UPDATE: On March 23, Judge Rosa Mroz officially dismissed the charges against Milke. Milke has been added to DPIC's exoneration list. See Milke's statement on her exoneration. PREVIOUSLY: On March 17, the Arizona Supreme Court denied a request by prosecutors that it review a lower court's order that dismissed the charges against Debra Milke as a result of "egregious" police and prosecutorial misconduct and barring her retrial. The court's decision effectively ends prosecutorial efforts to reinstate murder charges against Milke. Milke spent 23 years on death row for allegedly arranging for two men to kill her 4-year-old son so she could collect an insurance payout. The two men who were convicted of committing the killing remain on death row. In 2013, the U.S. Court of Appeals for the 9th Circuit overturned Milke's conviction because the prosecutor had withheld evidence that undermined key testimony in the case. Arizona's prosecutors have been accused of misconduct in more than half of all cases in which the state has imposed death sentences. In this case, Detective Armando Saldate testified that Milke had confessed to him, but there was no recording, nor any witnesses to the confession, and Milke steadfastly denied having confessed. Saldate's personnel record, which prosecutors withheld from the defense, revealed that the detective had committed serious misconduct in prior cases, including lying under oath. In December 2014, the Arizona Court of Appeals barred prosecutors from retrying Milke. The state sought to appeal that decision to the Arizona Supreme Court, which the court rejected on Tuesday. The trial court is expected to formally dismiss the charges next week, which would make Milke the 151st person exonerated from death row since 1973 and the first in 2015. She will be the ninth person exonerated from death row in Arizona and the second female death row exoneree in the U.S.
A new study from researchers at the University of North Carolina at Chapel Hill finds that the most likely outcome for a capital case once a death sentence has been imposed is that the defendant's conviction or sentence will be reversed on appeal. Execution is only the third most likely outcome. Of the 8,466 people sentenced to death from 1976-2013, 3,194 (38%) had their sentence or conviction overturned. 2,979 (35%) remained on death row at the time of the study. Fewer than 1 in 6 defendants - 1,359 (16%) - were executed. The rest died on death row of suicide or natural causes, had their sentence commuted, or were removed from death row for miscellaneous reasons. The study also notes that these rates vary dramatically from state to state, with states averaging about a 13% likelihood of executing a death sentence, and only one state - Virginia - executing more than half of those sentenced to death. "Regardless of one’s view of the death penalty in principle, these numbers raise questions about how the death penalty is applied in practice," the authors note. "The wide differences across states in the odds of carrying out a death sentence are potentially troubling from an equal protection standpoint." They conclude, "A system that ensures prolonged court time, automatic appeals for the convicted inmate – most of whom are eventually successful – and only a small chance of actual execution is a system built on false promises for everyone, and indeed one that seems to verge on torture." (Click image to enlarge)
Legislators in Ohio are seeking to enact death penalty reforms as the state grapples with problems in the application of capital punishment. Sen. Bill Seitz, a Republican, and Sen. Sandra Williams, a Democrat, are working on four bills to address some of the reforms recommended by the Ohio Supreme Court Death Penalty Task Force last year. The bills would prevent the execution of defendants with serious mental impairments, establish a fund for indigent defense, require certification of crime labs and coroners, and prohibit convictions where the only evidence is testimony from a jailhouse informant. Since 2003, Ohio has removed 20 inmates from death row through exonerations, clemency, or sentence reductions because of intellectual disabilities. An additional 5 men who had once been on death row, but had their sentences reduced when capital punishment was struck down in the 1970s, were also exonerated and released. Ohio's executions are currently on hold until at least 2016 because of problems with lethal injection. In recent years, several Ohio officials who once supported capital punishment have spoken out against it. Among them is Paul Pfeifer (pictured), a senior justice on the Ohio Supreme Court and the legislative sponsor of the bill to reinstate Ohio's death penalty in 1981, who now says, "I really think it’s time to shake it up and have life in prison without the possibility of parole, to have that be the ultimate penalty available to juries. It is more of a death lottery instead of something that is evenly applied across the state. The correct thing to do is take it off the books."
A previously undisclosed letter written by jailhouse informant Johnny E. Webb, a crucial witness in the trial of Cameron Willingham (pictured) in Texas, indicates that Webb's sentence may have been reduced in exchange for his testimony that Willingham had confessed to intentionally starting a house fire that killed his three daughters. The defense had never been informed of the existence of any deal between Webb and prosecutors in the case. Willingham was executed in 2004, but he consistently maintained his innocence, and forensic evidence of arson in the case was later discredited. Webb testified that Willingham had confessed to him while they were held in the same jail, but later recanted that testimony. Prosecutor John Jackson is now under investigation by the Texas State Bar for his handling of the Willingham case and the alleged deal with Webb. Webb's 1996 letter to Jackson said, “Recently, as I was going over my case notes, I noticed that you had told me that the charge of aggravated robbery would be dropped, or lowered, to robbery. . . . You told me this would be done before my transfer to TDC [Texas Department of Corrections].” He added that if Jackson did not take care of the change, Webb might file a court motion, possibly making their deal public. In a recent interview, Webb told The Marshall Project, “I did not want to see Willingham go to death row and die for something I damn well knew was a lie and something I didn’t initiate. I lied on the man because I was being forced by John Jackson to do so. I succumbed to pressure when I shouldn’t have. In the end, I was told, ‘You’re either going to get a life sentence or you’re going to testify.’ He coerced me to do it.”
On March 4, Akorn Pharmaceuticals, a manufacturer of two drugs (midazolam and pentobarbital) that have been used in executions, released a statement announcing measures to block the sale of its products to prisons. Akorn joins at least two other U.S.-based drug companies and several European companies in expressing opposition to the use of their products in lethal injections. In 2014, Par Pharmaceuticals responded to Indiana's proposed use of one of their anesthetics by prohibiting the sale of the drug to prisons. Stephen Mock, a spokesman for Par, said, “It’s not because we take public policy positions on issues like capital punishment. We’re a pharmaceutical company, and we have a mission statement. Par’s mission is to help improve the quality of life. Indiana’s proposed use of our product is contrary to our mission.” Akorn's statement announcing their new restrictions said, “The employees of Akorn are committed to furthering human health and wellness. In the interest of promoting these values, Akorn strongly objects to the use of its products to conduct or support capital punishment through lethal injection or other means.”
On March 9, the U.S. Supreme Court agreed to hear Hurst v. Florida, a challenge to the state's unusual sentencing procedure. In a prior ruling, Ring v. Arizona (2002), the Court held that the question of whether a defendant is eligible for the death penalty is entitled to a jury deteremination. Unlike almost every other state where unanimous juries are required for death eligibility and a death sentence, Florida only requires the jury to make a sentencing recommendation to the judge, who then makes the final decision on the existence of aggravating factors and the actual sentence. Timothy Hurst was sentenced to death by a judge, following a 7-5 recommendation for death by the jury. The jury's recommendation did not make clear which aggravating factors made him eligible for the death penalty or whether they found any aggravating factor beyond a reasonable doubt. The Supreme Court's decision in Hurst v. Florida could affect pending cases and other inmates on the state's death row.
UPDATE: An image of Cecil Clayton's brain obtained via MRI can be viewed here. The image shows the front left part of his brain is physically missing. Cecil Clayton is 74, suffers from dementia, has an IQ of 71, is missing a significant part of his brain due to an accident, and is scheduled for execution on March 17 in Missouri. His attorneys insist he should be spared because he does not understand the punishment to be carried out. Clayton sustained a brain injury in a sawmill accident in 1972, requiring removal of about 20% of his frontal lobe, which is involved in impulse control, problem solving, and social behavior. After the accident, Clayton began experiencing violent impulses, schizophrenia, and extreme paranoia, which became so severe that he checked himself into a mental hospital out of fear he could not control his temper. In 1983, Dr. Douglas Stevens, a psychiatrist, examined Clayton and concluded, “There is presently no way that this man could be expected to function in the world of work. Were he pushed to do so he would become a danger both to himself and to others. He has had both suicidal and homicidal impulses, so far controlled, though under pressure they would be expected to exacerbate.” In the past decade, six psychiatric evaluations have found that Clayton should be exempt from execution because he does not understand that he will be executed, or the reasons for his execution. However, since his execution date has been set, he has not had a competency hearing before a judge that could spare him from execution.
On March 6, several stakeholders in California's death penalty system filed supportive briefs urging the U.S. Court of Appeals for the Ninth Circuit to uphold a District Court ruling that the state's death penalty is unconstitutional. The 9th Circuit is considering the state's appeal in the case of Ernest Jones, whose death sentence was overturned by Judge Cormac Carney (pictured). In an amicus brief on behalf of Jones, Bethany Webb, whose sister was murdered in 2011, said, "California's death penalty is a charade. My sister’s killer is going to die of old age before an execution will ever be carried out. The death penalty retraumatizes families like mine and forces them to endure a decades-long cycle of waiting, court hearings, and uncertainty. It is cruel to continue propping up a system that encourages victims’ families to wait decades for an execution that may never come." State legislators and legal scholars also filed briefs in the case. Senator Mark Leno, joined by other state legislators, wrote, "The facts are overwhelmingly clear: California’s death penalty system is broken and clearly there’s no political will to try to address the many flaws that plague the system. The death penalty is exorbitantly costly, arbitrarily applied, and serves no legitimate purpose whatsoever in its current condition. The only reasonable solution is to replace the death penalty with life in prison without the possibility of parole."
UPDATE: The repeal bill unanimously passed out of the Judiciary Committee on Mar. 9. Earlier: At a Nebraska legislative hearing on March 4, dozens of people testified in favor of abolishing the death penalty, including representatives from families of murder victims, from law enforcement, the judiciary, and Nebraska Conservatives Concerned about the Death Penalty. Among the co-sponsors of the bill to replace the death penalty with life without parole are seven Republican legislators. Jim Davidsaver, a retired Lincoln police captain, submitted testimony saying, "[M]y professional experience has shown me that our state’s death penalty does not make us any safer. Its exorbitant cost actually detracts from programs that would promote the overall health, safety and welfare of our communities." Elle Hanson, who lost three loved ones to murder, said the death penalty was applied arbitrarily, "I want to share the pain and outrage I feel when I hear politicians say that we need the death penalty for the worst of the worst. This is an absurd notion. I guarantee you, each of our losses is the worst of the worst." Sen. Ernie Chambers (pictured) of Omaha, who introduced the bill, said he expects it to be debated by the full legislature this session. Only one person, a County Attorney, testified against the bill.
In an unusual joint editorial on March 5, four national Catholic publications called for an end to the death penalty in the U.S. The editors of America, National Catholic Register, National Catholic Reporter, and Our Sunday Visitor urged "the readers of our diverse publications and the whole U.S. Catholic community and all people of faith to stand with us and say, 'Capital punishment must end.'" Citing opposition to the death penalty in the Catechism of the Catholic Church and statements by Popes John Paul II and Francis, the editorial said, "The practice is abhorrent and unnecessary. It is also insanely expensive, as court battles soak up resources better deployed in preventing crime in the first place and working toward restorative justice for those who commit less heinous crimes." The publications concluded: "We join our bishops in hoping the [Supreme] court will reach the conclusion that it is time for our nation to embody its commitment to the right to life by abolishing the death penalty once and for all."