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INNOCENCE: Alfred Dewayne Brown is Released from Texas Death Row; Nation's 154th Death-Row Exoneration

Posted: June 9, 2015

Harris County, Texas prosecutors announced on June 8 that they have dismissed charges against Alfred Dewayne Brown, who had been sentenced to death in 2005 for the murders of a Houston police officer and a store clerk during a robbery. The Texas Court of Criminal Appeals had overturned Brown's conviction last year because prosecutors withheld a phone record that supported Brown's alibi. Prosecutors in 2013 said that the phone record had been inadvertently misplaced. Brown had long maintained that he had been alone at his girlfriend's apartment at the time of the murder, and that he had called her after seeing reports of the shooting on television. Defense lawyers argued that the time of the phone call established that Brown could not have been at the store when the murder occurred. There was no physical evidence against Brown, and a series of Pulitzer prize-winning columns by Houston Chronicle writer Lisa Falkenberg disclosed irregularities in the grand jury process, that Brown's girlfriend had faced intimidating questioning and threats of perjury by a police officer who was the grand jury foreman, and that she had been jailed for seven weeks until she changed her testimony to implicate Brown. She has since recanted that testimony. District Attorney Devon Anderson said, "After very careful consideration, I have decided that at this time, there is insufficient evidence to corroborate the testimony of Brown's co-defendant. Accordingly, we dismissed Alfred Brown's capital murder case earlier today. It is the right thing to do." Since 2007, Brown's attorneys have compiled strong evidence that the murder was committed by another man with a history of robbery and connections to the co-defendants in the crime. Despite a 2008 motion to test the alternate suspect's DNA, such a test has not been carried out. Alfred Brown is the 154th person exonerated from death row since 1973, the 13th in Texas, and the fourth in 2015.

 

An Historical Look at Nitrogen Gas, the Electric Chair, and the Firing Squad as Execution Alternatives

Posted: June 8, 2015

With lethal injection in administrative crisis and facing constitutional challenges, some states are looking towards abolition and others towards alternative methods of execution. In an article for The Marshall Project, reporters Maurice Chammah, Andrew Cohen, and Eli Hager explore the histories of nitrogen gas, electrocution, and the firing squad -- different methods of execution three states have recently adopted as alternatives to lethal injection in the event lethal injection is declared unconstitutional or execution drugs become unavailable. The article notes the similarities between promises made by proponents of each method that their method would be the most efficient, painless, and humane execution procedure, and discusses the ambivalence engendered by each execution method.  The article reports that experts have criticized the manner in which Oklahoma researched and adopted its nitrogen gas alternative as “cavalier.” "What Oklahoma is doing is not a scientific endeavor,” Emory University anesthesiologist Joel Zivot is quoted as saying. “It’s nonsense, empirically.” Highlighting the historical context of the electric chair in light of Tennessee's decision to reintroduce electrocution, the article chronicles the origins of the method and contrasts Thomas Edison's promise that the electric chair would be painless and efficient with stories of botched electrocutions. Finally, the article turns to the firing squad, which it quotes Utah Gov. Gary Herbert as calling “a little bit gruesome," even as he approved the law that brought it back as an option in his state. It recounts the unique historical relationship between Utah's use of the firing squad and some forms of Mormon theology. Finally, it contrasts the efficiency of the firing squad with the visceral responses it produces: in the words of Chief Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit, “We mask the most violent act that society can inflict on one of its members with such an antiseptic veneer. Isn’t death by firing squad, with mutilation and bloodshed, more honest?”

 

North Carolina Governor Formally Pardons Two Death Row Exonerees

Posted: June 5, 2015

North Carolina Governor Pat McCrory granted pardons to Leon Brown (l.) and Henry McCollum (center, r.), allowing the two men to receive compensation for their wrongful convictions. Brown and McCollum are half-brothers who were convicted of the 1983 murder of an 11-year-old girl and sentenced to death. McCollum spent 30 years on death row before being exonerated by DNA evidence in 2014. Brown was released after 30 years in jail, eight of them on death row. At the time of their arrests, Brown was 15 and McCollum 19. Both gave coerced confessions. An investigation by the North Carolina Innocence Inquiry Commission found DNA at the crime scene from a man who was in prison for a similar crime committed just a month later. Upon granting the pardons to Brown and McCollum, McCrory said, "This has been a very comprehensive and thoughtful process during the past nine months. Based upon the available evidence that I have personally reviewed, I am granting pardons of innocence to Henry McCollum and Leon Brown. It is the right thing to do." A review board may now determine whether to grant each man up to $750,000 in compensation.

 

Quinnipiac Poll Shows Americans Prefer Life Without Parole to Death Penalty

Posted: June 4, 2015

A new poll by Quinnipiac has found that more Americans prefer life without parole (48%) than the death penalty (43%) for people convicted of murder. Since Quinnipiac last asked the question in 2013, support for life without parole has risen by five percentage points and dropped for the death penalty by five points. A June 2014 ABC News/Washington Post poll also showed that more Americans preferred life without parole to the death penalty.  Quinnipiac found that 58% of Americans say they support the death penalty for those convicted of terrorism, but that number also has dropped five points since 2013. 62% of respondents indicated that they preferred the death penalty for Boston marathon bomber Dzhokhar Tsarnaev, as contrasted with just 33% of Boston residents favoring death. By comparison, in 1997, 68% of Americans said that Timothy McVeigh should have received the death penalty after his conviction for the Oklahoma City bombing. (Click image to enlarge.)

 

Texas to Execute Lester Bower After 30 Years on Death Row, Despite Errors and Doubts as to Guilt

Posted: June 3, 2015

UPDATE: Bower was executed as scheduled. EARLIER: Lester Bower is scheduled to be executed in Texas on June 3, after spending more than 30 years on death row. Judges have denied relief on several issues raised by Bower, including a claim that prosecutors had withheld evidence from the defense supporting Bower's consistent assertion that he is innocent. Bower was convicted of the 1983 murder of four men in Grayson County, Texas. He says he met with one of the men to purchase an ultralight aircraft, which the others helped him disassemble and load into his truck. The evidence against him was circumstantial: calls made to the man selling the aircraft and Bower's possession of the same type of ammunition used in the killings, which prosecutors had told the jury was extremely rare. After Bower's conviction, his lawyers obtained records from the FBI and prosecutors indicating that the ammunition was not as rare as prosecutors had said, and of an undisclosed tip that the murders may have been connected to drug trafficking. Later, a woman came forward saying that her boyfriend and his friends had committed the murders after a drug deal went wrong. The wife of one of the other men corroborated her story. In a recent filing, Bower's attorneys said, "This is a case in which there is a significant lingering doubt regarding guilt or innocence." Three Supreme Court justices have said that Bower should have a new sentencing hearing, as a result of what they called a "glaring" constitutional error that impaired the jury's consideration of mitigating evidence.

 

TIME Magazine Poses Five Reasons for Death Penalty Decline

Posted: June 2, 2015

In a cover story for TIME Magazine, award-winning journalist and TIME editor-at-large David Von Drehle explores the decline of capital punishment in the U.S.  Von Drehle offers five significant reasons for the drop in death sentences, executions, and public support for the death penalty in the United States. First, he cites persistent problems with the administration of the death penalty: botched executions and a lengthy appeals process that fails to identify wrongful convictions for decades, if at all. Second, he points to the falling crime rate, showing that support for the death penalty has closely tracked the national murder rate throughout the 20th century. The third reason Von Drehle gives is the erosion of the justification for capital punishment. Life without parole sentences provide an alternative way to ensure that a murderer will never be released and an equivalent to "[w]hatever deterrent capital punishment provides." He also describes the historical use of executions as a tool of white supremacy. While he notes that "the overt racism of the old order is now plainly unconstitutional," the system remains plagued by economic bias, as a result of which "[t]hose without the capital get the punishment." Fourth, he highlights the financial cost of the death penalty, which has led some prosecutors to decide that death sentences are simply not a priority within a constrained budget. Finally, he says, "Actions of the legislatures, lower-court judges and governors can all be read by the Supreme Court as signs of 'evolving standards of decency' in society," which the U.S. Supreme Court may eventually see as justification for striking down capital punishment. He concludes, "The facts are irrefutable, and the logic is clear. Exhausted by so many years of trying to prop up this broken system, the court will one day throw in the towel."

 

Orange County Prosecutors Banned from Death Penalty Case for Systemic Pattern of Misconduct

Posted: June 1, 2015

California Superior Court Judge Thomas Goethals (pictured) disqualified the entire Orange County District Attorney's Office from prosecuting a death penalty case after finding that prosecutors had engaged in a systemic pattern of police and prosecutorial misconduct involving the deliberate, but undisclosed, use of prison informants to obtain incriminating statements from defendants. None of the 250 prosecutors in the office are now permitted to participate in the case. Attorneys for the defendant, Scott Dekraai, say that after he had invoked his right to counsel, he was deliberately placed near a repeat jailhouse informant who had been given instructions to try to elicit a confession from him. Such a practice is unconstitutional because the informant in a cellmate interaction orchestrated by prosecutors or police is in effect an agent of the police, and the interaction is too much like an interrogation. Defense attorneys also discovered that the Orange County Sheriff's Department had maintained a secret record-keeping system for more than 25 years that detailed its systemic surreptitious use of prison informants. That system contained potentially exculpatory information, but officials denied its existence and refused to turn over records to defense counsel, in violation of the law. California Attorney General Kamala Harris has appealed Judge Geothals' ruling, but said her office will investigate the allegations.

 

NEW VOICES: Kareem Abdul-Jabbar Urges Abolition of Death Penalty

Posted: May 29, 2015

In his column for TIME Magazine, basketball hall of famer, author, and filmmaker Kareem Abdul-Jabbar broadly explores the state of the death penalty In the United States and concludes that life without parole is the better option for American society. Stating that "[t]he primary purpose of the death penalty is to protect the innocent," Abdul-Jabar notes that there is a significant difference between the death penalty's goal in theory and its application in practice. "While it’s true that the death penalty may protect us from the few individuals it does execute," he says, "it does not come without a significant financial and social price tag that may put us all at an even greater risk." Abdul-Jabbar points to the death penalty's financial cost, the risk of executing the innocent, and racial and economic disparities in its application. Financially, he says, "[t]his isn’t a matter of morality versus dollars. It’s about the morality of saving the most lives with what we have to spend. Money instead could be going to trauma centers, hospital personnel, police, and firefighters, and education...The question every concerned taxpayer needs to ask is whether or not we should be spending hundreds of millions of dollars on executing prisoners when life without parole keeps the public just as safe but at a fraction of the cost." His column discusses the "high probability that we execute innocent people," citing the more than 140 people exonerated from death row and a recent study indicating that 4% of people sentenced to death may be innocent. Abdul-Jabbar also describes racial bias in capital sentencing, and the problem of inadequate representation, saying, "[t]his lack of fair application is why some opponents of the death penalty consider it unconstitutionally cruel and unusual punishment." He concludes, "we can’t let our passion for revenge override our communities’ best interest...With something as irrevocable as death, we can’t have one system of justice for the privileged few and another for the rest of the country. That, more than anything, diminishes the sanctity of human life."

 

Nebraska Repeals Death Penalty

Posted: May 28, 2015

The Nebraska legislature voted 30-19 to override the veto of Governor Pete Ricketts and abolish the death penalty. Nebraska becomes the 19th state to repeal the death penalty, and the 7th state to do so since 2007. It is the first predominantly Republican state to abolish the death penalty in over 40 years, and state legislators said Republican support was critical to the bipartisan repeal effort. Sen. Jeremy Nordquist said, "This wouldn't have happened without the fiscally responsible Republicans who aren't just beholden to conservative talking points, but are thoughtful about policy." Sen. Colby Coash cited fiscal concerns among his reasons for supporting repeal: "The taxpayers have not gotten the bang for their buck on this death penalty for almost 20 years. This program is broken."  The sponsor of the repeal bill, Independent Senator Ernie Chambers, opened the repeal debate with a reference to the historic nature of the pending vote. “This will be the shining moment of the Nebraska Legislature,” he said. “The world, by anybody’s reckoning, is a place filled with darkness, contention, violence. We today can move to lift part of that cloud of darkness that has been hovering over this state for all these years.”

 

Supreme Court to Review Exclusion of Black Jurors in Georgia Capital Case

Posted: May 27, 2015

The Supreme Court has agreed to hear the case of Timothy Foster, an African-American defendant who was sentenced to death by an all-white jury after Georgia prosecutors had struck every black prospective juror in his case. On May 26, the U.S. Supreme Court granted review in Foster v. Humphrey to determine whether the prosecution’s actions violated the Court’s 1986 decision in Batson v. Kentucky, which banned the practice of dismissing potential jurors on the basis of race. Foster challenged the prosecution’s jury strikes as racially discriminatory at the time of jury selection, but the trial court permitted the strikes. Nineteen years after the trial, his lawyers obtained the prosecutors' notes from jury selection, which contained information that contradicted the “race-neutral” explanations for the strikes that the prosecution had offered at trial. 

 

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