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Texas Prisoner Who Did Not Kill Anyone Challenges Execution, Use of False Psychiatrist Testimony to Condemn Him to Die

Posted: August 4, 2016

Lawyers for Jeffery Wood (pictured), a Texas death row prisoner who is scheduled to be executed August 24 despite undisputed evidence that he has never killed anyone, have filed a new petition in state court challenging his death sentence on multiple grounds. They argue that Wood cannot be subject to the death penalty because he neither killed nor intended for anyone to be killed and was not even aware the robbery in which a codefendant killed a store clerk was going to occur. They also challenge his death sentence on the gounds that it was obtained based upon false and scientifically baseless testimony from a discredited psychiatrist that Wood would pose a future danger to society. Wood was convicted of capital murder under the Texas doctrine called the "law of parties," which employs an usually broad interpretation of accomplice liability to make a defendant liable for the acts of others. He was sentenced to death for his alleged role in the murder of a store clerk in 1996 committed by another man, Daniel Reneau, while Wood was outside sitting in a truck. Reneau was executed in 2002. Wood says he and Reneau had planned to rob the store the previous day, but that he had backed out. According to Wood, he did not know Reneau still planned to rob the store, or that Reneau had a gun with him. Jared Tyler, one of Wood's attorneys, said, "I believe that no person in the history of the modern death penalty has been executed with as little culpability and participation in the taking of a life as Mr. Wood." Wood's appeal also alleges that his right to due process was violated when the state presented false and misleading testimony from psychiatrist James Grigson, who earned the nickname "Dr. Death" for testifying in numerous Texas capital cases that the defendant would "certainly" or "absolutely" or "with 100% certainty" commit future acts of violence, including several cases in which defendants later turned out to be innocent. Three years before Wood's hearing, Grigson was expelled from the Texas Society of Psychiatric Physicians and the American Psychiatric Association for ethical violations involving making psychiatric diagnoses without having examined capital defendants, predicting with certainty that they would engage in future violent acts, and basing those predictions on hypothetical questions posed by the prosecution that contained "grossly inadequate" information. Nonetheless, based on a prosecution hypothetical question and without having evaluated Wood, Grigson testified that Wood would "certainly" pose a continuing threat to society. Wood's jury was never told that Grigson had been expelled for similar conduct or that the professional associations had determined that his practices were unethical and unscientific.[UPDATE: On August 19, the Texas Court of Criminal Appeals granted a stay of execution to permit Wood to litigate his claims that the prosecution had presented false scientific evidence and that the use of false testimony from Dr. Grigson violated due process.]

 

Delaware Supreme Court Declares State's Death Penalty Unconstitutional

Posted: August 3, 2016

The Delaware Supreme Court on August 2 declared the state's capital sentencing procedures unconstitutional, leaving Delaware without a valid death penalty statute. In the case of Benjamin Rauf v. State of Delaware, the court held that Delaware's death sentencing procedures violate the constitutional principles recently set forth by the U.S. Supreme Court's January 2016 decision in Hurst v. Florida. Hurst stated that a capital defendant's Sixth Amendment right to trial by jury requires "a jury, not a judge, to find each fact necessary to impose a sentence of death." Four members of the Delaware high court ruled that the state's capital sentencing statute unconstitutionally empowers judges, rather than jurors, to decide whether the prosecution has proven the existence of aggravating circumstances that are considered in determining whether to impose for the death penalty. They wrote that the jury must unanimously find those facts to have been proven beyond a reasonable doubt before a death sentence may be considered. In an opinion by Chief Justice Leo Strine, Jr., a narrower 3-justice majority of the court also ruled that the facts necessary to impose a death penalty in Delaware included a finding that aggravating circumstances outweigh mitigating circumstances (reasons to spare the defendant's life). Delaware's statute violates the Sixth Amendment, they wrote, because it does not require as a prerequisite to the death penalty that jurors unanimously agree that aggravating circumstances outweigh mitigation beyond a reasonable doubt. The court said the unconstitutional sentencing provisions were inseverable from the rest of the death penalty statute, and that any changes to the statute would have to be made by the legislature. However, recent legislative activity suggests that a bill restoring the state's ability to impose death sentences may have difficulty passing. Calling the death penalty "an instrument of imperfect justice," Governor Jack Markell has indicated that he would sign a bill to abolish capital punishment if it passed the legislature. Such a bill passed the state Senate in 2013 and 2015 and was released by the House Judiciary Committee for consideration by the full House, where it narrowly failed earlier this year. Professor Eric Freedman, a death penalty expert at the Hofstra University School of Law, said "[t]his probably means, as a practical matter, the end of the death penalty in Delaware."

 

Policy Platform of The Movement for Black Lives Calls for "An End to Capital Punishment"

Posted: August 2, 2016

On August 1, The Movement for Black Lives issued a 40-point policy platform that includes a call for the abolition of capital punishment. The platform, which was written or endorsed by more than 60 activist groups including the Black Lives Matter Network, describes its purpose as "articulat[ing] our vision of a fundamentally different world." The portion of the platform seeking "an end to capital punishment" calls the death penalty "morally repugnant," and links it to the legacy of race-based lynchings against Blacks in the U.S. "The death penalty devalues Black lives," it states, going on to describe capital punishment as "geographically discriminatory," "expensive," and "randomly and arbitrarily sought by prosecutors." The document also raises concerns about the issue of innocence, noting that 156 people have been exonerated from death row, and capital punishment's connections to mental health and trauma, stating, "many people on death row have mental illnesses, cognitive limitations, severe trauma histories, and prior criminal records, often directly related to racial bias and poverty." Other recommendations related to criminal justice include demilitarization of police, an end to privatization of prisons, and an end to solitary confinement. The platform also contains sections addressing issues related to reparations, economic justice, political access, and investment in Black communities. “We recognize that not all of our collective needs and visions can be translated into policy, but we understand that policy change is one of many tactics necessary to move us towards the world we envision, a world where freedom and justice is the reality,” said M Adams, the co-executive director of Madison, Wisconsin-based Freedom, Inc. and one of the authors of the platform.

 

Nearly 3/4 of Kentuckians Support Moratorium on Executions, Majority Prefer Lengthy Prison Terms to Death Penalty

Posted: August 1, 2016

Nearly three-quarters of Kentuckians (72.4%) would support a moratorium on executions while problems in the administration of Kentucky's death penalty are addressed, according to a new poll released on August 1 by the University of Kentucky Survey Research Center. Nearly two-thirds (62.6%) of those who said they support the death penalty were nevertheless in favor of a moratorium. The poll also found that 57.8% of respondents preferred a lengthy prison term (options ranged from 20-50 years to life without parole) over the death penalty for people convicted of first-degree murder. Respondents also were asked their views about specific concerns related to the death penalty. 68% said they would support replacing the death penalty with life without parole if administration of the death penalty and its constitutionally-mandated appeals were found to cost substantially more than life in prison. 71.6% of all respondents—including 61.4% of death penalty supporters—agreed that capital punishment risks executing an innocent person. Finally, when asked to consider the impact of lengthy appeals on victims' families, 64% of Kentuckians supported replacing the death penalty with life without parole. Kentucky Public Advocate Ed Monahan said, "Clearly, Kentuckians remain uncomfortable with death as a sentence. Their discomfort is well founded. Our system of administering capital punishment is broken, costly and produces little value. Full reform must take place now." Gennaro Vito, a criminal justice professor at the University of Louisville, told the Kentucky News Service: "You may have to question, given the problems we've had with the administration of the death penalty in this state, why we would continue to use it, when so many Kentuckians are in favor of the sentence of life without parole in place of the death penalty." The last execution in Kentucky was carried out in 2008. (Click image to enlarge.)

 

Report: Proposal Billed as Speeding Up California Executions Would Actually Be Costly, Time-Consuming

Posted: July 29, 2016

An initiative on the California ballot this November billed by its supporters as a reform alternative to abolishing the state's death penalty will cost the state tens of millions of dollars to implement, according to an analysis by the Alarcón Advocacy Center at Loyola Law School, and "will not speed up executions." The report, California Votes 2016: An Analysis of the Competing Death Penalty Ballot Initiatives, predicts that Proposition 66 (The Death Penalty Reform and Savings Act of 2016), would "cost millions more than the [state's] already expensive death penalty system" and "will only make matters worse by creating more delays and further clogging the state’s over-burdened court system," adding "layers of appeals to a system already facing an insurmountable backlog of decades of death penalty appeals waiting to be decided." The report states that provisions in Prop 66 to exempt lethal injection protocols from public oversight "will certainly be subject to litigation ... on constitutional and other grounds, should Prop 66 pass, adding yet more delays to death penalty cases." The report criticizes Prop 66 as "fail[ing] to make the constitutional changes required to deliver the results it promises" and concludes that "its proposals are so convoluted that they are likely to create many new problems that will not only complicate the administration of the death penalty system, but will also impact and harm the rest of California’s legal system." The report contrasts Prop 66 with an opposing ballot initiative, Proposition 62 (The Justice That Works Act of 2016), which would abolish the death penalty in favor of life without parole. According to the state Legislative Analyst, Prop 66 will cost "tens of millions of dollars per year," while Prop 62 would save California taxpayers $150 million per year. The authors of the Loyola report, Paula Mitchell, executive director of the Alarcón Advocacy Center, and Nancy Haydt, a board member of California Attorneys for Criminal Justice, summarize the issues before the voters as follows: "The proponents of both Prop 62 and Prop 66 agree that California’s death penalty system is dysfunctional, exorbitantly expensive, and failing to achieve its purpose. Prop 62 responds to this failed system by replacing it entirely, adapting the existing regime of life imprisonment without parole to cover all persons who are convicted of murder with special circumstances. Prop 66 responds to this failure with a sweeping array of convoluted proposed 'fixes.' Our detailed analysis reveals that most of these changes will actually make the death penalty system worse, and will result in its problems negatively impacting the rest of the legal system in California."

 

Colorado Law to Speed Up Death Penalty Appeals Has Faltered and Failed

Posted: July 28, 2016

Twenty years ago, frustrated by what they perceived to be the slow pace of capital punishment, Colorado legislators adopted a law to "fix" their death penalty by speeding up appeals. Proponents and opponents of the state's death penalty agree on one thing: the law hasn't worked. As The Denver Post reports, the state law intended to streamline the death penalty appeals process by imposing a two-year deadline for decision and consolidating direct appeals and post-conviction appeals into a "unitary" system of review has failed. Colorado's two death row prisoners affected by the law have spent more than seven years at the first step in the appeals process, with no ruling on their cases in sight. The 1997 law changed the order of death penalty appeals, putting the lengthier post-conviction appeal (involving new evidence and claims of ineffective representation or prosecutorial misconduct) first, before the direct appeal (which involves only issues that were raised by defense counsel at the time of trial). Once the trial court rules on the post-conviction appeal, the Colorado Supreme Court would review and resolve both appeals together, in a single "unitary" appeal proceeding. But while the law originally allowed "no extensions of time of any kind" in post-conviction appeals, a 2010 Colorado Supreme Court ruling allowed extensions to be granted under "extraordinary circumstances" necessary to protect a defendant's procedural rights. Death row inmates Robert Ray and Sir Mario Owens both received extensions. Seven years later, Owens' case has had an extensive evidentiary hearing, but the appeal may have to be redone because the state supreme court fired the judge presiding over the case just before he was expected to issue his ruling. Ray's post-conviction hearings have not yet begun. Christopher Decker, a Denver defense attorney, voiced concerns about whether a fast appeals system would adequately protect defendants' constitutional rights: “If they just speed up the process and strip everyone of due process, we’ll have a very fast outcome that will be worth nothing. It won’t stand up to constitutional review.” Jeanne Adkins, the former state representative who sponsored the 1997 bill to speed up appeals, said, "I’m almost to the point where I would say, ‘Let’s do away with it and save the taxpayers the money.'" Expressing frustration with the death penalty system, she says “[t]he death penalty has become so politicized, truthfully, in the last decade or so in Colorado that I really think that a lot of what the legislature tried to do may actually be pretty pointless now.” 

 

Newly Constituted Pennsylvania Supreme Court Upholds Grant of New Trial in Death Penalty Case

Posted: July 27, 2016

On July 19, the newly constituted Pennsylvania Supreme Court unanimously voted to uphold a trial court's order granting a new trial to Philadelphia death row prisoner, Christopher Williams. The court determined that Williams' trial and appellate counsel had been ineffective by failing to investigate and present expert forensic testimony on blood flow and gunshot wounds that would have demonstrated that the version of the murders presented by the prosecution's lead witness was incompatible with the physical evidence. The court also ruled that the trial judge had improperly prevented defense lawyers from cross-examining the state's expert witnesses on key matters. The case was the first time the new court was faced with a lower court judgment granting a capital defendant a new trial. A survey of Pennsylvania capital post-conviction appeals by the Death Penalty Information Center, updated through July 25, 2016, found that the Pennsylvania Supreme Court has issued orders affirming or denying post-conviction requests for new trials by capital defendants 257 times since the Commonwealth enacted its current death penalty statute in 1978. This decision was only the third time in this period that the court had ordered or affirmed the grant of a new trial. By contrast, the court had previously voted more than 99% of the time to uphold capital convictions. It had overturned 12 of the last 13 lower court rulings it had considered since April 2006 that had granted death-row prisoners new trials. The sole exception had been the case of Ronald Champney, in which the court split 3-3, with one vacancy on the court caused by the conviction of a justice for public corruption. The tie vote upheld the decision of the trial court in that case.

 

Defendant Seeks Supreme Court Review of Prosecutorial Ghostwriting, A Widespread Practice in Capital Cases

Posted: July 26, 2016

Doyle Lee Hamm (pictured), an Alabama death row prisoner, has asked the United States Supreme Court to consider his case after Alabama's state and federal appellate courts upheld an order in which the trial court rejected his appeal by adopting word-for-word an 89-page order written by the state attorney general's office. In a process The Marshall Project's Andrew Cohen described as "a sham," the court dismissed Hamm's appeal one business day after receiving the prosecution's proposed order, without so much as removing the word "proposed" from the title of the order. In 1987, Hamm's jury had taken only 45 minutes to sentence him to death after his lawyer presented a 19-minute case for life that involved just two witnesses—Hamm’s sister and a bailiff. Twelve years later, Hamm’s post-conviction lawyers argued that he had received ineffective assistance of counsel in that penalty hearing and presented the court with extensive mitigating evidence that his trial lawyer had never investigated. This evidence included a childhood diagnosis of borderline mental retardation, school records reflecting Hamm's intellectual deficits, and evidence of seizures, head injuries, and drug and alcohol abuse. Cohen reports that the jury never heard that Hamm was "a barely literate, brain-damaged man with little impulse control, someone who might have been perceived as having diminished criminal responsibility." Yet the attorney general's proposed order, signed by the judge, rejected this evidence as merely "cumulative" of the sparse case for life that had been presented at trial. Cohen reports that the practice of judges adopting opinions or orders written by prosecutors, often without making any substantive changes or even correcting typos, is surprisingly widespread in capital cases. In addition to Alabama, similar "ghostwritten" orders have been documented in states such as Georgia, Kentucky, Louisiana, Ohio, Pennsylvania, South Carolina, and Texas. In one Ohio case, a judge was sanctioned for violating the judicial code of conduct and an inmate's death sentence was vacated after the judge drafted an opinion with prosecutors, but in Hamm's case and many others, opinions written by prosecutors and signed by judges have been upheld in state courts and considered reasonable determinations of fact to which courts must defer in later federal proceedings challenging the constitutionality of capital convictions and death sentences. The U.S. Supreme Court has requested that it be provided the full record of Hamm's case and is scheduled to confer about the case on September 26. It could issue an order as early as October 3, the first Monday of its Fall Term, on whether it will hear Hamm's appeal.

 

NEW RESOURCE: Political Party Platforms on Capital Punishment

Posted: July 25, 2016

As support for the death penalty has waxed and waned over the years, the views of the major U.S. political parties, as reflected in their national convention platforms, has changed. To track those changes, DPIC has created a new resource presenting the Democratic and Republican party platform positions on crime and the death penalty from 1960 to 2016. With the most recent views of both the Republican and Democratic parties expressed in their 2016 platforms, the new page now reflects changing views on the death penalty throughout the modern era of capital punishment, as well as in the decade leading up to the Supreme Court's 1972 decision in Furman v. Georgia striking down death penalty laws across the country. This year, the Republican party platform "condemn[s]" the U.S. Supreme Court for what the platform calls the "erosion of the right of the people to enact capital punishment." The draft of the Democratic party convention, expected to be adopted July 25, calls for abolition of the death penalty, which it says "has no place in the United States of America." To provide context for the changing platforms, the page provides public opinion data on the death penalty from Gallup polling since 1960, and opinion by party affiliation since Gallup first began providing that information in 1988. Alongside that data, it includes an Index of Death Penalty Public Opinion developed by Professor Frank Baumgartner at the University of North Carolina, Chapel Hill. (Click image to enlarge.) 

 

Arkansas Court Puts Lethal Injection Ruling on Hold, Blocking Executions Pending U.S. Supreme Court Review

Posted: July 22, 2016

On July 21, a divided Arkansas Supreme Court voted 4-3 to deny a request by state death row prisoners to reconsider its recent decision upholding Arkansas' lethal injection protocol and secrecy law, but in another 4-3 vote, the court issued an order staying the mandate, delaying the decision from taking effect until the U.S. Supreme Court has an opportunity to consider an appeal. The stay order prevents the state from setting new execution dates before the U.S. Supreme Court acts on the prisoners' appeal. The same three Arkansas justices who dissented from the court's initial lethal injection decision in June would have granted the rehearing requested by the death row prisoners. However, Arkansas Chief Justice Howard Brill joined the three dissenting justices in staying the ruling pending action by the U.S. Supreme Court on the lethal injection decision. Eight inmates have completed their standard appeals, and Governor Asa Hutchinson had indicated that he intended to set execution dates for those inmates as soon as possible. Executions were previously in doubt because the state's supply of the drug vecuronium bromide, used as a paralytic agent in the state's three-drug execution protocol, had expired. But Arkansas recently announced that it was able to obtain a new supply of the drug from an unnamed source. The state's supply of potassium chloride, the final drug used in executions to stop the prisoner's heart, expires on January 1, 2017. Because of the timeline for petitioning the U.S. Supreme Court, it is unlikely that Arkansas will be able to resume executions before its supply of that drug expires.   

 

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