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OUTLIER COUNTIES: Legacy of Racism Persists in Caddo Parish, Which Had Nation's Second-Highest Number of Lynchings

Posted: September 23, 2016

The death-sentencing rate per homicide in Caddo Parish, Louisiana was nearly 8 times greater between 2006 and 2015 than the rest of the state, making a parish with only 5% of Louisiana's population responsible for 38% of the death sentences imposed statewide. Caddo currently has more people on death row than any other parish in the state. Known as "Bloody Caddo," the parish had the second highest number of lynchings of any county in the nation. The Confederate flag flew in front of the steps to the courthouse until 2011 (pictured), where a monument to the Confederacy still stands. Inside that courthouse, 80% of defendants sentenced to death between 2010 and 2015 were Black, and no White person has ever been executed for killing a Black person in Caddo Parish. Caddo received national attention in 2015 when Acting District Attorney Dale Cox said he believed the state needed to "kill more people." Cox was personally responsible for one-third of the death sentences in Louisiana from 2010 to 2015. His controversial statements were in response to questions about the exoneration of Glenn Ford, a Black man convicted by an all-White jury, who spent 30 years on death row for a crime he did not commit. Ford's case illustrated many of the factors that have contributed to the overproduction of death sentences in Caddo Parish: racial bias in jury selection and the application of death sentences, inadequate representation, and official misconduct. A 2015 study by Reprieve Australia found that prosecutors used peremptory strikes against 46% of Black jurors, but only 15% of other jurors. One Black prospective juror was removed from a jury pool in 2009 for objecting to the presence of the Confederate flag in front of the courthouse. Like Ford, who was represented by two appointed attorneys who had never represented a criminal defendant at trial, most Caddo Parish defendants have not received adequate representation. In the last decade, 75% of people sentenced to death in Caddo Parish were represented by at least one lawyer who does not meet recently-imposed standards for capital attorneys. Official misconduct, like the false police testimony in Ford's trial, has also contributed to the high number of death sentences in Caddo. In 2014, Dale Cox wrote a memo regarding the capital trial of Rodricus Crawford in which he stated that Crawford, "deserves as much physical suffering as it is humanly possible to endure before he dies." Crawford was convicted and sentenced to death for allegedly killing his infant son, despite medical evidence that the child actually died of pneumonia. Caddo prosecutors have a history of seeking death against the most vulnerable Black defendants: Lamondre Tucker and Laderrick Campbell were 18 years old at the time of their offenses and both had IQs in the intellectually disabled range; Corey Williams, who was 16 and removed from death row after being found to be intellectually disabled, is still serving a life sentence despite powerful evidence that his confession was coerced and that others committed the offense for which he was condemned. In November 2015, Caddo Parish elected its first Black District Attorney, James E. Stewart, Sr., who pledged, "to bring professionalism and ethics back to the district attorney’s office." 


Field Poll: California Death Penalty Repeal Leads Among Likely Voters as Majority Say They Prefer Life Without Parole

Posted: September 22, 2016

A poll of likely California voters conducted jointly by The Field Poll and the Institute of Governmental Studies at the University of California, Berkeley has found continuing erosion of support for the death penalty in the state and near-majority support for Proposition 62, a ballot question to replace the state's death penalty with a system of life imprisonment without parole, plus restitution. The poll found significant voter confusion about a rival ballot measure, Proposition 66, that claims to "reform" the state's death penalty by purportedly speeding up capital appeals. A plurality of voters said they are undecided about that ballot question. Although support for both propositions led opposition, neither commanded a majority. 48% of likely voters say they plan to vote yes on Prop. 62, with 37% planning to vote no and 15% undecided. 35% say they plan on voting yes on Prop. 66, with 23% currently opposing, but 42% undecided. (Click image to enlarge.) The poll presented likely voters with the summaries of each initiative that will appear on the November ballot. It found that support for repeal was strongest among Democrats (63%), liberals (71%), voters under 30 (55%), and voters with no religious preference (59%). Latinos were nearly evenly divided and constituted the only racial or ethnic group in which more voters said they opposed Prop. 62 (43%) than supported it (42%). Nearly one-third of African-American voters (32%) reported that they were undecided. A plurality of most demographic groups was undecided about Prop. 66, but support for the measure was highest among Republicans (42%), conservatives (45%), and Protestants (41%). The poll also asked voters whether they prefer the death penalty or life without parole for those convicted of first degree murder. A 10-percentage-point majority (55%-45%) said they prefer life without parole, continuing a trend of increased support for alternatives to the death penalty since the Field Poll first asked the question in 2009. At that time, a plurality (44%) prefered the death penalty. Support for Prop. 62 is polling 6 percentage points higher than it did for Proposition 34, the ballot initiative to repeal the death penalty that narrowly failed in 2012, at the same time in the election cycle. A Field Poll of likely voters in September 2012 showed 42% in favor of the repeal initiative, 45% opposed, and 13% undecided. Prop. 34 ultimately garnered 48% of the vote. The poll of 942 likely voters was conducted online by YouGov September 7-13, 2016 and released on September 22.


Former Oregon Prison Superintendent: "Capital Punishment is a Failed Policy"

Posted: September 21, 2016

Semon Frank Thompson (pictured), a former superintendent at the Oregon State Penitentiary, oversaw both of the executions carried out under Oregon's death penalty statute. He now believes that "capital punishment is a failed policy." In an opinion piece for The New York Times, Thompson—who used to support the death penalty—explains how conducting executions changed his mind. Prior to serving as prison superintendent, Thompson had felt that "justice had been served" when a defendant who had been convicted of killing one of Thompson's law enforcement colleagues was executed. Shortly afterwards, when he was responsible for carrying out the executions of Douglas Franklin Wright and Harry Charles Moore, "the fact that I was now to be personally involved in their executions forced me into a deeper reckoning with my feelings about capital punishment." By the time the executions took place, Thompson says he had come to "believe[] that capital punishment was a dismal failure as a policy," but he participated because he was expected to do his job. He saw the toll the executions took on staff members who participated: "After each execution, I had staff members who decided they did not want to be asked to serve in that capacity again. Others quietly sought employment elsewhere. A few told me they were having trouble sleeping, and I worried they would develop post-traumatic stress disorder if they had to go through it another time.... The effects can lead to all the places you’d expect: drug use, alcohol abuse, depression and suicide." Thompson now supports Oregon's moratorium on executions and urges the nation to reconsider capital punishment altogether. He has concluded that "America should no longer accept the myth that capital punishment plays any constructive role in our criminal justice system. It will be hard to bring an end to the death penalty, but we will be a healthier society as a result."


REPORT: "Lethally Deficient" Texas Death Penalty Appeal System in "Dire Need of Reform"

Posted: September 20, 2016

A September 20 report by the Texas Defender Service says that Texas "has failed to ensure effective counsel" for appellants in capital cases and that the state's system of reviewing death penalty cases on direct appeal is "in dire need of reform." The report, titled Lethally Deficient, reviewed all 84 capital direct appeals decided by the Texas Court of Criminal Appeals (CCA) from 2009 to 2015 and identified numerous "persistent deficits in the provision of counsel on direct appeal in death penalty cases." Among those problems, the report found that the Texas capital defense system "fails to meaningfully evaluate attorney qualifications" before assigning a lawyer to handle a capital appeal; "understaffs the defense" by appointing only one lawyer—frequently a solo practitioner—to the case; improperly "subjects defense counsel to political pressures"; provides inconsistent and often inadequate resources and compensation; and fails to control attorney workload to ensure that appointed lawyers have time to provide appropriate representation. The report said that, these "fundamental flaws ... led to multiple instances" in which appeal lawyers recycled boilerplate arguments relying on outdated legal authority that had already been rejected in other cases, failed to meet or consult with their clients before filing briefs, failed to file replies to prosecutors' briefs, and failed to seek review of the case by the U.S. Supreme Court. During the period examined, the CCA upheld every capital conviction and more than 94% of all death sentences, and overturned just three death verdicts. Looking at 1,060 capital direct appeal decisions between 2005 and 2015 by courts in the other 30 death penalty states, the study found that Texas's reversal rate was 2.8 times lower than the national average. “The tragedy of direct appeals in Texas capital cases is not simply that lawyers underperform, often pasting together briefs, skipping oral argument, or declining to do other basic tasks such as filing reply briefs. It is that everyone knows that this is happening, from the Texas Court of Criminal Appeals on down. It is an embarrassment to the legal profession and a testament to the low expectations in Texas surrounding defense representation in capital cases,” said Jordan Steiker, Co-Director of the Capital Punishment Center at The University of Texas School of Law. The Texas Defender Service offers three major reform recommendations, suggesting that Texas should 1) "establish a statewide capital appellate defender office," 2) "create a statewide appointment system with effective caseload controls and uniform attorney compensation," and 3) "appoint two lawyers to represent death-sentenced defendants on direct appeal." Kathryn Kase, executive director of the Texas Defender Service, said "Texas has made enormous strides in its effort to reform indigent legal services in general, and in capital indigent representation, since 2001." These new measures, she said "are the necessary next steps in delivering a promise that the first Texas Code of Criminal Procedure laid out in 1857, promising adequate legal assistance to indigents facing the mighty powers of the state."


EDITORIALS: California Newspapers Overwhelmingly Support Ballot Initiative to Abolish Death Penalty

Posted: September 19, 2016

Newspaper editorial boards in California are overwhelmingly supporting a November ballot initiative to abolish the state's death penalty and replace it with life without parole plus restitution, and are uniformly rejecting an opposing initiative that purports to speed up the appeals process. At least eight California newspapers have published editorials supporting Proposition 62 and opposing Proposition 66, and Ballotpedia reports that it is aware of no editorial boards that have supported Proposition 66. A Los Angeles Times editorial characterizes the death penalty as "both immoral and inhumane," adding, "[e]ven those who do not object to capital punishment on principle ought to support abolition because of the system’s inefficiency, exorbitant costs and long delays. Proponents of Proposition 66 say they can speed up the process and make the death penalty work, but there are serious doubts that their proposal would achieve the kind of fast-tracking they promise, and critics argue persuasively that the system might become even more expensive." The San Francisco Chronicle writes that "all sides agree [California's death penalty] has produced enormous legal bills, no semblance of deterrence to would-be murderers and too little justice to victims’ loved ones over the past four decades." It says Prop. 62 "offers a straightforward and certain solution," while criticizing Prop. 66 as "a highly complex, probably very expensive and constitutionally questionable scheme for streamlining the appeals process." Many of the editorials are particularly critical of Prop. 66's proposal to conscript appellate lawyers to represent death row inmates. The (Santa Rosa) Press Democrat's critique is representative: "Rather than funding an expansion of the state public defender’s office, which handles almost all death penalty appeals, Proposition 66 would require all attorneys who practice in California appellate courts, regardless of specialty and training, to accept judicial appointments to capital cases. Claims of inattentive and incompetent counsel already are common in death penalty appeals, and conscripting lawyers would only invite more such challenges." The Bakersfield Californian, which offered no opinion on Prop. 34, California's prior ballot initiative to abolish the death penalty, has also weighed in on the death penalty this year, calling for an end to the state's "costly, toothless death penalty." Other newspapers urging voters to vote yes on Prop. 62 and no on Prop. 66 included Monterey Herald, the Bay Area News Group (Mercury News and East Bay Times), and the Santa Clarita Valley Signal. [UPDATE: Additional editorial boards have come out in favor of Proposition 62 and against Proposition 66 (see below). To date, we are unaware of any editorial support for Proposition 66.]


OUTLIER COUNTIES: Judicial Override, Race Bias, Official Misconduct Rampant in Mobile, Alabama's Use of Death Penalty

Posted: September 16, 2016

Judicial override of jury recommendations of life, the imposition of death sentences after non-unanimous jury sentencing recommendations, and prosecutorial misconduct, race bias, and ineffective defense counsel have made Mobile County, Alabama one of the most prolific death sentencing counties in the United States. Mobile judges imposed 8 death sentences between 2010 and 2015, 88% in cases with white victims. A recent report by Harvard University's Fair Punishment Project attributes this high rate of death sentencing to Alabama's outlier practice of permitting judges to impose death sentences after non-unanimous jury sentencing recommendations. The Project found that only 2 of the 10 Mobile death penalty cases decided on direct appeal since 2006 involved unanimous juries. Judicial override of jury recommendations for life—a practice that today is permitted only in Alabama—also has contributed to unfairness and arbitrariness in Mobile capital cases. Two Mobile County judges, Braxton Kittrell and Ferrill McRae, have used this practice to impose a total of 11 death sentences. According to the Equal Justice Initiative, McRae has overriden more jury life verdicts (6) than any other Alabama judge, including death sentences imposed on George Martin (pictured) and 4 other African-American defendants. During a re-election campaign, McRae ran television ads touting his support for capital punishment and naming defendants whom he had sentenced to death. He also reportedly refused to sign a bail-reduction application in one non-capital case because he “first wanted to know the client’s ‘color’” and allegedly told an attorney in another case not to provide zealous representation “because we need more n***ers in jail.” McCrae has never overturned a jury's death recommendation to impose a life sentence, even when an all-white jury had recommended death for an intellectually disabled black man who could not read the confession that he signed. Mobile prosecutors have also been described as "overzealous" in seeking death. Just two prosecutors, Ashley Rich and Jo Beth Murphee, account for 90% of the Mobile death penalty cases decided on appeal since 2006, and both have had death sentences overturned for improper prosecutorial practices. The Fair Punishment Project found that "the average defense presentation of mitigation evidence in Mobile County capital trials lasts less than one full day" and that one lawyer, Greg Hughes, had been defense counsel for 40% percent of all the Mobile capital cases reviewed on direct appeal since 2006. As a result of a combination of prosecutorial and juror misconduct and ineffective defense representation, Mobile death row prisoner William Zeigler—who maintains his innocence—was granted a new trial in November 2012. In 2015, Ziegler accepted a plea deal for time served and was immediately released. In March 2016, another Mobile trial judge barred prosecutors from retrying Martin, finding that prosecutors had engaged in "willful misconduct" by suppressing a range of exculpatory evidence. This included evidence that the prosecution's lead witness had told investigators he had seen a "large black man" in a trooper's uniform in the vicinity of the murder (Martin is 5'6"), that investigators had shown the witness photos of every black trooper from Mobile County, and that the witness not only had not identified Martin, but had selected the picture of a different trooper. Martin's jury voted 8-4 to spare his life, but Judge McRae overrode their recommendation. The prosecution's appeal of the Martin ruling is pending in the Alabama appellate courts.


Inaction on Execution Protocol Ensures Two-Year Hold on Executions in Oklahoma

Posted: September 15, 2016

For the first time in two decades, Oklahoma will go at least two years without an execution. As part of an agreement in a federal lawsuit brought by the state's death row prisoners, Oklahoma Attorney General Scott Pruitt (pictured) has said the state will not request execution dates for at least five months after the state adopts a new execution protocol. Because of this, when the Oklahoma Board of Corrections met on September 13, 2016, the state already could not have sought to conduct any execution until at least February 2017. When the corrections board adjourned without considering any new execution plan, it ensured that even more time would pass between executions in the state. The last time Oklahoma went at least two years without an execution was from March 13, 1992 to March 20, 1995, between the executions of Olan Robison and Thomas Grasso. The current execution hiatus comes in the wake of three consecutive botched execution attempts in Oklahoma. On April 29, 2014, prison personnel could not locate a usable vein in the arm of Clayton Lockett and used a wrong-sized needle in attempting to insert an IV in a vein in Lockett's groin. After 43 minutes, as the botched procedure was being halted, Lockett died of a heart attack. On January 15, 2015, Oklahoma executed Charles Warner in violation of state procedures when the state's anonymous drug provider supplied the wrong execution drug and no one in the execution process noticed the error. In September 2015, the execution of Richard Glossip was halted at the last moment after state officials discovered that they had again obtained the wrong execution drug. A grand jury investigating the state's botched executions issued a scathing report in May 2016 saying administrative "paranoia" over keeping execution information secret "clouded the judgment" of corrections officials, causing them "to blatantly violate their own policies." Following the Corrections Board meeting, Pruitt issued a statement seeking to assure victims' families that process of reviewing a new execution protocol "will continue to be both deliberate and empirical." Pruitt expressed confidence that the new leadership of the state's corrections department—appointed after the retirement of key corrections officials involved in the execution process—"is taking the appropriate time needed to ensure the execution protocols are fully in place and without error in the most efficient way possible." A DOC spokesman described the protocol as "a work in progress," and said "[t]here currently is no timeline on when anything will be released." Glossip—whose case raises significant questions of innocence that have drawn worldwide attention—and four other Oklahoma death row inmates have exhausted their appeals and face execution dates once the state adopts an execution protocol. 


New Podcast: Jeffery Wood and the Texas Law of Parties, With Expert Guest Kate Black

Posted: September 14, 2016

Today, DPIC launches a new podcast series, "Discussions With DPIC," which will feature monthly, unscripted conversations with death penalty experts on a wide variety of topics. The inaugural episode features a conversation between Texas Defender Services staff attorney Kate Black (pictured) and DPIC host Anne Holsinger, who discuss the case of Jeffery Wood and Texas' unusual legal doctrine known as the "law of parties." Wood's case garnered national media attention because he was sentenced to death despite having neither killed anyone nor even intended that a killing take place. His execution, which had been scheduled for August 24, was stayed by the Texas Court of Criminal Appeals to permit him to litigate a challenge to the prosecution's use of scientifically invalid predictions of future dangerousness by a psychiatrist who had been expelled from state and national psychiatric associations for similarly improper testimony in the past. In the podcast, Black explains the law of parties and its application in Wood's case, and discusses how the national dialogue that developed around Wood's case may affect the death penalty in the future. 


Roger King, Former Philadelphia Prosecutor Who Once Held Record For Most Death Penalty Convictions, Dies

Posted: September 13, 2016

Roger King, a former prosecutor in Philadelphia who at one point was responsible for 20% of all the death sentences imposed in Pennsylvania, died of kidney cancer on August 24. When King retired in 2008, he held the record for most death sentences obtained by a single Pennsylvania prosecutor. None of the men he sent to death row has ever been executed. While King's aggressive pursuit of death sentences contributed to his "larger than life" reputation, it also involved charges of misconduct that included the pursuit of the death penalty against at least seven men who may have been innocent. William Nieves was prosecuted by King in 1994 and convicted based upon questionable eyewitness testimony. He was exonerated from death row in 2000 after his new attorney presented evidence that his first jury never heard that an eyewitness had originally identified the perpetrator as a short black man, not the tall, light-skinned Nieves. King also withheld exculpatory evidence in the trial of James Dennis (pictured) who was granted a new trial on August 23. The Pennsylvania federal appeals court found that King had suppressed "a receipt corroborating Dennis' alibi, an inconsistent statement by the Commonwealth's key eyewitness, and documents indicating that another individual committed the murder," which, the court said, "effectively gutted" the prosecution's case. A Philadelphia judge overturned the 1993 conviction of a third death row prisoner prosecuted by King, Frederick Thomas, who—as with Nieves and Dennis—were convicted on shaky eyewitness testimony and without any physical evidence against them. Before Thomas was granted a new trial in 2002, the state's two eyewitnesses recanted their testimony and police officer James Ryan—whom the defense said had framed Thomas—was convicted on corruption charges arising out of his conduct in other cases, including falsifying police reports and making false arrests. King also prosecuted four innocent men in Philadelphia's "Lex Street Massacre," the worst mass murder in Philadelphia history. No physical evidence linked any of the men to the killings, but King proceeded with one questionable witness and the coerced confession of one of the defendants. After 18 months in prison without being tried, the court dismissed all charges against the men. The four sued for their wrongful incarceration and obtained a $1.9 million settlement from the city. 


NEW VOICES: Former Ohio Attorney General Jim Petro Says Death Penalty Unfixable, "Not Worth It Any More"

Posted: September 12, 2016

In a recent commentary in the Columbus Dispatch, former Ohio Attorney General Jim Petro (pictured) criticized the state's death penalty as "a broken system that currently serves only the interest of Ohio prosecutors" and said that keeping "the death penalty is just not worth it any more." As a state legislator, Petro helped write Ohio’s current death-penalty law and he oversaw eighteen executions as Attorney General from 2003-2007. He says, at the time "[w]e thought maybe it would be a deterrent. Maybe the death penalty would provide cost savings to Ohio. What I know now is that we were wrong." Petro expressed his agreement with the conclusions in a report, “A Relic of the Past: Ohio’s Dwindling Death Penalty," released last week by Ohioans to Stop Executions (OTSE), which he says "details a continuing decline in executions and new death sentences in Ohio while highlighting the disparities between counties that prosecute death cases." The decline is exemplified by the fact that only one new death sentence was imposed in Ohio in 2015 -- the fourth consecutive year of decline -- and Cuyahoga and Summit counties, which are responsible for more than 25% of Ohio's death sentences, did not initiate any new death penalty cases last year. The change in death penalty practices in Cuyahoga, which through 2012 had sought death in dozens of cases a year, had nothing to do with crime rates: "there was a new prosecutor," Petro said. By contrast, Trumbull County had one of the lowest homicide rates in the state but the highest death-sentence-per-homicide rate. "It has become clear to me that what matters most is the personal predilections of a county prosecutor," Petro said. Petro also was critical of apparent legislative indifference to the flaws in Ohio's capital punishment system. Despite 13 wrongful convictions and exonerations in Ohio death penalty cases and 56 recommendations for reform made in 2014 by the Ohio Supreme Court's Joint Task Force on the Administration of Ohio’s Death Penalty, the legislature has seen fit to consider "[o]nly a handful of the recommendations ... , and not those which would make the biggest difference." Petro concludes: "I am convinced that the death penalty is just not worth it any more, and I don’t think it can be fixed. ... If we’re going to have the death penalty, then it must not be carried out until the legislature implements the task force’s reforms intended to ensure fairness and accuracy."