser." These physicians must choose between their profession's ethical prohibition against killing—both the American Medical Association and the American Board of Anesthesiology have issued statements condemning physician involvement in executions—and their ethical imperative to reduce suffering, especially in the face of botched executions. "An inmate facing death is not a patient by virtue of being connected to an intravenous device and having a doctor in a lab coat standing by. Physicians can only work with patient consent," Zivot says. He asks, "What is the role of the doctor in the execution chamber? When does the alleviating of suffering become physician-assisted homicide?" Because of these ethical dilemmas, and the failure of lethal injection to offer a cruelty-free execution, Zivot concludes, "If capital punishment continues, it needs another method."

Texas Court Orders Release of Former Death Row Prisoner Who Spent 32 Years in Prison Without a Valid Conviction

A Texas Court of Appeals ruled on January 19, 2017 that all charges against Jerry Hartfield should be dismissed with prejudice after the state had kept the intellectually disabled former death row prisoner in prison for 32 years without retrying him after his conviction had been overturned. Calling the situation a "criminal judicial nightmare," the court ruled that the three-decade delay in trying Hartfield violated his constitutional right to a speedy trial. Hartfield had been convicted and sentenced to death for a 1976 murder, but in 1983, the Texas Court of Criminal Appeals overturned his conviction and death sentence because a juror in his case had been improperly excluded. Hartfield, an illiterate man with an IQ of 51, believed he was awaiting retrial, but prosecutors were working to render the court's ruling moot under Texas law by having the governor commute his sentence to life. However, they failed to do so in the time period prescribed by law, and then-Governor Mark White's order attempting to commute Hartfield's former death sentence to life without parole was without legal effect. Hartfield's attorneys did nothing further because they believed they were done with the case. In 2006, a fellow prisoner helped Hartfield begin filing motions in his case. In 2013, the Texas Court of Criminal Appeals told him his motions were improperly filed because the provision under which he sought review applied only to people who had been convicted. At that point, he refiled his claims saying he was improperly incarcerated without a conviction, and finally got a new trial. Hartfield's new lawyers then asked for the charges to be dismissed because he had not received a speedy trial, but prosecutors successfully persuaded the trial court that Hartfield himself was partly to blame for the delay. In 2015, he was retried, convicted, and sentenced to life in prison. If his sentence were counted from his first trial, his 38 years in prison would have made him eligible for parole. He appealed his conviction, once again arguing that his constitutional right to a speedy trial had been violated, and a Texas Court of Appeals agreed, noting that there was precedent for a delay of as many as eight years, but not 32. Prosecutors may appeal the ruling to the Texas Court of Criminal Appeals. David R. Dow of the University of Houston Law Center, one of the lawyers who represented Mr. Hartfield on appeal, described Hartfield's case as, “the perfect storm of everything that could go wrong with the criminal justice system.”

Isaiah McCoy Exonerated from Delaware Death Row, the 157th Death Row Exoneration Since 1973

Isaiah McCoy (pictured), a former Delaware death row inmate, was exonerated on January 19, 2017, when a judge acquitted him at a retrial. He is the 157th person exonerated from death row in the United States, the first in 2017, and the first in Delaware. McCoy was convicted and sentenced to death in 2012, but the Delaware Supreme Court overturned his conviction in 2015 as a result of prosecutorial misconduct and ordered a new trial. The Court suspended Deputy Attorney General R. David Favata from practice because of his misconduct at McCoy's trial, which included belittling McCoy for choosing to represent himself, making intimidating comments during a break in proceedings, then lying to the judge about making the comments. McCoy waived his right to a jury for his retrial, leaving the decision in the hands of Kent County Superior Court Judge Robert B. Young. In acquitting McCoy, Judge Young noted that there was no physical evidence against him and that two alleged accomplices had given contradictory testimony. One of the accomplices, Deshaun White, received a sentence reduction for testifying against McCoy. Upon his release, McCoy said, "I just want to say to all those out there going through the same thing I'm going through 'keep faith, keep fighting. Two years ago, I was on death row. At 25, I was given a death sentence – and I am today alive and well and kicking and a free man." McCoy was the second former death row prisoner in a year to be released in Delaware after obtaining a new trial for prosecutorial misconduct. 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 had linked Wright to the crime. Wright was released in September 2016 after pleading no contest to lesser charges and being resentenced to time already served.

Alabama Faith Leaders Hold Panel on Death Penalty, Spotlight 'Rocky' Myers' Case of Possible Innocence

Inspired by the case of Robin "Rocky" Myers (pictured), an intellectually disabled and possibly innocent Alabama death row prisoner whom an elected state judge sentenced to death despite a 9-3 jury recommendation for life, a panel of faith leaders gathered in Montgomery, Alabama to discuss religious views on the death penalty and the intersection of faith and justice. Before the discussion began, the faith leaders and the audience viewed a screening of a new documentary on Myers' case describing why his lawyers believe he is innocent. The documentary explained that no forensic evidence links Myers to the crime and that the prosecution witness who identified him has since recanted his testimony. Myers' case also highlights other problems in the death penalty system. A neuropsychologist who evaluated Myers diagnosed him with intellectual disability, a condition that would make him ineligible for execution, but courts have not granted him relief. His disability hindered Myers' opportunities to have his appeals heard. His attorney abandoned him without notice, and Myers, who cannot read, did not know his appeal deadlines had expired until a fellow inmate read him a notification letter from the state. Finally, Myers' jury voted 9-3 that he should be sentenced to life, but—in a practice no state other than Alabama still allows— the trial judge overrode the jury's recommendation and sentenced Myers to death. After the film presented Myers' story, leaders from a variety of faith traditions led a discussion about justice and capital punishment. The multi-faith panel included representatives of Christianity, Judaism, and Islam and featured Rabbi Elliot Stevens, Sister Gilda Marie Bell, a Catholic nun of the Sisters of the Blessed Sacrament, and Aya Zaied, a youth leader for the East Montgomery Islamic Society. Zaied summarized Islamic views on the issue, saying, "If you claim Islam, … then justice is your responsibility. We try to teach that to our children really young so they understand if (someone is) hurting, then I’m hurting. We’re all in this together."

President Obama Commutes Two Death Sentences

On January 17, 2017, President Barack Obama (pictured) commuted the death sentences of Abelardo Arboleda Ortiz, a federal death row prisoner, and Dwight Loving, a military death row prisoner. The two men were among 209 commutations and 64 pardons announced by the White House on the 17th. Ortiz's lawyers sought clemency from the President on the grounds that Ortiz was intellectually disabled, his right to consular notification under the Vienna Convention had been violated, he did not himself commit the murder and was not in the room when it occurred, and he had been denied effective assistance of counsel at trial. Loving's attorneys argued for clemency on the basis of ineffective assistance of counsel, racial and gender bias in the selection of members of his court-martial, and Supreme Court rulings that called into question the constitutionality of the process by which the military imposes the death penalty. In Loving's clemency petition, his lawyers state, "Issues of command influence, racial discrimination, and improper panel voting procedures – which were ignored by the courts based on technical legal evidentiary rules – will forever overshadow Loving’s death sentence. Executing him [will] not promote justice or ensure good order and discipline any more than a sentence of life imprisonment." Ortiz's lawyers said they were "incredibly grateful" to President Obama for the commutation. In a statement, Amy Gershenfeld Donnella said, "Mr. Arboleda Ortiz’s case highlights several of the glaring problems that plague the federal system no less than state systems: dreadful lawyering by defense counsel; disproportionate sentencing even among co-defendants; significant racial, economic and geographic disparities in the choice of those who will be tried capitally; and procedural constraints that make it virtually impossible to correct a conviction or sentence imposed, even in violation of the Constitution, when new evidence comes to light." His case, she said, "epitomizes the broken federal death penalty system." Although federal law and the U.S. Constitution both prohibit using the death penalty against persons who are intellectually disabled, Ortiz's trial lawyer never investigated his intellectual disability, Donnella said. As a result, the jurors made their decision on life or death "in a complete vaccuum" and "an intellectually disabled person of color with an IQ of 54 who was never able to learn to read, write, or do simple arithmetic, and could not even tie his shoes until he was ten years old" was sentenced to die. Both Ortiz and Loving will now serve sentences of life in prison without the possibility of parole.

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