On December 11, an Arizona appeals court dismissed charges against Debra Jean Milke and barred retrial. Milke spent 22 years on death row for arranging the 1989 murder of her 4-year-old son. She was the first woman sentenced to death in Arizona since 1932. In 2013, the U.S. Court of Appeals for the 9th Circuit overturned Milke's conviction because the prosecution had withheld evidence about misconduct committed by their primary witness, Phoenix Detective Armando Saldate, who testified that Milke had confessed to the murder. Saldate had previously been implicated of lying under oath, among other misconduct. There was no recording of a confession, and Milke insisted she was innocent and had never confessed. In its ruling on Thursday, the state court said it granted Milke's request for dismissal, “because of the state’s severe, egregious prosecutorial misconduct in failing to disclose impeachment evidence.” Maricopa County prosecutors said they plan to appeal the decision to the Arizona Supreme Court. The two men who were convicted of carrying out the murder are still on death row.
In an op-ed for the Boston Globe, three legal experts, including retired federal judge and Harvard Law School professor Nancy Gertner (pictured), wrote about the benefits of allowing accused Boston Marathon bomber Dzokhar Tsarnaev to plead guilty in exchange for a sentence of life without parole. If Tsarnaev is convicted, they write, the penalty phase of his capital trial will put all attention on Tsarnaev's life and background, rather than on the victims of the bombing. "Tsarnaev’s lawyers are duty-bound to bring every kind of mitigation before the jury; the judge is bound by law to let them do so; but should the survivors and the families of those who were murdered have to suffer through it?," they ask. Rather than sentencing Tsarnaev to death and accepting decades of appeals and attention, the authors suggest, "he can be sentenced to spend the rest of his life in isolation, never to be heard from again, in a supermax cell in a maximum security federal prison built especially for those prisoners who are deemed the most dangerous, as has been the case with Unabomber Ted Kaczynski, 9/11 conspirator Zacharias Moussaoui, and Richard Reid, the shoebomber." The op-ed concludes, "This community’s response to the Marathon attacks set an example of courage and unity for the nation and the world. Now we’re reaching the last chapter. That chapter doesn’t have to be one of bitterness, division, and re-traumatization...Let’s write a last chapter that guarantees just punishment for Tsarnaev while putting the victims and the community at the center of the legal system’s concerns." Read the full op-ed below.
A forthcoming article by University of Miami law professor Scott E. Sundby in the William & Mary Bill of Rights journal examines the "unreliability principle" established by the U.S. Supreme Court in Atkins v. Virginia and Roper v. Simmons. The article defines the unreliability principle as, "if too great a risk exists that constitutionally protected mitigation cannot be properly comprehended and accounted for by the sentencer, the unreliability that is created means that the death penalty cannot be constitutionally applied." That is, certain classes of defendants can be exempt from the death penalty because juries cannot be relied upon to adequately assess the mitigating factors. This principle applied to both intellectually disabled defendants in Atkins and juvenile defendants in Roper. Sundby argues that the principle should be extended to mentally ill defendants as well. Six factors that the court considered in Atkins and Roper are identified, and subequently applied to defendants with mental illnesses. Among the factors identified are the defendant's impared ability to assist defense attorneys, the defendant's impaired ability to serve as a witness, and the defendant's distorted decision-making skills.
At a hearing on December 9, Kwame Ajamu (formerly Ronnie Bridgeman) was formally exonerated of the 1975 murder for which he was convicted and sentenced to death. Ajamu joins his brother, Wiley Bridgeman, and co-defendant, Ricky Jackson, on DPIC's Exoneration List, becoming the 150th death row exoneree since 1973. Ajamu, Bridgeman, and Jackson were convicted based on the testimony of a 12-year-old boy who recently admitted that he never saw the killing. Ajamu's death sentence was reduced in 1978 when Ohio's death penalty statute was found unconstitutional. He was released from prison in 2003. Upon his exoneration, Ajamu said, "The important part is that we have been united while we are standing forward and upward and that we are not looking at each other in the graveyard," adding, "I feel vindicated. I feel free." The three men are expected to file for compensation for their many years of wrongful imprisonment. Cuyahoga County prosecutors said they will not object to efforts to obtain compensation, saying that the men were "victims of a terrible injustice."
The U.S. Supreme Court granted a writ of certiorari in Brumfield v. Cain, a death penalty case from Louisiana dealing with intellectual disability. Kevan Brumfield was sentenced to death prior to the Court's decision in Atkins v. Virginia (2002), which banned the execution of defendants with intellectual disabilities. After that ruling, Brumfield filed a claim of intellectual disability in state court. The court denied him a hearing because the trial transcript showed no evidence of his disability. A federal district court found that the state court had "mistakenly – and unreasonably– considered the record from Petitioner’s pre-Atkins penalty phase as determinative of Petitioner’s mental retardation claim under Atkins," granted Brumfield a hearing, and found him to be intellectually disabled and therefore exempt from execution. The U.S. Court of Appeals for the Fifth Circuit reversed the federal district court's decision. Brumfield's attorneys said, "As a result of this decision, the compelling evidence presented to the district court will be ignored, and a person who was found to be mentally retarded will be executed." The Supreme Court will determine whether Brumfield should have been granted a hearing on his claim of intellectual disability.
Attorneys for Robert Holsey, an inmate on death row in Georgia, have filed a clemency petition before the Board of Pardons and Paroles. Holsey is scheduled to be executed on December 9, despite the fact that the lawyer who represented him at trial drank a quart of vodka a day and failed to present key evidence during the sentencing phase of Holsey's trial. The lawyer was later disbarred for embezzling clients' money and admitted that he was not fit to represent Holsey. Holsey's new attorneys say that mitigating evidence of Holsey's intellectual disabilities and abusive childhood should have been presented to the jury and could have resulted in a lesser sentence. Holsey has an IQ of about 70 and experienced severe abuse as a child. Brian Kammer, his current attorney, said, “The home where he lived in Milledgeville was known to the neighbors as the torture chamber because of the way they observed his mother to treat him, which was to beat him merciless.” The Board will hold Holsey's clemency hearing on December 8.
On December 4, the Ohio Senate Judiciary Committee held a hearing on HB 663, which would shield the identity of those who produce lethal injection drugs for the state. Previously, critics of the bill had warned that the measure could be unconstitutional because it interferes with the courts and violates the First Amendment right to free speech. Among those testifying at the committee hearing was Kevin Smith of the Society of Professional Journalists, who called the bill, "one of the most over-reaching in terms of secrecy we have encountered." Public defenders and the Ohio ACLU also testified against the bill. The Ohio House has already passed the bill. Additional Senate hearings are scheduled for next week.
A recent study commissioned by the Nevada legislature found that the average death penalty case costs a half million dollars more than a case in which the death penalty is not sought. The Legislative Auditor estimated the cost of a murder trial in which the death penalty was sought cost $1.03 to $1.3 million, whereas cases without the death penalty cost $775,000. The auditor summarized the study's findings, saying, "Adjudicating death penalty cases takes more time and resources compared to murder cases where the death penalty sentence is not pursued as an option. These cases are more costly because there are procedural safeguards in place to ensure the sentence is just and free from error." The study noted that the extra costs of a death penalty trial were still incurred even in cases where a jury chose a lesser sentence, with those cases costing $1.2 million. See Chart below.
In an op-ed in the Boston Herald, Michael Avery, professor emeritus at Suffolk University Law School, whose sister and niece were murdered 30 years ago, suggested that a plea bargain might be a better ourcome for all concerned in the case of Dzokhar Tsarnaev, the defendant in the Boston Marathon bombing. A trial, he said, would be painful for victims and survivors: "Boston will relive every tortu[r]ous moment of the bombing, over and over, probably for weeks...if Tsarnaev is convicted, we’ll have a second trial on the penalty. The defense lawyers will present evidence in mitigation of the death sentence. We’ll suffer through two Chechen wars, a Russian occupation, and a psychoanalysis of the defendant.” He reflected on his own experience when his sister’s killer was put on trial: "Although I’m a lawyer, I didn’t go, and I didn’t read the Florida papers reporting the evidence. I couldn’t have handled it. My heart goes out to the people who won’t be able to handle the Tsarnaev trial. They won’t be able to avoid the massive publicity.” He urged Attorney General Eric Holder to spare all of Boston further trauma by accepting a guilty plea and a sentence of life in prison. Read the full op-ed below.
A new poll found that Americans oppose the death penalty for people with mental illness by more than a 2-1 margin. According to Public Policy Polling, 58% of respondents opposed capital punishment for people with mental illness, while only 28% supported it. Professor Robert Smith, an assistant professor of law at the University of North Carolina who commissioned the poll, said, "Today's important polling is part of significant new research which clearly shows an emerging consensus against using capital punishment in cases where the defendant is mentally ill. ... Combining this public polling, sentencing practices, and the recommendations of the mental health medical community, it's clear that a consensus is emerging against the execution of a person like Scott Panetti, who suffers from a debilitating (mental) illness ...." Opposition to the execution of people with mental illness was strong across lines of race, gender, geographic region, political affiliation, and education. Democrats (62%), Republicans (59%) and Independents (51%) all opposed the practice. The results echo the growing number of prominent leaders speaking out against the execution of Panetti in Texas, scheduled for December 3.