What's New

Defense Attorney Retires from Capital Practice After No Acquittals in 40 Years and 21 Clients Sent to Death Row

Posted: August 18, 2016

Harris County, Texas has sent more people to death row than any other county in the United States and Jerry Guerinot (pictured) was defense counsel for twenty-one of them. His death-sentenced clients included two who were juveniles at the time of the crime and another who was later freed after prosecutors dropped charges against him. Labeled by some as "the worst lawyer in the United States," in forty years of practice, none of Guerinot's capital murder clients was acquitted. Now, after decades of criticism, Guerinot says he will no longer take capital cases. Guerinot asserts that his record is a by-product of the cases he was assigned: "My theory is if they are the sorriest of the worst or the very worst, I got 'em. Somebody's got to defend - 'defend' is the wrong word - represent these people." Other attorneys, however, say he did not adequately represent his clients. "I wouldn't be here if I had better counse," Linda Carty, a British national who was one of Guerinot clients, said. "I met this guy for less than 15 minutes. Once." Although investigative assistance was available from the British consulate, Guerinot never sought it, she says. Guerinot also served as top assistant to the lead attorney for Duane Buck, whose appeal will be heard by the U.S. Supreme Court this fall based upon defense counsel's use of a psychologist who told Buck's sentencing jury that he was more likely to pose a future danger to society because he is Black. Kathryn Kase, executive director of the Texas Defender Service, said defense counsel sat silent as their witness provided racially-biased testimony against their client and "never objected to the prosecution's questions or arguments ... that skin color, race, makes someone more likely to be dangerous in the future." Jim Marcus, co-director of the Capital Punishment Clinic at the University of Texas, noted that Guerinot had four separate clients sentenced to death in a seven-month period in 1996. "It is unthinkable that a defense attorney would try four separate death penalty cases to verdict in the space of seven months," he said. Veteran capital defense lawyer and University of Houston law professor David Dow told the New York Times in 2010 that the large number of death sentences imposed on Guerinot's clients reflected a failure to conduct simple investigations. "He doesn't even pick the low-hanging fruit which is hitting him in the head as he's walking under the tree," Dow said. Guerinot said, "I'm there to ensure they get a fair shake. And, by God, there ain't one of them that didn't."


Equal Justice Initiative Memorial Highlights Links Between Lynching and Death Penalty

Posted: August 17, 2016

The Equal Justice Initiative has announced plans to construct a Memorial for Peace and Justice in Montgomery, Alabama to commemorate the victims of terror lynchings in the American South. In a New Yorker profile of EJI executive director Bryan Stevenson, Jeffrey Toobin describes EJI's criminal defense work and the genesis of the lynching memorial. "There’s no question that we have a long history of seeing people through [a] lens of racial difference. It’s a direct line from slavery to the treatment of black suspects today, and we need to acknowledge the shamefulness of that history,” Stevenson says. “Our society applies a presumption of dangerousness and guilt to young black men, and that’s what leads to wrongful arrests and wrongful convictions and wrongful death sentences." EJI's groundbreaking book, Lynching in America: Confronting the Legacy of Racial Terror, has documented hundreds of previously unacknowledged lynchings across the South. Stevenson and other scholars link the history of lynchings to the use of the death penalty today. Professor Jordan Steiker of the University of Texas at Austin said, “In one sense, the death penalty is clearly a substitute for lynching. One of the main justifications for the use of the death penalty, especially in the South, was that it served to avoid lynching. The number of people executed rises tremendously at the end of the lynching era. And there’s still incredible overlap between places that had lynching and places that continue to use the death penalty.” The peace memorial, which EJI hopes to open in in 2017, will contain a suspended column representing each U.S. county in which a lynching has been documented. Volunteers have traveled across the American South collecting soil from each known lynching site for inclusion in the memorial. In addition to the permanent columns, there will be a removeable column for each county, which EJI will encourage local jurisdictions to return to their home counties to display as an acknowledgment of their history. “We’re going to create a space where you can walk and spend time and go through that represents these lynchings," Stevenson said, "But, more than that, we’re going to challenge every county in this country where a lynching took place to come and claim a memorial piece—and to erect it in their county.”


Delaware Attorney General Will Not Appeal Decision Striking Down Death Penalty Statute

Posted: August 16, 2016

Delaware Attorney General Matt Denn (pictured) announced on August 15 that his office will not appeal the Delaware Supreme Court's August 2 decision in Benjamin Rauf v. State of Delaware, which struck down the state's death penalty statute. In Rauf, the court found that Delaware's capital sentencing scheme violated the Sixth Amendment, as interpreted by the U.S. Supreme Court in Hurst v. Florida, by granting judges, rather than juries, the ultimate power to decide whether the prosecution had proven all facts necessary to impose the death penalty. Delaware's statute had not required a unanimous jury determination of all aggravating circumstances that were considered in sentencing a defendant to death or a unanimous jury finding that those reasons for death outweighed mitigating circumstances. The Rauf decision intensifies the national spotlight on Alabama and Florida as the only states that still permit judges to impose death sentences after non-unanimous jury recommendations for death and on Alabama as the only remaining state to permit a judge to override a jury's life verdict. The statement of the attorney general's office said Denn "has concluded that even if the United States Supreme Court reversed the opinion on Federal Constitutional grounds, ... the Delaware Supreme Court would ultimately invalidate Delaware’s current death penalty statute based on the Constitution of the State of Delaware." Litigating those issues, he said, "would likely take years" and "would likely not only bring about the same result, but would also deny the families of victims sentencing finality." The statement indicated that state prosecutors would challenge the application of Rauf to the thirteen prisoners currently on Delaware's death row, leaving their status uncertain. For future cases, legislative action is now the only route to reinstating the death penalty in Delaware. Such action seems unlikely, given that it must be approved by both houses of the legislature and by the Governor. However, death penalty abolition bills passed the state Senate in 2013 and 2015, and narrowly failed in the House earlier this year, and Governor Jack Markell has expressed support for abolishing the death penalty and "applaud[ed] the Supreme Court's finding that the state's death penalty law is unconstitutional."


STUDIES: Nebraska's Death Penalty Costs $14.6 Million Per Year

Posted: August 15, 2016

A new study of Nebraska's death penalty found that the state spends $14.6 million per year to maintain its capital punishment system. The study, The Economic Impact of the Death Penalty on the State of Nebraska: A Taxpayer Burden?, also estimates that each death penalty prosecution cost Nebraska's taxpayers about $1.5 million more than a life without parole prosecution. At a press conference announcing the study, principal investigator Dr. Ernest Goss—an economics professor at Creighton University and founder of the conservative think tank, Goss & Associates—presented the findings as a strong economic argument in favor of retaining Nebraska's recent repeal of the death penalty. Nebraska voters will decide in November whether to keep the repeal bill, which was passed by the legislature in May 2015 over the veto of Governor Pete Ricketts, or overturn the legislature's decision and reinstate the death penalty. "If economics is your major factor, you should vote to retain," Dr. Goss said. He explained that conducting the study had altered his own views on capital punishment, which he supported before he learned about the economic costs. 1,842 homicides were committed in Nebraska between 1973 and 2014, with prosecutors seeking death 119 times and obtaining 33 death sentences. Of those sentenced to death, the study found that 13 had their sentences reduced, six died in prison, three were executed, one sentence was vacated, and ten are still appealing their sentences. Examining costs on a national level, the study said that death penalty states spend about 3.54% of overall state budgets on criminal justice, while states without the death penalty spend about 2.93%. On average, the death penalty costs a state $23.2 million more per year than alternative sentences. The study was commissioned by the organization Retain a Just Nebraska, which supports retaining the Nebraska legislature's repeal of the state's death penalty. (Click image to enlarge.)


Death Row Exoneree Requests DOJ Investigation of Systemic Prosecutorial Misconduct in Louisiana

Posted: August 12, 2016

Louisiana death row exoneree John Thompson (pictured, center), who was wrongly convicted of two different New Orleans murders as a result of prosecutorial misconduct, has filed a petition with the United States Department of Justice seeking an investigation of more than 100 cases prosecuted by former Orleans Parish assistant district attorney James Williams. Thompson filed his petition on August 2 under provisions of the Law Enforcement Misconduct Statute, which makes it a violation of federal law for police or prosecutors to engage in a pattern or practice of conduct that deprives individuals of their constitutional rights. Thompson's petition alleges that Williams "grossly violated his duty, the power entrusted to him and the constitutional rights of countless defendants he prosecuted," including five cases in which death sentences Williams obtained were later overturned for official misconduct. Thompson was wrongfully convicted and sentenced to death in 1985. He was exonerated in 2003 after his attorney uncovered crucial blood analysis evidence that had been improperly withheld by the Orelans Parish District Attorney's office. In 2007, a jury awarded him $14 million in damages in a suit he filed against the prosecutor's office, but the U.S. Supreme Court overturned that award by a 5-4 vote in 2011, expanding the scope of individual prosecutorial immunity and finding that Thompson had not proven that the district attorney’s office itself was responsible for the individual prosecutors' negligence. In dissent, Justice Ruth Bader Ginsburg wrote, "What happened here . . . was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish." Thompson said his new petition was prompted in part by concern for defendants who were prosecuted by Williams but did not receive a death sentence. "I was blessed to be on Death Row because it gave me access to attorneys, who eventually proved my innocence," he said. "If I weren't given a death sentence, I'd still be in Angola. My question is: What happened to the 95 or more men who Williams prosecuted but didn't get a death sentence? Where are they now?" Emily Maw, director of the Innocence Project New Orleans, said that New Orleans has the highest exoneration rate per capita in the country. Despite that fact, she said, "no state entity has taken it upon themselves to identify that this is a problem."


NEW VOICES: Latino Evangelical Leaders Call For End to Capital Punishment

Posted: August 11, 2016

Leaders of national Latino evangelical groups are calling for an end to the death penalty, citing both religious convictions and practical concerns about the fairness of capital punishment. Reverend Gabriel Salguero (pictured), founder of the Latino Evangelical Coalition, said, “Given studies on how the death penalty is meted out, particularly for people of color, if it’s not a level playing field, we need to speak out. ... The needle has moved for Latinos and evangelicals." According to the Bureau of Justice Statistics, Latinos comprise a growing portion of the nation's death rows, increasing from 11% in 2000 to 13.5% in 2010, with half of the new Latino death row inmates coming from California. A 2014 study of California jurors found that white jurors were more likely to impose death sentences if defendants were Latino and poor. Another California study found that the odds that a capital defendant would be sentenced to death were were more than triple for those convicted of killing whites than for those convicted of killing blacks and more than 4 times greater than for defendants convicted of killing Latinos. "There’s been a shift, not just attributed to religion, but a heightened understanding of the death penalty and its implicit bias in the criminal justice system," said Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund. Salguero summarized the religious backing for opposition to the death penalty, saying, "The gospel teaches us that crime has a place, but God has the last word....Christ was an innocent man who was executed. If there’s a possibility that we execute one innocent person we should have pause."


As Council Reviews Kentucky's Criminal Justice Policies, Former Prosecutors, Judge Urge Repeal of Death Penalty

Posted: August 10, 2016

Kentucky's recently-formed Criminal Justice Policy Assessment Council will be examining the state's criminal code, and is expected to examine a wide range of criminal justice issues—including the death penalty—in the first major overhaul of Kentucky's criminal code since the 1970s. The council, which was formed by Gov. Matt Bevin, includes legislators, judges, criminal justice experts, and religious leaders, charged with producing a list of recommendations for Kentucky lawmakers. One council member, Bishop William Medley, of the Catholic Diocese of Owensboro, has expressed moral opposition to the death penalty, and received backing for repealing the punishment from some in the courts and the prosecution bar. Circuit Judge Jay Wethington, a former prosecutor who prosecuted death penalty cases told the Messenger-Inquirer that he was "going to side with ... Bishop Medley" on that issue, but for different reasons. "We need to get rid of the death penalty," he said. "We spend too much money for the results." Meanwhile, three former Kentucky prosecutors wrote an op-ed for Louisville's Courier-Journal urging abolition of the death penalty. Joseph Gutmann (pictured), Stephen Ryan, and J. Stewart Schneider discussed the results of a recent University of Kentucky poll, which found that a large majority (72.4%) of Kentuckians support a moratorium on executions. They noted that support for the death penalty has risen since 2011, when the American Bar Association released a study that found serious problems with Kentucky's application of the death penalty. At that point, 62% of Kentuckians favored a suspension of executions. They conclude, "These poll results make it clear that Kentuckians’ concern about the fairness of the state’s criminal justice system is growing. As we have written before, replacing the death penalty with life without parole is the best approach for our state – protecting public safety, providing justice to the families of victims, removing the possibility that an innocent person will be executed and saving limited tax dollars."


Defense Lawyers, Former Prosecutors, and Constitutional Rights Groups File Amicus Briefs in Buck v. Davis

Posted: August 9, 2016

Five groups, representing defense lawyers, former prosecutors, and organizations devoted to protecting constitutional liberties have filed amicus briefs in the U.S. Supreme Court in support of Texas death row prisoner Duane Buck. Buck was sentenced to death when a psychiatrist presented by his own lawyer said he posed a greater potential danger to society because he is Black, and the case attained widespread notoriety after the new Texas attorney general failed to honor a commitment by his predecessor not to oppose a new sentencing hearing. On August 4, the National and Texas Associations of Criminal Defense Lawyers, a group of former prosecutors, the Lawyers' Committee for Civil Rights Under Law, and the Constitutional Accountability Center joined the National Black Law Students Association (NBLSA) in submitting briefs arguing that Buck's rights were violated by the racial arguments made at his trial. The NBLSA said, "Whether by a judge, a prosecutor, or defense counsel, an appeal to a jury based on racial prejudice poisons our system of justice." The Lawyers Committee for Civil Rights Under Law stated, "Mr. Buck was entitled to have his dangerousness assessed on an individualized basis based on his personal attributes. Instead he received a death sentence tainted by four hundred years of racial stereotyping invoked by a witness who was supposed to testify on his behalf." The former state and federal prosecutors, who include former Texas Governor and Attorney General Mark White, former Attorneys General from Virginia, Tennessee, North Carolina, and Ohio, and the second-chair prosecutor from Buck's trial, highlighted Texas' refusal to provide Buck a new sentencing hearing, even though it had included him on a list of defendants whose trials were tainted by similar testimony by the same psychologist, and every other one of those defendants had received new sentencing hearings. "To backtrack on an ethical obligation and decision to grant relief to a defendant in any context is extraordinary; it is particularly so here, where the purpose of backtracking was to defend the propriety of a capital sentencing hearing tainted by racist testimony," they said. The Court is scheduled to hear argument in Buck v. Davis on October 5. 


Poll: Majority of Oklahomans Support Replacing Death Penalty With Life Without Parole Plus Restitution

Posted: August 8, 2016

A new survey conducted by SoonerPoll has found that while three-quarters of likely Oklahoma voters say they support the death penalty in theory, a majority (53%) support abolishing capital punishment and replacing it with a sentence of life without parole, plus restitution to victims' families. Among every political affiliation, more supported the plan to replace the death penalty than favored keeping it, with a majority of Democrats (58%) and independents (57%) supporting abolition and a 48%-41% plurality of Republicans favoring replacing the death penalty. A similar poll from November 2015, shortly after the failed execution of Richard Glossip, found 52% support for replacing the death penalty with life without parole. The poll results reflect a pattern of softening support for capital punishment among voters in death penalty states. Recent polls in a number of such states show respondents expressing support for the death penalty generally, but favoring alternatives to capital punishment when offered a choice of punishments. A Florida poll earlier this year reported that 62% of respondents preferred some form of life in prison for those convicted of murder. In 2015, 54% of Pennsylvanians preferred life in prison. A recently-released Kentucky poll reported that 58% of respondents preferred lengthy prison terms over death sentences, with 72% supporting a moratorium on executions.


Pharmaceutical Companies Reiterate Opposition to Participating in Executions as States Scramble for Execution Drugs

Posted: August 4, 2016

Distribution restrictions put in place by major pharmaceutical companies in the United States against misuse of their medicines and export regulations instituted by the European Union have made it increasingly difficult for states to obtain supplies of drugs for use in executions. However, despite these restrictions, some states have obtained pharmaceutical products manufactured by these companies for use in lethal injections. The Influence reports that the Commonwealth of Virginia obtained lethal injection drugs produced by the pharmaceutical company Mylan--rocuronium bromide, which induces paralysis, and potassium chloride, which stops the heart--from a large North Carolina based drug wholesaler, Cardinal Health. Mylan wrote to the Virginia prisons seeking assurances that use of its medicines in the future would not be diverted to any "purpose inconsistent with their approved labeling and applicable standards of care." Recently, the Associated Press discovered that the supply of vecuronium bromide obtained by the Arkansas Department of Correction was produced by a subsidiary of Pfizer. Pfizer announced in May 2016 that it opposed the use of its products in executions, stating, "Pfizer makes its products to enhance and save the lives of the patients we serve. Consistent with these values, Pfizer strongly objects to the use of its products as lethal injections for capital punishment." While state secrecy practices leave it unclear from whom Arkansas obtained the restricted drug, Rachel Hooper, a spokesperson for Pfizer, said, "We have implemented a comprehensive strategy and enhanced restricted distribution protocols for a select group of products to help combat their unauthorized use for capital punishment. Pfizer is currently communicating with states to remind them of our policy." As pharmaceutical companies have made their drugs more difficult for states to use, prisons have turned to alternate sources. The Alabama Department of Corrections contacted about 30 compounding pharmacies in an effort to obtain lethal injection drugs, but all refused. Compounding pharmacist Donnie Calhoun said, "For me, as a healthcare professional, I want to help people live longer. The last thing I want to do is help someone die." A Virginia pharmacist who was contacted by the attorney general's office also refused, saying, "No one will do it." Virginia recently adopted a lethal injection secrecy statute that would conceal the identity of its drug supplier, joining many other death penalty states in shielding key information about executions from public scrutiny.