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On August 7, a jury in Aurora, Colorado, sentenced James Holmes to life in prison without the possibility of parole for the 2012 movie theater shooting that killed 12 people and injured dozens more. The jury said they could not reach a unanimous decision on Holmes' sentence, an outcome that results in a sentence of life without parole. After the trial, one juror said that the prosecution had not persuaded three of the jurors to impose a death sentence. The deliberations, she said, were very emotional, and at the time jurors agreed to stop deliberating, one juror was firmly committed to a life sentence, with two other holdouts still undecided. She said, "The issue of mental illness was everything for the one who did not want to impose the death penalty." [UPDATE: One of the jurors who voted for a life sentence says there was not a single holdout juror for life. Three voted for life, and the jury did not inquire further into the views of the other two after the indicated that her vote was firm.] Holmes had also offered to plead guilty in exchange for a sentence of life without parole, which would have removed the need for the six-month trial that cost Colorado taxpayers more than $5 million. After that plea offer was rejected, Holmes pleaded not guity by reason of insanity. All of the mental health experts agreed that Holmes would not have committed the killing but for his mental illness, but disagreed on whether he could appreciate the criminality of his conduct. The jury rejected the insanity defense and convicted him of all charges. Holmes' sentence highlights both the rarity of death sentences in Colorado and racial and geographic inequities in its imposition.
On August 6, 1890, New York executed William Kemmler. It was the first time ever a state used the electric chair to carry out an execution. Proponents of electrocution - including Thomas Edison - touted the new method as quick, effective, painless, and humane: the same arguments later used by legislators to support lethal injection and execution by nitrogen gas. In May 1890, the U.S. Supreme Court rejected Kemmler's challenge that the electric chair was cruel and unusual punishment. "Punishments are cruel when they involve torture or a lingering death," the Court wrote. But it said the New York legislature in enacting the electric chair statute had intended "to devise a more humane method" of execution and "presume[d] that the legislature was possessed of the facts upon which it took action." The execution proceeded. According to the Buffalo News, Kemmler - who was intellectually disabled - asked corrections officers: "Don't let them experiment on me more than they ought to." After an initial 17-second administration of high-voltage electric current, a doctor declared Kemmler dead. Then Kemmler let out a deep groan and witnesses reportedly screamed "Turn on the current!" Reports of the execution say that "After 2 minutes the execution chamber filled with the smell of burning flesh. 2 of the witnesses fainted. Several others were overcome with severe attacks of nausea." Newspapers called the execution a "historic bungle" and "disgusting, sickening and inhuman." States have carried out 158 executions by electric chair since 1973. 10 were botched. Virginia was the most recent state to use the electric chair, executing Robert Gleason in January 2013.
Ex-Prosecutors Ask Supreme Court to Overturn Georgia Death Sentence for Race Discrimination in Jury SelectionPosted: August 6, 2015
Eight former state and federal prosecutors have asked the U.S. Supreme Court to overturn Timothy Foster's death sentence because Georgia prosecutors discriminatorily used their discretionary strikes during jury selection in his case "to ensure that a black defendant accused of a crime against a white victim would face an all-white jury." In their "amici curiae" (friends-of-the-court) brief in Foster v. Chatman, the former prosecutors said that "race discrimination persists in jury selection" nearly three decades after the Supreme Court prohibited the racially discriminatory use of jury strikes in Batson v. Kentucky. In an op-ed in the New York Times, Supreme Court correspondent Linda Greenhouse argues that Batson hasn't worked in combatting discrimination. "[B]lacks are still being excluded from juries at disproportionate rates, especially when the defendant is black and the crime victim is white." Greenhouse writes, "Prosecutors have learned to game the system by providing explanations" for striking black jurors that "judges who appear all too eager to be persuaded" accept as race-neutral. Greenhouse describes Foster's case as "unusually compelling" because "the prosecutor's notes from the jury selection" - which, among other things, identified each black prospective juror with the letter “B,” assigned each a number, and highlighted their names in green ink - provide "a road map of discrimination." She says the case should "jump-start a public conversation" on eliminating discretionary jury strikes altogether. The former prosecutors conclude, "If this Court does not find purposeful discrimination on the facts of this case, then it will render Batson meaningless."
The American Bar Association has released a new publication, The State of Criminal Justice 2015, examining major issues, trends, and significant changes in America's criminal justice system. The chapter devoted to capital punishment was written by Ronald Tabak, an attorney at Skadden Arps and board member of the Death Penalty Information Center. Tabak presents evidence of the declining use of the death penalty in death sentences and executions, particularly noting the growing geographic isolation of the death penalty. He includes recent developments, such as the moratorium on executions in Pennsylvania and ongoing controversy and secrecy surrounding methods of execution. He also highlights numerous studies and cases regarding innocence and racial bias. He concludes, "[I]t is vital that the legal profession and the public be better informed about what is really going on in the capital punishment system.... Ultimately, our society must decide whether to continue with a system that cannot survive any serious cost/benefit analysis."
A new study to be published in the University of Denver Law Review shows that whether prosecutors seek the death penalty in Colorado "depends to an alarming extent on the race and geographic location of the defendant." The study - based upon 10 years of data collected by attorney Meg Beardsley and University of Denver law professors Sam Kamin and Justin Marceau and sociology professor Scott Phillips - shows that race and place are statistically significant predictors of whether prosecutors will seek the death penalty in Colorado and that prosecutors are more likely to seek the death penalty against minority defendants than against white defendants. In a press release accompanying the release of the study, the researchers say the data "directly refutes the claims made by elected officials, that racial disparities merely reflect the propensity of certain races to commit more murders." The study also shows that, even after controlling for the rates at which different racial groups commit statutorily death-eligible murders and for the "heinousness" of the murders, non-white defendants and defendants in Colorado’s 18th Judicial District - where the capital trial of James Holmes for the Aurora movie theater killings is taking place - were more likely than others to be capitally prosecuted.
Former Texas prosecutor, Tim Cole - described by the Dallas Morning News as "a no-holds-barred lawman" in 4 terms as District Attorney for Archer, Clay, and Montague counties - now says that "Texas should join the 19 U.S. states where the death penalty has been abolished." In an op-ed in The Fort Worth Star-Telegram, Cole says Texas' dramatic decline in imposing the death penalty, from a record 49 death sentences in 1994 and 48 in 1999 to none in the first 7 months of 2015, is "proving as a state that we can live without the death penalty." A Dallas Morning News editorial based upon Coles' comments described this as "part of a trend of the death penalty falling out of favor not only with juries but also with prosecutors who seek it." Only three death penalty cases have been tried in Texas this year, and all three resulted in life sentences. Cole said, "I believe it is happening because the problems with how the death penalty is assessed have become evident to everyone, including jurors." He particularly emphasized the inaccuracy of the death penalty, saying, "If you can show me a perfect system, I’ll give you the death penalty. But you can’t. You can’t show me a system that’s so perfect that you could show me we’d never execute an innocent person."
In an interview at Duke Law School, Justice Ruth Bader Ginsburg reflected on the past term at the U.S. Supreme Court. She discussed several landmark cases from the past year, including Glossip v. Gross, in which she joined Justice Stephen Breyer in a dissent that questioned the constitutionality of the death penalty. Ginsburg said she had waited to take such a stance on the death penalty because past justices, "took themselves out of the running," when the did so, leaving, "no room for them to be persuasive with the other justices." She reiterated many of the key points from the dissent, saying, "I think that [Breyer] pointed to evidence that has grown in quantity and in quality. He started out by pointing out that there were a hundred people who had been totally exonerated of the capital crime with which they were charged ... so one thing is the mistakes that are possible in this system. The other is the quality of representation. Another is ... yes there was racial disparity but even more geographical disparity. Most states in the union where the death penalty is theoretically on the books don’t have executions." She also noted the growing isolation of the death penalty. "[L]ast year, I think 43 of the states of the United States had no executions, only seven did, and the executions that took place tended to be concentrated in certain counties in certain states. So the idea that luck of the draw, if you happened to commit a crime in one county in Louisiana, the chances that you would get the death penalty are very high. On the other hand, if you commit the same deed in Minnesota, the chances that you would get the death penalty are almost nil. So that was another one of the considerations that had become clear as the years went on."
After Prior Jury's Life Verdict, Washington Prosecutors Drop Death Penalty in "One of the Worst Crimes We've Ever Had"Posted: July 30, 2015
King County (Washington) Prosecutor Dan Satterberg (pictured) announced that his office will no longer seek the death penalty against Michele Anderson after a jury returned a life sentence for her co-defendant, Joseph McEnroe. McEnroe and Anderson were charged with killing six members of Anderson's family in 2007 in what Satterberg called "one of the worse crimes we've ever had in King County." Satterberg explained his decision in a news conference on July 29, saying, "To proceed with the death penalty against defendant Anderson, in light of the sentence imposed [on] defendant McEnroe, would not be in the interest of justice." Pam Mantle, the mother of one of the victims, said she was relieved by the decision. “It’s been devastating for all of our friends and family,” said Mantle. “We’re all just worn out from the whole thing. It’s almost eight years.“ Less than one week ago, on July 23, after a highly publicized six-month trial, a King County jury sentenced a mentally ill defendant, Christopher Monfort, to a life sentence in the killing of a Seattle police officer. Anderson has spent time in a state mental institution during her pretrial incarceration, portending extensive presentation of mental health evidence if the death penalty was pursued in her case. Seeking the death penalty against Anderson, McEnroe, and Monfort has cost King County taxpayers more than $15 million in defense costs alone. A recent Seattle University study found that cases where the death penalty is sought cost an additional $1 million, on average, compared to non-death penalty cases.
The Supreme Court of Delaware voted unanimously on July 27 to suspend former Deputy Attorney General R. David Favata as a result of his misconduct during a recent capital trial. With a single dissent as to the length of the suspension, the Court banned Favata from the practice of law for six months and one day for intentional misconduct during the capital trial of Isaiah McCoy. Earlier this year, the state Supreme Court overturned McCoy's conviction and death sentence and ordered a new trial because of Favata's misconduct. The court found that Favata had committed seven distinct ethical violations in McCoy's case, including vouching for the testimony of a key government witness, repeatedly belittling McCoy as he attempted to represent himself at trial, and lying to the judge about attempting to intimidate McCoy. At one point, Favata objected to defense questioning of the victim's girlfriend and during the objection told the jury that McCoy had "shot her boyfriend." During a break in the proceedings, Favata commented in front of McCoy about a mafia code of silence, and said he would put a detective back on the stand to tell everyone that McCoy was a snitch. After McCoy raised the matter with the court, Favata lied about making these comments, prompting a court officer to pass a note to the judge saying that McCoy was telling the truth. Favata also repeatedly disparaged McCoy's attempt to represent himself, saying "The trouble with dealing with somebody with a limited education and no legal education is he doesn't clearly understand what he's reading." The prosecutor also demeaned McCoy by telling him to "start acting lke a man" and criticizing his attire, saying "You can dress him up. He’s still a murderer.” The case was the second time since 2014 that Delaware courts granted a new trial for prosecutorial misconduct in a capital case. In May 2014, Jermaine Wright won a new trial after 21 years on death row when prosecutors and police withheld exculpatory evidence about possible alternate suspects in a case in which no forensic or eyewitness evidence linked Wright to the crime.
A recent article in the The New York Times Magazine examines the effects of the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), which was intended to streamline and shorten capital appeals. Its title summarizes the statute as "The Law That Keeps People on Death Row Despite Flawed Trials." Emily Bazelon opens the article with the story of death-row prison Hector Ayala, who was tried before a jury from which prosecutors excluded all 7 black or Latino jurors. The federal appeals court overturned Ayala's death sentence but in turn was reversed in a 5-4 opinion by the Supreme Court, with Justice Alito saying that habeas corpus judges should intervene only in "extreme" cases. AEDPA restricts federal review of habeas corpus appeals, limiting federal judges to overturning state courts only when a state court decision is not just wrong, but "was contrary to, or involved an unreasonable application of, clearly established federal law” or “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." The High Court's interpretation of this language, say Judges Alex Kozinski and Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit in separate articles criticizing the unjust impact of the statute, has often left federal judges powerless to correct constitutional violations, even when the defendant appears to be innocent. Bazelon highlights the consequences of this judicial abstentionism on innocence cases, such as when Troy Davis was denied a new trial by the federal courts and was executed despite presenting evidence that "7 of the 9 eyewitnesses who testified against [him] at trial had recanted, and new witnesses implicated someone else." The Davis case produced a now-famous statement by Justice Scalia that habeas corpus is not available to prevent the execution of an innocent person if he was fairly convicted. A 2007 study showed that rather than hastening appeals, the average time courts spend on habeas cases has actually increased since the law went into effect. Instead, the law has become, in the words of Cornell law professor John Blume, a vehicle for “agenda-driven judicial policy-making.”