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Supreme Court to Consider Hearing Texas Capital Case Where Expert Said Defendant Posed Greater Danger Because He Was Black

Posted: April 15, 2016

UPDATE: The Supreme Court docket indicates that its conferencing of Mr. Buck's case, originally set for April 22, has been rescheduled. The Court is now scheduled to considering the case on April 29. PREVIOUSLY: On April 22, the U.S. Supreme Court is scheduled to confer on whether to review the case of Duane Buck (pictured), who was sentenced to death in Harris County, Texas after a psychologist testified that he posed an increased risk of future dangerousness because he is black. In the case, the defense presented psychologist, Walter Quijano, as its own witness, even though he had previously testified in other cases to a supposed link between race and future dangerousness. During cross-examination, the prosecution asked Quijano - without objection by the defense - whether "the race factor, black, increases the future dangerousness for various complicated reasons." Quijano replied, "yes." The prosecution then returned to this race-based testimony during its closing argument in calling for the jury to sentence Buck to death. Buck is one of six defendants who a Texas Attorney General's report identified as having unfair capital-sentencing hearings that were tainted by Quijano's race-based testimony, and the only one to be denied a new sentencing hearing. Courts initially rejected Buck's claim of prosecutorial misconduct for presenting race-based evidence and argument on the grounds that Buck's own lawyer had presented the witness. However, the lower courts then denied relief when he subsequently presented the argument that his lawyer had provided ineffective representation on this issue. The case has attracted widespread attention, and several stakeholders in Buck's case, including the second-chair prosecutor from Buck's trial, former Texas Governor Mark White, and a surviving victim have urged that Buck be granted a new sentencing hearing. Linda Geffin, the second-chair prosecutor, said "The state of Texas can't put Mr. Buck to the ultimate punishment without having a fair, just, color-blind sentencing hearing." A bipartisan group of amici have urged the Supreme Court to grant review of what they called the "noxious and deeply prejudicial use of race" in this case. American Bar Association President Paulette Brown recently wrote in the Houston Chronicle, "Obviously, an odious race-based argument is never acceptable, let alone in a criminal case where the defendant's life is at stake. And a defendant whose lawyer invites such racist testimony not only has a strong chance of being sentenced to death but a strong claim of ineffective counsel." 

 

Oklahoma Knew It Had Used Unauthorized Drug Months Before It Aborted Richard Glossip's Execution

Posted: April 14, 2016

The Oklahoma Department of Corrections knew it had used an unauthorized drug in the execution of Charles Warner nearly six months before it almost repeated the mistake in the aborted execution of Richard Glossip. Oklahoma executed Warner on January 15, 2015. Documents obtained by BuzzFeed News reveal that three months later, in April, the state medical examiner submitted a report to the Department on Warner's autopsy, showing that he had been executed using potassium acetate, in violation of the state's lethal injection protocol which required the use of potassium chloride. The Department apparently received the report in advance of the April 29, 2015 Supreme Court argument in Glossip v. Gross, in which Oklahoma death row prisoners challenged the constitutionality of the use of the drug, midazolam, the first component of the state's three-drug execution process. Oklahoma had represented to the federal courts throughout those proceedings that it was complying with its protocol, and the Supreme Court narrowly upheld Oklahoma's protocol on June 29. Glossip's execution was scheduled for September 30, but was halted at the last minute after the doctor overseeing the execution noticed that the state had again obtained potassium acetate instead of potassium chloride. Emails suggest that the Oklahoma Attorney General's office may already have known about the execution problems before their recurrence in Glossip's case, because they sought details about Warner's execution from the medical examiner in early September. Shortly after Glossip's execution was stayed, The Oklahoman reported that the state had used the wrong drug in Warner's execution. Oklahoma Attorney General Scott Pruitt launched a grand jury investigation into the protocol violations in October. Since the grand jury investigation began, two correctional officials and the governor's general counsel have resigned. The grand jury could release their report as early as this week.

 

Texas Comptroller Denies Compensation to Death-Row Exoneree Alfred Brown

Posted: April 13, 2016

 Texas State Comptroller Glenn Hegar has rejected an application for compensation filed by death-row exoneree Alfred DeWayne Brown, asserting that the court proceedings leading to his release did not constitute a determination that he was "actually innocent." Brown had applied for approximately $1.9 million in cash and annuity payments under Texas' exoneration compensation law. Harris County prosecutors dismissed charges against Brown in June 2015, after he had spent a decade on death row for the murders of a Houston police officer and a store clerk during a robbery. The Texas courts overturned Brown's conviction because prosecutors improperly withheld a phone record that showed Brown was at his girlfriend's apartment near the time of the robbery and murders. There was no physical evidence against Brown and a Houston Chronicle investigation revealed that a police officer who was appointed grand jury foreman in the case had threatened the girlfriend with perjury for initially supporting Brown's alibi and that prosecutors had jailed her for seven weeks until she changed her testimony to implicate Brown. The compensation decision highlights the recurring question of revictimization of wrongfully convicted death-row inmates resulting from denials of compensation. Louisiana similarly denied compensation to death-row exoneree, Glenn Ford, who was suffering from terminal cancer. The author of that state's compensation law recently called that denial "a grave injustice and misinterpretation of the law," and with the support of Ford's former prosecutor, Marty Stroud, has introduced a new bill to provide compensation to Ford's family.

 

Georgia Set to Execute Intellectually Disabled Inmate Whose Trial Was Tainted By Racism and Poor Representation

Posted: April 12, 2016

Georgia is preparing to execute Kenneth Fults (pictured) on April 12, following the Georgia Board of Pardons and Paroles denial of his clemency application. Fults' current lawyers presented evidence to the Board that Fults is intellectually disabled and "functions in the lowest 1 percent of the population." They also argued that Fults' trial lawyer failed to present this evidence to the jury, as well as extensive evidence that Fults endured a childhood of chronic abuse and torment in which he reportedly was "beaten up and down by family members and strangers alike." According to juror affidavits submitted in the clemency proceedings, Fults' original lawyer also slept through parts of the trial. Fults' trial was also tainted by racism. The clemency application and several court pleadings attach an affidavit from one of the jurors admitting that even before the jury heard any testimony, he knew he was going to vote to sentence Fults to death. The affidavit, signed in 2005, states: “I don’t know if he ever killed anybody, but that (N-word) got just what should have happened. Once he pled guilty, I knew I would vote for the death penalty because that’s what that (N-word) deserved.” Fults' lawyers have also asked the U.S. Supreme Court to halt the execution and review the case, arguing that the juror's racial bias unconstitutionally undermined the fairness of his sentencing proceeding. 

 

Virginia Governor Rejects Mandatory Use of Electric Chair, Proposes Lethal Injection Secrecy

Posted: April 11, 2016

Virginia Governor Terry McAuliffe rejected a bill that would have employed the electric chair as the state's method of execution if lethal injection drugs are unavailable. Instead, he offered amendments that would permit the Commonwealth's Department of Corrections to enter into confidential contracts to obtain execution drugs from compounding pharmacies, whose identities would be concealed from the public. His proposal is similar to legislation he backed last year that failed because of concerns about its secrecy provisions. McAuliffe's amendments will go before the Virginia legislature during their veto session, which begins April 20. Under Virginia law, the legislature may accept the amendments by a simple majority vote or override the governor's action again passing the unamended original bill by a two-thirds vote in both Houses of the legislature. If there is insufficient support for either option, the original bill returns to the Governor where he can veto it, sign it, or allow it to become law without his signature. Many states have adopted secrecy policies as they seek alternative sources of lethal injection drugs, but a Missouri judge recently ordered that state to reveal the sources of its execution drugs. The amendment proposed by Gov. McAuliffe states that pharmacies' identifying information, "shall be confidential, shall be exempt from the Freedom of Information Act . . . and shall not be subject to discovery or introduction as evidence in any civil proceeding unless good cause is shown." Virginia law currently directs condemned prisoners to choose between lethal injection and the electric chair, but the bill as initially approved by the legislature would have given the state authority to use the electric chair if lethal injection drugs were deemed to be unavailable, even if the prisoner had selected lethal injection.

 

Orange County Prosecutors Drop Death Penalty in Misconduct-Plagued Case, May Avoid Surrendering DNA Evidence

Posted: April 8, 2016

Kenneth Clair (pictured), whose California death sentence was overturned last year, says he is innocent and that the Orange County District Attorney's office is withholding DNA evidence that would prove it. His prosecutors have declared that they will not seek the death penalty against Clair in a new sentencing hearing, and in so doing may avoid pretrial discovery proceedings in which they could have been required to turn over the potentially exclupatory DNA evidence to the defense. Clair was sentenced to death for the 1984 rape and murder of Linda Faye Rodgers. Two children who were eyewitnesses told first responders that the perpetrator was a white man, but police instead charged Clair, a black man, who had had been arrested for trespassing at the Rodgers' home several days before the murder. At that time, Rodgers' young daughter said that police "have the wrong man. That black man didn't do it." Although the murder scene was covered in blood, a woman who saw Clair shortly after the crime observed nothing unusual in his appearance. In the three decades since his trial, witnesses who testified for the prosecution have recanted, evidence emerged of an undisclosed deal the District Attorney's Office made with one witness for his testimony against Clair, and the U.S. Court of Appeals for the Ninth Circuit found that Clair's lawyer had provided ineffective representation in the penalty phase of his trial. The court overturned Clair's death sentence, but not his conviction. In 2008, DNA testing implicated a man tied to a Fresno case, but District Attorney Tony Rackauckas has withheld the identity of that person, saying the man was too young in 1984 to have been the perpetrator. Clair told the OC Weekly in a recent interview, "I am an innocent man.... I'd bet $1 million, it's a white person's [DNA], like what the kids told the first responders." Clair's case is now before Superior Court Judge Thomas M. Goethals, who recently banned the entire Orange County DA's office from participating in a separate death penalty case because of a history of misconduct involving its repeated failures to disclose the misuse of prison informants and the favorable deals it had offered those informants for their testimony against defendants.

 

Texas Court Finds Marcus Druery Mentally Incompetent, Spares Him From Execution

Posted: April 7, 2016

A Texas court has found that a severely mentally ill death-row inmate, Marcus Druery (pictured), is incompetent to be executed. Druery's attorneys presented more than 150 pages of reports from mental health professionals arguing that, as a result of major mental illness, Druery does not understand why he is being punished, making it unconstitutional to execute him. His "paranoid and grandiose delusions...deprive him of a rational understanding of the connection between his crime and punishment," one expert wrote. On April 4, the court agreed. Prosecutors did not contest Druery's claims of incompetency, but retain the right to petition for reconsideration in the future if Druery's mental state changes. Kate Black, one of Druery's attorneys, said, "The state has the duty to make certain it does not violate the Constitution by executing an individual, like Mr. Druery, who suffers from a psychotic disorder that renders him incompetent for execution. We are pleased that they have taken that duty seriously." Druery has long suffered from delusions and a psychotic disorder that doctors have consistently characterized as a form of schizophrenia. In 2009, his mental illness became so severe that he was transferred to a prison psychiatric unit. State doctors who have examined him since have consistently diagnosed him as delusional. An execution date was set for Druery in 2012, but he was granted a stay and, later, a competency hearing, which led to Monday's decision.

 

Amnesty International Reports Concentrated Spikes in Executions Amidst Continuing Trend Towards Global Death Penalty Abolition

Posted: April 6, 2016

Amnesty International reported that worldwide executions spiked by 54% to at least 1,634—a 25-year high—in 2015, even as the number of countries abolishing the death penalty reached record levels. In its annual report on global developments in capital punishment, released on April 6, Amnesty said that the bulk of recorded executions were concentrated in just three outlier countries—Iran, Pakistan, and Saudi Arabia. These countries accounted for 89% of all recorded executions. (Amnesty did not set a figure for executions in China, where data on capital punishment is considered a state secret. The report estimates that China executes "in the thousands" of prisoners each year and conducted more executions than any other country in 2015.) Pakistan conducted the highest number of executions (326) ever recorded in that country, as it resumed executions after a six-year moratorium, and Egypt and Somalia had significant increases in executions, although both executed fewer prisoners than did the United States. At the same time, 2015 saw the largest number of countries abolishing the death penalty in more than a decade, as four more countries (Republic of Congo, Fiji, Madagascar, and Suriname) officially ended the practice. The total number of abolitionist countries rose to 102, with 140 countries having either abolished the death penalty altogether or not carried out any executions in more than a decade. The United States ranked fifth in the number of executions carried out last year, with executions also concentrated in a few high-use jurisdictions—just three states carried out 86% of executions, reflecting the same patterns seen globally in the use of the death penalty. The report emphasized the outlier status of the few nations that continue to perform executions, saying, "Today the majority of the world’s countries are fully abolitionist, and dozens more have not implemented death sentences for more than a decade, or have given clear indications that they are moving towards full abolition. The starkly opposing developments that mark 2015 underscore the extent to which the countries that use the death penalty are becoming the isolated minority." (Click image to enlarge.) 

 

Victim's Cousin in Oklahoma Death Penalty Case Speaks of "Awful" Guilt Upon Learning Defendants Were Actually Innocent

Posted: April 5, 2016

After Debbie Carter was raped and murdered in Ada, Oklahoma in 1982, police and prosecutors told her cousin, Christy Sheppard (pictured) that Ron Williamson and Dennis Fritz were guilty of the crime. In 1988, Williamson was convicted and sentenced to death; Fritz received a life sentence. Eleven years later, the pair were exonerated when DNA testing excluded them as perpetrators and pointed to another man who had once been a suspect. Sheppard, now a criminal justice counselor and victim advocate in Ada, recently shared the story of her experience learning that Williamson and Fritz were actually innocent. “The guilt has been awful,” she said. “It is horrible to think that you prayed, wished, helped and condoned to bring harm to someone else and then to find out that it wasn’t deserved and later learn what they went through.” Sheppard said her family was shocked, "It was like being in a Twilight Zone. It fit nothing we knew to be true." The experience changed her views on the death penalty, which she had previously supported. "In theory, it seems like that’s the way it ought to be: The punishment fits the crime. But when you pick it apart, it’s just a mess," she said. Sheppard is serving on the recently-announced Oklahoma Death Penalty Review Commission, and is also campaigning on behalf of Retain a Just Nebraska, a group working to defeat a ballot initiative that would reverse that state's legislative repeal of the death penalty.

 

Arbitrariness Remains Pervasive 40 Years After Court Decision Upholding Capital Punishment

Posted: April 4, 2016

Forty years after the U.S. Supreme Court upheld newly enacted death penalty statutes in Gregg v. Georgia and two other cases, Professor Evan J. Mandery of the John Jay College of Criminal Justice says arbitrariness continues to plague the administration of capital punishment across the United States. In a piece for The Marshall Project, Professor Mandery revisits the death penalty in light of the constitutional defects that led the Supreme Court to overturn existing capital punishment statutes in Furman v. Georgia in 1972. He finds that "[w]hether one interprets the Furman decision to have been about — individually or collectively — excessive racism, a failure to identify the 'worst of the worst' among murderers, the death penalty’s sporadic use, or simple geographical randomness, the 'guided discretion' statutes endorsed in Gregg haven’t remotely fulfilled their promise. Randomness has not been reduced and in many respects has grown substantially worse." On the issue of "sporadic use," Professor Mandery cites studies that show state-level death sentencing rates for eligible crimes of 0.56% (Colorado) to 5.5% (California), both of which are dramatically lower than the 15-20% threshold that had raised concerns in Furman. States' failures to identify the "worth of the worst" murderers is evident, he says, in both the expansion of death-eligible crimes (91.1% of murders in Colorado are eligible under the state's death penalty statute) and studies that found no consistent differences in egregiousness of crimes that received death sentences and those that didn't. "Whatever they may have written, [Justice] Stewart, Stevens and Powell’s true project in Gregg was to rationalize the American death penalty and make sentencing decisions turn on the severity of a defendant’s offense instead of random factors, such as where the crime occurred, or insidious factors, such as race." Mandery says. He concludes: "On the occasion of its 40th anniversary, we can deem that project a complete and dismal failure." 

 

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