What's New

New Podcast: Jeffery Wood and the Texas Law of Parties, With Expert Guest Kate Black

Posted: September 14, 2016

Today, DPIC launches a new podcast series, "Discussions With DPIC," which will feature monthly, unscripted conversations with death penalty experts on a wide variety of topics. The inaugural episode features a conversation between Texas Defender Services staff attorney Kate Black (pictured) and DPIC host Anne Holsinger, who discuss the case of Jeffery Wood and Texas' unusual legal doctrine known as the "law of parties." Wood's case garnered national media attention because he was sentenced to death despite having neither killed anyone nor even intended that a killing take place. His execution, which had been scheduled for August 24, was stayed by the Texas Court of Criminal Appeals to permit him to litigate a challenge to the prosecution's use of scientifically invalid predictions of future dangerousness by a psychiatrist who had been expelled from state and national psychiatric associations for similarly improper testimony in the past. In the podcast, Black explains the law of parties and its application in Wood's case, and discusses how the national dialogue that developed around Wood's case may affect the death penalty in the future. 

 

Roger King, Former Philadelphia Prosecutor Who Once Held Record For Most Death Penalty Convictions, Dies

Posted: September 13, 2016

Roger King, a former prosecutor in Philadelphia who at one point was responsible for 20% of all the death sentences imposed in Pennsylvania, died of kidney cancer on August 24. When King retired in 2008, he held the record for most death sentences obtained by a single Pennsylvania prosecutor. None of the men he sent to death row has ever been executed. While King's aggressive pursuit of death sentences contributed to his "larger than life" reputation, it also involved charges of misconduct that included the pursuit of the death penalty against at least seven men who may have been innocent. William Nieves was prosecuted by King in 1994 and convicted based upon questionable eyewitness testimony. He was exonerated from death row in 2000 after his new attorney presented evidence that his first jury never heard that an eyewitness had originally identified the perpetrator as a short black man, not the tall, light-skinned Nieves. King also withheld exculpatory evidence in the trial of James Dennis (pictured) who was granted a new trial on August 23. The Pennsylvania federal appeals court found that King had suppressed "a receipt corroborating Dennis' alibi, an inconsistent statement by the Commonwealth's key eyewitness, and documents indicating that another individual committed the murder," which, the court said, "effectively gutted" the prosecution's case. A Philadelphia judge overturned the 1993 conviction of a third death row prisoner prosecuted by King, Frederick Thomas, who—as with Nieves and Dennis—were convicted on shaky eyewitness testimony and without any physical evidence against them. Before Thomas was granted a new trial in 2002, the state's two eyewitnesses recanted their testimony and police officer James Ryan—whom the defense said had framed Thomas—was convicted on corruption charges arising out of his conduct in other cases, including falsifying police reports and making false arrests. King also prosecuted four innocent men in Philadelphia's "Lex Street Massacre," the worst mass murder in Philadelphia history. No physical evidence linked any of the men to the killings, but King proceeded with one questionable witness and the coerced confession of one of the defendants. After 18 months in prison without being tried, the court dismissed all charges against the men. The four sued for their wrongful incarceration and obtained a $1.9 million settlement from the city. 

 

NEW VOICES: Former Ohio Attorney General Jim Petro Says Death Penalty Unfixable, "Not Worth It Any More"

Posted: September 12, 2016

In a recent commentary in the Columbus Dispatch, former Ohio Attorney General Jim Petro (pictured) criticized the state's death penalty as "a broken system that currently serves only the interest of Ohio prosecutors" and said that keeping "the death penalty is just not worth it any more." As a state legislator, Petro helped write Ohio’s current death-penalty law and he oversaw eighteen executions as Attorney General from 2003-2007. He says, at the time "[w]e thought maybe it would be a deterrent. Maybe the death penalty would provide cost savings to Ohio. What I know now is that we were wrong." Petro expressed his agreement with the conclusions in a report, “A Relic of the Past: Ohio’s Dwindling Death Penalty," released last week by Ohioans to Stop Executions (OTSE), which he says "details a continuing decline in executions and new death sentences in Ohio while highlighting the disparities between counties that prosecute death cases." The decline is exemplified by the fact that only one new death sentence was imposed in Ohio in 2015 -- the fourth consecutive year of decline -- and Cuyahoga and Summit counties, which are responsible for more than 25% of Ohio's death sentences, did not initiate any new death penalty cases last year. The change in death penalty practices in Cuyahoga, which through 2012 had sought death in dozens of cases a year, had nothing to do with crime rates: "there was a new prosecutor," Petro said. By contrast, Trumbull County had one of the lowest homicide rates in the state but the highest death-sentence-per-homicide rate. "It has become clear to me that what matters most is the personal predilections of a county prosecutor," Petro said. Petro also was critical of apparent legislative indifference to the flaws in Ohio's capital punishment system. Despite 13 wrongful convictions and exonerations in Ohio death penalty cases and 56 recommendations for reform made in 2014 by the Ohio Supreme Court's Joint Task Force on the Administration of Ohio’s Death Penalty, the legislature has seen fit to consider "[o]nly a handful of the recommendations ... , and not those which would make the biggest difference." Petro concludes: "I am convinced that the death penalty is just not worth it any more, and I don’t think it can be fixed. ... If we’re going to have the death penalty, then it must not be carried out until the legislature implements the task force’s reforms intended to ensure fairness and accuracy."

 

Wrongful Capital Convictions May Be More Likely in Cases of Judicial Override, Non-Unanimous Death Verdicts

Posted: September 9, 2016

New data suggests that states that capital sentencing statutes that permit judges to impose death sentences by overriding jury recommendations for life or after juries have returned non-unanimous recommendations for death may increase the risk of wrongful executions. In an article in the Yale Law Journal Forum, lawyers Patrick Mulvaney and Katherine Chamblee of the Southern Center for Human Rights report that in Alabama, the only state that still permits judges to override a jury's recommendation for life, override cases account for less than a quarter of death sentences but half of death row exonerations. They say that this may be a result of "residual doubt" among jurors, which they describe as “a state of mind that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty,’” often resulting from weaker or more suspect evidence of guilt. Research has shown that when juror have such doubts, they are substantially more likely to vote for a life, as did jurors in the cases of Alabama death row exonerees Larry Randal Padgett (9-3 jury vote for life) and Daniel Wade Moore (pictured, left, 8-4 vote for life) and current death row prisoner Shonelle Jackson (unanimous jury life recommendation). Non-unanimous jury recommendations for death also appear to pose similar problems. Of Alabama's six death row exonerations, 83% involved either judicial override (3 cases) or non-unanimous jury votes for death (2 cases, including Anthony Ray Hinton, pictured, right). Data from Florida reveals a similar pattern: of the 20 death row exonerations for which information on the jury vote is available, 90% involved a non-unanimous recommendation for death, including three judicial overrides of jury recommendations for life. In 1984, U.S. Supreme Court Justice John Paul Stevens raised concerns about judicial override and wrongful convictions that are now supported by data: “It may well be that the jury was sufficiently convinced of petitioner’s guilt to convict him, but nevertheless also sufficiently troubled by the possibility that an irrevocable mistake might be made . . . that [it] concluded that a sentence of death could not be morally justified in this case.” Statutes permitting judicial override or non-unanimous jury recommendations for death have been under increased scrutiny since the U.S. Supreme Court's decision in Hurst v. Florida in January 2016. Hurst struck down Florida's sentencing statute saying, "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." Florida's legislature responded by ending judicial override and requiring juries to unanimously find aggravating circumstances in capital cases, though they may still make non-unanimous sentencing recommendations. The Delaware Supreme Court struck down its sentencing statute in light of Hurst in August 2016, leaving Florida and Alabama as the only states that still permit non-unanimous jury receommendations of death.  

 

OUTLIER COUNTIES: Official Misconduct, Race Bias Permeate Death Penalty in Clark County, Nevada

Posted: September 8, 2016

The geographic arbitrariness, high rates of official misconduct, racial discrimination, and poor defense representation characteristic of outlier jurisdictions that disproportionately seek and impose the death penalty in the United States are all present in Clark County, Nevada's administration of the death penalty. From 2010 through 2015, nine death sentences were imposed in Clark County, while no one was sentenced to death in any other county in Nevada during that same period. In an analysis by Harvard University's Fair Punishment Project of the 16 counties that imposed the most death sentences in the United States over that period, Clark exhibited the highest levels of prosecutorial misconduct, with the Nevada Supreme Court finding misconduct in 47% of the Clark County death penalty cases it reviewed on direct appeal since 2006. Part of this, according to the Fair Punishment Project, is attributable to the "sloppiness that comes along with overextended lawyers," but that overextension was itself a by-product of prosecutorial decisionmaking. In 2011, Clark County had more pending capital cases per capita than any other county in the nation. David Roger, who was District Attorney until 2012 when he resigned to become counsel for the Las Vegas police union, refused to offer or accept plea deals in death penalty cases. At that time, Clark County exhibited another charactistic present in many counties that overaggressively pursue capital punishment: police violence against civilians. The county was the subject of numerous citizen complaints describing police brutality, deadly force, and excessive use of force disproportionately directed at racial minorities, and the ACLU and NAACP had petitioned the Justice Department to investigate what it called a pattern of civil rights abuses by law enforcement. In 2015, Clark ranked fourth in the nation in the per capita rate of police killings of civilians. Racial bias also plagues Clark County death penalty cases: the Nevada Supreme Court overturned two convictions in less than two years because of race discrimination in jury selection by Clark County prosecutors. In the period covered by the Fair Punishment Project report, 71% of victims in cases that resulted in a death sentence were white, though only 33% of murder victims in Las Vegas, which composes most of Clark County, were white. The exoneration of Roberto Miranda highlights another systemic problem in Clark County death penalty cases: inadequate representation. Roberto Miranda spent 14 years on death row before being exonerated, and later sued the county for poor public defense practices, including assigning inexperienced attorneys to capital defendants. In a court filing, the county responded, "As a matter of law, attorneys who have graduated from law school and passed the bar should be considered adequately trained to handle capital murder cases." Over the period of the Fair Punishment Project study, the case for life presented by defense lawyers in the cases that resulted in death verdicts lasted an average of only 1.1 days. Clark County's death penalty practices have also been extremely costly. A University of Nevada-Las Vegas study estimated in 2012 that the 80 capital cases prosecuted in the county would cost $15 million more than if they were to be prosecuted without the death penalty.

 

National Hispanic Caucus of State Legislators Calls for Abolition of Death Penalty

Posted: September 7, 2016

Calling racial bias in the administration of the death penalty "an undisputed fact," the National Hispanic Caucus of State Legislators (NHCSL), a group of 320 Hispanic legislators, has passed a resolution urging legislative action in all state and federal jurisdictions to repeal the death penalty across the United States. The legislators note that the criminal justice system subjects "Black, Latino, Native Americans, and all people of color" to more punitive treatment, including being "more likely to be sentenced to death." The resolution highlights racial inequities that occur at several key stages of capital cases. Citing studies that "white juries are more likely to sentence a Latino defendant to death," it also stresses that "racial bias extends beyond who is sentenced to death," as the mostly white prosecutors who have authority to make life and decisions in capital cases disproportionately seek death in cases involving white victims. The resolution points out that "every single one" of the ten counties with the largest death row populations in the United States "has large or majority Latino populations," magnifying the impact of capital punishment policies on the Hispanic community. NHCSL President and Pennsylvania State Representative Ángel Cruz said, "We cannot allow more government dollars to be diverted to killing people, instead of investing them in prevention, rehabilitation, and effective crime fighting measures that ensure greater safety in our communities. We therefore call on the federal government and every other jurisdiction in this country to end a senseless policy and end the death penalty now." Referencing the high cost of capital punishment, the resolution proposes alternative uses for those tax dollars: "repeal of the death penalty will free up millions of tax dollars trapped in cash-strapped state budgets that could be redirected to violence prevention, combatting implicit bias, or supporting victims of violence in Latino communities." Colorado Representative Dan Pabón, co-sponsor of the resolution, said, "This is the civil rights issue of our time.  Even if repealing the death penalty results in one innocent life being saved, it’s worth it.  Our criminal justice system should focus on 'justice.'"

 

Mississippi Attorney General Tries to Remove Defense Lawyers Who Challenged Suspect Bitemark Evidence

Posted: September 6, 2016

Attorneys for Mississippi death row prisoner Eddie Lee Howard (pictured) are seeking to prove his innocence and challenging the questionable expert bite mark testimony that persuaded jurors to convict him and sentence him to death in 1992. As part of the attack on that evidence, Howard's lawyers recently deposed Michael West, the discredited forensic odontologist who testified against Howard and many other defendants in the 1990s, primarily in Mississippi and Louisiana. A two-part story by Washington Post columnist Radley Balko recounts the combative deposition in which defense lawyers systematically picked apart the credibility of West's testimony in Howard's case, and the apparent retaliatory efforts by the office of Mississippi's attorney general to remove the lawyers from the case after they asked that charges against Howard be dropped. West, who was belligerent, openly contemptuous, and profane during the deposition, was popular as a prosecution expert witness because he purported to be able to match marks to a single individual, excluding all other possible suspects through an idiosyncratic technique that, he said, he alone was capable of using and could reveal bite marks that other experts couldn't find. In the mid-1990s, Newsweek and 60 Minutes profiled West and raised questions about the veracity of his techniques. He was later expelled from three professional organizations, and several people he testified against have later been proven innocent, including Kennedy Brewer, who was exonerated in 2008 after DNA evidence implicated another suspect, who then confessed to the crime. Bitemark claims such as those made by West were the subject of stinging criticism in a 2009 report of the National Academies of Science, Strengthening Forensic Science in the United States: A Path Forward. The report criticized the field of forensic odontology as lacking any "evidence of an existing scientific basis for identifying an individual to the exclusion of all others" and "lack[ing] valid evidence to support many of the assumptions made by forensic dentists during bite mark comparisons.”

 

OUTLIER COUNTIES: Maricopa, Arizona—"Outrageously Exploited Power," "Crippled" Defense, and Five Exonerations

Posted: September 2, 2016

Maricopa County, Arizona imposed 28 death sentences between 2010 and 2015 and, as described in a BuzzFeed news analysis of a new report on outlier death penalty practices, "stands out for its stark examples of the problems found across the counties that most often sentence people to death." The report, Too Broken to Fix, by Harvard University's Fair Punishment Project, studied the nation's 16 most prolific death-sentencing counties and found that Maricopa County exhibited systemic problems with extreme prosecutorial misconduct, deficient defense representation, racial bias, excessive punishment, and innocence. The county's top prosecutor, Andrew Thomas, pursued capital charges at nearly double the rate of his predecesssor after winning election in 2004. His pattern of gross misconduct led a three-member panel of the Arizona Supreme Court to disbar him in 2012 for having "outrageously exploited power, flagrantly fostered fear, and disgracefully misused the law.” Three Maricopa prosecutors who served under Thomas accounted for more than one-third of all capital cases the Arizona Supreme Court has been called upon to review on direct appeal since 2006, "amass[ing] findings of improper behavior in eight [cases]." The excessive number of capital prosecutions in Thomas' tenure created a "capital case crisis" that "crippled the county's public defender system" and left a dozen murder defendants without lawyers. Four lawyers who were appointed accounted for nearly a quarter of all Arizona death cases that have reached the state supreme court since 2006. One Marciopa defense attorney, Herman Alcantar, represented five pretrial capital defendants at once, making it almost impossible for him to adequately represent his clients. In one of those cases, a month before trial, he had not filed any substantive motions or met with his client in over a year. Nathanial Carr represented four people now on death row, and spent less than two days presenting mitigation for each one. He wrote that one client, who had an IQ of 72, "looks like a killer, not a retard." In the six years covered by the Fair Punishment Project's report on outlier counties, 57% of Maricopa's death sentences were imposed on people of color. In that same period, no people of color were sentenced to death anywhere else in Arizona. Five Maricopa County death row inmates have been exonerated. Ray Krone (pictured) was convicted on junk science testimony after a prosecutor falsely claimed, "bite marks are as unique as fingerprints." He was later exonerated by DNA testing. Debra Milke spent 22 years on death row before her case was reversed and the state courts barred the prosecution from retrying her because of extensive official misconduct. An appellate court called her case, "a severe stain on the Arizona justice system."

 

BOOKS: Justice Breyer's Dissent in Glossip v. Gross, Edited and Contextualized

Posted: September 1, 2016

In a new book, Against the Death Penalty, Professor John Bessler of the University of Baltimore School of Law presents Justice Stephen Breyer's historic dissent in Glossip v. Gross, which questioned the continuing constitutionality of capital punishment in the United States, in a new format intended to make the opinion more accessible to a broad audience. "I tried to contextualize the opinion by doing a longer introduction which makes the opinion into a book and summarize what the other justices did in their opinions," Bessler told the National Law Journal. In his Glossip dissent, which was joined by Justice Ruth Bader Ginsburg, Breyer raised—and set forth a potential blueprint for answering—a number of questions concerning the constitutionality of the death penalty. Breyer wrote: "Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use." Bessler praised Breyer's efforts to make his dissent more widely available, saying, "One of the things Justice Breyer been really good at has been going out there with his books, trying to engage the public about the importance of the law and the Constitution. He wants to get his ideas out. ...I think this will be picked up and read by people and, hopefully, they will get a better understanding of the Eighth Amendment and the death penalty itself."

 

Florida Prosecutor, Public Defender Tied to Outlier Death Penalty Practices Suffer Landslide Election Loss

Posted: August 31, 2016

In a primary election described as reshaping the political landscape of Northeast Florida, the region voted in a landslide Tuesday to oust State Attorney Angela Corey (pictured) and Public Defender Matt Shirk. The pair's controversial policies had made Duval County one of the most prolific death sentencing counties in the country and had led to national derision of its criminal justice system. Some legal experts touted Corey's defeat by political newcomer Melissa Nelson as evidence of voter backlash against overaggressive prosecutorial policies. Northeastern Law School professor Daniel Medwed said the election showed that “the era of tough-on-crime rhetoric is coming to a close" and Fordham University law professor John Pfaff said Corey’s defeat "continues a small—but important—trend of powerful, incumbent prosecutors losing primary elections for being too aggressive." Local legal experts drew a link between the election results and Corey's hard-line death penalty practices. University of Florida law school professor Kenneth Nunn, said that “[f]or too long, Duval County has been an outlier in its excessive use of the death penalty, its harsh punishment of juveniles, and its reliance on outdated sentencing practices." Florida International University Law School Professor Stephen Harper found it "refreshing to see a prosecutor who is so overly aggressive defeated in a conservative southern jurisdiction. This goes to show, among other things, that the death penalty is on its way out.” In the Public Defender election, incumbent Matthew Shirk had drawn criticism by firing the most experienced death penalty and juvenile court lawyers and installing as his chief of homicide a lawyer who had 16 clients on death row and whom courts had found to have provided ineffective representation is several death penalty cases. Shirk was defeated by retired Judge Charlie Cofer, who had spent 18 years in the Public Defender’s Office and then 17 years as a county judge. Last fall, voters in Caddo Parish (Shreveport), Louisiana voted out a prosecutorial regime known nationally for its aggressive pursuit of the death penalty and elected its first black District Attorney.

 

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