San Bernardino County, California is one of five Southern California counties that have produced more death sentences since 2010 than 99.5% of all U.S. counties. Along with its neighbors, Kern County, Riverside County, Orange County, and Los Angeles County, San Bernardino forms a "new Death Belt," a region with high numbers of death sentences marked by overzealous prosecutors and poor representation for defendants facing a death sentence. In January 2013, San Bernardino had 37 prisoners on death row, making it the 11th largest death row in the country. It has a death sentencing rate 40% higher than the California average. According to the Fair Punishment Project, "A review of direct appeals from the past decade reveals that the San Bernardino County District Attorney’s office has continuously sought the death penalty for very young adults, individuals with mental illness, and an individual who was convicted of capital murder even though he was not the triggerman." District Attorney Mike Ramos has said that minimum competency requirements for capital appeals attorneys are "ridiculous" and "a delay tactic," but history shows that inadequate counsel has been a serious problem in San Bernardino for decades. S. Donald Ames, who has represented four men sentenced to death in San Bernardino, told the jury in one trial that, "execution would help" defendant Melvin Wade. At the trial of Richard Gamache, who was 18 at the time of the crime for which he was being tried, Ames said, "[If] you intend to kill somebody, what the hell difference does it make how young you are?" The United States Court of Appeals for the Ninth Circuit described his representation of Demetrie Mayfield as "deplorable," unanimously overturning Mayfield's 1983 death sentence when Ames had billed only 40 hours in preparation for both the guilt and penalty phases of trial and had his first and only substantive meeting with Mayfield the morning the trial began. Another court-appointed lawyer, Michael Belter, who has had at least 15 clients sent to death row across four Southern California counties, presented less than 2 days of mitigating evidence at the trial of Rickie Lee Fowler, who was convicted of starting a brush fire that resulted in 5 deaths. Abundant mitigation evidence was available for Fowler, who had been sexually molested by a neighbor, physically abused and neglected as a child, and introduced to methamphetamines by his father when he was only 8 years old. Statistics from San Bernardino capital cases also exhibit strong race-of-victim bias. About 82% of victims in the county's 14 capital cases decided on appeal between 2006 and 2015 were White, as compared to murder statistics showing that only 13% of the county's homicide victims in 2013 were White. (Click image to enlarge.)
With newly discovered confessions and DNA evidence pointing to the prosecution’s chief witness as the actual killer, the Florida Supreme Court, on October 27, vacated the capital conviction of death-row prisoner Clemente Aguirre. Aguirre was convicted of killing his two neighbors--an elderly woman and her adult daughter--but he has always maintained his innocence and claimed that he discovered the women after they were deceased. After he was convicted, Aguirre's post-conviction attorneys discovered that the daughter and grand-daughter of the victims, Samantha Williams, had confessed to at least five different people that she killed her relatives, and DNA results show that her blood was at the crime scene. According to the Innocence Project, "[n]one of the DNA found on the 84 items that were tested matched Aguirre; most matched to the two victims, but two bloodstains were identified as coming from . . . Samantha Williams." In addition, "Samantha’s eight bloodstains had been collected from four different rooms—including in the bathroom where the state had argued at trial that the killer would have cleaned up—and each was found inches away from the victims’ blood." In its decision, the Florida Supreme Court said, "when compared to the evidence introduced at trial, the newly discovered evidence placing Samantha’s blood (rather than Aguirre’s) at critical locations of the crime scene coupled with Samantha’s numerous confessions to multiple individuals that she killed the victims 'weakens the case against [Aguirre] so as to give rise to a reasonable doubt as to his culpability,' entitling Aguirre to a new trial." Although Aguirre’s attorneys are urging prosecutors to drop the charges against him, a spokesperson for the Office of State Attorney Phil Archer said they intend to retry Aguirre. The trial judge imposed two death sentences upon Aguire after the jury had voted 7-5 and 9-3 in favor of death in the two murders. Twenty-six men and women have been exonerated from death row in Florida, the most in the nation. New data suggest that wrongful capital convictions may be more likely in cases in which juries do not reach unanimous recommendations for death. 18 of the 20 Florida exonerations for which researchers have been able to determine the jury vote have involved judges imposing the death penalty despite a jury recommendation for life or after a non-unanimous jury recommendation for death.
Kenya has commuted the death sentences of all 2,747 prisoners on the nation's death row. On October 24, President Uhuru Kenyatta signed orders sparing the lives of 2,655 men and 92 women who had been sentenced to death, commuting their sentences to terms of life in prison. While Kenya still authorizes the death penalty, it has not carried out an execution in nearly 30 years. In August 2009, former President Mwai Kibaki commuted the death sentences of the more than 4,000 prisoners who were then on Kenya's death row. One year later, Kenya's Court of Appeal ruled that the country's mandatory death penalty law was unconstitutional, overturning hundreds of death sentences. Muthoni Wanyeki, a regional director of Amnesty International, praised President Kenyatta's action, saying: “The decision to commute death sentences brings Kenya closer to the growing community of nations that have abolished this cruel and inhuman form of punishment. It must now be abolished for posterity.” Nearly two-thirds of the world's countries have abolished capital punishment in law or practice. Among those countries that retain it, the 28 executions carried out in the United States in 2015 placed it fifth in the world behind only China (with more than 1,000 executions), Iran (977), Pakistan (326), and Saudi Arabia (158).
Support for the death penalty in the United States is at its lowest level since November 1972, according to a Gallup poll released October 25. Gallup reported that 60% of respondents said they support capital punishment—off one percentage point from last year—while opposition remained at 37%, matching its highest level since the U.S. Supreme Court struck down the death penalty in 1972. Support has dropped 9 points since 2007 and 20 points since its peak in 1994. The results reflect the same long-term trend of declining support for and increasing opposition to capital punishment that the Pew Poll found earlier this year. Pew found that support for the death penalty had dropped to 49%, marking the first time support had dropped below 50% since 1971. Gallup's poll this year included a question on the perceived fairness of capital punishment. 50% of respondents believe the death penalty is applied fairly, the lowest level in the question's 17-year history, and 44% believe it is applied unfairly, the highest level in 17 years. Gallup tied the poll results to larger trends, saying, "This is reflected in, or perhaps the force behind, changes in death penalty laws in recent years, with a total of 12 states abolishing the death penalty or imposing a moratorium in the last decade alone." Gallup did not include information on levels of support for the death penalty by age, race, sex, religion, or political affiliation as part of its statement on the 2016 poll and did not ask respondents which punishment they found more appropriate for murder: the death penalty or life without parole. Polling this year in California, Florida, Kentucky, Louisiana, and Oklahoma indicates that, when asked that policy question, more Americans favor life without parole over the death penalty.
Sherman Brown (pictured), a man who was sentenced to death in Virginia in 1970 for the murder of a 4-year-old boy, has filed a writ of actual innocence with the Virginia Supreme Court saying that DNA testing on recently discovered evidence clears him of the crime. Brown's petition states: “Recent DNA testing demonstrates by clear and convincing evidence what I have maintained for over 45 years: that I am innocent of this crime. The evidence against me at trial was deeply flawed." Brown was convicted of a 1969 crime in which a woman was knocked unconscious, stabbed, and possibly raped and her 4-year-old son was killed. The woman—who is White—identified Brown—who is Black—as her attacker, and investigators presented expert testimony claiming that a fiber and hair analysis they had conducted implicated Brown. An all-White jury convicted Brown and sentenced him to death. His death sentence was reduced to life in prison when the U.S. Supreme Court struck down the death penalty in 1972 in Furman v. Georgia. Several recent developments have called Brown's conviction into question. The fiber and hair evidence used in Brown's trial was among the flawed forensic testimony recently identified by the FBI as lacking scientific validity. In 2015, the University of Virginia Innocence Project discovered a slide that contains a vaginal swab that was taken from the victim at the time of the crime. DNA testing excluded Brown as the source of a male DNA profile found in the specimen and, with 98% certainty, ruled out the woman's husband. This, Brown says, shows the DNA “came from an unidentified third man and constitutes powerful evidence of [his] innocence.” The Virginia Supreme Court has stayed Brown's petition to permit additional testing to conclusively determine whether the male DNA could have come from the victim's husband. If Brown is exonerated, he would be the second Virginia prisoner exonerated after having been sentenced to death.
The death penalty adversely affects both families of murder victims and families of the accused, according to two recent journal articles. In his Psychology Today blog, Talking About Trauma, psychologist Dr. Robert T. Muller (pictured) reports that psychological studies have have found that the death penalty produces negative effects on families and friends of murder victims (referred to as "co-victims"). One University of Minnesota study found that just 2.5% of co-victims reported achieving closure as a result of capital punishment, while 20.1% said the execution did not help them heal. That may be because, as one co-victim described it, "Healing is a process, not an event.” A 2012 Marquette University Law School study reported that co-victims had improved physical and psychological health and greater satisfaction with the legal system in cases where perpetrators received life sentences, rather than death sentences. The authors of that study said co-victims, "may prefer the finality of a life sentence and the obscurity into which the defendant will quickly fall, to the continued uncertainty and publicity of the death penalty." Lula Redmond, a Florida therapist who works with family members of murder victims, said, "More often than not, families of murder victims do not experience the relief they expected to feel at the execution. Taking a life doesn’t fill that void, but it’s generally not until after the execution that families realize this." A number of co-victims expressed sympathy for family members of the condemned, but the death penalty process also can polarize the families, obstructing healing for both. An article for the University of Michigan Journal of Law Reform by Professor Michael Radelet of the University of Colorado at Boulder describes the retributive effects of the death penalty on the family, friends, and attorneys of death row prisoners. Radelet compares these impacts to the effect of life without parole and argues "that the death penalty’s added punishment over LWOP often punishes the family just as much as the inmate, and after the execution the full brunt of the punishment falls on the family. This added impact disproportionately punishes women and children." These effects on people other than the inmate, he writes, "undermine the principle that the criminal justice system punishes only the guilty and never the innocent. The death penalty affects everyone who knows, cares for, or works with the death row inmate."
The Florida Supreme Court has ruled that death-row prisoners who had unsuccessfully argued that they are ineligible for the death penalty because of intellectual disability must be provided a second chance to prove their claims. On October 20, the Court decided in Walls v. State that Florida must retroactively apply the U.S. Supreme Court’s 2014 decision in Hall v. Florida, which declared Florida’s procedures for determining intellectual disability to be unconstitutional. Prisoners whose intellectual disability claims had been denied under the standard rejected in Hall will now be given new opportunities to present their claims. In that case, the U.S. Supreme Court ruled that Florida’s outlier practice categorically barring a prisoner from presenting evidence supporting his intellectual disability claim if his IQ score was above 70 violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Writing for the Court in Hall, Justice Kennedy explained this strict IQ cut-off requirement “disregards established medical practice” and “contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world.” The Hall Court held that “[i]ntellectual disability is a condition, not a number”; and therefore the determination of intellectual disability must not only consider a standard error of measure regarding IQ scores, but also consider adaptive functioning, which requires a “conjunctive and interrelated assessment.” The Florida Supreme Court recognized that “[t]he rejection of the strict IQ score cutoff increases the number of potential cases in which the State cannot impose the death penalty, while requiring a more holistic review means more defendants may be eligible for relief.” The decision could affect thirty prisoners on Florida’s death row. Like Florida, the Kentucky Supreme Court has also found Hall to apply retroactively. That court reaffirmed its retroactivy decision in White v. Kentucky, also decided on October 20.
Harris County, Texas, the county that leads the nation in executions, has served as a bellwether in recent years of the nationwide decline of the death penalty. Although the 10 new death sentences imposed in Harris County since 2010 are more than were imposed in 99.5% of U.S. counties, they are significantly fewer than the 53 new death sentences that were handed down in Harris in 1998-2003 and the 16 from 2004-2009. The 2016 Kinder Institute survey of Houston residents showed that just 27% prefer the death penalty over life sentences for those convicted of first-degree murder. Though the number of death sentences has dropped, systemic problems of prosecutorial misconduct, inadequate representation, and racial bias persist. Kelly Siegler, a prosecutor who obtained 19 death sentences, was found by a Texas court to have committed 36 instances of misconduct in a single murder case. In another case, she brought the victim's bloodstained bed into the courtroom and reenacted the murder using one of the knives from the crime scene. Harris County became nationally known in the 1990s for bad defense lawyering when a capital defense attorney slept through his client's trial. A judge told the defendant, "the Constitution does not say that the lawyer has to be awake." Today, Harris County defendants still receive ineffective counsel because of a pay system that discourages defense lawyers from seeking plea bargains or hiring expert witnesses. Every new death sentence imposed in Harris County since November 2004 (not including resentences) has been imposed upon a Black or Latino defendant. Former Harris County District Attorney Chuck Rosenthal, who oversaw 40 death sentences between 2001 and 2008, resigned after a civil suit uncovered racist emails he sent using his official email account. The U.S. Supreme Court is currently deciding Buck v. Davis, a Harris County case in which a Black defendant was sentenced to death after his defense attorney introduced racially-biased testimony during sentencing. Three Harris County defendants have been exonerated from death row, most recently Alfred Brown (pictured) in 2015. Prosecutors withheld evidence that corroborated Brown's alibi, Brown's girlfriend was threatened and eventually imprisoned until she agreed to testify against him, and officials refused requests to test DNA that may implicate another suspect.
NEW VOICES: Former Reagan Attorney General and Former Manhattan Prosecutor Speak Out In Possible Innocence CasePosted: October 19, 2016
Edwin Meese III (pictured), who served as U.S. Attorney General under President Ronald Reagan, and Robert Morgenthau, the long-time district attorney of Manhattan who served as a U.S. attorney under Presidents John F. Kennedy and Lyndon Johnson, believe that Alabama death row prisoner William Kuenzel is innocent and are urging the U.S. Supreme Court to review his case. Meese and Morgenthau belong to different political parties and take opposing views on capital punishment, but both believe that Kuenzel was wrongfully convicted and condemned for the 1987 murder of a convenience store clerk and deserves a chance to present new evidence. Kuenzel was implicated in the murder after a car belonging to Harvey Venn, a boarder in Kuenzel's home, was seen near the crime scene. He was convicted after Venn admitted to having driven the car, but claimed that Kuenzel had actually shot the clerk, and a 16-year-old passenger in a car that was passing by the store testified that she had seen Venn and Kuenzel inside the store. Alabama prosecutors offered both men a deal for leniency if they agreed to plead guilty and testify against one another. Venn agreed and spent only ten years in prison, but Kuenzel maintained his innocence and rejected the deal. Since the trial, previously-withheld evidence has emerged that supports Kuenzel's innocence claim, including police notes of an initial interview with Venn in which he said another man was in the car with him, and the grand jury testimony of the passerby in which the girl said that she "couldn't really see" the faces of the men in the store. In an amicus brief, Meese calls the withholding of that evidence "the very worst kind of Brady violation, which resulted in condemning to death a defendant whose conviction was obtained in violation of the Constitution and who is very likely actually innocent." Morgenthau said of Kuenzel, "[t]here's no possible way he could have committed the murder." Meese and Morgenthau also share a concern about the quality of representation in capital cases, and are calling for automatic appellate review of the competence of defense counsel.
Saying the death penalty is "too fallible to endure," the Lincoln Journal Star has called on Nebraska voters to end capital punishment in the state. In two editorials published in connection with the upcoming statewide death penalty ballot referendum on November 8, the paper urged Nebraskans to retain the legislature's death penalty repeal bill. The predominantly Republican legislature voted to repeal the state's death penalty in May 2015 and then, a few days later, overrode a veto by Governor Pete Ricketts. The Governor, in turn, launched a successful petition drive to place the repeal issue on the ballot. The Journal Star's first editorial focused on the "bottom line" question that, "[t]o support the death penalty, you must be willing to take the chance that the state will execute an innocent person." In addressing that question, the paper highlighted notable exonerations from Beatrice, Nebraska and elsewhere. The editorial explained that, in the largest false confession case in American history, "[t]he 'Beatrice 6' were railroaded into prison for a murder they did not commit. Finally DNA showed someone else committed the crime. Now Gage County is on the hook for $28.1 million in damages." The paper also discussed the exoneration of former Air Force sergeant Ray Krone, who—with no criminal record—was wrongfully convicted and sentenced to death in Arizona. "If it happened to Krone," the paper said, “it can happen to anybody.” In a second editorial, the Journal Star presented what it called the "powerful" conservative argument against capital punishment. The death penalty, conservatives say, "is an extraordinary example of government overreach that costs inordinate amounts of money," violates "the sanctity of life," "[s]ometimes ... delivers erroneous results, and for years on end it delivers no results at all." A recent study found that the death penalty costs Nebraska taxpayers $14.6 million per year, even though the state has not had an execution in nearly 20 years. The paper said: "All this spending siphons away money that could and should be put to use more effectively in protecting public safety. Five hundred police chiefs were asked in 1995 and 2008 to rank the tools they found most effective in fighting violent crime, [former Lincoln Police Chief Allen] Curtis wrote. 'The death penalty came in absolutely last.'" The editorial concluded, "[t]houghtful conservatives who take the time to research the issue will vote on Nov. 8 to retain the law that eliminates the death penalty and replaces it with life in prison."