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Missouri Juror Who Voted for Death Says New Evidence Would Have Changed Sentencing Decision

In 1997, a St. Louis County, Missouri jury unanimously voted to sentence David Barnett to death. Eighteen years later, after learning horrific details of the physical and sexual abuse to which Barnett had been subjected as a small child, Andrew Dazey - the jury foreman in Barnett's trial - says "[t]here’s no way” he would have voted for death. At trial, Barnett's lawyer presented some evidence of his client's abuse, mental illness, and suicide attempts. However, he failed to present at least 11 available mitigation witnesses who could have provided critical additional mitigating evidence, including evidence that Barnett's mother had abused alcohol and diet pills while she was pregnant with him, wanted to abandon the newborn at the hospital, and repeatedly gave Barnett away - once to a suicidal, drug addicted prostitute and other times to a violent alcoholic man who permitted the child to be sexually abused, physically assaulted, and forced to drink dishwashing liquid, among other horrors. When U.S. District Judge E. Richard Webber overturned Barnett's death sentence in August, he wrote that, with the new evidence presented on appeal, "at least one juror would have determined the balance of aggravating and mitigating circumstances did not warrant death in Mr. Barnett’s case." Juror interviews by the St. Louis Post-Disatch suggest that he was right. Dazey told the paper, "David should not be on death row." Dazey believes that “had a fraction of this information been available” at trial, a majority of jurors would have voted differently. "I have never read where there was so much rejection in one life...If this wasn’t a case I was involved in, I would have thought it was a fiction novel. Everybody failed to recognize what was going on here."  


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Delaware Supreme Court Overturns Third Death Sentence in Two Years Due to Prosecutorial Misconduct

For the third time in two years, the Delaware Supreme Court has reversed the conviction of a death row inmate because his trial was tainted by prosecutorial misconduct. On December 14, the court ordered a retrial for Chauncey Starling, who was convicted in 2003 of killing two people in a Wilmington barber shop, in part because prosecutors had failed to disclose that they had dropped charges against a key witness for violating his parole. Instead, prosecutors informed defense counsel that those charges were still pending. Earlier this year, the court overturned the conviction of Isaiah McCoy because of misconduct by a deputy attorney general, who was later suspended from practicing law as a result of seven ethical violations in the case. In 2014, Jermaine Wright was granted a new trial because 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. No physical evidence linked Starling to the barbershop murders, as well. The court ruled that the misconduct, in combination with two prejudicial failures by defense counse, had denied Starling a fair trial. The court wrote, "Like all citizens, [Starling] is entitled to a fair trial that adheres to the procedural requirements with effective representation. Because those procedural requirements were not met, and counsel defending him was ineffective, we are compelled to reverse and remand for a new trial and proceedings not inconsistent with this opinion." 


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Report: 75% of 2015 Executions Raised Serious Concerns About Mental Health or Innocence

Three quarters of American executions in 2015 involved cases of "crippling disabilities and uncertain guilt," according to a report by the Charles Hamilton Houston Institute for Race and Justice at Harvard University. Saying that the 2015 executions revealed "a broken capital punishment system," the report found that, "[o]f the 28 people executed [in 2015], 75% were mentally impaired or disabled, experienced extreme childhood trauma or abuse, or were of questionable guilt." It said seven people who were executed suffered from serious intellectual impairment or brain injury, including Warren Hill, who even the state's doctors agreed had intellectual disability, and Cecil Clayton, who lost 20% of his prefrontal cortex as a result of a sawmill accident. An additional seven suffered from serious mental illnesses. One, Andrew Brannan, was a decorated war veteran whom the Veterans Administration had classified as 100% disabled as a result of combat-related Posttraumatic Stress Disorder from his service in Vietnam. The report identified five more cases in which the executed prisoners had experienced extreme childhood trauma and abuse, and another two - Lester Bower and Brian Keith Terrell - in which it said the executed men "were potentially innocent." The report also highlighted developments described in DPIC's Year End Report, including the increasing isolation of death penalty use to a small number of jurisdictions. "Only a handful of outlier counties still impose the death penalty," the report said, and an examination of practices in those counties often "reveals themes of overzealous prosecutors who often bend the rules, poorly performing defense lawyers, and a legacy of racial bias." As a result, "these outlier counties tend to [also have] an unacceptable history of convicting the innocent and individuals with crippling mental impairments." (Click image to enlarge.)


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DPIC Releases Year End Report: Historic Declines in Use of Death Penalty in 2015

On December 16, DPIC released its annual report on the latest developments in capital punishment, "The Death Penalty in 2015: Year End Report." The death penalty declined by virtually every measure in 2015. 28 people were executed, the fewest since 1991. Death sentences dropped 33% from last year's historic low, with 49 people being sentenced to death this year. There have now been fewer death sentences imposed in the last decade than in the decade before the U.S. Supreme Court declared existing death penalty laws unconstitutional in 1972. Just six states carried out executions, the fewest since 1988; and three states (Texas, Missouri, and Georgia) accounted for 86% of all executions. For the first time since 1995, the number of people on death row fell below 3,000. Public support for the death penalty also dropped, and the 2015 American Values Survey found that a majority of Americans prefer life without parole to the death penalty as punishment for people convicted of murder. Six people were exonerated from death row this year, bringing the total number of exonerations since 1973 to 156. “The use of the death penalty is becoming increasingly rare and increasingly isolated in the United States. These are not just annual blips in statistics, but reflect a broad change in attitudes about capital punishment across the country,” said Robert Dunham, DPIC's Executive Director. See DPIC's Press ReleaseView a video summarizing the report. (Click image to enlarge.)


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STUDIES: Electoral Pressures Influence Judges' Decisions in Capital Cases

"[E]lectoral pressures influence judges' decisions in capital cases," according to a new report by the Brennan Center for Justice at the New York University School of Law. That report, How Judicial Elections Impact Criminal Cases, surveyed numerous empirical studies that had reviewed the effects of judicial elections on outcomes in criminal cases. The vast majority of criminal defendants - including capital defendants - face elected judges at trial and on appeal. According to the report, 87% of state judges face election, and 94% of felony convictions are tried in state courts. The report found that "the pressures of upcoming re-election and retention campaigns make judges more punitive toward defendants in criminal cases" in general, but that these pressures also produced identifiable effects in death penalty cases. First, electoral pressures affected trial judges in capital cases. "In Alabama, with its unique system of judicial override, trial judges are more likely to impose death over jury verdicts of life imprisonment during election years," the report said. The report also found that "appellate judges facing re-election are more inclined to affirm death sentences, and less inclined to dissent from orders affirming them." Referencing a recent Reuters study, the report said states with elected supreme court justices had substantially lower rates of reversing death sentences on appeal than states with appointed justices. Justices who ran against other candidates for office were the least likely to vote to reverse a death sentence (11%), and those who faced retention elections reversed only 15% of the time. Justices who were appointed were comparatively more likely to vote to reverse death sentences (26%). The report concludes, "Empirical studies across states, court level, and method of election find that proximity to re-election makes judges more punitive — more likely to impose longer sentences, affirm death sentences, and even override life sentences to impose death. Without reform, terms of incarceration and executions will continue to be determined, in part, by the decision-maker’s proximity to re-election."


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Missouri Supreme Court Overturns Conviction of Reginald Clemons

The Missouri Supreme Court ruled 4-3 on November 24 to vacate the conviction and death sentence of Reginald (Reggie) Clemons (pictured), who has been on death row for 22 years for the interracial rape and murder of two sisters. The court said that Clemons, did not receive a fair trial because of prosecutorial misconduct. In particular, the court was troubled by what it concluded was a deliberate failure by prosecutiors to provide Clemons' defense with evidence that he had been beaten to elicit a confession. “The record includes substantial, credible evidence that Mr Clemons’ confession was coerced by physical abuse inflicted by the police that would require that his confession be suppressed," Chief Justice Patricia Breckenridge wrote. The court said that the prosecution's misconduct was even more prejudicial in this case because, after withholding evidence of the beating by police, it then filed a motion to bar the defense from arguing that Clemons confession had been coerced, successfully asserting that the evidence at trial did not support an inference that police had beaten Clemons. The court's decision relied heavily on the findings of a Special Master who reviewed the case in 2013. Clemons also raised the issue of his sentence being disproportionate to those of the other men involved in the crime. Of the four defendants in the case, Clemons and two other black men received death sentences, while the one white defendant is now out on parole. The court declined to address the issue of proportionality because the other evidence was sufficient to overturn Clemons' conviction. A 2012 report by The Guardian identified 21 discrepancies in the prosecution's case against Clemons, including, among others, that the prosecution never disclosed the existence of a rape kit that could have identified the perpetrator and presented no evidence from the rape kit at trial; presented testimony in a co-defendant's trial that another person actually pushed the sisters off a bridge into the Mississippi River; and that prosecutors discriminatorily exercised their discretionary strikes to prevent seven black jurors from sitting on the case. The state of Missouri has 60 days from the ruling to decide whether to retry Clemons.


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Counties With Highest Rates of Killings by Police Also Among Highest in Death Sentences

The counties in the United States that have the highest per capita rate of killings by police officers also rank among the highest in the country in the number of people sentenced to death. In his criminal justice blog, "The Watch," for the Washington Post, Radley Balko details the "remarkable correlation" between killings by police and death sentences imposed. "There are more than 3,000 counties in the United States," Balko writes. "But the 13 with the highest rates of police killings are not only all in death penalty states; they also all rank among the top 30 in death sentences meted out over the past 40 years." These jurisdictions, which Balko describes as "America's killingest counties," all rank among the 2 percent of U.S. counties that account for more than half of America’s death row population. Balko focuses on Kern County, California, where police have killed more civilians per capita than anywhere else in the country - 0.9 police killings per 100,000 residents - even though the city’s overall murder rate is, Balko says, "right at about the national average." Kern "has also sent 26 people to death row since 1976, putting it among the top 25 in the country." In explaining the correlation between police killings and death sentences, Balko notes that "the counties that send the most people to death row also tend to be counties with histories of prosecutorial abuse and misconduct." He suggests that, as "the chief law enforcement officers within their judicial districts[, district attorneys] set the tone for the entire area. They’re also typically in charge of investigating officer-involved shootings and other allegations of excessive force. It isn’t difficult to see how when a DA takes a 'win at all costs' approach to fighting crime, that philosophy would permeate an entire county’s law enforcement apparatus, from the beat cop to the DA herself or himself."


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Sexually Abused Teen Who Killed His Abuser Faces Execution Despite Inadequate Defense, Judge's Conflict of Interest

Terry Williams was barely 18 when he killed Amos Norwood, a man who had been sexually abusing him since Williams was 13. A recent article in Mother Jones discusses how the Philadelphia District Attorney's office - which championed the cause of sexual abuse victims during landmark prosecutions of several clergy abuse cases - is aggressively seeking to execute Williams, employing the very stereotypes about abuse victims it publicly rejected in the clergy trials. At the time of those trials, D.A. Seth Williams said "[a]s we have learned, it is extremely difficult for sexual abuse victims to admit that the assault happened, and then to actually report the abuse to authorities can be even harder for them." But in Terry Williams' case, the office has argued both that his silence discredits his claim of having been repeatedly sexually abused and that the killing was a product of  "gay-prostitute rage." Williams never met his court-appointed lawyer until the day before his trial and, not trusting the lawyer, did not reveal his history of sexual abuse. Philadelphia prosecutors knew that WIlliams had been sexually abused before and had evidence that Norwood had made sexual advances toward other young boys. Nevertheless, prosecutors removed references to Norwood's abusive proclivities from several witness statements before providing sanitized versions of those statements to Williams' defense. In a separate case, the same prosecutor, Andrea Foulkes, had tried Williams for the murder of Herbert Hamilton, who had paid Williams for sex when Williams was a teenager. In that trial, the jury acquitted Williams, who was 17 at the time of that killing, of first-degree murder, after hearing evidence of Hamilton's relationship with Williams and convicted him of the lesser charge of third-degree murder. Judge Teresa Sarmina wrote, "The third degree verdict in the Hamilton case, colored Ms. Foulkes' decisions when she prosecuted [Williams] for the murder of Amos Norwood." Despite her awareness of Norwood's sexual proclivities, Foulkes told the jury Williams had killed him "for no other reason but that a kind man offered him a ride home." Pennsylvania Supreme Court Chief Justice Ronald Castille - the former Philadelphia D.A. - refused to recuse himself from WIlliams' appeal, even though Castille had personally authorized Williams' prosecution and, during his judicial election campaign, had trumpeted his record of sending 45 people to death row. Norwood's widow joined more than 350,000 people in supporting Williams' bid for clemency, but the pardons board's 3-2 recommendation for clemency fell short of the state's unanimity requirement. Terry Williams faced an execution date of March 4, 2015, but was granted a reprieve when Gov. Tom Wolf announced a moratorium on the death penalty in February. In October 2015, the U.S. Supreme Court agreed to hear Williams' challenge to Castille's participation in his appeal.


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Defendants Begin Systemic Challenges to Constitutionality of Death Penalty

Lawyers for capital defendants and death row inmates across the country have begun to respond to what lawyers in one federal case described as the "clarion call for reconsideration of the constitutionality of the death penalty" issued by Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg in their dissenting opinion in June in Glossip v. Gross. Systemic challenges to the death penalty have been filed in a Vermont federal court and a Utah state trial court seeking hearings to present evidence that the death penalty is administered in a systemically cruel and unusual manner. A Pennsylvania defendant has likewise filed a petition in the U.S. Supreme Court seeking review of her claim that the death penalty is unconstitutionally arbitrary. Attorneys for Brandon Perry Smith allege that while their client and a very small number of other defendants face the death penalty for potentially capital crimes, approximately 150 Utah inmates received life sentences for similar offenses. They seek to depose all 29 of Utah's county attorneys to learn why prosecutors choose to seek the death penalty in certain cases but not others. Gary Pendleton and Mary Corporan, Smith's attorneys, wrote, "The infirmity of Utah's present scheme is apparent. The exercise of prosecutorial discretion becomes arbitrary and capricious by definition when the law establishes no basis for determining when a death-eligible murder, as defined by statute, is charged as a capital offense and when it is charged as a noncapital homicide." Citing the Glossip dissent, lawyers in the federal trial of Donald Fell in Vermont argue that the federal death penalty is unconstitutional because it is unreliable, arbitrary, and discriminatorily applied. They write that "Most places within the United States have abandoned its use under evolving standards of decency," and highlight evidence of significant racial and geographic inequities in the use of the federal death penalty, including that it is overwhelmingly imposed in a small number of states that are also disproportionately responsible for state death sentences. In Walter v. Pennsylvania, death-row prisoner Shonda Walter argues that the assumptions underlying the Supreme Court's reinstitution of the death penalty in the 1970s "have proved wrong, flawed, or illusory." She has asked the Supreme Court to review her claim that American "standards of decency have evolved to the point where the [death penalty] is no longer constitutionally sustainable." 


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Caddo Parish Elects First Black District Attorney As Spotlight Shines on Death Penalty and Jury Selection Controversies

Caddo Parish, Louisiana, known nationally for its aggressive pursuit of the death penalty, has elected its first black District Attorney. In a November 21 runoff election conducted against the backdrop of controversial remarks about the death penalty by the current DA and a threatened civil rights lawsuit over systemic racial discrimination by Caddo Parish prosecutors in jury selection, former judge James E. Stewart, Sr. defeated current Caddo Parish prosecutor Dhu Thompson, 55% to 45%. Ten days before the election, the Roderick and Solange MacArthur Justice Center announced that it intends to sue Caddo Parish over the District Attorney's office's practice of striking black citizens from juries at three times the rate of other jurors. James Craig, co-director of the New Orleans-based non-profit law center, called the racially-biased jury strikes "a blight on our criminal justice system." A recent study by the human rights group Reprieve Australia had revealed that Caddo prosecutors used peremptory strikes against 46% of black jurors but only 15% of other jurors. (Click image to enlarge.) The study showed that Thompson's exercise of juror challenges was even more racially disproportionate, striking more than half of all prospective black jurors but fewer than 1 in 6 of all other jurors. Craig said that the announcement of the suit was not intended to influence the election: "This is not a problem of one person. This is a culture that needs to be acknowledged and changed...In the absence of concrete, specific changes in the office’s culture and approach to jury selection, this practice will continue under the administration of either of the two final candidates for district attorney. For this reason, no matter who prevails in the special election this month, the MacArthur Justice Center will proceed with the federal civil rights lawsuit that we are preparing to file." The suit is seeking an injunction to block practices that result in under-representation of blacks on juries. In his election-night victory remarks, Stewart pledged "to bring professionalism and ethics back to the district attorney’s office." 


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