DPIC News

U.S. Supreme Court Hears Argument in Texas Intellectual Disability Case

During argument November 29 in the case of Moore v. Texas, the U.S. Supreme Court expressed skepticism about Texas' idiosyncratic method of deciding whether a capital defendant has Intellectual Disability and is therefore ineligible for the death penalty. A trial court, applying the criteria for Intellectual Disability established by the medical community, found that Bobby James Moore (pictured) was not subject to the death penalty. However, the Texas Court of Criminal Appeal reversed that ruling in 2015, saying that Moore did not qualify as intellectually disabled under Texas' “Briseño factors” (named after the Texas court decision that announced them), an unscientific seven-pronged test based in part on the character Lennie Smalls from John Steinbeck's "Of Mice and Men." Moore's attorney, Clifford Sloan, argued that "Texas is very extreme and stands alone" in rejecting clinical standards used by the medical community to determine Intellectual Disability and replacing them with “nonclinical” and “anti-scientific” criteria. Five justices seemed sympathetic to Moore's case, raising concerns about the arbitrariness of allowing states to set their own criteria for deciding who is intellectually disabled. Justice Ruth Bader Ginsburg said, "You're opening the door to inconsistent results ... something that we try to prevent from happening in capital cases." Justice Stephen Breyer said that, without nationwide uniformity, there will be "disparities and uncertainties" and "people who are alike treated differently." Justices Elena Kagan and Sonya Sotomayor questioned whether application of the Briseño factors excluded some individuals whom clinicians would regard as being intellectually disabled. Justice Anthony Kennedy asked Texas Solicitor General Scott Keller whether the purpose of Texas' system was to "really limit" the definition of intellectual disability. When Keller said that was not the intent, Kennedy asked, "But isn't that the effect?" The Court is expected to rule on the case by June 2017.

Florida Supreme Court Orders Re-Sentencing, Suggesting Hurst May Affect Many Florida Cases

On November 23, the Florida Supreme Court overturned the death sentence imposed by a judge on Richard Franklin after his jury split 9-3 in recommending he receive the death penalty for a 2012 murder. "In light of the non-unanimous jury recommendation to impose a death sentence," the court found that the death sentence violated Franklin's right to have a unanimous jury determination of all facts necessary to impose a death penalty and that the violation could not be excused as harmless. The court ordered that Franklin be given a new sentencing hearing. Although the court did not rule on any case other than Franklin's, the decision suggests that the court will order new sentencing hearings in at least several dozen cases involving prisoners whose non-unanimous death sentence were still pending on direct appeal at the time of the U.S. Supreme Court's ruling in Hurst v. Florida in January 2016. In Hurst, the U.S. Supreme Court struck down Florida's death sentencing scheme because key sentencing facts were determined by a judge, rather than a jury. In October, the Florida Supreme Court interpreted that decision as requiring that the jury unanimously recommend the death penalty before the trial judge could impose capital punishment. The Florida Supreme Court's description of Franklin's claim as a "Ring-Hurst claim" further suggests that the court may order new sentencing hearings for approximately 170 death row prisoners whose sentences became final since Ring v. Arizona, a 2002 U.S. Supreme Court decision requiring that a jury, rather than a judge, determine the existence of aggravating facts making a defendant eligible for the death penalty. The court has yet to rule on whether it will apply the constitutional protections recognized in Hurst to all death row prisoners, irrespective of their sentencing date, which could require resentencing of up to 290 people. Earlier, the court upheld judge-imposed death sentences when the defendant waived his right to a jury or the sentence followed a unanimous jury recommendation for death. According to retired Florida Supreme Court Chief Justice Harry Lee Anstead, "Tragically, in the 13 years since Ring, some 47 persons have been executed in Florida under an unconstitutional statute. Had the U.S. Supreme Court accepted review of a Florida case soon after Ring, those executions may arguably not have occurred – at least not until further review for harmless error, waiver or some other possible argument by the state was first evaluated."

Judge Grants Dylann Roof's Request to Represent Himself in Federal Death Penalty Trial

U.S. District Court Judge Richard M. Gergel granted a request on November 28 from Dylann Roof (pictured), the 22-year-old charged with the murders of  nine members of the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, to represent himself in his federal capital trial. Judge Gergel described Roof's decision as “strategically unwise,” but said, “It is a decision you have the right to make.” A criminal defendant's right to self-representation was established by the Supreme Court in 1975 in Farretta v. California, a non-capital case where the Court held that a defendant may waive his right to counsel provided such waiver is knowing, voluntarily, and intelligent. In Roof's trial, the judge had temporarily halted jury selection in the trial on November 7, when Roof's attorneys requested a determination of Roof's mental competency to stand trial. After a two-day hearing, which was closed to the public because statements Roof made to a psychologist might taint the trial, Judge Gergel found Roof fit to stand trial. Jury selection is set to begin on November 28th, with 516 potential jurors reporting to the courthouse for questioning. After Roof's federal trial, the state of South Carolina also plans to try him. He faces a death sentence in both trials. While the Supreme Court has not addressed whether a capital defendant may waive his right to counsel, death penalty experts have argued that such defendants should not be allowed to represent themselves, because of the complexity of capital cases and the finality of the sentence. Cornell Law Professor John Blume wrote, "when it comes to a criminal defendant facing society's ultimate punishment, the defendant's more symbolic interests in dignity and autonomy are outweighed by the criminal justice system's interests, as well as society as a whole's interests, in accuracy and fairness." Last year, a Kansas judge permitted White Supremacist Frazier Glenn Cross to represent himself in a case in which he was charged with murders at a Kansas City Jewish Community Center. His lawyers had intended to present a mental health defense to the murders. After a controversial trial punctuated by outbursts by the defendant, the jury sentenced Cross to death.

NEW VOICES: Special Olympics Chair Urges Supreme Court to Strike Down Texas' 'Horrific' Criteria for Determining Intellectual Disability

Timothy Shriver (pictured), the Chairman of the Special Olympics, has called on the U.S. Supreme Court to end Texas' "use of stigmatizing stereotypes" in determining whether a defendant has Intellectual Disability and is therefore ineligible for execution. On November 29, the Court will hear argument in Moore v. Texas, a case challenging Texas' use of the “Briseño factors”—a set of unscientific criteria based in part on the fictional character of Lennie Smalls from the novel "Of Mice and Men"—to determine whether capitally charged prisoners have significant impairments in adaptive functioning that could qualify them for an Intellectual Disability diagnosis. In a column in TIME magazine, Shriver called Texas' method of adjudicating Intellectual Disability "horrific." He wrote, "[t]he inaccurate Texas standard reinforces one of the most damaging stereotypes about people with intellectual disability—that they can’t be 'good' at anything." In Moore's case, the judge relied on the fact that Moore was able to play pool and earned money mowing lawns as evidence that he did not really have an intellectual disability. Shriver applauded the Supreme Court's 2002 decision, Atkins v. Virginia, which barred the death penalty for defendants with Intellectual Disability. His article highlights some of the reasons people with Intellectual Disability should be exempt from execution: "people with intellectual disabilities have abilities but also challenges: they are less able to advocate for themselves; more likely to be coerced into behaviors they don’t understand; less likely to understand the implications of their actions and at higher risk for unreliable trials and wrongful convictions." Shriver encouraged the Court to bolster that protection by ending Texas' practices, which he said contravene established medical and clinical criteria: "It’s time for the Supreme Court to remind our nation that the Constitution and the vision of rights it embodies have no place for ill-informed and deadly stigmas."

Circuit Court Overturns South Carolina Death Sentence for Prosecutor's Racially Inflammatory Argument

The U.S. Court of Appeals for the Fourth Circuit has upheld a federal district court's decision ordering a new sentencing hearing for Johnny Bennett, a black man who was sentenced to death by an all-white South Carolina jury in a trial tainted by a prosecutor's racially-inflammatory cross-examination and argument. Bennett was prosecuted by Donald Myers (pictured), known as “Death Penalty Donnie” for having sent 28 South Carolina defendants to death row. In response to defense argument at Bennett's sentencing proceedings in 2000 that Bennett would not pose a future danger to society if incarcerated for life, Myers repeatedly invoked violent animal references, calling Bennett "King Kong on a bad day," a “caveman,” a “mountain man,” a “monster,” a “big old tiger,” and “[t]he beast of burden.” Earlier in the trial, Meyers had elicited irrelevant testimony that a white witness whom Bennett had assaulted when he was a juvenile had dreamt of "being chased by black savages." The prosecuter also gratuitously asked a witness about sexual relations Bennett had had with a "blonde-headed" prison guard. A juror later described Bennett as "just a dumb ni**er." The South Carolina Supreme Court upheld Bennett's sentence, saying that the "King Kong" comment was “not suggestive of a giant black gorilla who abducts a white woman, but rather, descriptive of [Bennett’s] size and strength as they related to his past crimes.” It ruled that the jurors comments did not show that he was “racially biased at the time of the ... trial.” In March 2016, a federal district court overturned Bennett's sentence, saying that Myers had "made multiple statements clearly calculated to excite the jury with racial imagery and stereotypes." The District Court judge called Myers' arguments "a not so subtle dog whistle on race that this court cannot and will not ignore." Judge J. Harvie Wilkinson, writing the Fourth Circuit opinion called Myers' comments "unmistakably calculated to inflame racial fears and apprehensions on the part of the jury." He wrote, "It is impossible to divorce the prosecutor’s 'King Kong' remark, 'caveman' label, and other descriptions of a black capital defendant from their odious historical context. And in context, the prosecutor’s comments mined a vein of historical prejudice against African-Americans, who have been appallingly disparaged as primates or members of a subhuman species in some lesser state of evolution." John Blume, who represented Bennett in the Fourth Circuit argument, said it was "antithetical to the criminal justice system for a prosecutor to pander to an all-white jury's racial fears and implicit biases."

OUTLIER COUNTIES: Los Angeles County Has Nation's Largest—And Still Expanding—Death Row

Los Angeles County, California is the home of the nation's largest death row, one that statistics show continues to rapidly grow. In January 2013, Los Angeles was responsible for more death row prisoners than any other county in the United States, and it has ranked as one of the two most prolific counties in imposing new death sentences each year since. The 31 death sentences imposed in the county between 2010 and 2015 are more than any other U.S. county imposed during that period and the four death sentences it has imposed so far in 2016 are more than have been imposed in any other county. According to the Fair Punishment Project report, "Too Broken to Fix," the Los Angeles death sentences exhibit serious racial disparities: 94% of the 31 death sentences imposed between 2010 and 2015 were directed at defendants of color. Although African Americans commit fewer than one-third of all Los Angeles County homicides, they comprised 42% of those condemned to death in this period. 45% of the new death sentences were imposed on Latino defendants, 6% against Asian Americans or Asian Pacific Islanders. Only two death sentences were imposed on White defendants during this period. Not surprisingly, a 2014 study found that White jurors in southern California were significantly more likely to recommend death sentences for Latino defendants than White defendants, especially when only weak mitigating evidence was presented. But that is precisely what the evidence suggests occurs in many Los Angeles County capital cases. The Los Angeles County Public Defender's Office, which handles half of all capital cases in the county, assigns its most experienced attorneys to death penalty cases and its clients are rarely sentenced to death. Of the 30 Los Angeles County death penalty appeals decided by the California Supreme Court between 2006 and 2015, just one defendant was represented by the public defender's office and three clients of the Alternate Public Defender, which takes about 20% of cases, were sentenced to death. However, court appointed attorneys—who handle the remaining 30% of capital defendants—accounted for 26 death verdicts, or 87% of the death sentences imposed in the county. While the public defenders presented one week's worth of mitigating evidence in the one case in which their client was sentenced to death, private attorneys averaged just 2.4 days of mitigation on their cases in the same period, including a number of cases in which they presented less than a day of mitigating evidence. Two Former Los Angeles County District Attorneys, Gil Garcetti and John Van de Camp, have changed their views on the death penalty and spoken out about the risk of executing innocent people, the high cost of capital punishment, and the emotional toll on victims' families. (Click map to enlarge.)

BOOKS: "The Case of Rose Bird," and the Continuing Power of Money in Judicial Elections

In 1986, California voters removed Rose Bird, the state's first female supreme court chief justice, from office after conservative groups spent more than $10 million in a recall effort that portrayed her as "soft on crime," emphasizing her court opinions overturning death sentences that had been unconstitutionally imposed. Ten years later, Tennessee Supreme Court Justice Penny White lost a retention election after death penalty proponents and other conservative groups targeted her for voting with the court majority in a 3-2 decision overturning a death sentence that had been imposed in a rape-murder case. Similar efforts to remove justices from state supreme courts in Kansas and Washington failed in the November 8, 2016 elections. As recent events illustrate the continuing power of money in judicial elections, a new book, The Case of Rose Bird: Gender, Politics, and the California Courts, chronicles Bird's career and the repeated efforts to remove her from office. A recent report from the Brennan Center for Justice suggests that outside money continues to play an outsized role in judicial elections today. The Brennan Center found that this year, TV spending in state supreme court races set a record of $19.4 million. Seventeen of the 20 groups that spent money on such elections this cycle do not disclose their donors, making it difficult to identify the people and groups weighing in on judicial races. But in Kansas, four of the five justices facing reelection were targeted for their decision to overturn the death sentences of Reginald and Jonathan Carr, and in the Washington Supreme Court retention election, business interests attempted to portray Justice Charlie Wiggins as "enabling predators." Both efforts to remove the justices failed. In Kansas, outside groups spent approximately $1.7 million on TV ads, but while a group calling itself Kansans for Justice attempted to oust the justices, another group called Kansans for Fair Courts spent almost equal amounts supporting retention. All five justices were reelected, but the four who were targeted by ads averaged about 56% support, as compared to 71% of the vote for the fifth justice, who was not the focus of TV ads. Alicia Bannon, Senior Counsel at the Brennan Center's Democracy's Program, said, "This unprecedented flood of spending from outside special interests and secretive donors is undermining faith in the fairness of our courts and the promise of equal justice for all."

Louisiana Supreme Court Orders New Trial for Rodricus Crawford in Controversial Caddo Parish Death Penalty Case

The Louisiana Supreme Court has overturned the conviction of Rodricus Crawford (pictured) and ordered that he be given a new trial in a controversial death penalty case that attracted national attention amid evidence of race discrimination, prosecutorial excess, and actual innocence. Crawford was convicted of murdering his young son based upon the testimony of a local doctor who claimed the boy had been suffocated, although autopsy results showed pervasive bronchopneumonia in the boy's lungs and sepsis in his blood, indicating that he may have died of pneumonia. After the trial, Crawford's lawyers presented additional evidence from experts in the fields of pediatric pathology, pediatric neuropathology, and pediatric infectious disease that the child died of natural causes from pneumonia and sepsis. The court did not overturn the conviction on those grounds, however, ruling that the local doctor's testimony had provided a sufficient evidentiary basis from which jurors could have convicted Crawford. Instead, it ruled that prosecutor Dale Cox -- who gained notoriety for telling the Shreveport Times that Louisiana needs to "kill more people" with the death penalty -- had violated the constitutional prohibition against striking jurors on the basis of race when he exercised peremptory challenges to exclude five African Americans from serving on the jury. A 2015 study of jury selection in 332 criminal trials in Caddo Parish between January 2003 and December 2012 by the human rights organization Reprieve Australia showed that, historically, Caddo prosecutors were three times as likely to strike an African-American from jury service than a prospective white juror. Crawford's lawyer, Cecelia Kappel, praised the Court's decision, saying “I am so thankful that they did the right thing in this case. It was a terrible tragedy since Day 1, and his conviction was a total injustice and the court really stepped up and fixed it, and I am looking forward to continuing to work with the DA’s office in order to reach a just outcome.” James E. Stewart, who was elected as the parish’s first black district attorney in 2015, said he would reassign the case to a new assistant district attorney for "re-evaluation ... to make a determination of a proper course of action to proceed forward in this matter.” Caddo Parish is one of the 2% of counties that is responsible for 56% of all death row inmates in the U.S. and was the subject of a recent report by Harvard University's Fair Punishment Project on outlier death penalty practices. Cox -- who in 2014 wrote a memo saying that Crawford "deserves as much physical suffering as it is humanly possible to endure before he dies" and told the the jury that Jesus Christ would have imposed the death penalty in this case -- along with one other Caddo Parish prosecutor, was responsible for 3/4 of all death sentences imposed in Louisiana over a recent five-year period.

New Study Finds Oregon Death Sentences Are Significantly More Costly Than Life Sentences

A new study by Lewis & Clark Law School and Seattle University that examined the costs of hundreds of aggravated murder and murder cases in Oregon has concluded that "maintaining the death penalty incurs a significant financial burden on Oregon taxpayers." The researchers found that the average trial and incarceration costs of an Oregon murder case that results in a death penalty are almost double those in a murder case that results in a sentence of life imprisonment or a term of years. Excluding state prison costs, the study found, cases that result in death sentences may be three to four times more expensive. The study found that 61 death sentences handed down in Oregon cost taxpayers an average of $2.3 million, including incarceration costs, while a comparison group of 313 aggravated murder cases cost an average of $1.4 million. Excluding state prison costs, the difference was even more stark: $1.1 million for death sentences vs. $315,159 for other cases. The study also found that death penalty costs were escalating over time, from $274,209 in the 1980s to $1,783,148 in the 2000s. (See chart. All costs are in 2016 dollars.) The study examined cost data from local jails, the Oregon Department of Corrections, the Office of Public Defense Services, and the Department of Justice, which provided information on appeals costs. Prosecution costs were not included because district attorney's office budgets were not broken down by time spent on each case. Among the reasons cited for the higher cost in death penalty cases were the requirement for appointment of death-qualified defense lawyers, more pre- and post-trial filings by both prosecutors and the defense, lengthier and more complicated jury selection practices, the two-phase death penalty trial, and more extensive appeals once a death sentence had been imposed. Professor Aliza Kaplan, one of the authors of the study, said, "The decision makers, those involved in the criminal justice system, everyone, deserves to know how much we are currently spending on the death penalty, so that when stakeholders, citizens and policy-makers make these decisions, they have as much information as possible to decide what is best for Oregon." Oregon has carried out just two executions since the death penalty was reinstated, both of inmates who waived their appeals. The state currently has a moratorium on executions.

OUTLIER COUNTIES: Alabama's Leading Death Sentencing County Elects Prosecutors Who Oppose Capital Punishment

Jefferson County, Alabama is among both the 2% of counties that account for more than half of all executions in the U.S. and are responsible for more than half of all prisoners on death row across the country. It led the state in new death sentences from 2010-2015, putting more people on death row than 99.5% of U.S. counties. All five of the defendants sentenced to death in those cases were Black. But the county may soon see a decline in death sentences as voters appear to have ousted the county's two elected district attorneys in favor of prosecutors who say they are "personally opposed" to the death penalty and plan to use it rarely. Charles Todd Henderson was elected as district attorney of Jefferson's Birmingham division, and Lynneice Washington leads a tight race in the Bessemer division, where votes will be recounted on November 21. Henderson has criticized Alabama's judicial override policy, which allows judges to impose a death sentence even when a jury recommends life, saying "We serve at the will of the people .... We should honor what the people say." Alabama is the only state to permit such overrides and Jefferson County judges overrode jury's recommendations for life in 44% of the 18 death penalty cases from the county that were decided on direct appeal between 2006-2015. All 18 cases involved a non-unanimous jury, an outlier practice that was struck down by state courts in Delaware and Florida this year, leaving Alabama as the last state to allow it, and in every one of those cases, defense lawyers presented less than one day’s worth of mitigation evidence. Henderson also said he supports reviewing current Jefferson County death penalty cases for possible wrongful convictions, citing the case of Anthony Ray Hinton, who was released in 2015 after spending 30 years on death row. Hinton's trial was tainted by racial bias, inadequate representation, and junk science. Washington echoed Henderson's concerns, saying, "I am personally opposed to the death penalty because there have been so many people who were put on death row who were later found to be innocent." In addition to Hinton, two other wrongfully convicted death row prisoners from Jefferson County also have been released. Wesley Quick, who was just 18 years old at the time of the murder for which he was twice wrongly sentenced to death, was acquitted of all charges in his third trial in 2003. Montez Spradley was sentenced to death by a judge who overrode a 10-2 jury recommendation for life. It was later discovered that a star witnesses for the prosecution—Spradley's disgrunted ex-girlfriend—had been paid $10,000 for her testimony, and although the judge had personally approved half of that payment, neither she nor the prosecution disclosed it to the defense. Spradley entered a no-contest plea in exchange for his freedom in 2015.  

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