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Recent Executions May Have Denied Key Evidence to Defendants in Pending Innocence Cases

Posted: April 1, 2016

According to a report by Raw Story, two recent executions may have irreparably impaired efforts by several prisoners to prove their innocence, preventing them from presenting testimony from potential alternate suspects. Rodney Lincoln was convicted of the 1982 murder of JoAnn Tate and assaulting her two young daughters and was sentenced to two life terms. The primary evidence against him was the testimony of Melissa Davis, Tate's eight-year-old daughter who survived the attack. Years later, Davis saw a picture of serial killer Tommy Lynn Sells and identified him as her mother's killer. She now believes Lincoln is innocent. Sells, who confessed to several other killings while in prison, cannot be questioned about the Tate case because he was executed in 2014. A similar situation has arisen in Oklahoma, where Malcolm Scott and De'Marchoe Carpenter have been imprisoned for more than two decades for a drive-by shooting in which Karen Summers was killed. Police arrested a third man, Michael Lee Wilson, who was in possession of the gun and car used in the shooting. Wilson pleaded guilty to being an accessory after the fact and was given a five-year sentence in exchange for his testimony against Scott and Carpenter. Three months after he was released, he robbed a gas station and killed the store clerk, for which he received a death sentence. Two days before his execution, Wilson gave a videotaped statement to an attorney from the Oklahoma Innocence Project saying that Scott and Carpenter had nothing to do with Summers' murder. Prosecutors argue that Wilson's statement is an attempt to help fellow gang members, but his execution blocks any possibility of further questioning. 

 

Board Denies Clemency for Death Row Inmate Whose Co-Defendant Received Life Sentence

Posted: March 31, 2016

The Georgia Board of Pardons and Paroles announced on March 31 that it had denied clemency to Joshua Bishop. Bishop had asked that his death sentence be reduced to life without parole because his co-defendant, who was nearly twice Bishop's age at the time of the crime, and had a history of violent crime while Bishop did not, was given a plea deal resulting in a life sentence. Bishop is scheduled to be executed in Georgia on March 31. Seven of the twelve jurors who voted to sentence Bishop to death now support a sentence reduction for a variety of reasons. Juror Jeremy Foston said he initially, "was leaning toward a life sentence because Mr. Bishop had a terrible childhood and was just a young man." Others said they were confused by instructions that the jury had to be unanimous. Juror Jim Ray wrote, "[w]e really struggled with our decision. We eventually changed our vote to a death sentence partly because we were told we had to be unanimous and those [two jurors] who wanted the death penalty were very firm in their conviction and let us know they would not change their minds." The belief that Bishop's co-defendant, Mark Braxley, would also face the possibility of a death sentence influenced some jurors' decisions. They say they would have sentenced Bishop to life without parole if they knew Braxley had received a plea deal for a life sentence. Juror Jeremy Foston wrote, "We wanted to make sure Mr. Braxley would get the same punishment as Mr. Bishop. We even sent a note out asking if we could know what would happen to him. The prosecutor told us not to worry about Mr. Braxley, and that he would have his day in court. We assumed that meant he would have the same treatment as Mr. Bishop."

 

Volunteer Death Penalty Review Commission to Examine Oklahoma's Death Penalty

Posted: March 30, 2016

A group of prominent Oklahomans have announced the creation of a 12-member Oklahoma Death Penalty Review Commission to conduct a comprehensive review of the state's death penalty. The all-volunteer commission will be led by three co-chairs, former Governor Brad Henry (pictured), retired Court of Criminal Appeals Judge Reta Strubhar, and former U.S. Magistrate Judge Andy Lester. The commission intends "to conduct extensive research on [Oklahoma's] entire death penalty process, beginning with an arrest that could lead to an execution,” Henry said in a statement. Its other nine members include Oklahoma attorneys, law professors, and victims' advocates, and a former Oklahoma Speaker of the House who, Henry says, hold "differing views and perspectives on capital punishment." Henry granted clemency three of the times it was sought during his eight years as Governor. In an interview with Fox25, he called his role in executions "a very, very sobering thing to have to do." He said the commission has "no agenda.... What we've agreed to is the system should be fair and it should be just." Executions in Oklahoma are currently on hold pending an investigation into the 2015 execution of Charles Warner and near-execution of Richard Glossip, in which the state violated its own lethal injection protocol by obtaining an unauthorized execution drug. In 2014, Clayton Lockett died 40 minutes into a botched execution by the state. Henry said, "We hope that Oklahoma can set a positive example in this area for the rest of the country and that's important because obviously Oklahoma's been in the news quite a bit lately for some of the problems that have occurred in the execution process." The commission expects to issue a report early in 2017. 

 

Finding Prosecutorial Misconduct, Alabama Courts Grant Relief from Two Capital Convictions

Posted: March 29, 2016

In one week, courts in unrelated cases have granted relief to two Alabama death row inmates because of prosecutorial misconduct. On March 11, Alabama Circuit Judge Robert Smith dismissed capital charges against ex-state trooper George Martin and barred his retrial because of the prosecution's "willful misconduct." Martin had been convicted for allegedly murdering his wife in a car fire. In 2000, jurors recommended that Martin be sentenced to life, but the trial judge overrode their recommendation and imposed a death sentence. In that trial, the prosecution asserted that Martin had burned his wife alive, but suppressed a witness's statement that she kept a can of gas in her car. It also willfully withheld evidence that it had shown photos of every black trooper from Mobile County to a white witness who had seen a "large black man" in a trooper's uniform in the vicinity of the car, and that the witness not only had not identified Martin (who is 5'6"), but had selected the picture of a different trooper. Judge Smith wrote, "If the Martin case is not one which is appropriate for dismissal, there may never be one....The affirmative use by the prosecutors of partial truths and untruths with knowledge," he wrote, constituted "willful misconduct." One week later, on March 18, the Alabama Court of Criminal Appeals ordered a new trial for Derek Horton because the prosecution had improperly attempted "[t]o buttress its weak case" against Horton for the murder of a woman in a burglarized mobile home by presenting evidence of his past drug use and of an investigation against him for domestic violence. The court said this evidence of bad character was "superfluous to the State's case" and "served no purpose other than to paint Horton as a drug-using, drug-dealing criminal who had a propensity to commit violent crimes against women." The court found the use of this evidence especially prejudicial because the state had "produced no witnesses or direct evidence placing Horton at [the victim]'s mobile home at the time of the crime" and his fingerprints were not found on any of the murder weapon or any of the items taken from the mobile home or strewn about the highway in the vicinity of the location in which the victim's stolen car had been abandoned.

 

Texas Capital Juror Regrets Vote to Sentence Defendant to Death

Posted: March 28, 2016

In an interview with The Marshall ProjectTexas death penalty juror Sven Berger says he would not have voted to sentence capital defendant Paul Storey to death in 2008 had he known about Storey's “borderline intellectual functioning,” history of depression, and other evidence that Storey's lawyer failed to present at trial. Berger and 11 other Texas jurors unanimously voted to sentence Storey to death, but Berger says that at the time of jury deliberations he did not believe Storey would pose a continuing danger to society if incarcerated - a fact that is a prerequisite to imposing the death penalty in Texas. Berger says "I just didn't get the feeling he was dangerous.... But the other jurors seemed anxious to deliver the death penalty" and in the highly stressful circumstances of death penalty deliberations, Berger went along with the other jurors. In the interview, Berger shared his experience saying, "If I could have done anything, it would have been to deadlock the jury, but I didn’t have the personal strength to do it ... at the time, I was really uncomfortable speaking out." He said that, after the verdict, "I felt guilty about what happened. And sad. And a little helpless. ... Eventually I started saying, 'I don’t think I made the right call.'" Two years later, Berger was contacted by a lawyer working on Storey's appeal who showed him a psychologist's report explaining Storey's background and mental health issues. Berger wrote in an affidavit that had he heard this evidence, "I would not have voted for the death penalty."

 

Federal Judge Overturns South Carolina Death Sentence Because of Prosecutor's Racist Arguments

Posted: March 25, 2016

A South Carolina federal district court has vacated the death sentence imposed on Johnny Bennett, an African-American defendant condemned by an all-white jury after prosecutor Donald Myers (pictured) had "made multiple statements clearly calculated to excite the jury with racial imagery and stereotypes." Myers' misconduct included eliciting irrelevant evidence that Bennett had an interracial sexual relationship with a white woman and that a white witness whom Bennett had assaulted when he was a juvenile had dreamt of "being chased by black savages." During closing argument, Myers also called Bennett - who was 6'7" and 300 pounds - "King Kong," a "monster," a "beast of burden," and a "caveman." Judge Richard Gergel wrote that comparing Bennett to King Kong reflected America's "long and ugly history of depicting African-Americans as monkeys and apes" and characterized Myers' racially-charged statements as "a not so subtle dog whistle on race that this court cannot and will not ignore." Myers has been chief prosecutor for South Carolina's Eleventh Judicial Circuit since 1977. Under his tenure, the circuit has produced 39 death sentences, more than any of the state's 15 other circuits, sentencing - and sometimes re-sentencing - 28 defendants to death. The circuit's death sentencing rate of 6.8 death sentences per 100 murders is the highest of any circuit in the state and 3.5 times higher than the state average. Myers personally obtained all of the death verdicts handed down in the Circuit, although many have been overturned, including several for prosecutorial misconduct. Myers recently announced that he will not seek re-election because he is approaching the mandatory retirement age.  His retirement announcement came less than a month after he was arrested for drunk driving, his third alcohol-related charge since 2005.  

 

Missouri Judge Orders State to Reveal Source of Lethal Injection Drugs

Posted: March 24, 2016

Cole County, Missouri Circuit Judge Jon Beetem ruled on March 21 that Missouri must release the names of pharmacies that have provided lethal injection drugs for executions. Judge Beetem ruled in favor of the ACLU of Missouri and several media organizations that had filed three separate suits against the state. The media plaintiffs included the Reporters Committee for Freedom of the Press, the St. Louis Post-Dispatch, The Kansas City Star, the Springfield News-Leader, Associated Press, The Guardian, and BuzzFeed reporter Chris McDaniel. Judge Beetem found that Missouri had "knowingly violated the sunshine law by refusing to disclose records that would reveal the suppliers of lethal injection drugs, because its refusal was based on an interpretation of Missouri statutes that was clearly contrary to law." Bernard Rhodes, an attorney for The Guardian, said the information was critical to public oversight: "Without this information, the public is unable to exercise meaningful oversight of the executions carried out in its name. One of the primary purposes of a free and independent press is to perform a watchdog function over government activities, and this lawsuit is a perfect example of that." Because it determined that Missouri had knowingly violated the law, the court also awarded the plaintiffs more than $100,000 in attorneys fees. In a column for the Los Angeles Times, Scott Martelle called the decision, "a win for transparency," and said that companies' reluctance to participate publicly in executions was evidence of society's changing views. "[C]apital punishment has become so contrary to American societal norms that here in the land of the quick buck, even the business world has turned its back on the practice," he wrote. The state of Missouri has indicated that it intends to appeal the decision.

 

American Bar Association Urges Reprieve to Allow Full Investigation of Kevin Cooper's Innocence Claims

Posted: March 23, 2016

American Bar Association President Paulette Brown has sent a letter to California Govenor Jerry Brown urging him to grant a reprieve to death row inmate Kevin Cooper to permit a full investigation of Cooper's possible innocence. The ABA President wrote: "Mr. Cooper’s arrest, prosecution, and conviction are marred by evidence of racial bias, police misconduct, evidence tampering, suppression of exculpatory information, lack of quality defense counsel, and a hamstrung court system. We therefore believe that justice requires that Mr. Cooper be granted an executive reprieve until the investigation necessary to fully evaluate his guilt or innocence is completed." The ABA letter described Cooper's case as "a particularly unique example of a criminal justice system falling short at every stage" and referenced a ruling by the Inter-American Commission on Human Rights that Cooper’s conviction and sentence violated his human rights. Cooper has exhausted all appeals in his case, but evidence that was previously suppressed as a result of official misconduct raises questions about his guilt. New evidence includes a statement by the surviving victim that the perpetrators were white or Hispanic (Cooper is black); police destruction of a pair of blood-spattered overalls before testing could take place; and unreliable forensic testing that may indicate evidence contamination. In 2009, five judges of the U.S. Circuit Court of Appeals dissented from the court's decision to uphold Cooper's conviction, writing, "The State of California may be about to execute an innocent man." The ABA letter agrees, asking Gov. Brown to use his clemency power to review the case: "We request that you grant this reprieve and order a meaningful investigation into Mr. Cooper’s case to prevent the possibility of a miscarriage of justice—one that can never be undone."

 

Texas Scheduled to Execute Severely Mentally Ill Death-Row Prisoner

Posted: March 22, 2016

The U.S. Court of Appeals for the 5th Circuit says that “Adam Kelly Ward (pictured) has been afflicted with mental illness his entire life.” Yet Texas will execute him on March 22 unless the U.S. Supreme Court grants him a stay to review his case. Ward's lawyers argue that the execution of a person who is severely mentally ill constitutes cruel and unusual punishment and that, for that reason, Ward should not be executed. The Texas Court of Criminal Appeals denied review of that issue on March 14, saying that Ward should have raised it in previous state-court appeals. The Texas federal courts rejected a similar argument in 2015. While the U.S. Supreme Court has barred the execution of inmates who are so mentally incompetent that that they do not rationally comprehend that they are going to be executed or why, it has never ruled that executing inmates with severe mental illness is unconstitutional. Ward has consistently exhibited signs of severe mental illness since infancy, and was twice hospitalized for multi-week periods because of his illness. He suffered from uncontrollable rage episodes and two of his elementary schools built special padded isolation rooms in which he would be placed when he was out of control. The federal district court described him as delusional and having "difficulty with impulse control, bad judgment, poor insight, trouble sleeping and eating, mood swings, and bizarre behaviors." At trial, a psychiatrist testified that Ward's psychotic disorder caused him to "suffer paranoid delusions such that he believes there might be a conspiracy against him and that people might be after him or trying to harm him" and the federal district court agreed that as a result of his mental illness, Ward "interpreted neutral things as a threat or personal attack." In her statement concurring with the state court's denial of a stay of execution, Judge Elsa Alcala noted that no Supreme Court decision banned the execution of people with mental illness and that the power to do so rests with legislatures: "As is the case with intellectual disability, the preferred course would be for legislatures rather than courts to set standards defining the level at which a mental illness is so severe that it should result in a defendant being categorically exempt from the death penalty." 

 

Baptist Theologian Says Death Penalty Does Not Fit With Christian Theology

Posted: March 21, 2016

Baptist ethicist and theologian Dr. Roger E. Olson (pictured) recently issued a call "for Christian churches to publicly stand against the death penalty for Christian reasons." A professor of Christian Theology and Ethics at Baylor University's George W. Truett Theological Seminary, Dr. Olson writes in an essay for the theology website Patheos.com that "authentic Christians must oppose the death penalty." He says that, while "[t]here are many secular reasons to abolish the death penalty," there are also theological reasons why church opposition to capital punishment should be non-negotiable. "Christians believe that every individual human being might be someone chosen by God for his salvation and for his service," he writes. "When we take another human life unnecessarily, we usurp God’s prerogative for that person’s eventual salvation or, if they are already saved, for that person’s future service for the Kingdom of God." Dr. Olson's essay urges all Christian churches to take public stands against the death penalty. "I believe the Christian reasons for opposing the death penalty are so strong that capital punishment ought to be, as slavery was in the mid-19th century, an issue for a 'church struggle' that divides if sadly necessary. At the very least, Christian pastors and other leaders ought to preach against capital punishment from their pulpits and in their newsletters."

 

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