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California Inmate Raises Innocence Claims As State Seeks to Resume Executions

Posted: February 5, 2016

As California's new lethal injection protocol moves the state towards resuming executions, Kevin Cooper (pictured, left) is seeking clemency from Gov. Jerry Brown on the grounds that he is innocent. Cooper - one of 18 death-row prisoners who have exhausted their court appeals and face execution - was sentenced to death for the 1983 murders of a married couple, their 10-year-old daughter, and the daughter's 11-year-old friend. However, evidence that was suppressed as a result of police and prosecutorial misconduct raises serious questions as to his guilt. The key witness against Cooper was the 8-year-old son of the murdered couple, who was gravely injured, but survived the attack. On the day of the murders, the boy said that three white or Hispanic men had committed the killings, and after seeing photos of Cooper on television, he told his grandmother and a sheriff's deputy that Cooper - who is black - was not the killer. After subsequent interrogations by deputies, in which they misrepresented his recollections, he later identified Cooper as the sole killer and testified to that effect at Cooper's trial. Cooper's lawyers were denied an opportunity to cross-examine him. Prosecutors also presented evidence at trial that shoeprints from the crime scene had to belong to Cooper, because he had recently escaped from prison and the prints matched prison-issued shoes that weren't available to the public. A warden from the prison, however, had provided investigators with information rebutting that assertion, but prosecutors hid the warden's statements from the jury. Police also illegally destroyed blood-splattered pants given to them by a woman who believed her husband had been involved in the murders, eliminating an essential piece of evidence that could have helped Cooper prove his innocence. Finally, independent testing of a blood sample that the state claimed had been drawn from Cooper found two different sets of DNA, meaning that the sample had either been contaminated or deliberately altered. In 2009, the U.S. Court of Appeals for the Ninth Circuit upheld Cooper's conviction, but five judges wrote a strong dissent detailing the misconduct and concluding that it was, "highly unlikely that Cooper would have been convicted," without it.


Death Cases in Limbo As Florida, Delaware Courts Consider Ramifications of U.S. Supreme Court Decision

Posted: February 4, 2016

Capital cases are on hold in Florida and Delaware as their state courts consider the impact of the recent U.S. Supreme Court ruling in Hurst v. Florida. The Hurst decision ruled that Florida's sentencing procedure was unconstitutional because a judge, rather than a jury, determined the aggravating factors that made a case eligible for a death sentence. The Florida Supreme Court has already delayed one Florida execution to decide whether, and to what extent, the ruling should be applied retroactively. It's decision is expected to affect the cases of more than 300 prisoners on Florida's death row. At the same time, in the absence of a lawful mechanism to conduct capital trials, Florida trial judges are delaying new trials or removing the death penalty from the case. In Delaware, one of only two states besides Florida that doesn't require a unanimous jury to impose a death sentence, Superior Court Judge Paul Wallace has asked the Delaware Supreme Court to rule on whether Hurst affects death penalty cases in that state. In requesting review by the Supreme Court, Wallace cautioned that "Delaware's capital cases must proceed only under sentencing procedures that comport with federal and state constitutional requirements for the determination of a potential sentence of death." More than two dozen capital trials - including four that are scheduled to begin in the next several months - could be put on hold if the Delaware Supreme Court agrees to take up the issue. The Florida Supreme Court stayed the February 11 execution of Cary Michael Lambrix while it decides how the decision will affect those already on death row. Meanwhile, the Florida House Criminal Justice Committee approved a measure to narrowly address the problems found in Hurst by requiring a unanimous agreement of the jury on at least one aggravating factor while the Senate is considering legislation to require unanimous jury agreement on both aggravating cirumstances and the recommendation of death. 


National Registry of Exonerations Reports Record 58 Homicide Exonerations in 2015, Including 5 from Death Row

Posted: February 3, 2016

A report released on February 3 by the National Registry of Exonerations (NRE) reported that a record 149 defendants were exonerated in 2015, including 58 convicted of homicide, also a record for exonerations in a single year. Overall, 39% of last year's exonerations were in homicide cases. Using slightly different criteria than DPIC's exoneration list, the NRE reported five exonerations of defendants who had been sentenced to death. The NRE report also reported a number of cases in which police or prosecutors had pursued capital charges or threatened suspects or witnesses with the death penalty. In several cases, the threat of a death sentence led to false confessions or guilty pleas, including the 2007 wrongful conviction of Bobby Johnson (pictured at his release) in Connecticut. Johnson, who has an IQ of 69 and is barely literate, was 16 years old when he was arrested. According to the report, Johnson confessed to the murder "[a]fter two interrogation sessions—during which the detectives lied and said there was physical evidence linking Johnson to the crime, and falsely told him he could get the death penalty but that they would get him probation instead." His attorney conducted no investigation, and Johnson was sentenced to 38 years. He was exonerated in 2015 after new attorneys were able to present forensic evidence linking the murder weapon to another suspect. Another 2015 exoneree, Shawn Whirl, who was wrongfully convicted in Illinois in 1991, was tortured into giving a false confession and pled guilty to avoid the death penalty. In yet another case, Hannah Overton was charged with capital murder and sentenced to life without parole for the alleged "salt poisoning" murder of her foster son. In her case, Texas prosecutors withheld from the defense exculpatory information about the levels of salt in the child's blood, and medical evidence later indicated that there was no murder at all, but that the child's death was linked to a genetic disorder. The report credits some of the growth in the number of exonerations to prosecutors' increased willingness to revisit convictions, evidenced by the increasing number of Conviction Integrity Units within prosecution offices, but cautioned that the performance of these unit's nationwide "has been highly variable and some have been criticized as mere window dressing."


Missouri Paid More Than $250,000 in Cash to Executioners, With No Tax Documentation

Posted: February 2, 2016

Missouri has paid state executioners $284,551.84 in cash since November 2013, without providing notification of the payments to tax authorities, according to a BuzzFeed News investigation. The payments, mostly in envelopes filled with $100 bills, were intended to keep the identities of execution team members hidden from the public by limiting the paper trail. However, Missouri's Department of Corrections failed to file 1099 forms with the IRS for the cash payments, potentially contributing to tax evasion and violating federal tax law that requires issuance of 1099s for contractor payments of $600 or more. George Lombardi, director of the Department of Corrections, confirmed that Missouri paid execution team members in cash without issuing 1099s, but defended the practice to the Missouri legislature, saying, "It is my understanding that giving 1099s to these individuals would reveal who they were, and would mean the end of the death penalty, because these individuals wouldn’t do it." A February 2015 audit by the Missouri Auditor's Office found that prison officials also failed to comply with state administrative procedures concerning documentation of the payments. The auditors reported that "[t]he DOC did not record the amount of the cash payments on receipt forms signed by execution team members and did not always require the exchange of the cash payments to be acknowledged by a witness signature, as required by DOC procedures." Discrepancies in state documentation of the payments continued even after the audit, as some state forms - called “confidential execution team member receipts” - were left entirely blank, others lacked a witness signature, and many of the witnesses signed the receipts on different days than did the prison employee who is believed to have delivered the cash envelopes. BuzzFeed found evidence that Arizona and Oklahoma also make cash payments to executioners in the interest of concealing their identities, but Arizona has supplied the appropriate tax forms and Oklahoma's payments may be below the threshold required for issuing 1099s.


Georgia's First Scheduled Execution of 2016 Reflects History of Arbitrariness

Posted: February 1, 2016

Brandon Astor Jones (pictured), the first person Georgia plans to put to death in 2016, is two weeks short of his 73rd birthday, has been on death row for 35 years, and shows signs of dementia. If his latest appeals and his application for clemency are denied, he will be the oldest person Georgia has ever executed. Jones' case raises questions of proportionality and discriminatory application of the death penalty. He and his co-defendant Van Solomon - both African American - were sentenced to death in 1980 for killing a white gas station store clerk during a robbery. Jones denies shooting the clerk and prosecutors never determined who fired the fatal shot. His lawyers argue that the death penalty is so infrequently imposed for robbery-murders that the practice has "fallen into complete extinction." Jones' death sentence was initially overturned because jurors in his first trial had improperly consulted a Bible during deliberations. He was resentenced to death in the late 1990s. Solomon was executed in 1985. Stephen Bright, president of the Southern Center for Human Rights, said "We have this very strange situation now in which these people sentenced to death a long time ago — and who managed to get through all the stages of review — are now being executed.” Bright said the defendants in these "zombie case[s] ... almost certainly would not be sentenced to death today." Like Jones, all 5 inmates executed in Georgia in 2015 had been convicted at least 15 years earlier, before the establishment of the Georgia Capital Defender office. Each were provided counsel through an underfunded, ad hoc system. By contrast, no one was sentenced to death in Georgia last year. Psychologists have described Jones as exhibiting a “lifelong pattern of behavior consistent with childhood-onset bipolar disorder,” with signs of PTSD rooted in “physical, sexual, and emotional trauma” from persistent child abuse at home and in a notorious state reformatory to which he was sent as a teen.


STUDIES: Ohio Executions Reveal Vast Racial, Gender, and Geographic Inequities

Posted: January 29, 2016

"Ohio’s death penalty is plagued by vast inequities" grounded in race, gender, and geography, according to a new University of North Carolina study. UNC-Chapel Hill political science professor Frank Baumgartner examined the 53 executions Ohio has conducted since resuming capital punishment in the 1970s. His study found "quite significant" racial, gender, and geographic disparities in Ohio's executions that, Baumgartner said, "undermine public confidence in the state’s ability to carry out the death penalty in a fair and impartial manner." The data showed that Ohio was 6 times more likely to execute a prisoner convicted of killing a white female victim than if the victim was a black male. Although 43% of Ohio murder victims are white, 65% of Ohio executions involved the murder of white victims. Similarly, while only 27% of Ohio murder victims are female, 52% of all executions involved cases with female victims. The study also discovered significant geographic disparities in Ohio executions. More that half of the state's executions were concentrated in just 4 counties, while more than 3/4 of Ohio counties have not produced any executions. Lake County had an execution rate that was 11 times the statewide average. Although the state's three most populous counties (Cuyahoga, Franklin, and Hamilton) have similar murder rates, Hamilton's .60 executions per 100 homicides was more than double the rate in Cuyahoga and nearly 9 times that in Franklin. Sharon L. Davies, Executive Director of the Kirwan Institute for the Study of Race and Ethnicity at The Ohio State University, said that the "race or gender of a victim, and the county of the crime, should not influence who is sentenced to die" and urged "Ohio citizens and lawmakers[to] review the findings of this important research." (Click image to enlarge.)


Florida Holds Hearing On Capital Sentencing As Experts Urge Reform

Posted: January 28, 2016

In an op-ed for the Orlando Sentinel, former Florida Supreme Court Justice Raoul Cantero (pictured) and ABA Death Penalty Assessment Team member Mark Schlakman call on the Florida legislature to repair the constitutional violations in Florida's capital sentencing scheme. The U.S. Supreme Court found in Hurst v. Florida that the state's sentencing process violates the Sixth Amendment because a jury does not unanimously find the aggravating factors that justify a death sentence. Cantero and Schlakman urge the legislature to enact legislation to "require unanimity for findings of aggravators and recommendations of death." Such a measure has the support of the American Bar Association, which highlighted Florida's sentencing scheme as an area of "critical concern" in a 2006 report and passed a resolution in 2015 urging all states to adopt unanimity in capital sentencing. At a Florida Senate Criminal Justice Committee hearing on January 27, public defenders, retired judges, and death penalty experts testified in favor of requiring jury unanimity in order to recommend a death sentence, saying that such a change would prevent further constitutional challenges. Florida prosecutors also testified, asking legislators to require unanimous findings of aggravating factors, and at least nine jurors to recommend a death sentence. Currently, Florida is one of just three states, along with Alabama and Delaware, that does not require a unanimous jury to impose a death sentence.


Missouri Likely to See Change After Historic High in Executions

Posted: January 27, 2016

A decline in executions is likely in Missouri after two years of unusually high numbers. In 2014, Missouri tied with Texas for the most executions in the U.S., and it was second to Texas in 2015. However, changing attitudes about the death penalty--similar to national shifts--are evident in Missouri's sentencing trends: no one was sentenced to death in Missouri in 2014 or 2015, and less than one person per year has been sentenced to death in the past seven years. Moreover, a bill with bi-partisan support has been introduced to repeal the death penalty. It passed the Senate General Laws committee in late January. An editorial in the Columbia Daily Tribune highlighted the political diversity in the legislative support for the measure. Among those who voted the bill out of committee were two Democrats and two Republicans. Sen. Paul Wieland cited his pro-life views as a reason for support, while Sen. Rob Schaaf said, as long as it is "not fairly applied...I'm going to be opposed to the death penalty."


PUBLIC OPINION: Support for Repealing Death Penalty Grows in California

Posted: January 26, 2016

A recent survey of Californians conducted by The Field Poll found that voters are evenly split between wanting to speed up the execution process (48%) and supporting repeal of the death penalty and replacing it with life without parole (47%). Support for repeal has grown since 2014, when the question was last asked. At that time, 40% favored replacing the death penalty with life without parole and 52% supported speeding up the process. Californians may face a choice between the two options in November, as competing initiatives have been proposed. Republicans, whites, and voters over age 50 were more likely to support speeding up executions, while Democrats, Hispanics, blacks, and voters under 50 favored repealing the death penalty. "There continues to be a very strong movement away from support for the death penalty in California,” said Matt Cherry, executive director of Death Penalty Focus, an organization that is supporting the initiative to repeal the death penalty. (click graphic to enlarge).


VICTIMS: Murder Victim's Daughter Says "Broken" Death Penalty Doesn't Bring Closure and is "A Waste"

Posted: January 25, 2016

Dawn Mancarella, whose mother, Joyce Masury, was murdered 20 years ago, called the death penalty "a waste of energy and money [that] doesn’t bring justice or closure." Sharing her views on the death penalty in a column for Connecticut's Register Citizen, Mancarella expressed support for the Connecticut Supreme Court's 2015 decision declaring the death penalty "incompatible with contemporary standards of decency in Connecticut." "It’s disappointing to see that the court is re-visiting this decision," she wrote, "but I hope they will affirm the original decision and leave the death penalty behind us." Mancarella said that the death penalty forces victims' family members to "go through the pain of reliving their loved one’s murder over and over again, year after year" through the lengthy appellate process. This, she says, "is the opposite of justice and closure — even if the convicted offender is put to death in one, ten or twenty years, the anguish of losing your loved one never goes away and a state appointed execution doesn’t make you feel any better."  She contrasts the energy and money expended on the death penalty with the state's treatment of programs to help victims' families heal:  "it is beyond frustrating to see millions of dollars invested into a single capital case," she says, "while victims’ services are perpetually underfunded." She concludes, "It is time to give back our misplaced time and energy to the survivors of homicide for their healing and truly honoring their loved one."