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On June 9, the U.S. Supreme Court held in Williams v. Pennsylvania that Terry Williams' (pictured) due process rights were violated when Pennsylvania's Chief Justice refused to recuse himself from the case. Ronald Castille served as Philadelphia District Attorney before being elected to the Pennsylvania Supreme Court. As District Attorney, he personally approved the decision to pursue the death penalty against the 18-year-old Williams, and then, while running for state Supreme Court, touted his record of having "sent 45 people," including Williams, to death row. Nearly 30 years after Williams was sentenced to death, and within a week of his scheduled execution, the Philadelphia Court of Common Pleas heard evidence that prosecutors had presented false testimony from a witness and withheld evidence that it had given favorable treatment to that witness; suppressed evidence that the victim had sexually abused Williams and other boys; and misrepresented to the jury that the victim had been simply a "kind man" who had offered Williams a ride home. After the court overturned Williams' death sentence, Philadelphia prosecutors appealed to the Pennsylvania Supreme Court, where Castille was serving as Chief Justice. Williams' attorneys filed a motion seeking Castille's recusal, but he denied the motion, refused to refer the question to the full court, and voted with the majority of the court to reverse the lower court ruling and reinstate Williams' death sentence. Castille also authored a concurring opinion saying the lower court had stayed Williams' death sentence "for no valid reason," attacking the judge for having “lost sight of [her] role as a neutral judicial officer,” and denouncing Williams' counsel for having an “obstructionist anti-death penalty agenda” and turning postconviction proceedings “into a circus where [they] are the ringmasters, with their parrots and puppets as a sideshow.” The U.S. Supreme Court, in an opinion by Justice Anthony Kennedy, reversed, saying "[a] constitutionally intolerable probability of bias exists when the same person serves as both accuser and adjudicator in a case." Here, the Court ruled, "Chief Justice Castille’s significant, personal involvement in a critical decision in Williams’s case gave rise to an unacceptable risk of actual bias." It further determined that Castille's participation in the case "affected the ... whole adjudicatory framework" of the appeal, and ordered the Pennsylvania Supreme Court to reconsider the appeal. “Today, Terry Williams comes one step closer to the new, fair sentencing hearing he deserves,” said Shawn Nolan, an attorney for Williams, “We’re optimistic that the Pennsylvania Supreme Court will give this case careful consideration and recognize the injustice of Terry’s death sentence.”
Former Louisiana Chief Justice Asks Supreme Court to Review Case Presenting "Endemic" Prosecutorial MisconductPosted: June 8, 2016
Pascal Calogero (pictured), former associate and chief justice of the Louisiana Supreme Court, has called upon the U.S. Supreme Court to review the case of David Brown, a Louisiana death row prisoner who is challenging his sentence on the grounds that prosecutors withheld exculpatory evidence. Brown says prosecutors violated the Supreme Court's ruling in Brady v. Maryland, which requires disclosure of evidence that would be favorable to a defendant, whether relating to his guilt or in reaching a sentencing decision. In Brown's case, prosecutors had known for months that one of his co-defendants had confessed to having committed the killing with the help of a third co-defendant. They nonetheless withheld the confession from the defense, undermining Brown's claim that he was not the killer and that the victim was still alive the last time Brown had seen him. The evidence withheld in Brown's case is strikingly similar to the evidence presented to the Supreme Court in Brady itself—a co-defendant's admission that he, and not the defendant, was the actual killer. Nevertheless, the Louisiana Supreme Court said the withheld evidence would not have been favorable to Brown and ruled that no constitutional violation had occurred. "Brady issues are and have been, for decades, an endemic and persistent problem in Louisiana courts in both capital and noncapital cases," Calogero wrote in an op-ed in The National Law Journal. "The Louisiana Supreme Court had a chance to address this in Brown, but instead, once again, neglected to do so." The Open File, a website devoted to prosecutorial accountability, said that "Louisiana has a uniquely sordid history when it comes to prosecutorial misconduct." The Supreme Court has overturned three Louisiana death penalty cases for withholding exculpatory evidence, including the case of Michael Wearry earlier this year, and police or prosecutorial misconduct has been a factor in all ten Louisiana death-row exonerations to date. In addition, The Open File reported that the state court's rejection of Brown's Brady claim has "perversely ... undercut" the state's process for attorney discipline. Although it is undisputed that the prosecutors knew about and withheld evidence of the co-defendant's confession, the Louisiana Office of Disciplinary Counsel was unable to disclipline the prosecutors involved because the state court had ruled that the confession was not "favorable" evidence and the so the failure to disclose it could not be considered a violation of state ethical rules. The Court is scheduled to conference on June 16 on whether to accept Brown's case for review.
A judge dismissed murder charges against former Texas death row prisoner Kerry Max Cook on June 6, after prosecutors conceded that his due process rights had been violated by the presentation of false testimony from an alternative suspect. The decision moves Cook one step closer to exoneration, nearly 40 years after he was originally convicted and sentenced to death for the 1977 murder of Linda Jo Edwards. Smith County prosecutors tried Cook three times, twice winning convictions and death sentences. After Smith's second trial ended in a hung jury, prosecutors withheld evidence and misrepresented a deal they had made with a jailhouse informant who falsely testified in the third trial that Cook had confessed to him. An appeals court overturned that conviction and death sentence for what it called “pervasive” and “egregious” prosecutorial misconduct. To avoid a fourth capital trial in 1999, Cook pled no contest to reduced charges and was released from prison. He continued to maintain his innocence. Prosecutors finally agreed to drop the charges against Cook after an alternate suspect in the case, James Mayfield—who had been granted complete immunity from prosecution—admitted that he had lied during Cook's trials. Mayfield, who had an extramarital affair with Edwards, had testified at the trials that he had not had sex with Edwards for weeks before her murder. However, several DNA tests identified semen in Edwards' underwear as Mayfield's, not Cook's. In a deposition in April, Mayfield testified that, in fact, he had sex with Edwards the day before she was killed. That admission also shed new light on the trial testimony of Edwards' roommate, who initially identified Mayfield as the man she saw in the apartment the night of the murder, but later changed her story to implicate Cook. Mark McPeak, who represented Cook during an earlier stage of his case, described his prior trials as "the quintessential railroading." Texas Defender Services executive director Kathryn Kase said: "It is long past time for the state of Texas to admit that it got the wrong man and that it prosecuted the wrong man repeatedly and sought the death penalty against the wrong man repeatedly." Cook continues to pursue a declaration of "actual innocence" that would make him eligible for more than $3 million in compensation from the state of Texas for the two decades he was wrongfully incarcerated on death row. The trial court is expected to rule on that claim later this month and the Texas Court of Criminal Appeals will then review the dismissal of charges.
On June 6, the U.S. Supreme Court granted writs of certiorari in two Texas death penalty cases, and will review the constitutionality of those death sentences during its next term. The two cases are Buck v. Stephens, in which Duane Buck was sentenced to death after a psychologist testified at his penalty trial that the fact that Buck is African-American increases the likelihood that he presents a future danger to society; and Moore v. Texas, a challenge to Texas' unscientific test for determining whether a defendant is intellectually disabled and therefore exempt from execution. Texas, through its then-Attorney General John Cornyn, had conceded that seven death row prisoners, including Buck, had been unfairly sentenced to death after juries in their cases had been exposed to expert mental health testimony improperly linking race and future dangerousness. The other defendants whose trials were tainted by such testimony were granted new sentencing hearings, but Buck's case did not reach the courts until Cornyn had become a U.S. Senator, and the new Attorney General (now Governor), Greg Abbott, opposed granting Buck a new sentencing hearing. The Court granted review on one of two issues presented in Bobby James Moore's petition for certiorari, whether a state may reject current medical standards in determining intellectual disability. It initially appeared to have granted review of a second issue as well, whether Moore's "extraordinarily long" confinement on death row violates the Eighth Amendment ban on cruel and unusual punishment. However, in an updated order, the Court clarified that it was limiting its review to only the intellectual dsability question. Moore was sentenced to death more than 35 years ago, and has been diagnosed as intellectually disabled by medical professionals. The Texas Court of Criminal Appeals rejected his intellectual disability claim in 2015 because he failed to meet Texas' “Briseño factors,” a set of unscientific criteria based on the fictional character of Lennie Smalls from the novel "Of Mice and Men."
Louisiana will not conduct any executions in 2016 or 2107 as a result of a new court order issued with the consent of the parties in federal proceedings challenging the constitutionality of Louisiana's lethal injection process. At the request of the Louisiana Attorney General, a federal judge has delayed proceedings on the state's lethal injection protocol for an additional 18 months, making January 2018 the earliest date the state could resume executions. Attorney General Jeff Landry asked for the extension because the facts of the case are in a "fluid state" and it would be "a waste of resources and time to litigate this matter at present time." The request marked the third time in two years that the state has asked to delay the trial. In June 2015, after the state's execution drugs had expired, its lawyers told the court that Louisiana lacked the drugs necessary to carry out executions. In February, the Louisiana Department of Corrections indicated that the state still did not have the drugs needed to conduct an execution. Previously, in 2013, the state had considered purchasing execution drugs from a Tulsa, Oklahoma, compounding pharmacy that was not licensed to provide drugs to any pharmacy in Louisiana, making any purchase of drugs from that company by the Louisiana State Penitentiary Pharmacy illegal under state law. That compounding pharmacy, which secretly sold execution drugs to Missouri during the same period, was implicated in nearly 2,000 violations of Oklahoma pharmacy regulations. The state later obtained one of the execution drugs it needed from a hospital in Lake Charles, misrepresenting to the hospital that it needed the drugs for medical purposes. Christopher Sepulvado, one of the two inmates named in the challenge to the constitutionality of Louisiana's execution procedure, was originally scheduled to be executed in 2014. Louisiana's protocol allows for either a one-drug execution using pentobarbital, or a two-drug execution using midazolam and hydromorphone. The state does not have the drugs necessary for either option, according to a spokesperson for the Depatment of Corrections. Louisiana's last execution was in 2010.
U.S. Supreme Court Reverses Arizona Death Sentence After Jury Not Told of Defendant's Ineligibility for ParolePosted: June 2, 2016
The U.S. Supreme Court has overturned a death sentence imposed on Shawn Patrick Lynch by an Arizona jury that had not been told he would have been ineligible for parole if jurors sentenced to him to life imprisonment. In a 6-2 decision on May 31, the Court agreed to review Lynch's case, vacated the judgment of the Arizona Supreme Court, and summarily reversed Lynch's death sentence. Under Arizona law, the only sentences the jury could impose in Lynch's case were life without possibility of parole or the death penalty. The prosecution in the case presented evidence and argument to the jury suggesting that Lynch would pose a future danger to society unless he were sentenced to death. At the same time, it filed a motion, which the trial judge granted, to prevent Lynch's lawyer from informing the jury that its life sentencing option carried no possibility of parole. The trial court also did not instruct the jury that Lynch would be ineligible for parole if sentenced to life. The Supreme Court held that this violated Lynch's right to due process, as set forth in its 1994 decision in Simmons v. South Carolina. Simmons ruled that a capital defendant is entitled to inform the jury of his parole ineligibility whenever his future dangerousness is at issue and the only sentencing alternatives available to the jury are death or life imprisonment without possibility of parole. This was Lynch's third penalty phase. In his first penalty trial, the jury was unable to reach a unanimous verdict and the court declared a penalty mistrial. Lynch was again sentenced to death at his second penalty trial, but that sentence was overturned because of misconduct by prosecutor Juan Martinez, who had misrepresented to the jury that the aggravating factor “excessively cruel, heinous or depraved” constituted three separate aggravating circumstances. In his latest resentencing trial in 2012, the Arizona Supreme Court found that Martinez had “disturbingly made a number of inappropriate comments” and had engaged in "some instances" of misconduct. However, it ruled that the “prosecutorial misconduct ... was not so pronounced or sustained as to require a new sentencing trial.” Lynch's case now returns to state court for a fourth sentencing trial.
As Legitimate Market for Execution Drugs Dries Up, States' Secret Execution Practices Become Increasingly QuestionablePosted: June 1, 2016
Pfizer's recent announcement that it was tightening controls against what it calls the misuse of its medicines in executions highlights an on-going struggle between states desperate for execution drugs and a medical community that believes its involvement in the lethal injection process violates its medical and corporate missions and the ethical standards of the pharmaceutical and health professions. As Pfizer and nearly two dozen other pharmaceutical companies have ended open market access to drugs potentially used in executions, states have responded by increasingly shrouding the execution process in secrecy. The states "are mainly concerned about losing their providers of lethal-injection drugs should the companies’ names become public," says Linc Caplan in a recent article in The New Yorker. Otherwise, "companies that do not want their products associated with executions will know that their drugs are being used." He reports that since the Supreme Court upheld Kentucky's execution protocol in 2008, 20 states have responded to drug shortages by abandoning protocols that had been substantially similar to Kentucky’s, making "unfettered substitutions" to their protocols in "desperate attempts to adhere to their execution schedules.” Caplan reports that States "have also been increasingly misleading in their efforts to obtain drugs for executions." He cites documents showing that one Ohio official urged state drug purchasers to identify themselves as from the Department of Mental Health and warned they should "not mention anything about corrections in the phone call or what we use the drug for." Louisiana similarly obtained execution drugs from a local hospital, which mistakenly assumed they were needed for medical use. Last week, an Oklahoma grand jury report described that state's secrecy practices as producing a "paranoia" that "clouded [prison officials'] judgment and caused administrators to blatantly violate their own policies." An article by Chris McDaniel in BuzzFeed after the release of that report documented that the same secrecy and lack of oversight criticized by the Oklahoma grand jury is common in other states, and has contributed to execution problems in Missouri, Georgia, and Ohio. Arizona and Missouri paid executioners in cash, and Missouri's mismanagement of that fund likely violated federal income tax law. Missouri's secrecy, McDaniels writes, also "allowed it to purchase execution drugs from a pharmacy in Tulsa, Oklahoma, that was not licensed in Missouri and had questionable pharmaceutical practices." Other states, like Texas and Arizona "have used the secrecy to purchase drugs illegally," he reports.
The Texas Court of Criminal Appeals has granted a stay of execution to Charles Flores (pictured) to permit him to litigate a claim that prosecutors unconstitutionally convicted and sentenced him to death by using unreliable hypnotically refreshed testimony. Texas had scheduled Flores' execution for June 2. Flores, who is Latino, was convicted in 1999 of murdering a 64-year-old white woman in suburban Dallas, and was sentenced to death. Prosecutors presented no physical evidence linking Flores to the murder, and the sole witness who claimed to have seen him at the scene was hypnotized by police before identifying him. She initially told police she had seen two men in a car outside of the victim's home, identifying the driver, Richard Childs, in a police lineup and describing the passenger as a white man with shoulder-length dark hair. However, when she appeared in court 13 months later after having seen photographs of Flores in news reports about the murder, she told prosecutors that she now recognized Flores as the second man. According to an affidavit Flores submitted from psychology professor Steven Lynn, research has linked "hypnotic refreshment" with the creation of false memories. “Clearly, the techniques that were used to refresh [the witness's] memory would be eschewed today by anyone at all familiar with the extant research on hypnosis and memory,” Lynn wrote. The Flores conviction and death sentence are also tainted with issues of race. Police charged both Childs and Flores with the murder. Childs, who is white, confessed to shooting the victim, pled guilty, and was sentenced to a term of 35 years with parole eligibility after 17 years. He was released on parole in April 2016. Flores, though admitting his involvement in the drug trade, professed his innocence of the murder and was tried and convicted. After his court-appointed lawyers failed to present any witnesses on his behalf in the penalty trial, the jury sentenced him to death. "So the white guy who was the trigger guy is out on parole, and the Hispanic guy, who was not the trigger man, is about to be put to death,” Greg Gardner, Flores' current lawyer, told The Texas Tribune in an interview before the stay was issued. “It really is just a mystery.” 178 of the 246 people on Texas's death row as of May 2016 are black or Latino.
In a 5-2 decision issued May 26, the Connecticut Supreme Court reaffirmed its August 2015 decision in State v. Santiago that the death penalty violates Connecticut's state constitution. Connecticut prospectively repealed the death penalty in 2012, leaving eleven men on death row. In Santiago, the court ruled that "capital punishment has become incompatible with contemporary standards of decency in Connecticut," and replaced the eleven remaining death sentences with life without parole. Prosecutors unsuccessfully asked the court to reconsider its 4-3 decision in Santiago, and then, after one of the members of the majority left the court, sought to overturn the decision in the next capital appeal to reach the court, State v. Peeler. However, the new Justice, Richard A. Robinson, and Chief Justice Chase T. Rogers, one of the Santiago dissenters, joined the other justices from the Santiago majority in applying Santiago to overturn Russell Peeler's death sentences and direct that he be sentenced to two terms of life without parole. In her concurring opinion, Chief Justice Rogers wrote, "I feel bound by the doctrine of stare decisis in this case for one simple reason—my respect for the rule of law. To reverse an important constitutional issue within a period of less than one year solely because of a change in justices on the panel that is charged with deciding the issue, in my opinion, would raise legitimate concerns by the people we serve about the court’s integrity and the rule of law in the state of Connecticut." Justice Robinson expressed a similar sentiment in his concurring opinion: "In my view, stare decisis considerations of this court’s institutional legitimacy and stability are at their zenith in this particular case, given that the only thing that has changed since this court decided Santiago is the composition of this court." The three justices from the Santiago majority also responded to the prosecution's substantive attack on that decision. They wrote that "the persistent, long-term declines in capital punishment are just what they appear to be—evidence that contemporary standards of decency have evolved away from execution as a necessary and acceptable form of punishment" and that Connecticut's actual death penalty practices "constitute[ ] what has come to be seen as cruel and unusual."
The Nebraska Supreme Court heard oral argument on May 25 in a challenge to the proposed November referendum that could reverse the state legislature's 2015 repeal of the death penalty (vote results pictured left). Christy and Richard Hargesheimer, who oppose the death penalty, are challenging the documents submitted by Nebraskans for the Death Penalty, the organization supporting the referendum, on the grounds that the group violated state law when they failed to list Governor Pete Ricketts as a sponsor of the referendum. Nebraska state law requires proponents of a ballot initiative to disclose all of the sponsors of the proposed referendum. Ricketts vetoed the legislature's 2015 repeal of the death penalty, but the legislature voted 30-19 to override his veto. Ricketts then personally contributed $200,000 and, in combination, he and his father donated approximately one-third of all the money raised by Nebraskans for the Death Penalty to gather the signatures needed to place the referendum on the ballot. Much of the argument Wednesday focused on the definition of who is a "sponsor" for the purposes of a referendum campaign. Alan Peterson, an attorney for the Hargesheimers, said the sponsor is the primary initiating force, "the initiator, the instigator." Attorneys for Nebraskans for the Death Penalty argued that the sponsor is someone willing to take legal responsibility for the petition paperwork and said Peterson's definition was "unworkable and would chill involvement in the democratic process." Peterson also argued that a key document required to place the referendum on the November ballot had been filed improperly because it was not an affidavit or sworn statement, as required by Nebraska law. A trial court ruled in February in favor of Nebraskans for the Death Penalty, leading to the Hargesheimer's appeal. [UPDATE: On July 8, 2016, the Nebraska Supreme Court that Governor Ricketts’ financial and other support for the petition drive did not make him a “sponsor” of the referendum, and therefore proponents' of the referendum did not have to disclose his involvement in the petition drive. The court rejected the Hargesheimers' efforts to remove the referendum from the ballot.]