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Pro-Death Penalty Referenda Prevail in 3 States; Kansas Retains 4 Justices Attacked for Death Penalty Decisions

Posted: November 9, 2016

Voters in three states approved pro-death penalty ballot questions Tuesday, while in a fourth, voters turned back an effort to oust four Justices who had been criticized for granting defendants relief in capital cases. Amid widespread agreement that California's death penalty system is broken, the state's voters rejected Proposition 62, which would have abolished the state's death penalty and replaced it with life without possibility of parole plus restitution, and narrowly approved a competing ballot initiative, Proposition 66, which seeks to limit state court death penalty appeals and expedite executions. With 99% of precincts reporting, Prop 62 trailed 54%-46%, with 3,964,862 Yes votes and 4,643,413 No votes. Prop 66 prevailed 51%-49%, with 4,203,801 Yes votes and 4,051,749 No votes. Earlier in the day, Nebraska voters, in a closely watched referendum, overturned the state legislature's repeal of the state's capital punishment statute and reinstated the death penalty. With 99% percent of precincts reporting, Nebraskans voted in favor of the death penalty by a margin of 61%-39%, casting 443,506 "repeal" votes on Referendum 426 to overturn the legislature's abolition of the death penalty, against 280,587 "retain" votes to keep the legislative repeal in place. Wednesday morning, Governor Pete Ricketts pledged to take action to carry out executions in Nebraska, while long-time death penalty opponent, State Senator Ernie Chambers, vowed to introduce a new bill in the next legislative session to abolish capital punishment. In Oklahoma, voters by a nearly 2-1 margin approved State Question 776, which constitutionalizes the state legislature's power to adopt any execution method not prohibited by the U.S. Constitution and prevents Oklahoma's state courts from declaring the death penalty cruel and unusual punishment. With 100% of precincts reporting, Question 776 prevailed 66%-34%, with 941,336 Yes votes and 477,057 No votes. The death penalty was also a central focus in judicial retention elections in Kansas, where pro-death penalty groups targeted four justices of the state supreme court and spent more than $1 million in an attempt to oust them for their votes overturning several Kansas death sentences. Voters retained all four Justices. Chief Justice Lawton Nuss, speaking on behalf of the challenged justices, said "The supreme court’s ability to make decisions based on the rule of law—and the people’s constitution—has been preserved." Ryan Wright of Kansans for Fair Courts, which opposed the efforts to remove the Justices, added “Kansans have sent a very clear message . . . : hands off our court.” 

 

Two Studies Find Persistent Discrimination in Jury Selection in North and South Carolina

Posted: November 8, 2016

Two recent studies examining the effects of Batson v. Kentucky found that, despite the Supreme Court's ban on racial discrimination in jury selection, Black jurors continue to be disproportionately removed from jury pools in North and South Carolina. Batson, the case that banned the practice of striking jurors on the basis of race, has garnered recent attention because of a recent Supreme Court case, Foster v. Chatman. In Foster, the trial court denied a Black defendant's challenges to the prosecutor's removal of all Black jurors, saying the prosecution had offered race-neutral reasons for those strikes. Years later, through an open records request, Foster's lawyers obtained the prosecution's jury selection notes, which highlighted the names and race of all the prospective Black jurors, put all of the Black jurors on a list of jurors to "definitely strike," and the Black jurors against one another in case "it comes down to having to pick one of the black jurors." A study by Daniel R. Pollitt and Brittany P. Warren in the North Carolina Law Review found that discriminatory practices similar to those in Foster were widespread in North Carolina capital cases, but repeatedly ignored by the state's courts: "In the 114 cases decided on the merits by North Carolina appellate courts, the courts have never found a substantive Batson violation where a prosecutor has articulated a reason for the peremptory challenge of a minority juror." The authors found that the North Carolina Supreme Court had been called upon to decide jury discrimination issues in 74 cases since Batson was decided in 1986, and that "during that time, that court has never once found a substantive Batson violation." By contrast, they said, every other state appellate court located in the Fourth Circuit had found at least one substantive Batson violation during that period. The authors argue, "Thirty years after Batson, North Carolina defendants challenging racially discriminatory peremptory strikes still face a crippling burden of proof and prosecutors’ peremptory challenges are still effectively immune from constitutional scrutiny." A study of South Carolina capital juries by Assistant Professor Ann M. Eisenberg of the University of South Carolina School of Law found that prosecutors exercised peremptory strikes against 35% of otherwise eligible Black prospective jurors, nearly triple the rate (12%) at which they struck otherwise eligible White prospective jurors. Eisenberg also examined the death-qualification process, which excludes jurors who are opposed to capital punishment from serving on death penalty juries. Eisenberg says death-qualification removes "approximately one-third of the population, most of whom are women and African-Americans" from serving on death penalty juries and "functioned as a substantial impediment to jury service by African-Americans in this study." Eisenberg concluded that "removal of jurors for their opposition to the death penalty stands in tension with a defendant’s Sixth and Fourteenth Amendment Rights and Supreme Court jurisprudence." The combined effects of peremptory strikes and the death-qualification process was even starker. Prior to these strikes, Blacks comprised 21.5% of the prospective jury pool. However, 47% of all Black jurors were removed by one or the other of these strikes, as compared with only 16% of White jurors, reducing the percentage of African Americans in the jury pool to only 14.7%.

 

OUTLIER COUNTIES: Non-Unanimous Jury Verdicts Highlight Systemic Flaws in Pinellas County, Florida Death Penalty

Posted: November 7, 2016

Pinellas County, Florida ranks among the 2% of counties responsible for more than half of all prisoners on death rows across the United States and among the 2% of counties responsible for more than half of all executions conducted in this country since 1977. The five death sentences imposed in Pinellas between 2010 and 2015 also place it, along with three other Florida counties, among the 16 U.S. counties with the highest number of new death sentences in the country. One major reason for Pinellas' status is the high number of death sentences it has imposed after juries returned non-unanimous sentencing recommendations, an outlier practice that the Florida Supreme Court recently declared unconstitutional. All six of the Pinellas death sentences the Florida Supreme Court reviewed on direct appeal from 2006-2015 involved non-unanimous juries. Only two of those cases garnered the 10 juror votes in favor of death that would have permitted a death verdict to be imposed under 2016 amendments to Florida law that attempted to address another constitutional flaw in the statute. The non-unanimity provisions facilitated the extremely harsh use of the death penalty by Pinellas' prosecutors against defendants with significant mental health problems. Five of these 6 death sentences were directed at defendants with serious mental illness, brain damage, or intellectual impairment; and one was directed as an emotionally disturbed defendant who -- at only few months past 18 years old at the time of the offense -- was barely constitutionally eligible for the death penalty. According to a report by Harvard University's Fair Punishment Project, none of the other 15 outlier counties who have produced the most death sentences in the U.S. since 2010 imposed it so disproportionately against mentally impaired defendants. This prosecutorial overreaching occurred against a backdrop of racial bias and bad defense lawyering. In the cases mentioned above, every defense attorney presented a day or less of mitigating evidence at trial. The trial judge sentenced Richard Todd Robard to death after a 7-5 jury vote; a 6-6 vote would have spared his life. But Robard's lawyer, Richard Watts, decided not to present evidence of his client's brain damage and mental health problems because he didn't think the jury would be swayed by "brain abnormalities." Amid other evidence of racially imbalanced law enforcement practices in the county, 60% of the defendants sentenced to death since 2010 were black and 67% of the victims in cases in which the death penalty was returned were white.

 

Supreme Court Stays Execution of Tommy Arthur in Alabama

Posted: November 4, 2016

The U.S. Supreme Court has stayed the execution of Tommy Arthur, who was scheduled to be executed in Alabama at 6:00 p.m. Central Time on November 3. Around 10:30 p.m. Eastern, the Court first issued a temporary stay of execution through Circuit Justice Clarence Thomas "pending further order" of the Court. Anticipating a second ruling by the Court, Alabama continued preparations for the execution. Then, just before midnight in Washington, the Court issued a full stay to permit it to consider a petition for writ of certiorari Arthur had filed earlier in the day. Arthur's lawyers had filed two stay applications and petitions for writs of certiorari. One petition sought review of the Alabama Supreme Court's summary dismissal of his challenge to the constitutionality of Alabama's death penalty statute under the Supreme Court's January 2016 decision in Hurst v. Florida. Hurst struck down Florida's death penalty statute because it required a judge, rather than a jury, to find critical facts that were a prerequisite to imposing the death penalty, and Arthur had argued that Alabama's statute suffered from the same defect. The other petition sought review of the denial of Arthur's lethal-injection challenge by a divided 2-1 panel of the U.S. Court of Appeals for the Eleventh Circuit. In its opinion, that court had ruled that Arthur had not met the burden imposed by the Supreme Court's 2015 decision in Glossip v. Gross of showing that an alternative method of execution was available to Alabama because the firing squad -- his proposed alternative -- was not "readily available" under Alabama law. The dissent wrote: "By misreading an Alabama statute, the Majority creates a conflict between the claim and state law. The Majority then resolves that faux conflict in favor of state law, taking the unprecedented step of ascribing to states the power to legislatively foreclose constitutional relief. These missteps nullify countless prisoners’ Eighth Amendment right to a humane execution." The Supreme Court granted Mr. Arthur's stay application in the lethal-injection case. Four Justices voted to stay the execution, with Chief Justice Roberts providing the fifth vote "as a courtesy." Justices Thomas and Alito dissented. Without the time constraints imposed by the death warrant, the Justices can now consider whether to grant review in the case. This was the seventh time Mr. Arthur's execution has been stayed.

 

Editorial Boards, Oklahoma Conference of Churches Oppose Death Penalty Ballot Measure

Posted: November 3, 2016

The editorial boards of Oklahoma's two major newspapers and the leadership of the Oklahoma Conference of Churches are all urging voters to vote no on State Question 776, which would enshrine the death penalty in the Oklahoma constitution and remove from state courts the power to declare the death penalty cruel and unusual punishment. The Oklahoman called SQ 776 "unnecesary," saying it, "should be rejected by Oklahoma voters on Nov. 8." The Tulsa World also encouraged a no vote on 776, saying, "It’s intended effect is to allow supporters of the death penalty to feel as if they have done something, even if they haven’t. But there’s a problem with such symbolic votes. The measure has no intended consequences, but the nature of unintended consequences is that they are unintended, and sometimes unpredictable." Both editorials emphasize that the measure adds to the state constitution powers that the Legislature already has, including designating a new method of execution if the current method is ruled unconstitutional. The Oklahoma Conference of Churches joined the two editorial boards in discouraging passage of the measure. In an op-ed for the Tulsa World, the group's executive director, Rev. Dr. William Tabbernee (pictured), drew on a recent SoonerPoll survey that found, "a majority of Oklahomans (52.5 percent) favor abolishing the death penalty, if replaced by life without parole. Only 27 percent of Oklahoma’s population remains strongly in favor of capital punishment." He describes the recent problems with Oklahoma's administration of the death penalty, including the use of the wrong drug in the execution of Charles Warner. In response to those problems, the Oklahoma Death Penalty Review Commission was formed to examine the capital punishment system, and is expected to release a report early in 2017. "This measure pre-empts the work of the commission and, if passed, would permit execution by virtually any means if lethal injection drugs are unavailable," Tabbernee said. "Rather than enshrining the death penalty in the state’s Constitution now, we should let the commission finish its work and offer its recommendations on the way to proceed in the future." In an opinion piece in the Guthrie News Leader, Republican Logan County Commissioner Marven Goodman called the ballot question "a huge step in the wrong direction," noting that Oklahoma, while executing 112 people, has had 10 death-row exonerees. Goodman said, "as a conservative, I wouldn't trust the government to regulate shoe laces, let alone administer a program that kills its citizens, but that's exactly what we have."

 

Former Ohio Death Row Prisoner Seeks Full Exoneration in Light of Misconduct Accusations Against State Crime Lab Analyst

Posted: November 2, 2016

Former Ohio death row prisoner Kevin Keith (pictured) has filed a motion seeking a new trial to clear his name after evidence has emerged of systemic bias and erratic behavior by the Ohio Bureau of Criminal Investigation (BCI) scientist whose testimony helped put him on death row. Keith and James Parsons, who also was convicted of murder and was sentenced to a term of 15 years to life in prison, have challenged the work of BCI analyst G. Michele Yezzo, who testified at dozens of trials over her 32-year career. Yezzo's credibility has been questioned by two former Ohio attorneys general, a judge, a former BCI superintendent, and an FBI expert. Keith was granted clemency, but not fully exonerated, in 2010 after retired FBI expert William Bodziak said Yezzo's methods and conclusions in his case were baseless, and defense attorneys presented evidence that may implicate another suspect. Bodziak said, "There is nothing to support the conclusions she made, nothing at all. If I had been working on that case, I would have pointed out all those discrepancies and would not have made any conclusions. But it appears she was giving investigators the conclusions they wanted, and that’s the really bad part of this case." Lee Fisher, Ohio's Attorney General from 1991 to 1995, said, "I would call for an investigation into every case where her findings and conclusions were instrumental in the final result of a case. We have an obligation to the integrity of the criminal-justice system to investigate every case. We have to determine whether her findings or conclusions were suspect." A review by the Columbus Dispatch of 800 pages of Yezzo's personnel records disclosed numerous behavior problems, including threatening fellow employees, throwing a metal bar at a co-worker, and using racial slurs against a Black scientist. She was suspended in 1993 as a result of her abusive behavior, but prosecutors continued to use her analysis of evidence in many cases with little oversight of her methods or conclusions. In Parsons' murder case, is alibi that he was at work at an auto repair shop when his wife murdered held up for 12 years. Yezzo began investigating the case in 1993 and, without documenting her methods or properly explaining her findings to the jury, concluded that blood patterns indicated that Parsons' wife had been killed with a wrench that prosecutors claimed belonged to Parsons. He was convicted and spent 23 years in prison before the Ohio Innocence Project took on his case. Judge Thomas Pokorny dismissed the murder conviction and released him, saying, "What has weighed most heavily on the court’s mind is the testimony from Ms. Yezzo’s superior that the integrity of her analysis and conclusions may be suspect as she ‘will stretch the truth to satisfy a department.'"

 

BOOKS: "Courting Death: The Supreme Court and Capital Punishment"

Posted: November 1, 2016

Courting Death: The Supreme Court and Capital Punishment by Harvard Law Professor Carol S. Steiker and University of Texas Law Professor Jordan M. Steiker examines the U.S. Supreme Court's "extensive—and ultimately failed—effort to reform and rationalize the practice of capital punishment in the United States through top-down, constitutional regulation." The authors argue that significant constitutional flaws persist in the death penalty system despite the Court's attempts to regulate it, and present the case for its abolition in the near future. In Harvard Magazine, Lincoln Caplan called Courting Death, "the most important book about the death penalty in the United States—not only within the past generation but, arguably, ever—because of its potential to change how the country thinks about capital punishment." The book explores the arbitrariness of the modern death penalty system, including racial and geographic disparities, and the Court's failure to adequately address those problems. In a review of the book for The Huffington Post, Michael Meltsner, a law professor at Northeastern University School of Law, describes the Steikers' concluding argument, saying, "After taking the reader through the Court’s failed project to rationally regulate the death penalty, the Steikers set out 'A Blueprint for Constitutional Abolition,' a path they believe builds, on precedent, takes seriously language used by Justice Anthony Kennedy, the key swing vote in many previous decisions narrowing the death penalty, and protects the Court from the another backlash of the sort that occurred after the Furman decision."

 

OUTLIER COUNTIES: San Bernardino, California Shares Problematic Patterns of Neighboring Counties

Posted: October 31, 2016

San Bernardino County, California is one of five Southern California counties that have produced more death sentences since 2010 than 99.5% of all U.S. counties. Along with its neighbors, Kern County, Riverside County, Orange County, and Los Angeles County, San Bernardino forms a "new Death Belt," a region with high numbers of death sentences marked by overzealous prosecutors and poor representation for defendants facing a death sentence. In January 2013, San Bernardino had 37 prisoners on death row, making it the 11th largest death row in the country. It has a death sentencing rate 40% higher than the California average. According to the Fair Punishment Project, "A review of direct appeals from the past decade reveals that the San Bernardino County District Attorney’s office has continuously sought the death penalty for very young adults, individuals with mental illness, and an individual who was convicted of capital murder even though he was not the triggerman." District Attorney Mike Ramos has said that minimum competency requirements for capital appeals attorneys are "ridiculous" and "a delay tactic," but history shows that inadequate counsel has been a serious problem in San Bernardino for decades. S. Donald Ames, who has represented four men sentenced to death in San Bernardino, told the jury in one trial that, "execution would help" defendant Melvin Wade. At the trial of Richard Gamache, who was 18 at the time of the crime for which he was being tried, Ames said, "[If] you intend to kill somebody, what the hell difference does it make how young you are?" The United States Court of Appeals for the Ninth Circuit described his representation of Demetrie Mayfield as "deplorable," unanimously overturning Mayfield's 1983 death sentence when Ames had billed only 40 hours in preparation for both the guilt and penalty phases of trial and had his first and only substantive meeting with Mayfield the morning the trial began. Another court-appointed lawyer, Michael Belter, who has had at least 15 clients sent to death row across four Southern California counties, presented less than 2 days of mitigating evidence at the trial of Rickie Lee Fowler, who was convicted of starting a brush fire that resulted in 5 deaths. Abundant mitigation evidence was available for Fowler, who had been sexually molested by a neighbor, physically abused and neglected as a child, and introduced to methamphetamines by his father when he was only 8 years old. Statistics from San Bernardino capital cases also exhibit strong race-of-victim bias. About 82% of victims in the county's 14 capital cases decided on appeal between 2006 and 2015 were White, as compared to murder statistics showing that only 13% of the county's homicide victims in 2013 were White. (Click image to enlarge.)

 

Florida Supreme Court Vacates Capital Conviction on Innocence Claim

Posted: October 28, 2016

With newly discovered confessions and DNA evidence pointing to the prosecution’s chief witness as the actual killer, the Florida Supreme Court, on October 27, vacated the capital conviction of death-row prisoner Clemente Aguirre. Aguirre was convicted of killing his two neighbors--an elderly woman and her adult daughter--but he has always maintained his innocence and claimed that he discovered the women after they were deceased. After he was convicted, Aguirre's post-conviction attorneys discovered that the daughter and grand-daughter of the victims, Samantha Williams, had confessed to at least five different people that she killed her relatives, and DNA results show that her blood was at the crime scene. According to the Innocence Project, "[n]one of the DNA found on the 84 items that were tested matched Aguirre; most matched to the two victims, but two bloodstains were identified as coming from . . . Samantha Williams." In addition, "Samantha’s eight bloodstains had been collected from four different rooms—including in the bathroom where the state had argued at trial that the killer would have cleaned up—and each was found inches away from the victims’ blood." In its decision, the Florida Supreme Court said, "when compared to the evidence introduced at trial, the newly discovered evidence placing Samantha’s blood (rather than Aguirre’s) at critical locations of the crime scene coupled with Samantha’s numerous confessions to multiple individuals that she killed the victims 'weakens the case against [Aguirre] so as to give rise to a reasonable doubt as to his culpability,' entitling Aguirre to a new trial." Although Aguirre’s attorneys are urging prosecutors to drop the charges against him, a spokesperson for the Office of State Attorney Phil Archer said they intend to retry Aguirre. The trial judge imposed two death sentences upon Aguire after the jury had voted 7-5 and 9-3 in favor of death in the two murders. Twenty-six men and women have been exonerated from death row in Florida, the most in the nation. New data suggest that wrongful capital convictions may be more likely in cases in which juries do not reach unanimous recommendations for death. 18 of the 20 Florida exonerations for which researchers have been able to determine the jury vote have involved judges imposing the death penalty despite a jury recommendation for life or after a non-unanimous jury recommendation for death.

 

President Commutes All Death Sentences in Kenya

Posted: October 27, 2016

Kenya has commuted the death sentences of all 2,747 prisoners on the nation's death row. On October 24, President Uhuru Kenyatta signed orders sparing the lives of 2,655 men and 92 women who had been sentenced to death, commuting their sentences to terms of life in prison. While Kenya still authorizes the death penalty, it has not carried out an execution in nearly 30 years. In August 2009, former President Mwai Kibaki commuted the death sentences of the more than 4,000 prisoners who were then on Kenya's death row. One year later, Kenya's Court of Appeal ruled that the country's mandatory death penalty law was unconstitutional, overturning hundreds of death sentences. Muthoni Wanyeki, a regional director of Amnesty International, praised President Kenyatta's action, saying: “The decision to commute death sentences brings Kenya closer to the growing community of nations that have abolished this cruel and inhuman form of punishment. It must now be abolished for posterity.” Nearly two-thirds of the world's countries have abolished capital punishment in law or practice. Among those countries that retain it, the 28 executions carried out in the United States in 2015 placed it fifth in the world behind only China (with more than 1,000 executions), Iran (977), Pakistan (326), and Saudi Arabia (158). 

 

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