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After Initial Botched Execution of Romell Broom, Ohio Supreme Court Gives Approval for State to Try AgainPosted: March 17, 2016
In a divided 4-3 decision, the Ohio Supreme Court on March 16 authorized the state to try for a second time to execute death row inmate Romell Broom (pictured, after the state's failed first attempt to execute him). The court majority held that a second execution attempt would not violate constitutional protections against twice placing a defendant in jeopardy of life, nor constitute cruel and unusual punishment. Ohio first tried to execute Broom on September 15, 2009, but the attempt was called off after two hours of unsuccessful efforts by executioners to establish a viable IV line. Despite attempting to insert the IV in 18 different sites on Broom's arms and legs, prison personnel failed to find a suitable vein, and in one case instead struck bone. Justice Judith Lanzinger, writing for the majority, said the event was not a failed execution because setting the IV line was only a "preliminary step" to an execution and the execution itself "commences when the lethal drug enters the IV line." The majority reasoned that "because the attempt did not proceed to the point of injection of a lethal drug into the IV line, jeopardy never attached." The court denied Broom an evidentiary hearing on his claim that a second execution attempt would constitute cruel and unsual punishment, assuming that prison personnel would this time adhere to the state's execution protocol. It wrote: "Strict compliance with the protocol will ensure that executions are carried out in a constitutional manner and can also prevent or reveal an inmate’s attempt to interfere with the execution process. We simply are unable to conclude that Broom has established that the state in carrying out a second attempt is likely to violate its protocol and cause severe pain." Justice Judith French dissented, saying, "The majority’s decision to deny Romell Broom an evidentiary hearing on his Eighth Amendment claim is wrong on the law, wrong on the facts, and inconsistent in its reasoning. If the state cannot explain why the Broom execution went wrong, then the state cannot guarantee that the outcome will be different next time." In a separate dissent, Justice William O'Neill wrote, "Any fair reading of the record of the first execution attempt shows that Broom was actually tortured the first time. Now we embark on the task of doing it again." Dr. Jon Groner, who examined Broom shortly after the 2009 botched execution, described the attempts at accessing Broom's veins as, "somewhere between malpractice and assault." Broom's attorneys said they intend to seek further review in other courts.
United States District Court Judge Nicholas Garaufis (pictured) ruled on March 15 that federal death row inmate Ronell Wilson is ineligible for the death penalty because he has intellectual disability. In 2002, the U.S. Supreme Court held in Atkins v. Virginia that the death penalty constituted cruel and unusual punishment when applied to people diagnosed with intellectual disability, then known as mental retardation. Wilson was first sentenced to death in New York federal district court in 2007, but his death sentence was overturned because of prosecutorial misconduct. Before his second sentencing proceeding in 2013, Wilson's lawyers argued that he had an intellectual disability that made him ineligible for the death penalty. The district court rejected that claim on the grounds that Wilson's IQ scores "indicated sufficient intellectual functioning," and Wilson received a second death sentence. In light of the U.S. Supreme Court's 2014 decision in Hall v. Florida, the U.S. Court of Appeals for the Second Circuit ordered the district court to reconsider Wilson's intellectual disability claim. Hall held that applying a bright-line IQ score to reject a claim of intellectual disability was inconsistent with accepted standards for diagnosing intellectual disability and violated the 8th Amendment. The Court said, "When a defendant's IQ test score falls within the test's acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits." Applying the appropriate diagnostic criteria, Judge Garaufis found that "Wilson has demonstrated significant deficits in adaptive functioning, and he therefore meets the legal standard for proving intellectual disability. Accordingly, Wilson is ineligible to receive the death sentence that has been imposed on him."
In two separate op-eds, an Ohio Supreme Court Justice and a death row exoneree from Ohio expressed concerns about wrongful convictions that have led them to believe the death penalty should be abolished. In The Highland County Press, Justice Paul Pfeifer (pictured, r.) wrote about the "long and complex" case of Thomas Keenan, who was granted a new trial because prosecutors illegally withheld evidence. Pfeifer points to the misconduct in Keenan's case as a reason why the death penalty should be abolished: "If he had been executed, there would have been no way for the state to cleanse itself from the awful reality of having executed a person who had not received his full measure of legal protection. To ensure that never happens, the Ohio Legislature should – in my opinion – abolish the death penalty." Writing for CNN, death row exoneree Ricky Jackson (pictured, l.) argued that the risk of wrongful convictions is too great to continue using the death penalty. Jackson, who was sentenced to death and spent 39 years wrongfully incarcerated before his 2014 exoneration, said "The fact that we too often send innocent people to death row in this country can no longer be debated. I ought to know. I was one of them." Citing cases such as Cameron Todd Willingham and Carlos DeLuna, Jackson cautioned that not all innocent people sent to death row are exonerated. "Some of those likely innocents," he said, "have been executed at the hands of the government." Jackson recently appeared at a Democratic town hall debate at which he asked Presidential candidate Hillary Clinton how one could support capital punishment knowing about stories like his. Clinton called Jackson's case "a travesty," but said she continues to believe the federal death penalty should be available for cases of mass killings or terrorism. Jackson responded to Clinton's stance, writing, "In cases such as those, the societal pressure to convict is at its highest. And when an intense pressure to convict is present, that is when the risk of convicting an innocent is greatest."
Darryl Hunt, North Carolina Exoneree Who Narrowly Escaped Death Sentence, Dies 12 Years After ReleasePosted: March 14, 2016
Darryl Hunt (pictured), an exoneree and anti-death penalty advocate, was found dead in Winston-Salem, North Carolina on March 13, 2016. Hunt was wrongfully convicted of the 1984 rape and murder of Deborah Sykes, a newspaper copy editor. Prosecutors sought the death penalty against him, but he received a life sentence because a single juror refused to vote for death. His conviction was overturned in 1989 and prosecutors offered Hunt a deal for time served, in exchange for pleading guilty. Continuing to assert his innocence, Hunt refused the offer, and he was retried, convicted, and again sentenced to life. In 1994, a DNA test excluded him as the perpetrator of the crime, but it took another 10 years of appeals before he was released in 2004. After his exoneration, Hunt became an outspoken opponent of the death penalty. Steve Dear, executive director of People of Faith Against the Death Penalty, said, "I think everyone who saw Darryl speak was deeply moved by the resilience and kindness and gentleness with which he spoke." But Hunt was firm about the dangers of the death penalty, saying: "A system that can perpetrate an injustice like this has no business deciding life and death. If I had gotten a death sentence, there’s no doubt in my mind, I would have been executed.” Hunt's case was covered in an eight-part series in the Winston-Salem Journal and was the subject of a documentary film, The Trials of Darryl Hunt, both of which were critical of the racial bias and official misconduct that contributed to his wrongful conviction.
The recent book, 13 Ways of Looking at the Death Penalty, by Mario Marazziti, explores the United States' continuing use of the death penalty in a world community that is increasingly rejecting the practice. The Philadelphia Inquirer calls the book "an interesting, compelling look at the cultural and religious underpinnings of the death penalty and how we got here. More important, [Marazziti's] interviews with U.S. death-row inmates - living and now-deceased - their survivors, and their victims' families highlight the gray of a subject too many paint in black and white." Marazziti, who was deeply involved in the efforts that led the United Nations to call for a global moratorium on capital punishment, draws on his experiences as a co-founder of the World Coalition Against the Death Penalty and as spokesperson for the Community of Sant'Egidio, a progressive Catholic organization based in Rome. Pope Francis' appeal last month for Catholic government officials to work to halt all executions during the Church's Holy Year of Mercy came on the eve of an international conference against the death penalty organized by the Sant'Egidio Community. Marazziti's book includes research, personal narratives of those directly affected by the death penalty, and Marazziti's own reflections on the issue. Archbishop Desmond Tutu said, "13 Ways of Looking at the Death Penalty by Mario Marazziti is a deeply moving and cogently argued account of why an abominable practice should be abolished. The death penalty dehumanizes those who use it. Its mistakes cannot be corrected."
Creighton Horton spent 30 years as a prosecutor with the Salt Lake District Attorney's Office and Utah Attorney General's Office before retiring in 2009. In a recent op-ed, he said his experience handling capital cases led him to believe Utah should abolish the death penalty. Horton noted the negative impact the death penalty can have on victims' families. "If a capital case goes to trial and the jury returns a verdict of death, that pronouncement is probably the last satisfaction the victim's family will get for years, if not decades," he said. "From that point on, the delays and uncertainties of the death penalty appeals process are likely to take a terrible toll, keeping the wound open and denying the victim's family any closure." He said a life without parole sentence for the perpetrator was often the best outcome for the families of victims: "When that happens, the murderers go to prison and, for the most part, no one hears about them again — and the victims' families are able to move on with their lives." He also raised concerns about wrongful convictions, stating, "No system of justice is perfect, and so it's possible that an innocent person could be convicted of capital murder, and wrongly executed." The Utah legislature is considering a bill to repeal the death penalty for future offenses. The bill passed the Utah Senate, and is likely to face a vote in the House on March 10.
UPDATE: Wesbrook was executed on Mar. 9. EARLIER: Coy Wesbrook is scheduled to be executed in Texas on March 9. If the execution proceeds, it will be the eighth in the U.S. this year, half of which have been in Texas. Wesbrook killed five people after a confrontation with his ex-wife. The U.S. Supreme Court has held that defendants with intellectual disability (formerly referred to as "mental retardation") are exempt from the death penalty. Wesbrook was tested for intellectual disability at the request of the prosecution, following a challenge by Wesbrook's attorneys that he should be spared. Psychologist George Denkowski examined Wesbrook and initially submitted a report finding he had an IQ of 66, placing him below the standard level for intellectual disabilty. Several months later, he filed a new report based on "non-intellectual factors" that said Wesbrook's "actual adult general intelligence functioning is estimated to be of about 84 quality." Ohio State University professor Marc Tasse, an expert on developmental disabilities, said Denkowski's methods had "absolutely no scientific basis." Because of his unscientific procedures in Wesbrook's and 15 other cases, Denkowski was fined by the Texas State Board of Examiners of Psychologists and agreed never to testify in another criminal case. Nevertheless, the execution has been allowed to proceed.
The Lexington Herald-Leader, Kentucky's second-largest newspaper, announced it was ending its long-held support for the death penalty, and now believes the state legislature should abolish capital punishment. Describing its previous position as "keep it but fix it," the editors stated, "we must now concede that the death penalty is not going to be fixed and, in fact, probably cannot be fixed at any defensible cost to taxpayers." Citing the 2011 American Bar Association assessment of Kentucky's death penalty, the Herald-Leader said the system was "rife with injustices and the potential for error." Among the reasons cited in the paper's editorial for the changing its position was the negative effects of the death penalty on victims' families and correctional officers. It quoted Dr. Allen Ault, who oversaw executions in Georgia, and who said, "I do not know one [correctional officer] who has not experienced a negative impact," noting an increased risk of depression, substance abuse, and suicide.
The U.S. Supreme Court issued a per curiam decision on March 7 granting a new trial to Louisiana death row inmate Michael Wearry as a result of multiple acts of misconduct by prosecutors in his case. No physical evidence linked Wearry to the murder. His conviction was based largely on the testimony of an informant, Sam Scott, who came forward two years after the crime with an account that did not match the details of the crime. Scott altered his story over the course of four different statements, and the testimony he gave in court barely resembled his original statement. Undisclosed police records later revealed that another inmate had heard Scott say he wanted to "make sure [Wearry] gets the needle cause he jacked over me." A second witness against Wearry was offered a reduced sentence for an unrelated conviction, but prosecutors falsely told the jury that he had "no deal on the table” and was testifying because the victim’s "family deserves to know” what happened. Wearry presented three alibi witnesses - his girlfriend, his sister, and his aunt - who corroborated his story that he had been at a wedding 40 miles away when the crime occurred, but his attorney failed to further investigate the alibi or call as witnesses any of the wedding guests who did not have close relationships with Wearry. The Court wrote, "Beyond doubt, the newly revealed evidence suffices to undermine confidence in Wearry’s conviction. The State’s trial evidence resembles a house of cards, built on the jury crediting Scott’s account rather than Wearry’s alibi." Justices Alito and Thomas dissented, saying the case should not have been decided without a full hearing. Louisiana police and prosecutors have been found to have engaged in misconduct in numerous death penalty cases, including those of all ten of its death-row exonerees: Johnny Ross, Curtis Kyles, Shareef Cousin, Michael Graham, Albert Burrell, John Thompson, Dan Bright, Ryan Matthews, Damon Thibodeaux, and Glenn Ford.
Florida Legislature Passes Bill Requiring Agreement of 10 Jurors Before Judge May Impose Death SentencePosted: March 4, 2016
UPDATE: Gov. Rick Scott signed the bill into law on March 7. Previously: The Florida legislature passed a bill on March 3 to restructure its death penalty statute in response to the U.S. Supreme Court's ruling in Hurst v. Florida, which declared the state's death penalty procedures unconstitutional. The bill modifies Florida's practice of permitting judges to impose death sentences without the unanimous agreement of jurors by requiring that at least ten jurors recommend death before the judge may impose a death penalty. It also directly addresses Hurst by requiring that jurors unanimously find any aggravating circumstances that the prosecution seeks to prove to make the defendant eligible for the death penalty. Previously, Florida judges made the determination whether the prosecution had proven aggravating circumstances that made the defendant eligible for the death penalty, and the statute permitted the judge to impose death based upon a simple majority recommendation or, in certain circumstances, when the jury had recommended life imprisonment. The new 10-2 requirement matches the standard applied in Alabama. Along with Delaware - which permits the court to impose death after a simple majority recommendation by the jury - these states stand alone in the country in allowing a death sentence after a jury's non-unanimous sentencing recommendation. Delaware and Alabama still permit judicial override. Delaware's system is currently under review by that state's highest court, and on March 3, an Alabama circuit court judge declared that state's sentencing procedure unconstitutional.