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Capital murder indictments have plummeted and life sentences risen sharply in Ohio over the past five years, according to a report by the Cleveland Plain Dealer. The newspaper's examination of Ohio prison and other public records revealed that capital indictments in the state have dropped by 77% since 2010, mirroring national trends. Prosecutors are far more likely to seek a sentence of life without parole in cases in which they once would have pursued the death penalty. The paper also reports that the number of inmates sentenced to life without parole has skyrocketed by 92% since 2010. Among other factors, changes in District Attorneys, reduced public support for the death penalty, and consideration of costs and the impact of capital proceedings on the families of murder victims have led to fewer death penalty cases. The difference in Cuyahoga County (Cleveland) is particularly striking: since prosecutor Timothy McGinty became district attorney in 2012, the office has sought death in fewer than 7% of eligible cases. Under McGinty's predecessor, Bill Mason, the office sought death in 78% of eligible cases. McGinty instituted an internal review committee to examine each death-eligible case and determine whether to seek a death sentence. He said, "In every case, I have to ask, 'Are we going to survive this?' We have to take a case to a judge and jury and then face 25 years of appeals. Is it fair to families of victims? Is it fair putting them through a quarter century of appeals?'' (Click image to enlarge.)
Lawyers for capital defendants and death row inmates across the country have begun to respond to what lawyers in one federal case described as the "clarion call for reconsideration of the constitutionality of the death penalty" issued by Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg in their dissenting opinion in June in Glossip v. Gross. Systemic challenges to the death penalty have been filed in a Vermont federal court and a Utah state trial court seeking hearings to present evidence that the death penalty is administered in a systemically cruel and unusual manner. A Pennsylvania defendant has likewise filed a petition in the U.S. Supreme Court seeking review of her claim that the death penalty is unconstitutionally arbitrary. Attorneys for Brandon Perry Smith allege that while their client and a very small number of other defendants face the death penalty for potentially capital crimes, approximately 150 Utah inmates received life sentences for similar offenses. They seek to depose all 29 of Utah's county attorneys to learn why prosecutors choose to seek the death penalty in certain cases but not others. Gary Pendleton and Mary Corporan, Smith's attorneys, wrote, "The infirmity of Utah's present scheme is apparent. The exercise of prosecutorial discretion becomes arbitrary and capricious by definition when the law establishes no basis for determining when a death-eligible murder, as defined by statute, is charged as a capital offense and when it is charged as a noncapital homicide." Citing the Glossip dissent, lawyers in the federal trial of Donald Fell in Vermont argue that the federal death penalty is unconstitutional because it is unreliable, arbitrary, and discriminatorily applied. They write that "Most places within the United States have abandoned its use under evolving standards of decency," and highlight evidence of significant racial and geographic inequities in the use of the federal death penalty, including that it is overwhelmingly imposed in a small number of states that are also disproportionately responsible for state death sentences. In Walter v. Pennsylvania, death-row prisoner Shonda Walter argues that the assumptions underlying the Supreme Court's reinstitution of the death penalty in the 1970s "have proved wrong, flawed, or illusory." She has asked the Supreme Court to review her claim that American "standards of decency have evolved to the point where the [death penalty] is no longer constitutionally sustainable."
Supreme Court Petition Alleges Second Conflict of Interest by Same Lawyers Accused of Abandoning Executed Texas PrisonerPosted: November 29, 2015
Lawyers for Texas death row prisoner Robert L. Roberson III have filed a petition asking the United States Supreme Court to review whether Seth Kretzer and James W. Volberding - the same appointed lawyers who were accused of abandoning Raphael Holiday, whom Texas executed in November - had a conflict of interest that interfered with Mr. Roberson's right to an independent legal advocate in his federal habeas corpus proceedings challenging his conviction and death sentence. In his petition, Roberson argues that his trial lawyer failed to investigate and present important mitigating evidence in the penalty phase of his case and that Kretzer and Volberding have a conflict of interest that prevented them from properly litigating that claim. Volberding represented Roberson in his state post-conviction appeals and failed to present any claim or evidence relating to counsel's penalty-phase investigative failures. He was then appointed to represent Roberson in federal court, but his prior failure to have challenged trial counsel's penalty-phase performance forfeited that claim unless Roberson could show that Volberding had unreasonably failed to raise the claim in state court. Kretzer was appointed as "supplemental counsel" to review Volberding's performance and failed to challenge Volberding's conduct. However, unkown to Roberson, Kretzer and Volbering had a close professional association, having been jointly appointed as paid co-counsel in a number of capital habeas cases. When Roberson learned of their association, he asked for new "supplemental counsel," which Kretzer and Volberding opposed. Charles Herring, Jr., an ethics expert and author of a treatise on Texas legal ethics and malpractice, and Lawrence J. Fox, former chairman of the ABA Standing Committee on Ethics and Professional Responsibility, say in affidavits supporting Roberson's petition that Volberding and Kretzer have conflicts of interest that should prevent them from representing Roberson. The Court is expected to decide in early December whether to hear Roberson's case. Kretzer and Volberding have written to the Court requesting that it dismiss the petition and permit them to file their own petition raising other issues.
On Sunday, November 29, CBS's 60 Minutes aired a segment on Arizona's 2-hour botched execution of Joseph Wood (pictured). As described by 60 Minutes, Wood's "execution with a new cocktail of drugs was supposed to take 10 minutes. It took almost two hours, the longest execution in U.S. history." On July 23, 2014, Arizona gave Wood 15 consecutive doses of midazolam and hydromorphone, the same drug combination that had been used in the botched execution of Dennis McGuire in Ohio six months earlier. Witnesses to Wood's execution reported that he gasped and snorted more than 600 times during the 2-hour procedure. Prison officials had estimated that the drugs would take about 10 minutes to kill Wood. Prior to the execution, U.S. Court of Appeals for the 9th Circuit had ordered the state to release information about the source of the drugs and the training of those who would carry it out, but the U.S. Supreme Court reversed the decision and allowed the execution to proceed under a veil of secrecy. Dale Baich, one of Wood's attorneys, said, "I’ve witnessed a number of executions before and I’ve never seen anything like this. Nor has an execution that I observed taken this long."
Death row exoneree Anthony Graves (pictured, right, with Sen. Richard Durbin after testifying before the U.S. Senate Subcommittee on the Constitution, Civil Rights and Human Rights in 2012) has experienced what he calls the "injustice of the justice system" and is working to make the system better. Graves was exonerated from death row in Texas in 2010, 16 years after being wrongfully convicted in a multiple murder case. Using some of the $1.5 in compensation that he was awarded for his wrongful imprisonment, Graves created the Anthony Graves Foundation with a mission "to promote fairness and effect reform in the criminal justice system." Now, he is advocating for broad criminal justice reforms to redress not only problems with the death penalty, but with questionable forensic evidence, racially disparate sentencing, the imprisonment of people with mental illness or drug addictions, and laws that unnecessarily require jail time or carry harsh mandatory minimum sentences. In an interview with Voice of America, Graves said, referring to the Texas criminal justice system: "You tried to murder me and I want to stay in your face every day to remind you that we need to do better." He described his advocacy, saying, "I use my story to educate people, but more importantly, keep it on people’s minds about the injustice that is going on in our criminal justice system."
A majority of Americans prefer life without parole to the death penalty, according to the 2015 American Values Survey by the Public Religion Research Institute. The poll of 2,695 Americans found that 52% preferred life without parole, while 47% preferred the death penalty. The poll found that respondents' views on capital punishment tracked their views about racial justice and differed greatly by race. 53% of all Americans agreed with the statement, "A black person is more likely than a white person to receive the death penalty for the same crime," while 45% disagreed. But 82% of blacks and 59% of Hispanics agreed with the statement, while fewer than half (45%) of whites agreed. Only 37% of those who saw racial disparities in the application of the death penalty supported capital punishment, while the death penalty drew support from 59% of those who disagreed that blacks were more likely than whites to receive death sentences. White Americans' views on this question differed greatly by social class, with 54% of college-educated whites saying blacks were more likely than whites to receive the death penalty and 58% of white working-class Americans saying this was not the case. Views about the perceived fairness of the death penalty also split sharply along partisan lines. 64% of Republicans disagreed with the statement on racial disparities, as compared to 28% of Democrats. Independents were evenly divided. Overall, about two-thirds (65%) of Democrats said they preferred life without parole, while 67% of Republicans said they preferred the death penalty.
Caddo Parish Elects First Black District Attorney As Spotlight Shines on Death Penalty and Jury Selection ControversiesPosted: November 23, 2015
Caddo Parish, Louisiana, known nationally for its aggressive pursuit of the death penalty, has elected its first black District Attorney. In a November 21 runoff election conducted against the backdrop of controversial remarks about the death penalty by the current DA and a threatened civil rights lawsuit over systemic racial discrimination by Caddo Parish prosecutors in jury selection, former judge James E. Stewart, Sr. defeated current Caddo Parish prosecutor Dhu Thompson, 55% to 45%. Ten days before the election, the Roderick and Solange MacArthur Justice Center announced that it intends to sue Caddo Parish over the District Attorney's office's practice of striking black citizens from juries at three times the rate of other jurors. James Craig, co-director of the New Orleans-based non-profit law center, called the racially-biased jury strikes "a blight on our criminal justice system." A recent study by the human rights group Reprieve Australia had revealed that Caddo prosecutors used peremptory strikes against 46% of black jurors but only 15% of other jurors. (Click image to enlarge.) The study showed that Thompson's exercise of juror challenges was even more racially disproportionate, striking more than half of all prospective black jurors but fewer than 1 in 6 of all other jurors. Craig said that the announcement of the suit was not intended to influence the election: "This is not a problem of one person. This is a culture that needs to be acknowledged and changed...In the absence of concrete, specific changes in the office’s culture and approach to jury selection, this practice will continue under the administration of either of the two final candidates for district attorney. For this reason, no matter who prevails in the special election this month, the MacArthur Justice Center will proceed with the federal civil rights lawsuit that we are preparing to file." The suit is seeking an injunction to block practices that result in under-representation of blacks on juries. In his election-night victory remarks, Stewart pledged "to bring professionalism and ethics back to the district attorney’s office."
POLL: Majority of Oklahomans Favor Replacing Death Penalty With Life Without Parole Plus RestitutionPosted: November 20, 2015
A majority of Oklahoma voters favor abolition of the death penalty if it is replaced with a sentence of life without parole plus restitution, according to a new poll commissioned by News 9/News on 6. The survey by the non-partisan SoonerPoll.com found that 52.4% of Oklahomans would support abolition of the death penalty if the state replaced its system of capital punishment with the alternative sanction of life without parole, plus a requirement that the inmates pay restitution to victims' families. Nearly a third of respondents (30.5%) said they would "strongly support" abolition if this alternative punishment option were offered. The gap between support for replacing the death penalty versus retaining it as is was more than 18 percentage points, with 34.0% of respondents saying they would oppose abolition. A poll commissioned by The Oklahoman in October that asked the general question whether Oklahomans supported or opposed the death penalty reported that 67% of Oklahomans expressed support for the death penalty, down from 74% support reported in a 2014 poll by the Tulsa World. The Oklahoman poll showed that, at the same time, half of Oklahomans favored a moratorium on the state's death penalty. “A lot of people are in support of the death penalty right now, because they were never given an alternative,” said Bill Shapard, founder of SoonerPoll.com. “Right now the death penalty is really the only alternative to those who have committed some of the worst crimes in our society. But yet, now we are given an alternative, people are open to that.” The results of the Oklahoma polls are consistent with national polls, which find that respondents say they support the death penalty in the abstract, but prefer life without parole over the death penalty when offered a choice between the two.
Georgia is scheduled to execute Marcus Johnson (pictured) on November 19 despite ongoing concerns about his innocence. The execution would be Georgia's fifth since December 2014 - each raising serious questions about systemic problems in Georgia's application of the death penalty. In a commentary for The Marshall Project, Sara Totonchi, executive director of the Southern Center for Human Rights, says these cases "are emblematic" of death sentences imposed before Georgia's statewide capital defense office opened in 2005 and "encapsulate what’s wrong with capital punishment in Georgia." In December 2014, Georgia executed Robert Wayne Holsey, whose drunk lawyer failed to investigate and present mitigating evidence that Holsey had an IQ of 70 and had been seriously abused as a child. The lawyer was later imprisoned and disbarred for misconduct in another case. Andrew Brannan, a decorated Vietnam veteran with bi-polar disorder who was declared 100% disabled by the Veterans Administration as a result of combat-related PTSD, was executed in January, the first U.S. execution in 2015. The jury was never heard details of Brannan's military service or disability. Two weeks later, Georgia executed Warren Hill, a man with intellectual disabilities. A judge found that Hill had proven his disability by a "preponderance of the evidence," the standard of proof required by every other death penalty state, but Georgia requires defendants to prove intellectual disability "beyond a reasonable doubt." Even after the state's doctors admitted that Hill met this higher standard, the state and federal courts refused to consider this evidence on technical procedural grounds and Hill was executed. Kelly Gissendaner's execution in September hghlighted a different type of arbitrariness: she was executed for planning to murder her husband, while her boyfriend, who actually committed the killing, made a deal with prosecutors to serve a life sentence and will be eligible for parole in seven years. Finally, Marcus Johnson's case raises concerns that Georgia may be executing an innocent man. The DNA evidence from the murder scene that was tested was inconclusive, other blood evidence was not tested, and none of Johnson's DNA was found on or in the car where the victim's body was found. The trial judge wrote to the Georgia Supreme Court that the evidence in Johnson's case "does not foreclose all doubt respecting the defendant’s guilt."
Raphael Holiday (pictured) is scheduled to be executed in Texas on November 18 after appeals lawyers who were appointed to his case unilaterally decided not to seek clemency or pursue additional appeals and then opposed Holiday's efforts to replace them with lawyers who would. James "Wes" Volberding and Seth Kretzer say that they were unable to find new evidence on which to base any appeal and that seeking clemency from Texas Gov. Greg Abbott would give Holiday "false hope" and is pointless. When another attorney, Gretchen Sween, stepped in to help Holiday find new counsel, his current attorneys opposed her efforts to replace them. They then filed a clemency petition prepared so hastily that it twice gives the wrong execution date. The lawyers say they were exercising professional discretion in abandoning efforts to spare Holiday's life, but death penalty experts assert that counsel are required to pursue all available avenues to stop a client's execution. Stephen Bright, a Yale law professor and president of the Southern Center for Human Rights, said that in decades of practice in capital cases he has never seen appointed lawyers fight so vigorously to prevent their client from retaining new counsel. "This seems unconscionable," he said. "Lawyers are often in a position of representing people for whom the legal issues are not particularly strong, but nevertheless they have a duty to make every legal argument they can." Jim Marcus, a University of Texas law professor and veteran death penalty lawyer, agreed that Holiday's attorneys are legally required to continue pursuing appeals: "There’s a difference between saying that’s not a viable strategy or viable claim and abandoning an entire proceeding altogether. The latter is not really permissible ...."