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LAW REVIEWS: Predictions of Future Dangerousness Contribute to Arbitrary Sentencing Decisions

In a new article for the Lewis & Clark Law Review, author Carla Edmondson argues that the future dangerousness inquiry that is implicit in capital setencing determinations "is a fundamentally flawed question that leads to arbitrary and capricious death sentences" and because of the "persistent influence of future dangerousness ... renders the death penalty incompatible with the prohibitions of the Eighth and Fourteenth Amendments on cruel and unusual punishment." Edmonson's article, Nothing is Certain but Death: Why Future Dangerousness Mandates the Abolition of the Death Penalty, reviews the pervasive influence of future dangerousness in capital sentencing decisions throughout the U.S., either as a statutory aggravating factor, or as a permissable line of argument that prosecutors may use to encourage a jury to impose a death sentence. Edmondson argues that the practice of considering future dangerousness "impermissibly asks jurors to function as fortune tellers, basing their sentencing determination on the likelihood of some future, unascertained event." The article examines the history of the future dangerousness question, its use in various states, and empirical evidence documenting its inaccuracy, randomness, and powerful impact. Edmonson cites seminal studies conducted in Texas and Oregon, two states in which capital sentencing juries are required to find that defendants pose a continuing threat to society before they may impose the death penalty. Those studies, she writes, demonstrate both the unreliability of expert testimony on future dangerousness and the inaccuracy of jury determinations on the subject. Experts in psychology have long argued that predictions of future dangerousness are junk science, and their use in capital sentencing proceedings continues to create serious constitutional concerns. On February 22, 2017, the U.S. Supreme Court overturned the death sentence imposed in Texas on Duane Buck (pictured), whose trial was tainted by racial bias when the defense's own psychologist testified that Buck posed a future danger because he was black. On August 19, 2016, the Texas Court of Criminal Appeals stayed the execution of Jeffery Wood to permit him to litigate claims that the future dangerousness predictions of the state's expert—who had been expelled from state and national professional associations for his unscientific and unethical future dangerousness predictions in the past—constituted false scientific evidence whose use violated due process. "Often based on unreliable and prejudicial evidence, predictions of future dangerousness undermine the efficacy of any imposed sentence," Edmondson argues. "Its unavoidable influence on life-or-death decisions, and the irremediableness of the problems associated with inaccurate predictions of future behavior, demonstrates why any system of capital punishment is unconstitutional and cannot be applied consistent with the Eight Amendment’s prohibition on cruel and unusual punishment."


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Exoneree Urges Dallas Prosecutor to Drop Death Penalty Against Veteran With PTSD

Texas capital murder exoneree Christopher Scott (pictured) has urged Dallas County's new District Attorney, Faith Johnson, to drop the death penalty from murder charges pending against Erbie Bowser. Bowser, who is black, is a seriously mentally ill Marine veteran who was discharged from military service after having been diagnosed with Post-Traumatic Stress Disorder. He faces four capital charges in the killings of his girlfriend, his estranged wife, and their daughters. When police found him, he was reportedly reciting his name, rank, and serial number, and the medical staff at the hospital to which he was taken him described him as delusional. In a guest column for the Dallas News, Scott—who served 12 years of a life sentence for a murder he did not commit—writes that the Dallas DA's office "has failed the African-American community for generations," and says that "[t]he Bowser case offers an opportunity for Johnson to change the way her office has historically treated African Americans accused of committing capital crimes." He notes that in 2013, the Dallas District Attorney's office "agreed not to seek the death penalty in a nearly identical case involving a white defendant, William Palmer[, who had] stabbed his wife and both her parents to death while his wife's sister and her six-year-old hid in a closet." Dallas has long been criticized for its history of racial bias in enforcing its criminal laws, including bias in jury selection and the application of the death penalty. During the 30-year administration of Henry Wade, the office produced a training manual instructing prosecutors to exclude people of color from juries, and in a death penalty decision in 2005, the U.S. Supreme Court found that black people in Dallas County had been "almost categorically ... excluded from jury service." The racially disproportionate use of the death penalty has continued in subsequent prosecutorial administrations. A report from the Fair Punishment Project identified Dallas is one of only 16 U.S. counties that imposed five or more death sentences between 2010 and 2015; seven of the eight people sentenced to death in that period were black. Johnson, whom Wade hired in 1982, is the first African-American woman to serve as District Attorney and Bowser's case is considered a barometer of the path she will follow in capital prosecutions. In addition to the issue of racial fairness, Bowser's case presents serious questions about the appropriateness of the death penalty for defendants with severe mental illness, and in particular, veterans with PTSD. Bowser has a history of hallucinations and psychosis stretching back to his adolescence, and reportedly was on more than a dozen medications, including sedatives and antipsychotics, at the time of his arrest. So far this year, seven states have proposed legislation to exempt people with serious mental illness, including PTSD, from the death penalty. 


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American Bar Association Human Rights Magazine on Capital Punishment

Human Rights Magazine, a quarterly publication by the American Bar Association, focused its first-quarter 2017 edition on capital punishment, marking the 40th anniversary of Gregg v. Georgia. Articles by nationally-renowned death penalty experts examine geographic disparities in death sentences, secrecy and lethal injection, intellectual disability, mental illness, and other critical questions in the current discourse around the death penalty. In the introduction to the magazine, Seth Miller, executive director of the Innocence Project of Florida and chair of the ABA Death Penalty Due Process Review Project, and Misty Thomas, staff director of the ABA Death Penalty Due Process Review Project, write, "Forty years after Gregg, attorneys, scholars, and advocates continue to debate whether our collective con­cerns regarding the arbitrary and discriminatory application of the death penalty have indeed been ade­quately addressed. The anniversary of this crucial decision—which marks, in effect, the “birth” of the modern death penalty—provides an essential opportunity for reflection and con­sideration of this critical question." 


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Missouri Set to Execute Death Row Prisoner Who Was Denied Federal Review

Missouri plans to execute Mark Christeson (pictured) on January 31, without his case ever receiving substantive review in a federal court. Christeson's appellate attorneys effectively abandoned him, failing to meet with him until a month after the filing deadline in his case had already passed. They filed his federal appeal four months late. As a result, the federal court rejected it as untimely. New attorneys offered to represent him, since the attorneys who missed the filing deadline could not effectively argue his case without admitting their own error. Two federal courts rejected the substitution before the U.S. Supreme Court granted it. A federal district court then, without explanation, denied nearly all the funding requested by his new attorneys to reinvestigate the case. In 2016, a group of former judges and three of the nation's leading criminal defense organizations filed amicus briefs with the U.S. Court of Appeals for the Eighth Circuit, urging the court to grant Christeson the funding necessary to prepare his case. His attorneys say that evidence of Christeson's intellectual impairments and abusive upbringing were never presented to a jury. On January 18, 2017, the Eighth Circuit ordered the federal district court to “convene promptly a limited evidentiary hearing on the question of abandonment.” U.S. District Judge Dean Whipple found that the missed filing deadline did not constitute abandonment and denied Christeson a stay of execution. The Missouri federal district courts have been notable for their failure to intervene in a string of controversial executions, including the cases of Cecil Clayton, Andre Cole, and Richard Strong, but according to the Columbia Daily Tribune, Christeson would be the first person executed in Missouri in the modern era of the death penalty to have had no federal appeals. [UPDATE: The U.S. Supreme Court denied Christeson's petition for certiorari and motion for stay of execution and he was executed on January 31.]


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STUDIES: At Least 201 Florida Death Row Prisoners May Be Eligible for Resentencing, 134 Had Non-Unanimous Juries

A new study reports that at least 201 Florida death row prisoners—including at least 134 whom judges sentenced to death after juries had returned non-unanimous sentencing recommendations—may be eligible for resentencing hearings as a result of recent rulings by the United States and Florida Supreme Courts declaring the state's death sentencing practices unconstitutional. In 2016, the U.S. Supreme Court struck down Florida's statute in Hurst v. Florida, ruling that it unconstitutionally denied defendants the right to have juries decide whether the prosecution had proven key facts necessary to impose the death penalty. Later in the year, in Hurst v. State, the Florida Supreme Court also struck down the statute for permitting judges to impose death sentences without a unanimous jury recommendation for death. In a pair of rulings issued in December 2016, Asay v. State and Mosley v. State, the court applied that decision to any defendant whose death sentence was finalized after the U.S. Supreme Court ruling Ring v. Arizona, in 2002. The authors of the study, Michael Radelet (pictured), a sociology professor at the University of Colorado-Boulder, and G. Ben Cohen, a capital litigator in New Orleans, Louisiana, caution that the 134 non-unanimous post-Ring death verdicts that they have identified "are not the only cases that may require resentencing, as defendants may have different claims arising from other constitutional deficiencies in the Florida statutes." Their study shows that ten counties account for nearly 60% of Florida's death row, more than 60% of those sentenced to death since Ring, and 62% of the known non-unanimous verdicts and will most heavily bear the cost of resentencing these defendants. The counties with the largest numbers of affected prisoners are also among the 2% of U.S. counties responsible for a majority of people on death row nationwide. Duval County has 31 defendants who may be eligible for resentencing, of whom at least 26 had a non-unanimous jury. The same is true of 11 of 12 affected defendants from Miami-Dade County, 8 of 12 from Broward County, and 7 of 11 from Seminole County. The authors point out that the constitutional failures of Florida's statute have been evident for many years, and that earlier acknowledgement of these problems could have saved the state from the costly resentencing hearings it now faces: "The significant cost of resentencing all of these individuals under a constitutional scheme was very predictable at the time of Ring in 2002, and was also foreseen by at least some experts who examined the post-Furman statute that was enacted in 1972." They conclude that "In 2017, the Florida legislature will need to make changes in the Florida death penalty statute that were predictable when the statute was first passed in 1972, and inevitable when the U.S. Supreme Court released Ring v. Arizona in 2002. Finally, they will need to acknowledge that Ring has rung."


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Texas Prisoner Seeks Stay of Execution Based on Claims of Innocence, Discriminatory Jury Selection, Junk Science

Alleging wrongful prosecution, Texas death row prisoner Terry Edwards (pictured), who is scheduled for execution on January 26, is seeking a stay of execution and an opportunity to present new evidence that his case was tainted by racially-discriminatory jury selection, prosecutorial misconduct, and false and misleading forensic testimony. Edwards was prosecuted by Dallas County assistant district attorney Thomas D'Amore, who, the defense says, was lead prosecutor in at least three other cases in which defendants were exonerated after similar misconduct was disclosed. The Dallas DA's office fired D'Amore in 2006. Edwards, who had no prior history of violence, says that he was not the triggerman in a robbery-murder that prosecutors say he committed with his cousin, and that the prosecution presented false expert testimony to bolster its claim that he was the killer. The cousin—who has an extensive history of violent recidivism—was charged with both murders but then permitted to plead guilty to only robbery, and is now eligible for parole. A state forensic analyst initially testified that no gunshot residue was detected on Edwards' hands when they were tested immediately after the crime. She changed her testimony on cross-examination, stating that one of three chemical elements associated with gunshot residue was found on Edwards hands and that he could have sweated or wiped away the other two. A former FBI agent who later reviewed the case has called that explanation "scientifically unsupportable," explaining that the components of gunshot residue increase or decrease together, and that particles from gunshot residue contain at least two of the three elements that are tested, making it impossible to wipe away two of the elements without wiping away the third. D'Amore and the same state forensic analyst were involved in the 1995 trial of Richard Miles, who was exonerated in 2012 after his lawyers found similar flaws in the analyst's forensic testimony. Defense lawyers also contend that D'Amore withheld evidence that eyewitnesses saw Edwards’ cousin inside the restaurant at the time of the murders and fleeing out the front door. Citing evidence strikingly similar to that presented in the recent Supreme Court case Foster v. Chatman, Edwards' lawyers also argue that his conviction by an all-White jury was the unconstitutional product of racial discrimination.


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Texas Court Orders Release of Former Death Row Prisoner Who Spent 32 Years in Prison Without a Valid Conviction

A Texas Court of Appeals ruled on January 19, 2017 that all charges against Jerry Hartfield should be dismissed with prejudice after the state had kept the intellectually disabled former death row prisoner in prison for 32 years without retrying him after his conviction had been overturned. Calling the situation a "criminal judicial nightmare," the court ruled that the three-decade delay in trying Hartfield violated his constitutional right to a speedy trial. Hartfield had been convicted and sentenced to death for a 1976 murder, but in 1983, the Texas Court of Criminal Appeals overturned his conviction and death sentence because a juror in his case had been improperly excluded. Hartfield, an illiterate man with an IQ of 51, believed he was awaiting retrial, but prosecutors were working to render the court's ruling moot under Texas law by having the governor commute his sentence to life. However, they failed to do so in the time period prescribed by law, and then-Governor Mark White's order attempting to commute Hartfield's former death sentence to life without parole was without legal effect. Hartfield's attorneys did nothing further because they believed they were done with the case. In 2006, a fellow prisoner helped Hartfield begin filing motions in his case. In 2013, the Texas Court of Criminal Appeals told him his motions were improperly filed because the provision under which he sought review applied only to people who had been convicted. At that point, he refiled his claims saying he was improperly incarcerated without a conviction, and finally got a new trial. Hartfield's new lawyers then asked for the charges to be dismissed because he had not received a speedy trial, but prosecutors successfully persuaded the trial court that Hartfield himself was partly to blame for the delay. In 2015, he was retried, convicted, and sentenced to life in prison. If his sentence were counted from his first trial, his 38 years in prison would have made him eligible for parole. He appealed his conviction, once again arguing that his constitutional right to a speedy trial had been violated, and a Texas Court of Appeals agreed, noting that there was precedent for a delay of as many as eight years, but not 32. Prosecutors may appeal the ruling to the Texas Court of Criminal Appeals. David R. Dow of the University of Houston Law Center, one of the lawyers who represented Mr. Hartfield on appeal, described Hartfield's case as, “the perfect storm of everything that could go wrong with the criminal justice system.”


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