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OUTLIER COUNTIES: Orange County, California Plagued by Misconduct Scandals

Orange County, California imposed nine death sentences between 2010 and 2015, more than 99.8% of American counties, and ranking it among the 6 most prolific death-sentencing counties in the country during that period. Over the last four years, patterns of misconduct have been revealed in the Orange County District Attorney's Office, sheriff's office, and crime lab. In 2015, Judge Thomas Goethals disqualified District Attorney Tony Rackauckas (pictured) and the entire prosecutor's office from participating in the capital trial of Scott Dekraai because of systemic police and prosecutorial misconduct involving the deliberate and undisclosed use of prison informants to unconstitutionally elicit incriminating statements from defendants. A California appeals court, citing "[t]he magnitude of the systemic problems" in Orange County and the "cozy relationship" between local prosecutors and the sheriff's office, upheld the trial court's order. The sister of the victim in Dekraai's case asked the office to stop seeking the death penalty because the mishandling of the case had led to five years of delays. She called the death penalty a "false promise" for victims' families, yet the office continued to pursue a death sentence. Judge Goethals' ruling prompted the passage of a California law giving judges greater authority to remove prosecutors from cases in which they have committed misconduct, and to report misconduct to the state bar. It also led to a special committee report on the Orange County District Attorney's Office, which found a "failure of leadership" at the root of the misconduct, along with a "win-at-all-costs mentality." In mid-December, the U.S. Department of Justice announced it was opening an investigation into the county's use of jailhouse informants. Meanwhile, a motion by the Orange County Public Defender's Office filed in September accused the county crime lab of doctoring testimony to benefit the prosecution, after a senior forensic analyst offered contradictory testimony in two separate murder trials, each supporting the prosecution's case. Recent death sentences in Orange County show patterns of bias and dispropotionality. 89% of those sentenced to death from 2010-2015 were people of color, and 44% were Black, though Blacks make up just 2% of Orange County's population. Half of the 24 cases decided on direct appeal from 2006-2015 involved defendants with serious mental illness, brain damage, intellectual impairment, or who were under age 25 at the time of their crime.


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Florida Supreme Court: More Than 200 Prisoners Unconstitutionally Sentenced to Death May Get New Sentencing Hearing

More than 200 Florida death row prisoners may have their death sentences overturned, while more than 150 others who may have been unconstitutionally sentenced to death will not, as a result of two lengthy opinions issued by the Florida Supreme Court on December 22. The rulings in the cases of Asay v. State and Mosley v. State would entitle death row prisoners whose unconstitutional death sentences became "final" in or after 2002 to have their death sentences vacated in light of the decisions of the U.S. and Florida Supreme Courts in Hurst v. Florida and Hurst v. State earlier in 2016, but would deny that relief to death row prisoners whose sentences had the same constitutional infirmity but had become final prior to 2002. In the case of Mark James Asay, the court recognized that Asay had been condemned under sentencing procedures that both it and the U.S. Supreme Court had found to be unconstitutional. It nevertheless held that he was not entitled to resentencing because he had completed the direct appeal process before the U.S. Supreme Court issued a decision in Ring v. Arizona requiring that "a jury, not a judge, [must] find each fact necessary to impose a sentence of death." Even after the Ring decision, Florida courts continued to allow judges to find the facts necessary to sentence defendants to death; a jury would only recommend a sentence. In Asay's case, a jury recommended death by a 9-3 vote. Because his sentence was imposed in 1991 and became final before Ring, Asay was denied relief and the court lifted his stay of execution. In a second case, the Florida Supreme Court granted a new sentencing hearing to John Franklin Mosley—who was sentenced to death when the trial judge overrode the jury's 8-4 recommendation of a life sentence—because he was sentenced to death after Ring. In so holding, the court explained that "defendants who were sentenced to death based on a statute that was actually rendered unconstitutional by Ring should not be penalized for the United States Supreme Court’s delay in explicitly making this determination." The court limited its holding, however, only to those cases in which the constitutional violation was harmless. In order to be harmless, the court said "it must be clear beyond a reasonable doubt that a rational jury would have unanimously found all facts necessary to impose death and that death was the appropriate sentence." 


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Judge Finds Federal Death Penalty Arbitrary and Unreliable, But Leaves Constitutionality for Supreme Court to Decide

After a two-week long "extensive hearing regarding the unreliability and arbitrariness of the death penalty system, the excessive delay involved in executions, and the growing decline in the use of the death penalty," U.S. District Court Judge Geoffrey Crawford (pictured) ruled in the case of U.S. v. Donald Fell that the Federal Death Penalty Act ("FDPA") "falls short of the [constitutional] standard . . . for identifying defendants who meet objective criteria for imposition of the death penalty," but nonetheless allowed Fell's capital trial to move forward. Fell, who is awaiting retrial by federal prosecutors in Vermont, had filed a motion asking the judge to find the death penalty unconstitutional under the Fifth and Eighth Amendments. Judge Crawford wrote that, like the state statutes enacted after the U.S. Supreme Court declared the death penalty unconstitutional in 1972 in Furman v. Georgia, "the FDPA operates in an arbitrary manner in which chance and bias play leading roles." But while the court's order contained detailed findings suggesting the death penalty is arbitrarily and unreliably imposed, it stopped short of declaring the death penalty unconstitutional. "A federal trial judge is without authority to rewrite the law so as to overrule the majority position at the Supreme Court," Judge Crawford wrote. "Changing forty years of decisional law raises questions that can only be settled by the Supreme Court itself." Judge Crawford found significant problems in numerous aspects of capital proceedings. He found that instead of redressing questions of bias, death penalty jury selection procedures are "a substantial part of the problem" and create as "inherent jury bias" by selecting "jury populations which stack the deck against defendants" in both the guilt/innocence and penalty phases of the trial. He found that "the death penalty continues to be imposed in an arbitrary manner," noting that where the "crime occurs is the strongest predictor of whether a death sentence will result" and "whether the murder victim is white" is also a signficant predictor. Judge Crawford explained that "the arbitrary qualities of the death penalty are most clearly visible through the narrative comparison of crimes which do and those which do not receive death sentences." There is, he said, no principled way to distinguish between which is which.


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As Supreme Court Rejects Death Penalty Petitions, Justice Breyer Renews Call For Constitutional Review

In the span of one week, the U.S. Supreme Court declined to review petitions from six death row prisoners, denying them relief in their cases. The petitioners raised issues related to DNA procedures, conflict of counsel, a disputed guilty plea, juror bias, judicial override, and a previously botched execution attempt. In two of the cases, the Court allowed executions to proceed in Georgia and Alabama. The case of Ronald Smith left the Court deadlocked 4-4, with enough votes to grant review in his case, but not enough to halt his execution. On December 12, as the Court denied review in four other death penalty cases, Justice Stephen Breyer (pictured) authored a written dissent in the case of Florida death row prisoner Henry Perry Sireci indicating that he would have granted review to Sireci, Smith, and Ohio death row prisoner Rommell Broom to consider the constitutionality of the death penalty in the United States. Breyer wrote: "Individuals who are executed are not the 'worst of the worst' but, rather, are individuals chosen at random on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race. The time has come for this court to reconsider the constitutionality of the death penalty." Breyer previously called for a consideration of capital punishment's constitutionality in his dissent in Glossip v. Gross, which was joined by Justice Ruth Bader Ginsburg. Justice Kagan also noted her dissent from the denial of certiorari in Broom's case. In 2009, Ohio attempted to execute Broom, but the execution was halted after two hours of repeated painful attempts to establish IV access failed, including striking Broom's bone with the execution needle. In his dissent, Justice Breyer noted that Sireci has been on death row "under threat of execution for 40 years. When he was first sentenced to death, the Berlin Wall stood firmly in place. Saigon had just fallen." Referencing Broom's petition, Breyer wrote that Sireci's was not "the only case during the last few months in which the Court has received, but then rejected, a petition to review an execution taking place in what [he] would consider especially cruel and unusual circumstances."  


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Ronald Smith Heaves and Coughs During Alabama Execution After Tie Vote in Supreme Court Denies Him A Stay

After a divided U.S. Supreme Court twice temporarily halted the execution of Ronald Bert Smith, Jr. (pictured), Alabama put Smith to death on December 8 in a 34-minute execution in which Smith heaved, coughed, clenched his left fist, and opened one eye during one 13-minute period. Smith's jury had recommended by a vote of 7-5 that he be sentenced to life without parole, but, in a practice permitted by no other state, his trial judge overrode that recommendation and sentenced Smith to death. At the time his execution was scheduled to begin, Smith had a stay motion and a petition for certiorari pending in the U.S. Supreme Court arguing that judicial override violated his Sixth Amendment right to a jury trial and was unconstitutionally arbitrary under the Eighth Amendment. After Alabama announced its intention to proceed with the execution despite the pending petition, Justice Thomas granted a temporary stay, a procedure to allow time for the full Court to act. Half the Court—enough to review a case—voted to grant Smith a stay, but five votes are required to halt an execution. Smith's lawyers then filed a motion for reconsideration, criticizing as arbitrary the rule that allows four votes to grant review of a case, but requires five to stay an execution. His motion argued that when four justices vote to hear a case, "all certiorari petitioners, public and private parties in civil and criminal cases of every kind" are entitled to have their cases reviewed except condemned prisoners facing an imminent execution. He asked the Court to reconsider his stay motion "[b]ecause the Court’s inconsistent practices respecting 5-4 stay denials in capital cases clash with the appearance and reality both of equal justice under law and of sound judicial decision-making." Justice Thomas granted another temporary stay so the full Court could consider that motion; after about an hour, the Court denied the request and also rejected a last-minute challenge to the state's lethal injection procedure. Alabama used a three-drug procedure in its execution, beginning with midazolam, a sedative that has contributed to botched executions in several other states and that was the subject of a challenge before the Supreme Court in 2015. Though midazolam is intended to render the inmate unconscious and therefore protect against the pain and suffering that would be experienced from the second and third drugs, witnesses reported that Smith showed signs of consciousness after it was administered.


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Experts Say Texas' Future Dangerousness Concept Is Based on Junk Science

Since 1973, juries in Texas have had to determine whether a defendant presents a future danger to society before imposing a death sentence. But while they have found that each of the 244 men and women currently on the state's death row poses "a continuing threat to society," experts argue that juries cannot accurately predict a defendant's future. According to Dr. Mark Cunningham, a psychologist and leading researcher on the issue of future dangerousness, “[j]uries show absolutely no predictive ability whatsoever” on this issue. In Texas capital cases, prosecutors typically present testimony from psychiatric witnesses who offer their opinion that the defendant will commit future acts of violence. One witness, psychiatrist Dr. James Grigson, testified in 167 capital cases, repeatedly responding to hypothetical questions posed by prosecutors (even after he was expelled from state and national professional associations because of this practice) that defendants whose institutional records he had never reviewed and whom he had never evaluated were certain to commit future acts of violence. The Texas Court of Criminal Appeals recently granted a stay of execution to Jeffery Wood—who had no history of violence and did not himself kill anyone—to permit him to challenge Dr. Grigson's testimony in his case as false and unscientific. Studies show that the ostensibly objective inquiry into future dangerousness has not reduced the arbitrary imposition of death sentences and that, in fact, testimony on the issue has often instead introduced racial bias into trials. The U.S. Supreme Court is currently considering the case Buck v. Davis, in which a psychologist testified that the fact that defendant Duane Buck (pictured) is African-American increases the likelihood that he presents a future danger to society. A study led by Stanford University Prof. Jennifer Eberhardt found that in interracial murders involving a White victim and a Black defendant, the physical features of the defendant greatly affected the outcome of the case. In those cases, defendants with stereotypically African facial features were more than twice as likely to be sentenced to death as Black defendants who had a less stereotypically African appearance. The American Psychiatric Association has sought to eliminate the question of future dangerousness from jury decisions, writing in an amicus curiae brief to the U.S. Supreme Court: “[t]he unreliability of psychiatric predictions of long-term future dangerousness is by now an established fact within the profession.” Kathryn Kase, director of the Texas Defender Service, described the determination of future dangerousness as "akin to giving jurors two cotton swabs, asking them to look at them and saying, ‘Does the DNA match?’ If an expert can’t figure it out, then how can jurors do that? It is no accident that African Americans are overrepresented on death row.”


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Alabama to Execute Ronald Smith Despite Jury's Vote For Life Sentence

Alabama is set to execute Ronald Smith on December 8, although the sentencing jury in his case recommended that he be sentenced to life. Under a practice that is no longer permitted in any other state, Smith's judge overrode the jury's sentencing recommendation and imposed a death sentence. As his execution approaches, Smith has filed a petition in the U.S. Supreme challenging the constitutionality of Alabama's law. He argues it violates both his right to have a jury determination of all facts that are a prerequisite to imposing the death penalty, and a national consensus against judicial disregard of jury capital sentencing verdicts. Smith's petition notes that "Alabama is the only state that allows a judge to sentence a defendant to death when the jury has recommended a sentence of life." His lawyers also have petitioned Governor Robert Bentley for clemency, quoting a juror who said, "It was very painful to make such a difficult decision, only to have the judge disregard it." A recent report by the Brennan Center on Justice found that "electoral pressures influence judges' decisions in capital cases," including Alabama's practice of judicial override, which accounts for one-fifth of Alabama's death row.  Earlier this year, state courts in Florida and Delaware--the only other states that had permitted judicial override--struck down sentencing statutes that permitted judges to impose death sentences in the face of jury recommendations for life or non-unanimous recommendations for death. These decisions grew out of the U.S. Supreme Court's January 2016 ruling in Hurst v. Florida that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." Smith's attorneys argue that Alabama's judicial override practice violates Hurst. Alabama's attorney general disagrees, arguing that the Alabama statute is different from Florida's because it requires the jury to find the existence of an aggravating factor making the defendant eligible for death. Smith's lawyers also argue that "[t]his life-and-death decision is being made by judges facing intense electoral pressure," rendering such overrides unconstitutionally arbitrary. Smith was never able to obtain review of these issues in federal court because his attorney made an error in paying a filing fee. Though his claims were filed by the deadline, his lawyer, who was on probation for public intoxication at the time, assumed he did not have to pay a filing fee of $154 because his client was indigent. In addition to his judicial override challenge, Smith is also part of a group of death row inmates challenging Alabama's new lethal injection protocol, which would use midazolam, a drug involved in several botched executions over the last few years.


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Georgia Set to Execute Man Despite Serious Juror Misconduct that No Court Has Ever Reviewed

UPDATE: The Georgia Board of Pardons and Paroles denied Sallie's request for clemency. PREVIOUSLY: Georgia plans to execute William Sallie (pictured) on December 6 in a case his attorneys argue is tainted by egregious juror misconduct that no court has considered because Sallie missed a filing deadline during a period in which he was unrepresented and Georgia provided him no right to a lawyer. It is a case that Andrew Cohen, a Fellow at the Brennan Center for Justice and long-time legal analyst, says "should shock the conscience of every person who believes [in] due process of law." Sallie was convicted of killing his father-in-law and wounding his mother-in-law during a 1990 custody fight with his estranged wife. Because the case involved domestic violence, divorce, and a custody battle, potential jurors were questioned about their experiences with those issues in an effort to eliminate possible bias. One juror lied about her background, which included four contentious divorces, child custody and support fights, and family violence. Although the trial judge had presided over three of the juror's four divorce proceedings -- including one said to have involved dramatic scenes in the courtroom -- he failed to remove her from the jury. During questioning, the same juror stated that she would follow Biblical law over Georgia law, which Cohen says also should have disqualified her from serving in the case. However, over the objections of Sallie's attorney, the judge permitted her to serve and the Georgia courts rejected this challenge to the juror on appeal. During the course of the trial, the juror then carried on an extramarital affair with a male juror, and law enforcement personnel were dispatched to her house after the trial to tell the man his wife had been looking for him. The judge subsequently informed Sallie's lawyers of that affair, but in the 15 months before filing a motion for a new trial, they did nothing to investigate the juror and did not raise her marital history or in-trial misconduct as an issue. The juror later said in an affidavit that she had pressured six other jurors into voting for a death sentence for Sallie. No appeals court has heard evidence of the juror misconduct because Sallie missed a filing deadline by eight days during a period when he had no lawyers representing him. Former Georgia Supreme Court Chief Justice Norman S. Fletcher decried Georgia's failure to provide death row inmates with attorneys throughout the appeals process, saying that "[f]undamental fairness, due process and the prohibition against cruel and unusual punishment require the courts to provide an attorney throughout the entire legal process to review a death sentence. Virtually every capital-punishment state has this safeguard. Georgia is an outlier." In his clemency petition, Sallie's attorneys argue, “The determination of a death sentence must occur only with the most pristine and careful proceedings uncorrupted by bias and dishonesty. That simply did not happen here.”


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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."


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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.)


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