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POSSIBLE INNOCENCE: Federal Judge Orders Virginia To Free Death Row Inmate

On December 26, U.S. District Court Judge Raymond Jackson ordered Virginia to unconditionally free death row inmate Justin Wolfe within 10 days and barred the state from using its key witness in any retrial of Wolfe. Wolfe was convicted of conspiracy in the murder of Daniel Petrole, a fellow drug dealer in northern Virginia. His conviction was based primarily on the testimony of the actual shooter, Owen Barber, who claimed that Wolfe hired him to kill Petrole because of an outstanding debt. In 2010, Barber testified in open court, subject to cross-examination, that his testimony at Wolfe's trial was false, and that Wolfe had nothing to do with Petrole's death. Barber has also admitted that he agreed to implicate Wolfe in order to avoid the death penalty. Judge Jackson held that Virginia had failed to comply with his earlier order to either free Wolfe or retry him within 120 days. He called the state's case a "bungled prosecution," and concluded that the state's withholding of key evidence about Barber from the defense precluded any retrial of Wolfe using Barber's testimony in any form. Barber, who remains in prison, has recently invoked his Fifth Amendment right to remain silent.


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RESOURCES: Death Sentences in Texas Are Fewer and More Geographically Isolated

A new report on the death penalty in Texas found that death sentences have declined by more than 75% since 2002, and more than half of all new death sentences were imposed in the Dallas-Fort Worth area this year, while no new death sentences were imposed in Harris County (Houston) for the third time in five years. The report, Texas Death Penalty Developments in 2012: The Year in Review by the Texas Coalition to Abolish Death Penalty, stated there were 9 new death sentences in 2012, near the record low since the death penalty was reinstated in 1976.  According to TCADP, racial patterns continue to persist in the use of the death penalty: "Seven of the new death row inmates in 2012 are African-American, one is Hispanic, and one is a white female.  Over the last five years, nearly 75% of death sentences in Texas have been imposed on people of color – 46% African-American and 28% Hispanic.” Kathryn Kase, Executive Director of the Texas Defender Service, remarked, “Although Texas is using the death penalty less, the state still uses it disproportionately on people of color. This is a recurring problem and Texas’ failure to fix it demonstrates how broken its capital punishment system is.”


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NEW VOICES: Colorado District Attorney Says Death Penalty Costly, Time Consuming, and Unfair

In a recent op-ed in Colorado's Daily Camera, Boulder County District Attorney Stan Garnett expressed his concerns about the death penalty, as the state prepares to consider its repeal. Garnett said, "[T]he practical problems with the death penalty make it of limited relevance to Colorado law enforcement." He pointed to the high costs of capital cases, the time required to prosecute, and the randomness of its application as major concerns: "Prosecuting a death penalty case through a verdict in the trial court can cost the prosecution well over $1 million dollars .... my total operating budget for this office is $4.6 million and with that budget we prosecute 1,900 felonies, per year." He estimated that the appellate costs are even greater--up to $18 million through all the appeals. Geographic disparities in applying Colorado's death penalty raise questions of fairness: "Though Boulder County has had plenty of heinous murders over the years, there has never been a death verdict imposed here in the nearly 140 years since statehood," he wrote. Meanwhile, he noted, counties with similar crimes have a number of pending capital cases. Read the entire op-ed below.


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How the Death Penalty Might Be Ended in California

In a recent op-ed in the San Francisco Chronicle, death penalty scholar Franklin Zimring suggested that the close (52-48%) vote in November on California’s Proposition 34 to end capital punishment means the repeal effort is far from over. Zimring, a law professor at the University of California, Berkeley, wrote, “For decades, it has been assumed that the death penalty was the third rail of California politics …. Measured against that reputation, the narrowly divided electorate on Prop. 34 is quite a surprise." He suggested two traditional ways--other than another referendum--that capital punishment might be abolished. One way involves a finding by the courts that California's law is unconstitutional: "A federal court has been considering whether the current California laundry list of aggravating circumstances is too promiscuous to meet minimum constitutional standards. If this current grab bag is struck down, the California Legislature then would have to consider whether and how to write a new death penalty statute. After courts struck down state statutes in New York and Massachusetts, the legislatures of each state decided the best course was no death penalty." A second alternative would be for the governor to declare a moratorium on executions, followed at a later time by complete abolition. Zimring concluded, “Whatever the endgame for state execution in California, the saga of 2012's Prop. 34 will have been an important step toward an outcome that now looks inevitable on the near horizon.” Read full op-ed below.


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POSSIBLE INNOCENCE: Science Helps Texas Death Row Inmate Win New Trial

On December 5, the Texas Court of Criminal Appeals granted (5-3) Cathy Lynn Henderson a new trial based on recent scientific developments about the death of a baby who had been in her care. At one point, Henderson had been two days from execution. The appeals court accepted the factual findings of a district judge who ruled earlier this year that no reasonable juror would have convicted Henderson if presented with new scientific discoveries related to the death of Brandon Baugh. The appeals court stopped short of finding actual innocence, but granted Henderson a new trial. The prosecution’s star trial-witness, former medical examiner Roberto Bayardo, changed his initial diagnosis, explaining that advancements in the understanding of pediatric head injuries now indicate that relatively short falls onto a hard surface could produce injuries similar to those he discovered during the baby's 1994 autopsy. Henderson had claimed the baby died after slipping from her arms and falling onto a concrete floor.


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ARBITRARINESS: Arizona Inmate to be Executed Dec. 5, Accomplice Was Released in 2011

Richard Stokley (pictured) is scheduled to be executed in Arizona on December 5 for rape and murder. Stokley's accomplice, Randy Brazeal, was released from prison in 2011, despite DNA testing showing he was likely guilty of the same crime as Stokley. In 1991, Brazeal turned himself in to authorities and claimed that Stokley had held him hostage while committing the crime. However, subsequent DNA testing revealed that Brazeal likely participated in the crime and raped one of the victims. At the time of the crime, DNA testing had only recently become possible, and authorities made a deal with Brazeal to avoid delays that would result from such testing. He was sentenced to 20 years in prison. When the DNA testing was later completed, it revealed Brazeal's DNA inside one of the victims. Rod Rothrock, the detective who led the investigation, said, "It is my opinion that Mr. Brazeal is no less guilty than Mr. Stokley, and I believe that DNA test proves that."


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Former Death Row Inmate Imprisoned for 30 Years in Texas With No Conviction

 A former death row inmate with intellectual disabilities has languished in the Texas prison system for over 30 years despite having no valid criminal conviction. Jerry Hartfield, an illiterate man with an IQ of 51, had his capital conviction overturned in 1980 because the jury at his trial had been improperly selected. A Texas appeals court ordered a new trial for Hartfield, but that trial has never happened. In 1983, then-Governor Mark White attempted to commute Hartfield's former death sentence to life without parole. However, a federal court has recently ruled that the commutation was irrelevant since Hartfield was not convicted of a crime. No action had been taken on the case until 2006, when another inmate helped Hartfield file a handwritten motion, asking that he be either retried or set free. The Texas Court of Criminal Appeals rejected the petition, but a federal judge agreed with Hartfield, saying the decision overturning his conviction still stands.  U.S. District Court Judge Lynn Hughes said, "Hartfield's position is as straightforward and subtle as a freight train....The court's mandate was never recalled, its decision never overturned, the conviction never reinstated; yet Hartfield never received the 'entirely new trial' ordered by the court." The U.S. Court of Appeals for the Fifth Circuit called the state's defense of Hartfield's incarceration "disturbingly unprofessional" and returned the case to the Texas Court of Criminal Appeals for further action. Given the Sixth Amendment's right to a speedy trial, it is not clear that Hartfield could be re-tried.


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Texas Releases Partial DNA Test Results in Hank Skinner Case

The Texas Attorney General's Office has released partial results of DNA testing long requested by attorneys for death row inmate Hank Skinner. Although the results are incomplete and reveal the presence of another unknown person, the state is claiming the tests confirm Skinner's involvement in the murder of his live-in girlfriend, Twila Busby, and her two adult sons in 1993. Skinner had been seeking additional DNA testing since 2000 even while execution dates had been scheduled, but his requests had been denied until the defense attorneys and the state finally reached an agreement in 2012. According to a statement from Skinner's attorney, Rob Owen, "We will remain unable to draw any strong conclusions about whether the DNA testing has resolved the stubborn questions about Hank Skinner’s guilt or innocence until additional DNA testing has been completed, and the data underlying that DNA testing has been made available to our experts for a detailed review," he said. A jacket found at the scene of the crime containing blood spattering was lost by the police and DNA testing could not be done on this piece of evidence.  DNA testing after conviction has contributed to 300 exonerations in the United States, including 18 from death row.  There have been 44 DNA exonerations in Texas alone.


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Texas Court of Inquiry to Examine Prosecutorial Misconduct

A Texas Court of Inquiry is set to review allegations of prosecutorial misconduct by former District Attorney Kenneth Anderson, who withheld critical information in a first-degree murder case in Williamson County. Although prosecutorial misconduct has played a role in many wrongful convictions, including death penalty cases, such an oversight hearing is unusual. Sam Millsap, the former District Attorney of Bexar County, Texas, said, "I’d love to be able to tell you I am the only former elected prosecutor in the country who finds himself in the position of having to admit an error in judgment that may have led to the execution of an innocent man, but I know I am not." If the Court finds that Anderson's alleged misconduct rises to the level of a crime, the case may be referred to a grand jury. Anderson, who is now a Texas judge, presided over the prosecution of Michael Morton (pictured), who was convicted and sentenced to life for his wife's murder in 1987. Evidence suggesting Morton's innocence, including a bloody bandana found near the crime scene, was kept from the defense. DNA testing of the bandana led to Morton's exoneration in 2011, and implicated another man who is also suspected of subsequently murdering another woman. Anderson's successor as D.A., John Bradley, who fought against allowing DNA testing in Morton's case, has said he now believes he was wrong, adding, "We shouldn’t set up barriers to the introduction of new evidence." 


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Family of Man Executed in Texas Seeks Posthumous Pardon

The family of Cameron Todd Willingham announced they will petition the Texas Board of Pardons and Paroles to grant him a posthumous pardon based on new evidence that has emerged since his execution in 2004. Willingham was sentenced to death for the murder of his three children in a housefire in 1991. At his trial, investigators testified that Willingham had intentionally set the fire, but later developments in the science of fire investigation have led experts to believe the fire was accidental. The other evidence presented at Willingham's trial included the testimony of a jailhouse informant who later recanted his statement that Willingham admitted to the crime. The family's petition states, "[S]ince his trial, scientific advances have shattered every assumption underlying the testimony of the two fire investigators who declared to the jury and the court that Willingham had set the fire that killed his children. In fact, today, no credible arson expert would make such a declaration." In a statement, Willingham's family said, "It was Todd's last wish that we help clear his name. It's time for the state of Texas to own up to its mistake and give Todd the justice he deserves." The Innocence Project in New York has taken the lead in working for Willingham's exoneration.


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