The StandDown Texas Project

Clarification Sought for Death Row Inmates in Maryland

"Maryland attorney general takes step to rescind death sentences for 4 death row inmates," is by Brian Witte of Associated Press, via the Greenfield Daily Reporter.

Maryland's attorney general has taken steps that could result in the revocation of death sentences for four inmates who were sentenced to die before the state abolished capital punishment last year.

Doug Gansler announced Thursday that he was filing a brief with the Maryland Court of Special Appeals to support attorneys for Jody Lee Miles. They contend his death sentence is illegal.

The repeal applied only to future death sentences, leaving four men on death row.

The AG's Brief in Miles v. Maryland is available in Adobe .pdf format.

"Md. Attorney General: Vacate sentence of death row inmate," is by Justin Fenton of the Baltimore Sun.

Attorney General Douglas F. Gansler said Thursday that his office was filing a brief with the Court of Special Appeals in the appeal of an Eastern Shore man, Jody Lee Miles, who has asked to be re-sentenced because he says his punishment can no longer be carried out. The brief recommends Miles instead receive life without the possibility of parole.

"Whether or not you agree with the death penalty, the recent repeal of capital punishment in Maryland nevertheless demands that we pursue a prison sentence that ensures Jody Lee Miles dies behind bars, where he belongs," Gansler said.

The Attorney General's office argues that the jury that sentenced Miles had a choice of death or life without parole, the latter which should be imposed with the death penalty essentially off the table.

"Maryland has no authority to execute its death-row inmates, attorney general says," is by John Wagnerfor the Washington Post.

Maryland Attorney General Douglas F. Gansler said Thursday that the state does not have the legal authority to execute the four men who remain on death row following the legislature’s decision last year to abolish capital punishment.

The legislation, championed by Gov. Martin O’Malley (D), did not apply to people sentenced to death prior to its passage. That has left the legal standing of the four death-row inmates in limbo.

Gansler (D) said he has concluded that it is a “legal and factual impossibility” to execute the prisoners because Maryland no longer has regulations in place on how to administer lethal injections. With the death penalty no longer on the books, the state cannot develop new regulations on how to carry out executions, Gansler said. Keeping the men on death row, he argued, therefore violates their due-process rights.

The Daily Record posts, "In about-face, Gansler urges court to spare man on death row."

Outgoing Attorney General Douglas F. Gansler is urging an appellate court to spare the life of a man on Maryland’s death row, saying the state’s 2013 repeal of capital punishment should apply to him.

Gansler, who opposed the death-penalty repeal, appeared at an 11 a.m. press conference with Del. Sandy Rosenberg, a sponsor of the repeal measure.

The attorney general plans to file a brief Thursday with the Court of Special Appeals, backing a request by Jody Lee Miles, who was convicted of the 1997 robbery and murder of Edward Joseph Atkinson in Wicomico County. Miles wants the court to change his death sentence to life in prison without the possibility of parole.

WBAL-AM posts, "Gansler Asks For Death Sentence To Be Reduced For Miles," by Robert Lang.

Gansler says his request only applies to Miles' case, but he says attorneys for the other three men on death row could make a similar request.

He told WBAL News that Miles request could automatically apply to Heath Burch, who is on death row for a 1996 murder in Prince George's County.  Gansler says at the time, a law was in effect that gave the jury the option to consider either a death sentence, or life in prison without parole.

Gansler says a ruling on this case may not apply to Vernon Evans, or Anthony Grandison, who are on death row for a 1983 murder of two people at a Pikesville motel.  Gansler says juries did not have a life without parole option, at the time of their trial.

 The Maryland Attorney General's Office has issued the news release,"A.G. Gansler Seeks to Resolve Uncertainty Following Repeal of Md.'s Death Penalty."

Earlier coverage of the Miles case begins at the link.  More recent news from Maryland is also available.  You can also jump to news of Maryland's 2013 repeal of capital punishment.

Statement From Joseph Wood's Attorney

Dale Baich, an attorney representing Joseph Wood, issued the following statement last night:

"The Governor of Arizona and the Attorney General  have tonight already pronounced that Mr. Wood did not suffer during his two hour execution, during which time the witness from the Arizona Republic counted over 650 gasps for air, and that his execution was lawful. The fact is that Mr. Wood's conviction and sentence were found to be lawful by the courts, but his execution violated this country's ban on cruel and unusual punishment.

Because the Governor and the highest law enforcement official in Arizona have already expressed their view that Mr. Wood did not suffer, and because the state of Arizona fought tooth and nail to protect the extreme secrecy surrounding its lethal injection drugs and execution personnel, the only way to begin to remedy this is with open government and transparency. An independent investigation, led by someone outside of the Department of Corrections and outside of the executive branch of state government, must fully explore the practices which led to tonight's horrifically botched execution."

The Emergency Motion for Stay of Execution filed with the Arizona Supreme Court during the execution is available via Scribd.

Earlier coverage of Arizona's botched execution begins with the preceding post.

Attorney Statement

Below is a statement from attorney Madeline Cohen, who represents Charles Warner. Mr. Warner was scheduled to be executed tonight in Oklahoma, but his execution has been stayed for 14 days, following the botched execution of Clayton Lockett.

"After weeks of Oklahoma refusing to disclose basic information about the drugs for tonight's lethal injection procedures, tonight, Clayton Lockett was tortured to death.

'Without question, we must get complete answers about what went wrong. There must be an independent investigation conducted by a third-party entity, not the Department of Corrections. We also need an autopsy by an independent pathologist and full transparency about the results of its findings. Additionally, the state must disclose complete information about the drugs, including their purity, efficacy, source and the results of any testing. Until much more is known about tonight's failed experiment of an execution, no execution can be permitted in Oklahoma."

Earlier coverage of tonight's botched execution in Oklahoma begins with the preceding post.

New Scholarship on Wrongful Convictions in Death Penalty Cases

The study is available at the Proceedings of the National Academy of Sciences.

Here is a news release announcing the study:

Over Four Percent of People Sentenced to Death are Likely Innocent, New National Academy of Sciences Study Shows
Number of innocent people is likely more than double number of those actually exonerated and freed from death row

(Washington, D.C.) At least 4.1 percent of defendants sentenced to death in the United States are innocent, according to new peer-reviewed research published today in the Proceedings of the National Academy of Sciences, one of the world’s most respected and cited scientific journals.

“[N]o process of removing potentially innocent defendants from the execution queue can be foolproof. With an error rate at trial over 4%, it is all but certain that several of the 1,320 defendants executed since 1977 were innocent,” the study concludes.

“This study provides the first rigorous estimate of the rate of conviction of innocent criminal defendants in any context. It shows that the number of innocent people sentenced to death is more than twice the number of inmates actually exonerated and freed by legal action,” said Bruce Levin, Ph.D., an expert in statistics who did not participate in the research but is familiar with the study. Dr. Levin is Professor and Past Chair, Department of Biostatistics, Mailman School of Public Health Columbia University, and author of Statistics for Lawyers (2001, with Michael O. Finkelstein); Statistical Methods for Rates and Proportions, 3rd Edition (2003, with Joseph L. Fleiss and Myunghee Cho Paik); and The Biostatistics of Aging (2014, with Gilberto Levy).

1.6 percent of those sentenced to death since 1973 in the U.S. – 138 prisoners – have been exonerated and released because of innocence. But many other innocent capital defendants are missed. “The great majority of innocent people who are sentenced to death are never identified and freed. The purpose of our study is to account for the innocent defendants who are not exonerated,” said Professor Samuel R. Gross of the University of Michigan Law School, the lead author of the study.
 
A major reason that many innocent capital defendants are not exonerated is that they are removed from death row but remain in prison. Lawyers, courts and governors focus a great deal of attention and time on reviewing the cases of prisoners who are on death row in order to reduce the risk of executing innocent people. But most death row prisoners have their sentences reduced to life in prison after appeals.

When that happens, the threat of execution is removed and far less time and resources are devoted to seeking out cases of possible innocence. As a result, an innocent defendant who might well be exonerated and released if he remained on death row for many years is likely to die in prison if he is resentenced to life.

To address this issue, the researchers employed a statistical technique called survival analysis that is commonly used in medicine. Survival analysis produces an estimate of the percentage of death-sentenced defendants who would be exonerated if they all remained indefinitely on death row and therefore subject to the exacting process for identifying innocent defendants that is applied to those who remain under threat of execution. The researchers concluded that their finding – 4.1% - is “a conservative estimate of the rate of false conviction among death sentences in the United States.”
 
The authors of the study are Professor Samuel R. Gross, University of Michigan Law School; Professor Barbara O’Brien, Ph.D., Michigan State University College of Law; Chen Hu, Ph.D., Senior Biostatistician, American College of Radiology Clinical Research Center and Adjunct Scholar, Center for Clinical Epidemiology and Biostatistics, University of Pennsylvania School of Medicine; and Edward H. Kennedy, Department of Biostatistics and Epidemiology, University of Pennsylvania School of Medicine. 

Related posts are in the exoneration, innocence, and scholarship category indexes.

More From Washington State

The Washington Governor's Office has just issued, "Governor Inslee’s remarks announcing a capital punishment moratorium."  It's in Adobe .pdf format.

Earlier coverage of the moratorium in Washington is at the link.

Ohio Governor Postpones Gregory Lott Execution

Friday afternoon, Ohio Governor John Kasich issued a news release, postponing the execution of Gregory Lott.  Here's the full text:

Today Gov. John R. Kasich announced that the execution date of Gregory Lott has been moved to Nov. 19. Lott was previously scheduled to be executed on March 19 for murdering John McGrath in 1986 in Cuyahoga County.

"Governor delays killer's execution," is by Andrew Welsh-Huggins, AP Legal Affairs Writer.  It's via the Newark Advocate.

Attorneys for Lott have sued in federal court to stop his execution, arguing the Ohio’s new two-drug combination puts him at risk of unnecessary pain and suffering. Lott’s attorneys also allege Ohio is breaking state and federal laws because it has obtained the drugs without a prescription.

The reprieve says only that “circumstances exist justifying the grant of a temporary reprieve.”

Death row inmate Dennis McGuire, during his 26-minute execution on Jan. 16, made repeated snorting sounds and opened and shut his mouth several times.

McGuire’s family sued the state, arguing the execution was cruel and inhumane. Initial reviews by the Department of Rehabilitation and Correction determined written procedures were followed and there is no need to change them.

The prisons agency is conducting a longer review looking at what happened during the execution.

"Next Ohio execution postponed by Kasich," by Alan Johnson in the Columbus Dispatch.

Unresolved concerns about the drugs used to execute Dennis McGuire last month prompted Gov. John Kasich yesterday to postpone the scheduled March 19 lethal injection of Gregory Lott.

Without comment, Kasich rescheduled Lott’s execution, delaying it for eight months, until Nov. 19.

Kasich spokesman Rob Nichols said the governor wants to give the Ohio Department of Rehabilitation and Correction time to complete its internal review of McGuire’s Jan. 16 execution.

And:

Attorneys for Lott, 51, quickly challenged his upcoming execution, arguing that the drugs could cause “unnecessary pain and suffering” in violation of the Eighth Amendment to the U.S. Constitution. A hearing has been scheduled for Feb. 19 in U.S. District Judge Gregory L. Frost’s court.

The next question involves what happens to four other convicted killers scheduled to be put to death before November. They are Arthur Tyler, May 28; Phillips, July 2; William Montgomery, Aug. 6; and Raymond Tibbetts, Oct. 15.

The Cleveland Plain Dealer reports, "Kasich grants condemned Cleveland killer a reprieve from March execution," by John Caniglia.

The governor's move comes three weeks after the state executed Dennis McGuire, an act that took 26 minutes and caused his family members to complain that it amounted to cruel and unusual punishment.

Initial reports from the prison system show the execution followed state policies and procedures. The Ohio Department of Rehabilitation and Correction is doing a broader examination into McGuire's death.

"Gregory Lott committed a heinous crime, for which he will be executed, and his execution is being moved back to Nov. 19, as the (prison system) finishes its review,'' said Rob Nichols, Kasich's press secretary.

McGuire's death marked the first time any state used a two-drug cocktail of hydromorphone and midazolam in an execution. Witnesses said he spent several minutes gasping for air, as he arched his back and clenched his arms, hands and shoulders.

A Louisiana child killer, Christopher Sepulvado, was to die by the same drugs Wednesday, but a federal judge postponed it to allow attorneys to debate whether the drugs amount to cruel and unusual punishment.

"Ohio governor delays planned execution using two-drug method," by Kim Palmer of Reuters, via the Chicago Tribune.

Ohio on Friday delayed its next scheduled execution to complete a review of a new two-drug combination that left a condemned inmate convulsing and appearing to struggle for breath for several minutes as he was put to death in January.

Gregory Lott, 52, had been scheduled to die March 19 by a lethal injection of the same combination of the sedative midazolam and the pain killer hydromorphone that Ohio had used in the January execution.

NBC News posts, "Ohio Postpones Execution Amid Drug Controversy," by Daniel Arkin.

Amid controversy over the reportedly prolonged execution of an Ohio man injected with a never-before-used drug cocktail, Gov. John Kasich has delayed the scheduled execution of a convicted killer until Nov. 19.

Kasich did not cite a specific reason for the postponement, but the state has been ensnared in a debate over the drugs used in lethal injections after convicted killer Dennis McGuire was injected with an untested mix of midazolam and hydromorphone — and then reportedly took nearly 25 minutes to die as he appeared to gasp for air.

Cleveland Plain Dealer columnis Phillip Morris writes, "Gregory Lott should not be put to death."  Here's an extended excerpt:

So why should we care about this execution?

Because it’s possible we’re killing the wrong guy.

We know that Lott ranked with the lowest kind of vermin that walk the earth. He ruthlessly preyed on the elderly and the defenseless. He appeared to make it his personal mission to depopulate East Cleveland of its few remaining white senior citizens in 1986, when he robbed seven of them in their homes in June and July of that summer.

He was no stranger to McGrath, the man he is convicted of killing, having broken into the man’s house several times, leaving finger prints everywhere.

He apparently considered the old man his personal ATM, and repeatedly robbed and burglarized him with a reckless abandon.

It wasn’t that difficult to convict Lott after he was identified as a suspect and apprehended. Indeed, before a three-judge panel convicted him, Lott confessed to the murder in an attempt to plea bargain for life in prison.

But so certain was the state of Lott’s guilt, a man of borderline mental intelligence, that no plea deal was offered and, after a perfunctory 2-hour trial, he was convicted to die.

But here’s the problem:

During the eight days that McGrath, the victim, survived, he would wake up and talk. He talked to police, and he talked to at least one other patient that shared a room with him.

He talked about the robbery. He talked about a neighborhood barber shop. He talked about the man who attacked him. He described him. But the man he described looked nothing like Lott.

No one appears to have ever taken that physical discrepancy with enough seriousness.

Earlier coverage of Ohio's execution of Dennis McGuire begins at the link.

Live Twitter Q&A Starting Soon on Exonerations Report

Use #NRE13 to ask questions of Prof. Samuel Gross, the report's author, on Twitter at 1:00 p.m. EST/ 12:00 noon CST today.

The National Registry of Exonerations has released a new report.

Here's the news release, "Record Number of Exonerations Occurred in 2013 Compared to Last 25 years; Number of DNA exonerations declined, while non-DNA exonerations rose sharply."

The National Registry of Exonerations reports today that at least 1,304 prisoners falsely convicted of crimes were exonerated over the past 25 years, and there are many more cases yet to be discovered. Eighty-seven (87) known exonerations occurred in 2013, more than any previous year, making 2013 a “record-breaking” year for exonerations in the United States.
 
Contrary to popular belief, the report, “Exonerations in 2013,” shows that the number of exonerations in which DNA played a role has gradually declined since 2005, and only represented about a fifth of the total number of exonerations in 2013. In the same period, the number of non-DNA exonerations per year doubled from 34 in 2005 to 69 in 2013.
 
Read the report, which includes a separate detailed summary of all known exonerations from 1989 through 2013, in Adobe .pdf format.

See an infographic here.

Use #NRE13 to ask questions of Prof. Samuel Gross, the report's author, on Twitter at 1:00 p.m. EST/ 12:00 noon CST today.

The trends in 2013 reflect several long-term trends in exonerations in America:

•      Twenty-seven (27) of the 87 known exonerations that occurred in 2013 -- almost one-third of the total number for the year -- were in cases in which no crime in fact occurred, a record number.

•      Fifteen (15) known exonerations in 2013 -- 17 percent -- occurred in cases in which the defendants were convicted after pleading guilty, also a record number. The rate of exonerations after a guilty plea has doubled since 2008 and the number continues to grow.

•      Thirty-three (33) known exonerations in 2013 -- 38 percent -- were obtained at the initiative or with the cooperation of law enforcement. This is the second highest annual total of exonerations with law enforcement cooperation, down slightly from 2012, but consistent with an upward trend in police and prosecutors taking increasingly active roles in reinvestigating possible false convictions.

In 2013, Reginald Griffin, who had been sentenced to death in Missouri, was exonerated, bringing the total number of death row exonerations to 143 across 26 states since 1973, according to the Death Penalty Information Center.

The ten states with the most recorded exonerations in 2013 were: Texas (13), Illinois (9), New York (8), Washington (7), California (6), Michigan (5), Missouri (5), Connecticut (4), Georgia (4), and Virginia (4). The states with the most recorded exonerations are not necessarily those where most false convictions have occurred.
“Exonerations are on the rise, and a lot of the credit goes to prosecutors and police who are increasingly active in investigating possible false convictions. But there are many false convictions that we don’t know about,” said Michigan Law professor Samuel Gross, editor of the Registry and an author of the report. “The exonerations we know about are only the tip of the iceberg.”

“More people are now paying attention to wrongful convictions. Police, prosecutors, judges and the public are all more aware of the danger of convicting innocent defendants,” said Professor Gross.
 
“The more we learn about wrongful convictions, the better we’ll be at preventing them  - and of course at correcting them after the fact as best we can,” said Rob Warden, co-founder of the Registry and Executive Director of the Center on Wrongful Convictions. “Studying the reasons for wrongful convictions - perjury, mistaken identification, official misconduct, false confessions, misleading forensic evidence – will lead to fewer convictions of the innocent.”

Earlier coverage of the Registry begins at the link; news coverage of the report, next.

Boston Bar Association Denounces Federal Death Prosecutions in State

"Boston Bar Association Opposes Death Penalty in Federal Cases," is the BBA news release.  The Bar Association Report is available in Adobe .pdf format.

Today's Boston Globe reports, "Boston lawyers’ group blasts death penalty," by Milton J. Valencia.

The Boston Bar Association, which represents more than 10,000 lawyers and some of the top firms in the state, released an internal study Tuesday strongly opposing the death penalty in federal cases, the organization’s most pronounced stand against federal capital punishment in its 250-year history.

The announcement was made as federal prosecutors consider whether to seek the death penalty for Dzhokhar Tsarnaev, the suspected Boston Marathon bomber, and as prosecutors continue to seek capital punishment for admitted serial killer Gary Lee Sampson.

“Without equivocation, the death penalty has no place in the fair administration of justice and makes no sense on a practical level,” said Paul T. Dacier, the bar association’s president, who ordered a review of the organization’s stance on the death penalty in August. The review was also made to determine whether to speak out against federal capital punishment.

“Regardless of how heinous the crime, we stand strong against the death penalty in federal and state cases,” Dacier said.

"Podcast: Paul Dacier explains reasons for BBA’s opposition to death penalty," by David E. Frank is the post at Massachusetts Lawyers Weekly.  There is audio at the link.

The Boston Bar Association announced today that, for the first time in its 250-year history, the organization is taking a stand against the death penalty in federal cases.

The announcement comes after a panel chaired by retired Superior Court Judge Margaret R. Hinkle and Foley Hoag partner Martin F. Murphy conducted a study on the issue, and just weeks before federal prosecutors are required to inform U.S District Court Judge George A. O’Toole Jr. whether they intend to seek the death penalty against accused Boston Marathon bomber Dzhokhar Tsarnaev.

"Boston Bar takes stand against death penalty in federal cases," is by Mary Moore for the Boston Business Journal.

The Boston Bar's position comes as part of a report issued by a working group that President Paul Dacier convened last fall to review the group's 40-year-old death penalty stance. In addition to reviewing its existing death penalty position for state cases, the working group was charged also with considering whether the bar association should take a position on federal cases.

"Without equivocation, the death penalty has no place in the fair administration of justice, and makes no sense on a practical level," said Dacier.

And:

Retired Superior Court Judge Margaret Hinkle and Martin Murphy, a trial attorney and partner at Foley Hoag LLP, chaired the death penalty working group, which included five other members.

A decision whether to pursue the death penalty in the Boston Marathon bombing case has not yet been made.  A resentencing trial in another federal death penalty case is currently pending in Massachusetts.  Massachusetts has no state death penalty.

Related posts are in the federal death penalty category index.

Death Penalty Focus Names New Executive Director

"Matthew Cherry to head non-profit advocacy group," is the news release issued by the California-based aboliton organization.  It's via PR Newswire and Digital Journal.  Here's the complete text of the release:

Death Penalty Focus, one of the country's largest non-profit grassroots advocacy groups dedicated to abolishing capital punishment, has named a new executive director--Matthew A. Cherry, president of the United Nation's NGO Committee on Freedom of Religion or Belief and an anti-death penalty advocate from New York.

Cherry, 46, will assume his duties January 2 and will direct a non-profit with 80,000 members and supporters nationwide committed to repealing the death penalty through various forms of civic engagement.

"This is a vital step, one that will propel our critical work into the future," said DPF President Mike Farrell, a human rights activist and veteran television and movie actor known to millions as Dr. B.J. Hunnicutt on the TV show "M*A*S*H".  

"Matt comes to us with excellent experience, skills and qualifications to fill the role of executive director,'' Farrell said. "He has worked nationally and internationally on human rights issues and on anti-death penalty issues in New York State, where he was part of the lobbying effort to prevent reinstatement of the death penalty."

Cherry will relocate from New York to the San Francisco Bay Area.

"I'm very grateful for the opportunity to help make a difference on an issue that I'm passionate about,'' Cherry said. "Abolishing the death penalty in California and across the United States will send a strong message to the rest of the world.  I know many people care deeply about this issue; we want to help them get involved in eliminating this shameful violation of human rights.''

Since 2002, Cherry has been president of the United Nation's NGO Committee on Freedom of Religion or Belief where he has led hundreds of religious groups and civil society representatives in efforts to protect the basic human right of religious freedom. Prior to that, he served as executive director for the Institute for Humanist Studies and the Council for Secular Humanism, where he managed multi-million-dollar fundraising campaigns, pioneered recruitment through social media, and introduced programs that greatly expanded local chapters and financial assets.

Since 2008, Cherry also has developed and implemented marketing and programming for the International Humanist & Ethical Union, an NGO with member organizations in 40 countries. During that time, he also was Executive Vice President of Cherry Communications.

Death Penalty Focus, founded in 1988, has been fighting to repeal death penalty laws through public education, grassroots and political organizing, media outreach, state and national coalition building, original research and the education of religious, civic and legislative leaders about the alternatives to capital punishment.

Related posts are in the news release category index.  Earlier coverage from California begins at the link.

Penn State Law Prof Looks at Federal Death Prosecutions

"Death penalty scholar joins Penn State Law as visiting professor," is from Penn State News.  It's written by Noelle Mateer.

What happens when the federal government seeks the death penalty for crimes committed in a non-death penalty state? Professor Michael Mannheimer plans to find out.

He joined the Penn State Law faculty as a visitor from northern Kentucky this fall and focuses his teaching and research on the death penalty.

For instance, Mannheimer believes the federal government will seek the death penalty for the surviving Boston Marathon bombing suspect. However, Massachusetts abolished its death penalty nearly 30 years ago.

The crux of the issue is Mannheimer’s true interest: states’ rights. Mannheimer explained that the authors of the Bill of Rights were Anti-Federalists — very pro-states’ rights. “It’s fascinating to me because we don’t think of it that way anymore,” he said. “My research delves into how we can interpret the Bill of Rights with that states’ rights spin.”

To start off, Mannheimer will study a 1937 federal death penalty case, U.S. vs. Chebatoris, in which the federal government imposed a death sentence on a bank robber in Michigan, a death penalty-free state. Despite the efforts of then-Gov. Frank Murphy, Chebatoris was hanged on July 8, 1938, the first person executed in Michigan in 108 years.

Related posts are in the federal death penalty and law school category indexes.

Posthumous Pardon Sought for Todd Willingham

"Citing New Evidence, Innocence Project Calls for Pardon," is Brandi Grissom's report, available in today's Texas edition of the New York Times and at the Texas Tribune.

Armed with what it says is new evidence of wrongdoing in the prosecution of Cameron Todd Willingham, the Innocence Project on Friday will ask Gov. Rick Perry to order the Texas Board of Pardons and Paroles to investigate whether the state should posthumously pardon Mr. Willingham, whose 2004 execution has become a lightning rod of controversy over the Texas justice system.

“This is a terrible thing to not only execute somebody who was innocent; this is an individual who lost his three children,” said Barry Scheck, co-founder of the Innocence Project, a legal group that focuses on wrongful convictions.

The organization says it discovered evidence that indicated the prosecutor who tried Mr. Willingham had elicited false testimony from and lobbied for early parole for a jailhouse informant in the case.

The informant, Johnny Webb, told a Corsicana jury in 1992 that Mr. Willingham had confessed to setting the blaze that killed his three daughters.

The Innocence Project also alleges that the prosecutor withheld Mr. Webb’s subsequent recantation. The organization argues that those points, combined with flawed fire science in the case, demand that the state correct and learn from the mistake it made by executing Mr. Willingham.

Former Judge John H. Jackson, the Navarro County prosecutor who tried Mr. Willingham, said the Innocence Project’s claims were a “complete fabrication” and that he remained certain of Mr. Willingham’s guilt.

And:

Now, Mr. Scheck said, his organization has discovered that prosecutors went to great lengths to secure false testimony from Mr. Webb, to repay him for helping secure the conviction and to hide the recantation.

During the trial, Mr. Webb, who was in jail on an aggravated robbery charge, said he was not promised anything in return for testifying. But correspondence records indicate that prosecutors later worked to reduce his time in prison.

In a 1996 letter, Mr. Jackson told prison officials Mr. Webb’s charge should be recorded as robbery, not aggravated robbery.

But in legal documents signed by Mr. Webb in 1992, he admitted robbing a woman at knife point and agreed to the aggravated robbery charge.

In letters to the parole division in 1996, the prosecutor’s office also urged clemency for Mr. Webb, arguing that his 15-year sentence was excessive and that he was in danger from prison gang members because he had testified in the Willingham case.

In 2000, while he was incarcerated for another offense, Mr. Webb wrote a motion recanting his testimony, saying the prosecutor and other officials had forced him to lie.

That motion, Mr. Scheck said, was not seen by Mr. Willingham’s lawyers until after the execution. Meanwhile, he said, prosecutors used the testimony to stymie efforts to prove Mr. Willingham’s innocence and prevent his death.

The Innocence Project has issued a news release, "Cameron Todd Willingham’s Surviving Relatives, Joined by Exoneree Michael Morton, Request Posthumous Pardon Investigation."  Here's the beginning of the release:

Relatives for Cameron Todd Willingham were joined by exoneree Michael Morton at a press conference at the Texas capitol today to urge the state to conduct an investigation into Willingham’s wrongful execution. Last year, Willingham’s family filed a posthumous pardon petition before the Texas Board of Pardons and Paroles asking that the state pardon Willingham, who was executed in 2004 for the arson murder of his three daughters despite compelling evidence of his innocence. The Innocence Project filed an amended petition today on behalf of the Willingham family presenting newly discovered evidence that points to possible false testimony at his trial and possible prosecutorial misconduct that may have contributed to his wrongful execution.
 
“Todd’s dying wish was that we help clear his name, and we can’t let this go until the state acknowledges the grave injustice that Todd suffered,” said Eugenia Willingham, Willingham’s stepmother. Patricia Willingham Cox, Willingham’s cousin added, “The more we learn about Todd’s case, the more we see how tragically the system failed him. The Texas Board of Pardons and Paroles has the power to finally conduct a thorough investigation into his case, and we urge it to do so for the sake of all Texans who deserve a clemency system that values justice over mere finality.”
 
Following the press conference, exoneree Michael Morton walked with Willingham’s surviving relatives to deliver a letter to Gov. Perry asking for a meeting with him to explain why a hearing is needed. A copy of the letter is available.

Earlier coverage of Todd Willingham's case begins at the link.

All Willingham coverage is available through the Todd Willingham index.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

Conservative Reaction to the Texas Report

"Conservatives Concerned About the Death Penalty Reaction to Assessment of Capital Punishment in Texas," is the organization's news release.  Here's the full text:

A new assessment of the Texas capital punishment system released today by the American Bar Association found significant flaws in the way that Texas metes out the death penalty.

The in-depth two year study was conducted by an independent team of former judges, a former prosecutor, a former governor, and others. The study revealed an error-prone system marked by an array of failures that end up costing taxpayers far more money, while putting innocent people at risk of execution.

“The key findings of the report are an affront to core conservative beliefs such as individual liberty, limited government, and fiscal restraint,” said Marc Hyden, a national coordinator for Conservatives Concerned About the Death Penalty. “Problems with laboratories and the inconsistent reliability of forensic evidence must be addressed before a state exercises the power to take a life.”

Two conservative members of the assessment team held leadership positions in the administration of Texas criminal justice policies. The Honorable Deborah Hankinson served as a justice on the Texas Supreme Court and Charles Terrell served as past Chairman of the Texas Department of Corrections, the Texas Department of Criminal Justice, and the Texas Criminal Justice Task Force.

Texas ranks third in the nation with a dozen people being sentenced to death and later freed after evidence was discovered that they were wrongly convicted. The state has paid out more than $60-million since 1992 in compensation to people who were wrongly convicted.

“With this latest study there can no longer be any doubt that the death penalty system in Texas – as it is elsewhere – is not only costly and wasteful, but it’s also unfair, and inaccurate,” Hyden said. “As conservatives, we cannot ignore the reality of the situation, this is another failed government program that should be scrapped.

About Us

Conservatives Concerned About the Death Penalty is a nationwide group of conservatives questioning whether capital punishment is consistent with conservative principles and values due to the system’s inefficiency, inequity, and inaccuracy. Conservatives Concerned About the Death Penalty is a project of Equal Justice USA, a national, non-partisan, grassroots organization working to build a criminal justice system that works. For everyone. To learn more go to www.conservativesconcerned.org.

Earlier coverage of the ABA Texas Assessment begins with the preceding post.  Also available, earlier news of Conservatives Concerned.

Scenes From the ABA Texas Assessment News Conference

Here are photos from the Speaker's Committee Room news conference in the Texas State Capitol.

University of Texas Law Professor Jennifer Laurin speaks at the news conference. She Chaired the Texas Assessment team.

Others at the news conference: Thurgood Marshall School of Law Professor Ana M. Otero, Anthony Graves, Mark White, Paul Coggins.

Former Texas Governor Mark White was a member of the Texas Assessment team. Texas' first post-Furman execution occurred when he was the state's Attorney General. In his four years as governor, 19 executions were conducted.

At the right is former U.S. Attorney Paul Coggins.

Texas death row exoneree Anthony Graves was a member of the Texas Assessment team. He called on all branches of Texas government to read the report.

Earlier coverage of the ABA Texas report begins at the link.

ABA News Release on the Texas Assessment

The ABA's Texas Assessment on the Death Penalty is now available on the ABA website.

"Texas Assessment Team Releases Report on State's Death Penalty System, Cites Urgent Need for Reform," is the ABA news release, via PR Newswire.  Here's the full text of the release:

The Texas Capital Punishment Assessment Team, organized by the American Bar Association (ABA), today issued a comprehensive report with recommendations to help ensure fairness and accuracy in the state's death penalty system.

"Evaluating Fairness and Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment Report" is the culmination of a two-year review of Texas capital punishment laws, procedures and practices by an assessment team of former judges, prosecutors, elected officials, practitioners and legal scholars.

"A just system of capital punishment in our legal system requires procedures that ensure that only those deserving of the ultimate punishment are sentenced to death, and that the public have confidence in the adequacy of the criminal justice system to that task," said Jennifer Laurin, Professor at the University of Texas at Austin School of Law, and chairwoman of the Assessment Team. "Texans cannot accept less than the strongest system of checks and balances to ensure that our capital punishment system is fair and minimizes the risk of wrongful convictions and unjust executions."

Former Gov. Mark White, who oversaw 19 executions during his term, said, "I know that no decision is as weighty or significant as whether or not to allow an execution to go forward" and that he is "pleased that this report brings into clear focus the current state of the death penalty system in Texas and recommends prompt action to protect the innocent and provide a fair and accurate system for every person who is sentenced to death."

Paul Coggins, former U.S. Attorney for the Northern District of Texas, noted that mistakes in the administration of the death penalty lead to serious public safety concerns with the innocent being convicted, possibly facing execution, while a guilty perpetrator remains free to commit additional crimes. Such a flawed process exacts an intangible toll on victims' families.

"State and federal courts spend significant time and resources correcting errors in capital cases – errors that could have been prevented – to the detriment of the vast majority of Texans who rely on the justice system every day. We can do better," Coggins said.

Recent reforms like the Michael Morton Act, improved handling of eyewitness identifications, and creation of new institutions like the Criminal Justice Integrity Unit, the Regional Public Defender for Capital Cases and the Office of Capital Writs have all strengthened capital punishment procedures in Texas.

Despite recent progress, assessment team members have identified a number of areas in which the state's death penalty system fall far short.

Notably, the Lone Star State appears out of step with better practices implemented in other capital jurisdictions, failing to rely upon scientifically reliable evidence and processes in the administration of the death penalty, and providing the public with inadequate information to understand and evaluate capital punishment in the state.

The nearly 500 page report states that the system could be helped with a myriad of reforms to correct short-comings in death penalty administration, including defense services, procedural restrictions and limitations on state post-conviction and federal habeas corpus proceedings, jury instructions, an independent judiciary, racial and ethnic minority representation, and mental retardation and mental illness.

Of the 500-page Report, team member and former Chairman of the Texas Department of Criminal Justice Charlie Terrell noted, "This document catalogues numerous reasons why I asked to have my name taken off the death row unit in Huntsville."

Potential changes recommended in the report to help make the administration of capital punishment in Texas more fair and accurate include:

• Spend scarce state funds on bringing perpetrators to justice, not convicting the innocent. An error-prone capital punishment system is expensive. Since 1992, Texas had paid over $60 million to people who were wrongly convicted and imprisoned.  This money would have been better spent bringing actual perpetrators to justice, including by adequately funding forensic science and the provision of defense services.
• Ensure Texas' procedures are science-based. In too many areas – from expert evidence to determining a defendant's eligibility for the death penalty –Texas's procedures are out of line with the best known scientific methods and procedures. This must be fixed in order to ensure the very credibility of our system.
• Empower juries in capital cases. Jurors deserve full and accurate information about their responsibilities and about their sentencing options in capital cases. A number of improvements and clarifications of the instructions given to jurors would both improve the accuracy of their decision-making and better inform them of their roles and responsibilities in deciding whether to sentence a defendant to death. A jury should never sentence someone to death because they are confused about the law in the case. 
• Provide fair deadlines and procedures for death row inmates with serious appellate or constitutional issues. The people already on Texas's death row have not received the benefits of recent reforms to the Texas capital punishment system.   This uneven treatment is not tolerable in our system of justice. Because of deadlines and other hurdles that are out of step with procedure in other capital punishment states, current death row inmates may be executed without a court ever reviewing cases with serious procedural and constitutional problems. The post-conviction process in Texas needs to be brought into line with other capital punishment states by making filing deadlines more consistent, making the process more thorough and transparent with in-person review hearings and published opinions upholding or overturning convictions, and a proportionality review to ensure that the death penalty is being applied consistently across Texas.
• Make clemency a meaningful process. Texas should have confidence that the final safeguard to prevent wrongful execution is a meaningful one. Its current clemency process does not serve this function. Texas's clemency process may not only result in minimal review, but it also may contribute to the extraordinarily high denial rate of clemency petitions in Texas: Texas has executed 503 inmates in the modern death penalty era and has commuted the sentence of only two inmates facing imminent execution. By comparison, the state with the second highest number of executions after Texas – Virginia – has executed 110 inmates while commuting the sentence of eight inmates. 

The report is part of a six-year effort by the ABA to examine the extent to which death penalty states ensure fairness and minimize the risk of executing the innocent.  The report takes no position on the death penalty per se, the Texas assessment team focused exclusively on reviewing current laws and practices in the state's death penalty system. 

To date, the ABA has conducted assessments of the death penalty systems in Alabama, Arizona, Florida, Georgia, Indiana, Kentucky, Missouri, Ohio, Pennsylvania, Tennessee and Virginia.

In addition to Laurin, White, and Coggins, other members of the Texas Capital Punishment Assessment Team include W. Royal Furgeson, retired U.S. District Court judge for the Northern District of Texas; former Texas Supreme Court Justice Deborah Hankinson; Ronald Breaux of Haynes and Boone, LLP, in Dallas; Professor Ana Otero of the Thurgood Marshall School of Law at Texas Southern University, and Charles Terrell, Sr., founder of Safer Dallas.

Earlier coverage of the ABA Texas report begins at the link.

Missouri Supreme Court Sets Execution Dates

"Mo. Supreme Court sets fall execution dates for 2 inmates despite lethal injection challenge," by AP,via the Washington Post.

The Missouri Supreme Court set execution dates Wednesday for two inmates after having declined previous requests to do so amid concerns about the state’s lethal injection process. 

The high court did not state in its orders why it decided now to set execution dates. Executions essentially have been on hold in Missouri since the court declined last August to set dates for six inmates. The court said then that execution dates would be “premature” until a legal challenge in federal court was resolved regarding the use of the drug propofol as Missouri’s designated execution method. 

On Wednesday, the state Supreme Court set an Oct. 23 execution date for Allen Nicklasson and a Nov. 20 date for Joseph Franklin.

Earlier coverage of Missouri lethal injection issues begins at the link; also available, other Missouri news coverage.

New Leadership at NYADP

"Rev. Valerie Ackerman Named Executive Director of New Yorkers for Alternatives to the Death Penalty," is the news release issued by NYADP, via Read Media.  Here's the beginning of the release:

The Most Reverend Howard J. Hubbard, Bishop of Albany and chairman of the board of directors of New Yorkers for Alternatives to the Death Penalty (NYADP), is pleased to announce the appointment of the Reverend Valerie Mapstone Ackerman, MSW, MDiv., to be the organization's executive director.

"With her experience in program direction and coordination, her familiarity with communities and individuals in crisis, and her passion for social justice, we believe Rev. Ackerman to be an excellent choice for an organization committed to making Capital Region communities safer and its residents more self-sustaining," Bishop Hubbard said.

Rev. Ackerman brings experience in non-violent social change as a pastor and consultant in large and small churches; founder of Peace House in Tulsa, Ok; chaplain and program director for persons suffering from intimate partner violence; advocate for homeless children and youth; and volunteer in dozens of social change organizations.

She is an expert in creative and innovative program development and has hundreds of hours of training in mediation, anti-racism, anti-oppression and restorative justice; and specialized training in Polarities Management, the Carver Model for nonprofit board service, Bowen Family Systems' analysis and intervention, and Rosenberg's Nonviolent Communication strategies.

In 2007, the New York Court of Appeals ruled the state's death penalty statute unconstitutional.  The New York Assembly has chosen to not reform the law.

Earlier coverage of NYADP and it's retired leader, David Kaczynski, at the links.

John Ferguson

The Supreme Court has refused to issue a stay of execution for John Ferguson.  He is scheduled to be executed by Florida at 6:00 pm, tonight.  The Supreme Court's Order in Ferguson v. Crews is available in Adobe .pdf format.

Christopher Handman, Attorney for John Ferguson, has issued a statement on the "U.S. Supreme Court’s Denial of Certiorari Petition and Stay Motion; Tonight’s Scheduled Execution of Mr. Ferguson is Unconstitutional and Unconscionable."  Here's the complete statement:

“We are gravely disappointed that the U.S. Supreme Court denied John Ferguson’s request to clarify the standard for evaluating an individual’s competence to be executed and denied his request to invoke the Court’s categorical bar on the execution of the insane. Mr. Ferguson has a documented 40-year history of severe mental illness diagnosed repeatedly by state doctors in state institutions. Mr. Ferguson has been profoundly mentally ill for four decades, pre-dating the crimes for which he is scheduled to be executed, but is now deemed suddenly and inexplicably cured.  

“The prohibition on the execution of the insane dates from early English common law.  The Supreme Court has adopted this categorical exclusion on the execution of the insane.  Mr. Ferguson is insane and incompetent for execution by any measure. He has a fixed delusion that he is the “Prince of God” who cannot be killed and will rise up after his execution to fight alongside Jesus and save America from a communist plot. He has no rational understanding of the reason for his execution or the effect the death penalty will have upon him. Under established Supreme Court precedent, Panetti v. Quarterman (2007), Mr. Ferguson’s execution will violate the Eighth Amendment.”

NAMI has issued the news release, "NAMI's Response to U.S. Supreme Court Decision Allowing Execution of John Ferguson; Mental Illness Ignored," via PR NewsWire.

The National Alliance on Mental Illness (NAMI) issued the following statement by Ron Honberg, national director of policy and legal affairs, in response to the U.S. Supreme Court's decision to reject an appeal and an emergency stay in the case of John Ferguson—who was executed by the State of Florida on Monday, Aug. 5 at 6:17 p.m. ET.

"NAMI is very disappointed by the Supreme Court's decision. It let stand what we consider to be a violation of constitutional law. The tragedies of John Ferguson's original crimes are compounded now by an additional tragedy –one in which the legal system failed to recognize established medical understanding of serious mental illness.

"While we do not in any way excuse Ferguson's crimes, executing him ignores the Eighth Amendment's prohibition against executing individuals who are too ill to rationally comprehend the reason for their execution."

Last week, NAMI filed an amicus brief with the U.S. Supreme Court, arguing that the Florida Supreme Court had applied an outdated, unconstitutional standard in reviewing Ferguson's sentence. At that time, Honberg stated that life without parole would be a more appropriate sentence.

Earlier coverage of John Ferguson's case begins at the link.

Related posts are in the competency and mental illness category indexes.  The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in the 1986 case, Ford v. Wainwright; more via Oyez.  Coverage of Scott Panetti's case begins at the link.  More on the U.S. Supreme Court 2007 ruling in  Panetti v. Quarterman is via Oyez.

ABA Files Amicus in John Ferguson Case

The American Bar Association has issued the news release, "ABA asks Supreme Court to clarify competency standard in case of Florida death row inmate."  Here's the full text:

In a case involving a death row prisoner in Florida who has long suffered from severe mental illness, the American Bar Association is asking the U.S. Supreme Court to clarify the Eighth Amendment standard to be applied when determining competency to be executed.

The ABA’s amicus brief in Ferguson v. Secretary, Florida Department of Corrections, filed in support of the prisoner’s request that the court grant certiorari in his case, observes that several courts, including the Florida Supreme Court in this case, have variously misapplied the U.S. Supreme Court’s precedent in Panetti v. Quarterman. In that 2007 decision, the court held that for a prisoner to be competent for execution, he must have a rational understanding of the meaning and purpose of his execution, the ABA notes.

“Holding a person accountable is intended to be an affirmation of personal responsibility. Executing someone who lacks a meaningful understanding of the nature of this awesome punishment and its retributive purpose offends the concept of personal responsibility rather than affirming it,” the brief states, quoting from the amicus brief the ABA previously filed in Panetti.

Thus, the ABA argued in its Panetti brief, when “a death row inmate attributes his pending execution to reasons that only someone suffering from a significant mental disability could espouse — such as a delusion that he is to be executed because of his faith in God — he cannot be said to have the capacity to accept responsibility for his crimes.”

State and federal courts have been unable to apply Panetti in a uniform manner, the ABA’s Ferguson brief argues, stating, “The Court should grant the petition and now clarify the standard courts should apply in determining whether a capital prisoner is competent to be executed.”

The ABA’s Ferguson amicus brief is available online here.

"Schizophrenic US murder convict appeals execution," is the AFP post, via Business Recorder.

The lawyer of a mentally ill man who killed eight people and proclaimed himself "the prince of God" has petitioned the US Supreme Court for a halt to his execution.

John Ferguson, 65, who has a documented history of paranoid schizophrenia, is scheduled to be executed on a Monday August 5 execution at Florida State Prison in Raiford.

Earlier coverage of John Ferguson's case begins at the link.

Related posts are in the competency and mental illness category indexes.  The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in the 1986 case, Ford v. Wainwright; more via Oyez.  Coverage of Scott Panetti's case begins at the link.  More on the U.S. Supreme Court 2007 ruling in  Panetti v. Quarterman is via Oyez.

ABA President Calls for Stay for Warren Hill

"Grant stay of execution for Warren Hill," is the statement of American Bar Association President Laurel Bellows.  Here is her complete statement:

Serious questions of fact and law are issues in all death penalty cases, and they are often in dispute. But not in the case of Warren Hill, a Georgia prisoner scheduled to be executed on July 15. The facts are clear: All the mental health experts who have examined Hill agree that he is “mentally retarded.” The law is also clear: The United States Supreme Court held in 2002 that it is unconstitutional to execute persons with mental retardation.

Georgia requires a uniquely high standard of proof to demonstrate this condition. The Supreme Court should decide whether the imposition of this stringent and extreme burden unconstitutionally risks the execution of persons with mental retardation like Hill. But unless Hill’s execution is stayed, he will be executed before the court can make its decision.

For these reasons, and because the American Bar Association has long opposed the execution of persons with mental retardation, the ABA strongly urges that Hill’s execution be stayed until his pending Supreme Court petition can be considered and decided on the merits. A stay of execution is not only appropriate in these compelling circumstances — it is what justice demands in order to prevent an unconscionable result.

Earlier coverage of Warren Hill's case begins with the preceding post.

Missouri Propofol Stock Expiring

"Mo. AG renews request to execute 2 men, cites limited and expiring supply of execution drug," is the Associated Press report by David A. Lieb. It's via the Tribune of Seymor, Indiana.  Here's an extended excerpt:

Attorney General Chris Koster asked Missouri's highest court to set execution dates Monday for two long-serving inmates, arguing that time is running short to use a limited, nearly expired supply of a lethal injection drug.

Executions essentially have been on hold in Missouri since the state Supreme Court last August declined to set execution dates for six condemned prisoners. The court said then that execution dates would be "premature" until a federal legal challenge was resolved regarding the use of the drug propofol as Missouri's newly designated execution method.

Propofol gained public attention as the anesthetic drug that killed pop star Michael Jackson in 2009. It has never been used as an execution drug. Defense attorneys for Missouri inmates have asserted that it could cause extreme pain in violation the U.S. Constitution's protection against cruel and unusual punishment.

Drug maker Fresenius Kabi USA, a German company with U.S. offices based in Schaumburg, Illinois, said last year that it won't sell propofol to states looking to use it in executions.

Meanwhile, Missouri's existing supply of the drug is aging.

The attorney general's office said in court documents filed Monday that the Missouri Department of Corrections has just three quantities of propofol remaining — with one expiring this October, another in May 2014 and the third in 2015. As each batch expires, the department's ability to carry out executions diminishes, the attorney general's office said.

"This Court should not allow the mere pendency of ongoing federal litigation to effectively eliminate capital punishment in Missouri simply because the lawsuits outlast the Department's supply of propofol," the attorney general's office wrote in a court document signed by Assistant Attorney General Stephen Hawke.

Koster's office specifically asked the state Supreme Court to set execution dates for two Allen Nicklasson and Joseph Franklin.

MissouriNet posts, "Koster wants executions ," by Bob Priddy.  There is audio at the link.

The timing of Koster’s request is intentional. A new Chief Justice is in charge of the court, as of yesterday. And a new member of the court has not addressed the issue. 

Koster also worries that more delays will let more drug manufacturers withdraw their drugs for use. And he says a legislature that will not repeal the death penalty might consider reinstituting the gas chamber if lethal injection executions are essentially unofficially negated by the court. He says that’s a not necessarily an issue that should be back on the table.

Koster says the Department of Corrections has assured him it could do an execution if a date is set.

"Missouri AG Wants Execution Dates Set Before Execution Drugs Expire," is by Perry Stein for Talking Points Memo.

Missouri's Attorney General called on the state's Supreme Court to set execution dates for two murderers before the state's supply of its new execution drug, propofol, expires, according to a Monday press release.

The Supreme Court ruled last August that Attorney General Chris Koster's previous request to set execution dates were premature because not all questions regarding the use of propofol in executions had been settled.

But Koster said that waiting until federal litigation is finished could prevent the state from going through with these exectutions at all, since much of its supply of the drug will expire next spring. 

The Missouri Attorney General's Office has issued a news release, "Attorney General Koster renews request for Missouri Supreme Court to set execution dates for two men on death row."

"For nearly a decade, the mere pendency of federal litigation has been used as an artificial hurdle, unauthorized by law or federal court order, to prevent the State from carrying out the death penalty," Koster said. "The Court's current position has allowed successive, limited supplies of propofol to reach their expiration dates. Unless the Court changes its current course, the legislature will soon be compelled to fund statutorily-authorized alternative methods of execution to carry out lawful judgments."

Earlier coverage of Missouri lethal injection issues begins at the link; also available, other Missouri news coverage.

Steven Hawkins Named Executive Director of AI USA

"Amnesty International USA Names NAACP'S Steven W. Hawkins as Executive Director," is the title of a news release issued by Amnesty International USA, via PR NewsWire.

Amnesty International USA's (AIUSA) Board of Directors announced today that it has named Steven W. Hawkins as executive director. As Executive Vice President and Chief Program Officer of the NAACP, Hawkins is a nationally renowned attorney and grassroots advocacy leader at the forefront of social justice issues, including death penalty abolition, criminal justice system reform and defending civil liberties. He will officially become executive director on September 25.

"Steve Hawkins has an innate understanding of grassroots advocacy and the power of people to bring about social change. He will be a galvanizing force in inspiring and engaging our members, volunteers, supporters and staff," said Shahram Hashemi, Chair of the Board of Amnesty International USA. "We are excited to have Steve at the helm. He is a leader with the heart, vision and drive to help us win the human rights battles ahead."

And:

Hawkins began his career in social justice as an attorney with the NAACP Legal Defense Fund, where for nearly six years he represented African American men facing the death penalty. During this period, he investigated and brought litigation that led to the successful release of three teenagers wrongfully convicted in Tennessee. He later became the executive director of the National Coalition to Abolish the Death Penalty (NCADP) where he helped end the death penalty for juvenile crimes. Hawkins then moved into philanthropic work as senior program manager at the JEHT ("Justice,  Equality Human dignity and Tolerance Foundation, and later as program executive at Atlantic Philanthropies, where he directed the foundation's investment in a $60 million campaign to protect and defend human rights against abusive national security policies.

Related posts are in the activism category index.

Duane Buck Case Featured on HuffPost Live Today

The Duane Buck case will be featured on Huffington Post Live today at 1:00 pm CDT (2:00 pm EDT).  NAACP LDF attorney Christina Swarns and former Texas Governor Mark White will discuss the case.

LDF has also released a new video on the case.  Here's more from the news release:

Today, the NAACP Legal Defense & Educational Fund, Inc. released a new video highlighting the racial discrimination in the Texas death penalty system and the shocking case of death-sentenced prisoner, Duane Buck.  Mr. Buck was sentenced to death in Harris County (Houston), Texas, after his trial prosecutor elicited testimony from a psychologist indicating that Mr. Buck was more likely to be dangerous because he is Black. The video was produced by award-winning documentary filmmakers Emily Kunstler and Sarah Kunstler.

The video is “A Broken Promise in Texas: Race, the Death Penalty and the Duane Buck Case.”

“A Broken Promise in Texas” contains powerful, never-before-seen interviews with Texas civil rights leaders, elected politicians, the surviving victim in the Buck case, one of Mr. Buck’s trial prosecutors and Mr. Buck’s family members, among others, calling for a new, fair sentencing hearing.  The video’s release comes at a critical juncture, as Mr. Buck may soon be at risk of execution:  the Texas Court of Criminal Appeals is currently considering Mr. Buck’s appeal for a new sentencing hearing free of racial bias and the Court is expected to rule in the coming weeks.
 
"Everyone who sees this powerful video will come away from it with the alarming realization that if Duane Buck can be sentenced to death - and possibly executed -- based on racial stereotypes, then our criminal justice system is broken not just for Mr. Buck, but for all of us," said Christina Swarns, Mr. Buck's attorney and Director of the NAACP Legal Defense & Educational Fund, Inc.'s Criminal Justice Project.  "A properly functioning criminal justice system does not condone the flagrant exploitation of racial fears and stereotypes to secure a death sentence.  It cannot countenance a racially biased and unfair execution."
 
Former Texas Governor Mark White, who oversaw the executions of 19 individuals, narrates the video and urges citizens to take action: “It’s unfair to have someone on death row if they are not supposed to be there … Don’t wait until it is too late … Join me and more than 100 civil rights leaders, clergy, former prosecutors, and judges in calling for a new and fair sentencing hearing for Mr. Buck. Tell Texas to keep its promise.” 
 
Over 50,000 people from Texas and around the country have signed a petition calling on Texas officials to grant Mr. Buck a new sentencing hearing. The newly released video exposes the injustice of Duane Buck’s case and encourages support for the petition for a new, fair sentencing.

As the video shows, at Mr. Buck’s 1997 capital sentencing hearing in Harris County, the trial prosecutor elicited testimony from a psychologist that Mr. Buck posed a future danger because he is black. The prosecutor relied on this testimony in arguing in favor of a death sentence. The jury then found Mr. Buck would be a future danger and sentenced him to death. 
 
Three years after Mr. Buck’s capital trial, in 2000, then-Texas Attorney General (now U.S. Senator) John Cornyn identified seven cases, including Mr. Buck’s, in which the State of Texas impermissibly relied on testimony linking race and dangerousness to secure a death sentence. The Attorney General promised to support new sentencing hearings for the seven identified defendants and kept its promise as to six of them. But Texas reneged on its promise to Mr. Buck and is now aggressively pursuing his execution.
 
“It is virtually unprecedented for a state official to confess error in a capital case. And in this situation, [the Attorney General] confessed error in six capital cases,” said Kathryn Kase, Executive Director of Texas Defender Service, in the video. 
 
Mr. Buck’s life was saved by the U.S. Supreme Court before his September 2011 scheduled execution. Two U.S. Supreme Court justices agreed that Mr. Buck’s death sentence requires review because “our criminal justice system should not tolerate” a death sentence “marred by racial overtones.”
 
“When we apply the death penalty and we seek criminal sentences, we have to do so in a color-blind manner. Allowing this kind of racial testimony in any capital sentence proceeding undermines the entire justice process,” said Kate Black, Mr. Buck’s attorney, in the video. 

Earlier coverage of Duane Buck's case begins at the link.  Related posts are in the race category index.

Calls for Clemency in Colorado

The Boulder Daily Camera publishes an editorial, "Clemency for Nathan Dunlap."  It's written by Erika Stutzman for the Camera editorial board.

The Camera editorial board wants the governor to commute Dunlap's sentence to life in prison with no chance of parole.

We had hoped that Colorado would join a growing list of states that have repealed their death penalties. Dunlap still would be on death row if it had.

We have come to believe, however, that Dunlap is a good example of some of the very reasons we have pressed for Colorado to repeal the penalty. And for that reason, letting him die in prison -- but not through lethal injection -- is appropriate.

On Thursday, Maryland became the sixth state in just six years -- and the 18th state in the country -- to abolish the death penalty. These states have concluded that the death penalty is both capricious and racially biased.

"Defense: Colo man convicted of killing 4 in 1993 had bipolar disorder, should not be executed," is the AP report, via the Republic.

Lawyers for a man convicted of the 1993 ambush slayings of four people say he had undiagnosed bipolar disorder at the time and shouldn't be executed.

Nathan Dunlap's attorneys formally asked Gov. John Hickenlooper for clemency on Monday.

And:

Hickenlooper hasn't said how he would respond to a request for clemency. He met Friday and Saturday with victims' family members and others to hear their views.

Advocates for Nathan Dunlap issued the news release, "Former Judges and Prosecutors, Faith Leaders, the NAACP, CO Latino Forum, the National Alliance on Mental Illness, Academics and Others Call on Governor Hickenlooper to Commute Nathan Dunlap’s Death Sentence to Life In Prison Without the Possibility of Parole."  Here's the text:

Citing racial bias, geographic concentration, and disproportionate usage in Colorado’s application of capital punishment, more than 20 former judges and prosecutors, faith leaders representing hundreds of Colorado congregations, the NAACP of Colorado, Wyoming and Montana, the Colorado Latino Forum, the nation’s largest mental health advocacy organization, 75 academics from 6 Colorado universities, international voices and many others called today on Governor John Hickenlooper to commute Nathan Dunlap’s death sentence to life in prison without the possibility of parole.
 
The letters supporting clemency from the hundreds of distinguished Coloradoans accompanied a clemency petition filed today by Mr. Dunlap’s attorneys with the Governor’s office. A number of prominent individuals have signed letters in support of clemency, including former Colorado Supreme Court Justice Jean Dubofsky, former Arapahoe County Deputy District Attorney Richard Bloch, Archbishop of Denver, Samuel J. Aquila, Rabbi Joseph Black of Temple Emanuel, Pastor Patrick L. Demmer of the Ministerial Alliance of Denver, Reverend Dr. Jim Ryan of the Colorado Council of Churches, which represents over 850 member congregations, and many others have reached out to the Governor to express support for clemency, including renowned human rights leader and recipient of the 1984 Nobel Peace Prize, Archbishop Desmond Tutu.
 
“We… urge you to grant clemency because the death penalty in Colorado is deeply flawed,” states a letter to Governor Hickenlooper, signed by former judges. “These facts depict a system that acts in an arbitrary fashion, based on factors such as race and geography…..Assuming that the death penalty may sometimes be appropriate, there is no principled reason for it to be applied in the circumstances of this case.”
 
The clemency petition also includes affidavits by several of the jurors from Mr. Dunlap’s trial who now say that if they had all the information at trial, they may not have voted for death.
 
In December 1993, Mr. Dunlap committed a horrific crime, killing four people and seriously injuring another. As the letters in support of clemency make clear, Mr. Dunlap should serve life in prison without the possibility of parole, and should never experience freedom again. The widespread support for clemency in his case reflects a consensus that Colorado’s death penalty system is broken.
 
Many of the supporters for clemency express concern in their letters that the death penalty in Colorado is not used proportionally, and it is concentrated geographically and by the profile of the prisoner, with racial bias and a bias towards younger offenders. Mr. Dunlap’s case exemplifies this unjust system. In a state that is only 4.3% African American, Colorado’s death row is 100% African American. Of the 64 counties in the state of Colorado, only one county, Arapahoe, is responsible for all the current death sentences in the state. All three men on Colorado’s death row committed their crimes when they were under the age of 21. A recent study of every murder conviction in Colorado from 1999-2010 found that while the death penalty was an option in 92% of those cases, prosecutors chose to pursue the sentence through the sentencing phase in less than 1% of cases.
 
“It appears that race, geography and youth largely determines who gets the death penalty in Colorado,” states a letter from the Colorado-Montana-Wyoming State Conference of the NAACP. “This is wrong and it must end….The death penalty in America has long been administered in a racially biased manner. Since its inception, people of color have been disproportionately condemned to death…”
 
“The very emblematic symbol of justice is a lady blindfolded, holding scales of justice in her hands, which is designed to suggest that justice sees neither your race, creed, color, nor your social standing, but that in Colorado is obviously not true, unless we are to believe that only African-Americans are worthy of the death penalty,” wrote Pastor Patrick L. Demmer, former President of the Greater Metro Denver Ministerial Alliance and Senior Pastor of the Graham Memorial Community Church of God in Christ.
 
Colorado has executed only one person in the last 45 years. If Mr. Dunlap is executed during the week of August 18 - 24, 2013, he will be the first person put to death in Colorado since 1997. Supporters for clemency cite serious concerns over the proportionality of capital punishment in Colorado.
 
“The arbitrary application of Colorado’s death penalty makes Mr. Dunlap’s sentence unacceptable and antithetical to the rule of law,” state 75 Colorado university professors in their letter in support of clemency.
 
The clemency petition provides details of Mr. Dunlap’s history of mental illness, which was also noted as a cause of significant concern by many groups who support clemency, including the National Alliance on Mental Illness, the nation’s largest organization representing people with mental illness and their families.
 
Mr. Dunlap suffers from bipolar disorder, and his family has an extensive history of mental illness going back five generations, including his mother who also suffers from bipolar disorder. Since the Colorado Department of Corrections finally began treating Mr. Dunlap’s mental illness in 2006, his mental health has been stable and his behavior exemplary.
 
“…failure to present any evidence of Mr. Dunlap's serious mental illness or the role of that illness in his behavior clearly prevented the jury from fairly and accurately assessing his culpability. Indeed, the Colorado death penalty statute expressly provides that a defendant's mental state may be mitigating, even if his mental illness does not rise to level of legal insanity,” state former prosecutors from Colorado and around the country.
 
At trial, a unanimous decision by the jury was required to impose the death sentence. No information was presented about Mr. Dunlap’s mental health issues, despite the fact that he was likely experiencing a manic episode at the time of the crime. Mr. Dunlap was 19 years old at the time.
 
Notably, three jurors now say that if they had known about Mr. Dunlap’s mental illness, it may have affected their decisions. Under Colorado law, if only one of them had not voted for death, Mr. Dunlap would not face execution today.
 
“Executions harm society by mirroring and reinforcing existing injustice. The death penalty distracts us from our work towards a just society. It deforms our response to violence in the individual, familial, institutional, and systemic levels. It perpetuates cycles of violence,’” states Lutheran Bishop James Gonia, one of 65 Bishops in the Evangelical Lutheran Church in America with over 4 million members. “Please be merciful and allow Nathan Dunlap to live out his natural life.” 
 
A letter signed by 18 Rabbis adds, “As members of a religious minority whose history is replete with injustice under the law, we are deeply concerned about how the death penalty is applied in Colorado…. As Colorado and other states continue to wrestle with our nation’s legacy of racial injustice, our citizens must be assured that desire for justice and our faith are never at odds.”
 
In the words of Archbishop of Denver, Samuel J. Aquila, “I pray that we will be a just society…rather than resorting to the violence of execution.”
 
Governor Hickenlooper has the power to stop Mr. Dunlap’s execution and commute his sentence to life in prison without the possibility of parole.

Earlier coverage of Nathan Dunlap's case begins at the link.

News Release from Advocates for Warren Hill

Here's the full text of the news release:

Doctors Who Evaluated Death Row Prisoner for Georgia Now Say that Warren Hill has Mental Retardation
February 19th Execution Date Must Be Stopped, Say Advocates for People With Intellectual Disability

(ATLANTA, GEORGIA; Thursday, February 14) --- Affidavits from three doctors who had previously testified on behalf of the state regarding Warren Hill were released today affirming that Mr. Hill has mental retardation. In December 2000, at the request of the Georgia Attorney General’s Office, the doctors had examined Mr. Hill and testified at an evidentiary hearing that Mr. Hill did not fit the criteria for mental retardation, instead diagnosing him with borderline intellectual functioning. The doctors, Dr. Donald Harris, Dr. Thomas Sachy and Dr. James Gary Carter, now concur with all other doctors who have examined Mr. Hill and now find that Mr. Hill has mild mental retardation, placing Mr. Hill in the category of citizens protected from capital punishment by the 2002 United States Supreme Court decision Atkins v. Virginia.


In their affidavit testimony (links: Harris; Sachy; Carter), the doctors report that their initial evaluation of Mr. Hill was “extremely and unusually rushed” and “not conducive to an accurate assessment of Mr. Hill’s condition” (Carter p.2, 7) and that advances in psychiatric understanding of intellectual disability now convince them that their initial finding was in error.

In the words of Dr. Sachy, “I have vastly greater experience as a psychiatrist than I did in 2000, and I have access to better science pertaining to the issues in Mr. Hill’s case.” (Sachy p.6)

Dr. Harris adds, “We in the clinical community now better understand that persons with mild mental retardation are capable of such things as holding a job, working under close supervision, buying and driving a car, and so forth. It is precisely because significant deficits in cognition, judgment and impulse control can be masked by superficial functionality in cases of mild mental retardation that such persons may sometimes not be identified in court proceedings as being intellectually disabled. I believe this has happened in Mr. Hill’s case.” (Harris p.10). 



Mr. Hill faces execution on February 19, 2013 unless the U. S. Supreme Court intervenes. Attorneys for Mr. Hill currently have a motion for a stay of execution and a petition of certiorari pending with the U.S. Supreme Court.

In 2002, the same year the Supreme Court decided Atkins, Judge John Allen of the Superior Court of Butts County, GA found Mr. Hill to have an IQ of approximately 70 beyond a reasonable doubt and to fulfill the overall criteria (including impairments in adaptive skills) for mental retardation by a preponderance of the evidence.  Because Drs. Sachy, Harris and Carter had opined at the time that Mr. Hill did not quite meet the criteria for mental retardation, however, Judge Allen could not find that Mr. Hill could prove he had the syndrome beyond a reasonable doubt. 

On July 19, 2012 days before Mr. Hill's scheduled execution, Judge Wilson reaffirmed the Court’s previous findings, stating that: “The Court finds that this Court’s previous finding in Hill v. Head, Butts Co. Case No. 94-V-216, that Mr. Hill has an I.Q. of 70 beyond a reasonable doubt and meets the overall criteria for mental retardation by a preponderance of the evidence, is justified by the evidence in this case.”

Judge Wilson also found that despite the U.S. Supreme Court’s ruling prohibiting the execution of the “mentally retarded” (now known as people with intellectual disability), Mr. Hill did not meet Georgia's “beyond a reasonable doubt” -- the strictest state standard in the nation. 

Now, however, there is complete consensus on the part of all experts who have evaluated Mr. Hill that he is in fact mentally retarded.  His execution threatens to be a true miscarriage of justice and a violation of the Constitution. 


Georgia’s Supreme Court previously stayed Mr. Hill’s execution date in July 2012 due to issues related to the state’s lethal injection protocol; however, on the same day, the court denied Mr. Hill’s petition on the mental retardation issues. On February 4, 2013, Georgia’s Supreme Court resolved the lethal injection issues and lifted the stay on Mr. Hill’s execution. The Georgia Board of Pardons and Parole previously denied clemency and has declined to give Mr. Hill another audience. 



In her dissent to the majority finding by the Georgia Supreme Court that the reasonable doubt standard was constitutional, Justice Leah Sears wrote, "Despite the federal ban on executing the mentally retarded, Georgia's statute, and the majority decision upholding it, do not prohibit the state from executing mentally retarded people. To the contrary, the State may still execute people who are in all probability mentally retarded. The State may execute people who are more than likely mentally retarded. The State may even execute people who are almost certainly mentally retarded." (Head v. Hill, 277 Ga. 255, 274 (2003).)



Today’s New York Times features an editorial (“A Final Plea for Mercy”) urging the court to protect Mr. Hill from Georgia’s standard, calling it “far too heavy a burden of proof.”

This week, The Huffington Post also published “The Supreme Court Must Stop the Execution of Warren Hill” by Eric Jacobsen, Executive Director of the Georgia Council on Developmental Disabilities. The Huffington Post previously published a piece by Margaret Nygren, the Executive Director and CEO of the American Association on Intellectual and Developmental Disabilities in support of reducing Mr. Hill’s sentence. 
 


Numerous others have called for the execution of Mr. Hill to be stopped. Christof Heyns, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, wrote an opinion piece in The Guardian and President Jimmy Carter and Rosalyn Carter have called for a commutation of Mr. Hill's death sentence to life without parole, as have many others. Several jurors who sat on Mr. Hill's original jury have also stated under oath that they believe that life without parole is the appropriate sentence in this case. It was not offered to them as an option at trial in 1991.

Notably, the family of the victim does not wish to see Mr. Hill executed, supporting commuting Mr. Hill's death sentence to life without the possibility of parole. In the words of a family spokesperson, “I and my family feel strongly that persons with any kind of significant mental disabilities should not be put to death.”


###



Earlier coverage of Warren Hill's case begins with the preceding post.

More Calls for Review of Florida's Death Penalty

"Florida's death penalty needs fresh look," is the Tampa Bay Tribune editorial.

Five states have repealed the death penalty in the last five years, with Connecticut being the latest to do so in 2012. But as other states have become disenchanted with the ultimate punishment in light of so many wrongful convictions, Florida has moved in the opposite direction. Last year was the second straight that this state ranked first in the nation in new death sentences. There is no political will to follow the enlightened path of abolition, but Florida should analyze why it's such an outlier. One likely reason is that the state doesn't require a unanimous jury recommendation for a death sentence, and that should be corrected.

Florida sentenced 22 people to death last year. Compare that to the more populous states of California, which sentenced 14 inmates, and Texas, the state with the highest number of executions, which put only nine new inmates on death row last year, according to a report by the Death Penalty Information Center. The count raises Florida's death row to 408 inmates. But even as the state adds to death row, it is finding problems with the legal process that led to those convictions and sentences. Florida also leads the nation in the number of inmates who have had their death sentences reversed. Out of 142 such cases, Florida accounts for 24 exonerations, acquittals or charges subsequently dropped, according to the center. Some of these were people shown to be innocent of the crime. Frank Lee Smith, for instance, was exonerated posthumously. The real perpetrator was identified after Smith died from cancer after he spent the last 14 years of his life on death row.

For years, Raoul Cantero has been urging the state Legislature to require a unanimous jury recommendation for death sentences. Cantero, a former Florida Supreme Court justice who was appointed by Gov. Jeb Bush, saw how haphazardly the death penalty is applied and how that can lead to potentially fatal errors.

Today's Hernando Today publishes the column, "Florida needs to debate the death penalty," written by Rhonda Swan.

It defies logic that taking life honors life.

For the second year in a row, Florida has sent more convicted killers to death row than any other state.

And acting Palm Beach County State Attorney Peter Antonacci would like to send more. His office is now seeking the death penalty for all first-degree murder cases.

There were 22 new death penalty cases this year in Palm Beach County.

"You have a dead human being," Antonacci told the South Florida Sun-Sentinel. He said that by not seeking the death penalty, "we have cheapened the value of human life."

There are many ways we cheapen the value of human life. Sexism, racism, ageism, discrimination against gays, the disabled, atheists and others with different or no religious views are but a few examples.

A political and economic system that allows millions to go without food, shelter and health care is another.

"Legislator wants to abolish capital punishment," is by Bill Cotterell for Florida Current.

An attorney-law professor who opposes capital punishment for pragmatic fiscal reasons, as well as legal and moral grounds,  reintroduced her bill Friday to abolish the death penalty in Florida.

Rep. Michelle Rehwinkel Vasilinda, D-Tallahassee, said she's not just making a symbolic gesture.

"The more people we can get educated about the death penalty, I think they will realize that opposition is mostly political posturing, rather than good policy," she told The Florida Current. "I actually believe we can show people that it's not a good way to spend public money."

Rehwinkel Vasilinda, a Tallahassee Community College law instructor starting her third legislative term, introduces the bill every year without so much as a committee hearing. Just how tough a tactical battle she's facing was illustrated in 2011, she said, when she offered her bill on the House floor as an amendment to another criminal-justice proposal.

WFOR-TV posts, "Florida Democrat Files Bill To Kill State’s Death Penalty."

It’s illegal in 17 states, and a new bill by a House Democrat would make it illegal in Florida.

A measure (HB 4005) to end the death penalty in Florida was filed Friday by Rep. Michelle Rehwinkel Vasilinda, D-Tallahassee, the News Service of Florida reports.

Rehwinkel Vasilinda said in a statement that the death penalty is not cost-effective and doesn’t deter crime.

“When you analyze the numbers, state-sponsored execution is not the correct answer,” said Rehwinkel Vasilinda, who said the state spends more than $50 million a year on death penalty cases.

Rep. Vasilinda's news release announcing the legislation is available in Adobe .pdf format.

Florda's Capitol News Service posts, "Unanimous Death Sentences." 

Tampa cop killer Humberto Delgado arrived on death row last year after his jury recommended he be put to death by an 8 to 4 vote. In December, William Davis’ jury split 7-5 even though he had asked them for death. Neither man would have received death in any of the other 32 states that have the death penalty.

That’s because thirty-one other states require all members of the jury to vote for death. The 32nd, Alabama,  requires at least 10 of the 12 jurors to say someone should die. Sheila Hopkins of the Florida Catholic Conference, says it is time for Florida to join the rest of the nation. “You know I think people should be very concerned and disturbed that potentially people who can be innocent would be given a death sentence”, says Hopkins.

Earlier coverage from Florida begins at the link.

Kentcuky Human Rights Commission Calls for Abolition

Today's Louisville Courier-Journal reports, "Human Rights Commission passes resolution to abolish death penalty in Kentucky."

Noting that capital punishment is often applied unfairly against minorities and the poor, the Kentucky Commission on Human Rights board has passed a resolution opposing the death penalty in Kentucky.

The commissioners at a meeting in Lexington Wednesday urged the Kentucky General Assembly to repeal the law that allows the use of the death penalty in murder convictions. The commission also urged Gov. Steven Beshear to sign any such law brought before him.

The resolution unanimously passed by the commissioners will be submitted to Beshear and to each state legislator.

The resolution said:

“Since 1976, when Kentucky reinstated the death penalty, 50 of the 78 people sentenced to death have had their death sentence or conviction overturned, due to misconduct or serious errors that occurred during their trial. This represents an unacceptable error rate of more than 60 percent.”

The resolution said that “statistics confirm that the imposition of the death penalty is disproportionately imposed on minorities and the poor. African Americans constitute 12 percent of the U.S. population, but represent 42 percent of prisoners on death row.”

And:

The Kentucky Commission on Human Rights is the state authority that enforces the Kentucky and United States Civil Rights acts, which make discrimination illegal.

"KY Human Rights Commission passes resolution opposing death penalty," is the agency's news release with the full text of the resolution.

Related posts are in the abolition category index.

U.N. Chief Calls for End of Death Penalty

That's the title of an AP report, via USA Today.

U.N. Secretary-General Ban Ki-Moon has called for the death penalty to be abolished.

Ban told a panel on the issue convened Tuesday by the U.N. High Commissioner for Human Rights: "The taking of life is too absolute, too irreversible, for one human being to inflict on another, even when backed by legal process."

Since the General Assembly endorsed a call for a death penalty moratorium in 2007, several nations have abolished the death penalty, including Argentina, Burundi, Gabon, Latvia, Togo and Uzbekistan. The U.N. says 150 nations have either abolished the death penalty or do not practice it.

Ban said he was especially concerned that the death penalty is still used for juvenile offenders, and 32 nations use it for drug-related offenses.

The U.N. News Centre issued, "Secretary-General calls on States to abolish death penalty."

United Nations Secretary-General Ban Ki-moon today called on Member States which use the death penalty to abolish this practice, stressing that the right to life lies at the heart of international human rights law.

“The taking of life is too absolute, too irreversible, for one human being to inflict on another, even when backed by legal process,” Mr. Ban told a panel organized by the Office of the UN High Commissioner for Human Rights (OHCHR) on ‘Moving away from the death penalty – Lessons from national experiences’ at UN Headquarters in New York.

“Where the death penalty persists, conditions for those awaiting execution are often horrifying, leading to aggravated suffering,” he added.

In 2007, the General Assembly endorsed a call for a worldwide moratorium of the death penalty. Since then, the practice has been abolished by countries like Argentina, Burundi, Gabon, Latvia, Togo and Uzbekistan. More than 150 States have either abolished the death penalty or do not practice it.

However, Mr. Ban noted, the death penalty is still used for a wide range of crimes in various countries. In particular, he expressed concern that 32 States retain the death penalty for drug-related offences, and its use on juvenile offenders.

“I am also very concerned that some countries still allow juvenile offenders under the age of 18 at the time of the alleged offence to be sentenced to death and executed,” Mr. Ban said. “The call by the General Assembly for a global moratorium is a crucial stepping stone in the natural progression towards a full worldwide abolition of the death penalty.”

The High Commissioner for Human Rights, Navi Pillay, has also repeatedly called for the universal abolition of the death penalty, citing a host of reasons ranging from the fundamental right to life to the possibility of judicial errors.

In addition, Mr. Ban’s Guidance Note of 2008 on the UN Approach to Rule of Law Assistance stated that the UN will not establish or directly participate in any tribunal that allows for capital punishment.

NC Murder Victims' Families Criticize House Bill

The News & Observer's Under the Dome column reports, "The families of murder victims denounce House vote on Racial Justice Act."  The column is written by Craig Jarvis, Lynn Bonner, and Rob Christensen.

About two dozen state legislators, members of Murder Victims’ Families for Reconciliation and others held a news conference Thursday morning to denounce the House vote on Wednesday rewriting the Racial Justice Act.

They called it a complete repeal of the 2009 law, which allows death-row inmates to use statistical proof of racial bias in North Carolina jury selection to try to turn their sentences into life without parole. The bill so weakens the use of statistics as to make them nearly useless in most cases.

Rep. Earline Parmon, a Winston-Salem Democrat, who was one of the original sponsors of the Racial Justice Act, called the vote “appalling” for “knowingly allowing racial discrimination to continue in our justice system.”

Three people whose relatives were murdered also criticized the vote and called for the Senate to put the brakes on the bill. The Senate is expected to pass the bill along party lines. Five House Democrats voted for the bill, ensuring enough votes to override a veto, if the governor does that.

Darryl Hunt, the Winston-Salem man who spent more than 19 years in prison for a rape and murder that DNA later showed he did not commit, said Republicans’ claim that statistics are irrelevant in individual cases is wrong.

“I lived through four jury trials,” Hunt said. “I know how they use race to excuse African-Americans on juries.”

"Victims' families defend Racial Justice Act," is Matthew Burns' report for WRAL-TV.

Family members of murder victims spoke out Thursday to defend the Racial Justice Act, which the legislature is working to repeal.

The 2009 law allows death row inmates to have their sentences reduced to life without parole if they can prove racial bias in jury selection or another aspect of their case. Legislation approved by the House this week says that statistical evidence alone isn't enough to prove bias.

Relatives of some victims asked lawmakers to leave the law in place, saying it's the best way to ensure justice for their loved ones will truly be color-blind.

"It's a slap in the face to me because I'm not here because our system worked," said Darryl Hunt, who was on death row before being exonerated in 2004. "I didn't spend 19 years, four months in prison for a crime I didn't commit because our system worked. If our system worked, I'd have never gone to prison."

MSNBC posts, "North Carolina lawmakers move to scale back Racial Justice Act," by James Eng.

“This bill guts the NC Racial Justice Act, plain and simple,” Scott Bass, director of Murder Victims’ Families for Reconciliation, said in a statement. “What legislators do not understand is that by passing this law, they not only shirk their responsibility to address documented racial bias in the system, they will also be costing taxpayers millions of dollars in extra expense and slowing resolution of death penalty cases by adding additional layers of appeals.”

“This bill is an attempt to sweep that evidence under the rug by allowing the state to ignore mountains of statistics pointing to the pervasive and disturbing role that race plays in jury selection and sentencing,” said Sarah Preston of the ACLU of North Carolina. “We cannot turn our backs on such evidence, as this bill seeks to do.”

Supporters of the effort to amend the Racial Justice Act denied any nefarious intentions.

"Victims' families tell lawmakers not to change Racial Justice Act," by Annette Newell at WNCN-TV.  There is video at the link.

Several murder victims' family members spoke out against state republicans' plans to change the Racial Justice Act.

The Racial Justice Act is a law that allows people to appeal death sentences on the grounds of racial bias.

At the state capitol in Raleigh, the group "Murder Victims Families for Reconciliation" joined lawmakers who support the act, which passed in 2009.

They encouraged the state senate to vote against new limits that would make it tougher to appeal a death sentence on the grounds of racial bias.

A soldier from Johnston County is among the supporters who want to keep the law the same.

"I'm witness to the fact that our justice system is not always right," said Yolanda Littlejohn. "They don't always get it right. This was shown in my sister's case when a man served 17 years for murdering her, and it wasn't him."

Darryl Hunt, a supporter of the Racial Justice Act, had his own death sentence overturned by D.N.A. evidence.

"Opponents claim bill will gut Racial Justice Act," at WTVD-TV.

Family members of murder victims stood beside Democratic lawmakers at a news conference Thursday bashing a vote by the NC House that, they said, would gut the Racial Justice Act.

The historic act allows death row inmates to use statistics and other evidence to show racism may have been a part of their trial and sentencing.

The historic act allows death row inmates to use statistics and other evidence to show racism may have been a part of their trial and sentencing.

Among the family members in attendance was Yolanda Littlejohn. She said she still hopes investigators can find out who really killed her sister Jaquetta Thomas in Raleigh after Greg Taylor was exonerated in 2010.

And:

The Senate could take up the issue as early as next week.

Murder Victims’ Families for Reconciliation of North Carolina has posted the news release, "House Bill 416 Guts the Historic NC Racial Justice Act."  Here's the full text:

Today victims’ family members, exonerees and leaders in the legal and justice communities called on the North Carolina Senate to reject NC House Bill 416, a bill passed yesterday by the House of Representatives that guts the historic NC Racial Justice Act.

“After imprisoning the wrong man for 17 years, my sister Jacquetta’s murder has not been solved,” said Yolanda Littlejohn.  (Greg Taylor was wrongfully convicted of her death until he was fully exonerated by NC Innocence Inquiry Commission, based on egregious misconduct by the state’s crime lab.)  “I cannot understand why our legislature is undoing the Racial
Justice Act - a law that tries to right wrongs - when we know our justice system is so imperfect.”

The NC Racial Justice Act was passed in 2009.  Two months ago, Superior Court Judge Greg Weeks ruled in the first case under the law.  He found significant racial discrimination in the case of Marcus Robinson and resentenced him to life imprisonment without the possibility of parole. 

Judge Weeks wrote that Robinson “introduced a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina.  The evidence, largely unrebutted by the State, requires relief in this case and should serve as a clear signal of the need for reform in capital jury selection proceedings in the future.”

Last year opponents of the RJA tried to repeal the law. Unable to do so, they appointed a study committee to try to create a compromise bill. No compromise bill was ever considered, and instead, a few legislators met in private with district attorneys and came up with the current, extreme version of the bill. 

“Judge Weeks heard evidence from both sides,” said Darryl Hunt, who spent 19 years in prison for a murder of which he was fully exonerated, and whose mother was murdered. “He ruled based on the facts and the evidence, and found that racial bias affected Marcus Robinson’s trial.  I know, in my heart and from my experience, that unless we are willing to face our prejudices, injustices will continue to occur.”

“This bill guts the NC Racial Justice Act, plain and simple,” said Scott Bass, Director of Murder Victims’ Families for Reconciliation, an organization of murder victims who have fought for RJA.  “What legislators do not understand is that by passing this law, they not only shirk their responsibility to address documented racial bias in the system, they will also be costing taxpayers millions of dollars in extra expense and slowing resolution of death penalty cases by adding additional layers of appeals.  Passing this bill is doubly irresponsible.”

Today's Roanoke Rapids Daily Herald carries the editorial, "Bill to amend death penalty procedures an attempt to improve Racial Justice Act."  It's by Titus Workman, the paper's publisher.

The current Racial Justice Act has a simple but flawed premise: Because statistics show decades of racial bias in death penalty cases, judges should be able to consider that history when reviewing a sentence. But the RJA doesn’t require a defendant to prove that their specific case was affected by bias, therefore a convict who didn’t significantly suffer individually from bias could have his or her sentence reduced because they came from a racial class that did.

The new bill will rightly require each defendant to prove bias in their specific case while limiting the scope of statistics and demanding other types of evidence.

This is important legislation that will put an end to the moratorium on the death penalty. The death penalty can only be a deterrent to crime if it is used.

Earlier coverage from North Carolina of the RJA begins at the link.

Connecticut Governor Signs Repeal Legislation

Connecticut Governor Dannel Malloy has signed the repeal bill into law and issued a statement, "On Signing Bill to Repeal Capital Punishment."

Governor Dannel P. Malloy today released the following statement after signing S.B. 280, An Act Revising the Penalty for Capital Felonies:

 

“This afternoon I signed legislation that will, effective today, replace the death penalty with life in prison without the possibility of release as the highest form of legal punishment in Connecticut.  Although it is an historic moment – Connecticut joins 16 other states and the rest of the industrialized world by taking this action – it is a moment for sober reflection, not celebration.

 

“Many of us who have advocated for this position over the years have said there is a moral component to our opposition to the death penalty.  For me, that is certainly the case.  But that does not mean – nor should it mean – that we question the morality of those who favor capital punishment.  I certainly don’t.  I know many people whom I deeply respect, including friends and family, that believe the death penalty is just.  In fact, the issue knows no boundaries: not political party, not gender, age, race, or any other demographic.  It is, at once, one of the most compelling and vexing issues of our time.

 

“My position on the appropriateness of the death penalty in our criminal justice system evolved over a long period of time.  As a young man, I was a death penalty supporter.  Then I spent years as a prosecutor and pursued dangerous felons in court, including murderers.  In the trenches of a criminal courtroom, I learned firsthand that our system of justice is very imperfect.  While it’s a good system designed with the highest ideals of our democratic society in mind, like most of human experience, it is subject to the fallibility of those who participate in it.  I saw people who were poorly served by their counsel.  I saw people wrongly accused or mistakenly identified.  I saw discrimination.  In bearing witness to those things, I came to believe that doing away with the death penalty was the only way to ensure it would not be unfairly imposed.

 

“Another factor that led me to today is the ‘unworkability’ of Connecticut’s death penalty law.  In the last 52 years, only 2 people have been put to death in Connecticut – and both of them volunteered for it.  Instead, the people of this state pay for appeal after appeal, and then watch time and again as defendants are marched in front of the cameras, giving them a platform of public attention they don’t deserve.  It is sordid attention that rips open never-quite-healed wounds.  The 11 men currently on death row in Connecticut are far more likely to die of old age than they are to be put to death.

 

“As in past years, the campaign to abolish the death penalty in Connecticut has been led by dozens of family members of murder victims, and some of them were present as I signed this legislation today.   In the words of one such survivor: ‘Now is the time to start the process of healing, a process that could have been started decades earlier with the finality of a life sentence. We cannot afford to put on hold the lives of these secondary victims.  We need to allow them to find a way as early as possible to begin to live again.’  Perhaps that is the most compelling message of all.

 

“As our state moves beyond this divisive debate, I hope we can all redouble our efforts and common work to improve the fairness and integrity of our criminal justice system, and to minimize its fallibility.”

"Conn. governor signs bill to repeal death penalty," is the initial AP report, via the Fort Myers News-Press.

Gov. Dannel P. Malloy has signed legislation into law that abolishes Connecticut’s death penalty for future crimes.

The Democrat signed the bill on Wednesday afternoon, behind closed doors, with no ceremony or fanfare.

Malloy called it “an historic moment” as Connecticut joins 16 other states that have abolished capital punishment. He said it was a moment “for sober reflection, not celebration.”

The bill was signed the same day that a new Quinnipiac University Poll showed that a majority registered voters in Connecticut, 62 percent, favor the death penalty for those people convicted of murder. The same survey found 47 percent of voters disapprove of Malloy’s handling of the issue, while 33 percent approve.

"Malloy signs death penalty repeal into law," by JC Reindl for the Day.

Gov. Dannel P. Malloy this afternoon signed the legislature's capital punishment repeal bill, abolishing the death penalty in Connecticut for all but the 11 inmates currently on death row.

The legislation passed the state Senate earlier this month on a 20-16 vote, and later the House by a 86 to 62 vote.

In place of execution, egregious offenders convicted of "murder with special circumstance" will now face life imprisonment without parole under conditions similar to today's death row.

Malloy's office said he signed the bill in a low-key ceremony with several family members of murder victims.

Earlier coverage of the Connecticut repeal legislation begins at the link.

Race and Death Penalty Juries

That's the title of an editorial in today's New York Times.  It begins our roundup of coverage of the North Carolina Racial Justice Act.

North Carolina courageously passed the Racial Justice Act in 2009, making it the first state in the country to give death row inmates a chance to have their sentences changed to life without parole based on proof that race played a significant role in determining punishment.

A state court is now hearing the first challenge to a death sentence under that law. Marcus Robinson, who has been on death row since 1994, must prove that state prosecutors discriminated against blacks in selecting juries, affecting the outcomes of cases, including his. His lawyers presented a notable study by researchers at Michigan State University showing this kind of bias.

In 173 cases between 1990 and 2010, the study examined decisions involving 7,421 potential jurors (82 percent were white; 16 percent were black). In 166 cases, where there was at least one black potential juror, prosecutors dismissed more than twice as many blacks from the jury (56 percent) as others (25 percent). With black defendants, like Mr. Robinson, the disparity was even greater. Even accounting for “alternative explanations” besides race for different “strike rates” — for instance, excluding those who expressed ambivalence about the death penalty — the study found blacks were still more than twice as likely to be dismissed.

And:

This bias is not news in North Carolina. Since colonial times into recent decades, racial prejudice has been a huge factor in the imposition of death sentences in the state. The Racial Justice Act, a response to that terrible history, uses statistical studies in regulating the death penalty, as the Supreme Court said legislatures could properly do in a 1987 case. Opponents of the law are battling to repeal it and have scheduled a hearing on it this week. The evidence of gross racial bias presented in Mr. Robinson’s case calls for commuting his sentence — but also for abolishing the death penalty in North Carolina.

Today's News & Observer of Raleigh reports, "Case highlights Racial Justice Act concerns."  It written by Craig Jarvis and John Frank.

State Senate President Pro Tem Phil Berger and the state chapter of Americans for Prosperity wanteveryone to know that a convicted killer in Wayne County was taken off death row last week and could be eligible for parole.

"Exactly why we said RJA is dangerous," Berger's office tweeted Friday afternoon, referring to the Racial Justice Act.

"Killer taken off death row and made parole eligible," tweeted ASP.

Not only was this not a Racial Justice Act claim - Marvin Williams' death sentence was vacated because he is mentally disabled - but parole is not an option for inmates whosucceed in getting off death row under the 2-year-old law, according to the way the law is written.

Republican lawmakers and the state's prosecutors say someone sentenced at a time when parole was still an option in first-degree murder cases, before 1994, could theoretically end up going free.

But while Williams will be eligible for parole consideration - none of the 16 inmates who have already been spared execution because they were deemed mentally disabled have been paroled - the RJA specifies that life without parole is the only option for a successful claim.

"Prosecutors up next in N.C. Racial Justice Act hearing," is Martha Waggoner's AP filing, via the Virginian Pilot.

Prosecutors will begin presenting their case in the first evidentiary hearing involving North Carolina's Racial Justice Act.

Prosecutors are scheduled to begin presenting their case this morning in a Cumberland County courtroom. Marcus Robinson is a black man serving a death sentence for killing a white teenager in 1991.

Robinson is trying to prove that racial bias played a role in jury selection, saying prosecutors illegally excluded blacks as jurors.

The Fayetteville Observer had daily reports on the hearing last week, written by Paul Woolverton.  "Emotion absent from first week of Racial Justice Act hearing in Fayetteville," provides a summary.  It appeared in yesterday's paper.

At North Carolina's premiere Racial Justice Act hearing in Fayetteville, the mathematical language is clinical, the courtroom emotionally sterile under fluorescent lights.

Two sets of well-dressed lawyers perform with professional decorum and courtesy.

Seated on the front row of the courtroom every day last week, grieving father Richard Tornblom thought the ongoing exercise was a waste of time and money.

"Dog and pony show," he called it, this hearing to determine whether the man who robbed and killed his 17-year-old son Erik more than 20 years ago received the death sentence in a trial infected with racial injustice.

Erik Tornblom was white, defendant Marcus Reymond Robinson is black, and the prosecutor, who was white, was more than three times more prone to dismiss blacks from the jury pool than non-blacks, according to testimony and evidence presented during last week's proceedings.

Additional Fay Observer coverage includes, "Charlotte judge testifies in Racial Justice Act hearing about how he fights courtroom bias," and, "Racial Justice Act hearing: Researcher suggests racial bias in selecting juries."

The ACLU Capital Punishment Project issued a news release, "North Carolinians Struck From Capital Juries Because of Race Speak Out in Favor of Racial Justice Act."  It's also available via PR Web.  It includes video.  Here's the beginning:

North Carolinians who say they were wrongfully struck from juries in capital cases because of their race are speaking out today in a new video produced by the American Civil Liberties Union documenting their experiences.

The video, which features three African-Americans who say they were struck from capital juries by prosecutors simply because of the color of their skin, is being released in conjunction with the first hearing under North Carolina's historic Racial Justice Act. Marcus Robinson is asking that his death sentence be commuted to life in prison without the possibility of parole. Potential African-American jurors in Robinson’s case were struck from his jury at a rate 3.5 times higher than other potential jurors.

“It made me feel like I was back in 1960, that racism is still very much alive,” Laverne Keys, who was excluded in the 1999 case State v. Jathiyah Al-Bayyinah, says in the video. “It makes you wonder whether all these people are being given a fair trial or given a fair consequence so far as the death penalty.”

There is also legislative news on the RJA front from last week.  "Racial Justice Act committee gets its marching orders," was posted by the News & Observer.

That committee House Speaker Thom Tillis appointed last month to try to come up with a Racial Justice Act compromise has been given its official marching orders.

The panel of six Republicans and four Democrats can begin meeting as soon as its chairman, Rep. Tim Moore, a Republican from Cleveland County, calls for it. Some legislators had hoped that the committee might come up with proposed legislative by the short session in May.

However, in an order issued last week, Tillis directed that the committee can do that if it's able, but it doesn’t have to wrap up its work until the General Assembly convenes  next year.

Earlier coverage of the RJA begins at the link.

Doubts on the Death Penalty

That's the title of a Los Angeles Times editorial reflecting on the DPIC end-of-year report.  It's subtitled, "Even though the majority still support capital punishment, the percentage in favor is declining in the U.S. It's about time."  It appeared in the Saturday paper and leads continued news and commentary on report.

Back in September, much was made of the crowd's reaction at a GOP presidential debate after moderator Brian Williams noted that Texas Gov. Rick Perry had overseen more executions than any governor in modern times, and spectators burst into applause. Liberal pundits saw this as an example of the callousness of GOP voters, but we were more disturbed by the callousness on exhibit from Perry.

And:

We bring this up now, three months after the debate in question, because new data have emerged showing that despite a certain bloodthirsty element in some parts of the conservative base, support is steadily eroding for the ethical, legal and financial morass that is capital punishment. The Death Penalty Information Center's annual report on capital punishment in America, released Thursday, showed that executions continued to drop in 2011, to 43; that's down from 85 in 2000 and 46 last year. More significantly, the number of death sentences across the country fell dramatically this year, to 78 from 112 in 2010. And perhaps most significant of all, the percentage of Americans who say they support the death penalty, which was 80% in 1994, fell to 61%, the lowest ever.

In California, one number in particular stands out: There were only 10 people sentenced to death in the Golden State in 2011, compared with 29 last year. That may be a statistical anomaly, or it may indicate that prosecutors and courts are finally concluding, correctly, that death sentences have become largely pointless; legal complications have prevented anyone from being executed here since 2006. A continuing conflict over the state's method for lethal injection and a shortage of a key drug often used to perform it, mean this situation won't be resolved any time soon.

Yes, a majority of Americans still favor capital punishment. But the approval curve is heading in the right direction — downward — providing reason to hope that as our society evolves, the death penalty will die off.

The Houston Chronicle reports, "Capital punishment 'on the defensive'."  It's written by Mike Tolson.

America's enthusiasm for capital punishment - once a staple of electoral politics and a perennial hot topic in discussions of the criminal justice system - continued its decade-long decline this year, according to the annual report of the Death Penalty Information Center.

The number of new death sentences imposed by juries in 2011 fell below 100 for the first time since the reinstatement of capital punishment in 1976. Total executions dropped to 43, three-quarters of those in the South.

Just a decade ago, juries around the country returned more than 200 death sentences. But in 2011 the total reached only 80. Although the tabulations were made before year's end, capital murder trials rarely are held in the last two weeks of December.

"The bottom line is the death penalty is on the defensive," said Richard Dieter, director of the DPIC, an information clearing house that opposes capital punishment. "This year was a real strong drop. If it was only this year, that would be a fluke, but coupled with other years and measures, it reflects a real concern about the death penalty."

And:

Most states, including Texas, now allow juries to impose life-without-parole sentences. Experts agree that this sentencing option has had a big impact. For one thing, it potentially makes it easier for a jury to compromise in cases where some may be uncomfortable with imposing death. Of perhaps greater significance is the influence it has on prosecutors, who now have a palatable alternative.

Prosecutors in key jurisdictions such as Harris and Dallas counties who were unabashed fans of the death penalty have retired or are no longer in office. Those in charge now are more selective. Legendary Harris County District Attorney Johnny Holmes used to say he pursued death in any murder case where he believed a jury would return the sentence, which helped establish Houston's nationwide reputation as the "capital of capital punishment." Pat Lykos, the current DA, has said repeatedly that her office will seek death "where appropriate." Since she took office in 2009, the county has sent six defendants to death row.

The Saturday evening edition of NBC Nightly News carried Pete Williams' report, "Death penalty is dying out."

 

Visit msnbc.com for breaking news, world news, and news about the economy

"Decrease in U.S. Executions Points to Eventual Abolishment, Says W&L Law Professor," by Peter Jetton is at the Washington & Lee University website.

The steady downward trend in the use of the death penalty in the United States represents a "fairly irreversible decline" and suggests a time when the death penalty will be abolished, says David Bruck, a Washington and Lee University law professor.

Statistics released this week by the Death Penalty Information Center indicate that the number of executions in the U.S. has decreased by 75 percent since 1996 and is at its lowest level since capital punishment was reinstated in the United States in 1976.

Bruck, clinical professor of law at W&L and director of the Virginia Capital Case Clearinghouse, cites several reasons for the decline.

States that still use the death penalty, he says, now provide an option for juries to sentence defendants to life imprisonment without parole. And, he adds, juries that do sentencing in capital cases must be told about that option.

"So juries understand that society is protected either way and the death penalty is generally not necessary as a way of protecting society against dangerous murderers," said Bruck.

Another reason for the decline, in Bruck's view, involves the number of people on death row who have been shown to be convicted in error, sometimes by use of DNA testing.

"Since the 1990s, the American public has received something of a shock about the fallibility of the criminal justice system," he said. "For a long time, it was thought that the only mistakes the system ever made was failing to convict or failing to imprison dangerous people.

Alabama's Birmingham News carries, "Use of death penalty drops, but not in Alabama," by Esther Brown of Project Hope to Abolish the Death Penalty.

Nationwide, death sentences dropped to 78 in 2011. This is the first time since the U.S. Supreme Court reinstated capital punishment in 1976 that the courts have imposed fewer than 100 death sentences in a given year, according to the Death Penalty Information Center's Year End Report. Death sentences have declined about 75 percent since 1996, when 315 individuals were sentenced to death. Not in Alabama.

Executions were also down around the country, with 43 in 2011 and 46 in 2010, representing a 56 percent drop since 1999, when there were 98. But not in Alabama.

Even Texas experienced a 46 percent decline in executions over the past two years. The Lone Star State carried out 13 executions in 2011 and 24 in 2009. In the same period, Alabama's execution rate increased.

And:

Alabama should stop and listen. I am very tired of saying "and then there is Alabama."

The DPIC report, "The Death Penalty in 2011: Year End Report," is available in Adobe .pdf format.  News coverage and commentary on the report begins at the link.

TDS on the Decline in Death Sentences & Executions

Texas Defender Service has issued a news release, "Executions and New Death Sentences Continue to Decline in Texas.  Concerns about Fairness and Accuracy are Growing, According to Texas Defender Service.

Here's the text of the release in full:

Executions in Texas fell to their lowest level in 15 years in 2011, and new death sentences remained at the all-time low level established last year, according to Texas Defender Service (TDS), a non-profit law firm that represents death row prisoners.

This year, Texas executed 13 prisoners, down from 17 executions in 2010 and a reduction from the all-time high of 40 executions in 2000. Texas gained only 8 new death sentences in 2011, the same number as in 2010, and down from the all-time high of 48 new death sentences in 1999.

“These numbers show that Texans have a growing discomfort with the chronic problems that infect the death penalty system, including the risk of convicting an innocent person, the costs, and its disproportionate use against people of color,” said Kathryn Kase, interim executive director of TDS. “Texas is part of a nationwide trend away from the death penalty.”

Since 1976, 139 people have been exonerated from death row nationwide, including 12 from Texas. Questions about the execution of a possibly innocent man, Cameron Todd Willingham, continued to dominate headlines in Texas this year.  Since 2005, almost three quarters of Texas death sentences have been imposed on people of color – 41% African American, 29% Latino, and 2% other non-whites.

“Life without parole, which Texas adopted in 2005, is one reason for the reduced number of death sentences, but new death sentences began falling before Texas passed LWOP into law,” said John Niland, attorney and founder of TDS’ Capital Trial Project, which provides consulting and training to capital defense counsel. “Texas jurors are learning that the law presumes a life sentence and that the law does not require them to vote for the death penalty.”

Greg Wiercioch, who directs the Capital Post-conviction unit at TDS, said, “The reduction in executions shows that the United States Supreme Court and the Texas courts are concerned about the quality of representation that death row inmates receive and the reliability of the verdicts rendered.”

The Supreme Court granted five stays of execution in Texas cases this year, most notably to consider whether inmates have a constitutional right to effective assistance of counsel in challenging their conviction or sentence.  The Texas Court of Criminal Appeals granted stays of execution to two inmates who have raised compelling claims of innocence. 

“Even though the reduction in new death sentences and executions represents progress for Texas, its criminal justice system has a ways to go,” said Kathryn Kase.  “Several death penalty trials and executions are already scheduled for the first quarter of 2012, and that suggests that prosecutors are not heeding the public’s desire for decreased use of the death penalty.”

Texas Defender Service is a non-profit law firm with offices in Houston and Austin.  Established in 1995, TDS seeks to establish a fair and just criminal justice system in Texas by advancing reforms to improve indigent defense.  TDS does this by consulting in capital cases, developing sample pleadings, providing legal education to attorneys, and engaging in direct representation in a handful of trial and post-conviction cases.

NC Prosecutors Want to Repeal RJA

The AP filing is, "NC prosecutors want Racial Justice Act struck down," Gary D. Robertson and Martha Waggoner.  Versions are available via the News & Observer and the Republic.

North Carolina's prosecutors are almost unanimous in calling on legislators to repeal a law that allows defendants on death row to appeal their sentences by showing evidence of racial bias.

A group that represents state district attorneys is planning a news conference in Raleigh on Wednesday to shine a spotlight on the prosecutors' request that the state Senate strike down the Racial Justice Act.

In a letter sent Monday, the prosecutors said that if the 2009 law isn't repealed, it will severely hamper the justice system's ability to handle major cases.

North Carolina Advocates for Justice, a group that supports the law, has sent its own letter to Senate leader Phil Berger asking him to reaffirm the Legislature's support the Racial Justice Act.

"DAs seek repeal of death penalty law," is the WRAL-TV report.

The legislature should act quickly to repeal a new law that gives death row inmates another way to challenge their sentences on the grounds of racial bias, North Carolina's district attorneys argue in a letter to state senators.

“No district attorney supports race as a factor in either death penalty cases or in the criminal justice system in general,” Johnston County District Attorney Susan Doyle, president of the North Carolina Conference of District Attorneys, said in a statement. “While the name of the act sounds well-intentioned, the actual application is a threat to justice, truth and public safety,”

Doyle said in a letter addressed to Senate President Pro Tem Phil Berger that the Racial Justice Act could "crush an already under-funded and overburdened (court) system." Durham County District Attorney Tracey Cline was the only one of North Carolina's 44 elected district attorneys who didn't sign the resolution.

The Racial Justice Act allows death row inmates and defendants facing the death penalty to use statistics and other evidence to show that racial bias played a significant role in either their sentence or in the prosecutors' decision to pursue the death penalty. The law says an inmate's sentence is reduced to life in prison without the possibility of parole if the claim is successful.

A study by two law professors at Michigan State University found a defendant in North Carolina is 2.6 times more likely to be sentenced to death if at least one of the victims was white. The study also showed that of the 159 people on death row in the state at the time of the study, 31 had all-white juries and 38 had only one person of color on the jury.

And:

The General Assembly is scheduled to reconvene Nov. 27 to work up to three days on several possible items. The legislature's adjournment motion allows lawmakers to consider bills during that period that are awaiting a concurrence vote, which means senators could vote on the repeal of the Racial Justice Act. Kentucky is the only other state with such a law.

The news release issued by North Carolina Advocates for Justice is, "NC Advocates for Justice and NAACP Call on Senate Leader to Commit to Racial Justice in Face of Inaccurate Opposition," is via PR Newswire.  Here's the full text:

The NC Advocates for Justice and the NAACP today called on Sen. Phil Berger to reaffirm his commitment to The Racial Justice Act.  

In a hand delivered letter, NCAJ's Dick Taylor and NAACP's Rev. William Barber refute inaccurate claims from the state's Conference of District Attorneys regarding the Cumberland County case of Marcus Robinson, in which qualified African-Americans were wrongly excluded from the jury pool.  

The letter cites a recent Michigan State University study of North Carolina capital cases.  The study found that, even when controlling for different circumstances, for individuals who killed white victims the odds of receiving the death penalty increased two and half times.  African-Americans and Native Americans, according to MSU, also faced apparent discrimination in other ways.

The letter concludes, "The courts of North Carolina have been doing an exemplary job of managing litigation under the RJA, both in terms of avoiding unnecessary costs and in terms of expediting review of serious claims of racial discrimination.  Now is not the time for the General Assembly to tinker with the statute and create potentially new avenues of appeal."

The complete letter is here (in Adobe .pdf format).

Earlier coverage of North Carolina's RJA begins at the link.

Alabama Lawsuit Filed Over Jury Selection

Equal Justice Initiative has filed a civil rights lawsuit in Alabama and issued a news release, "African Americans Illegally Barred From Serving on Juries Sue Alabama Prosecutor Over Racial Discrimination.  Civil Rights Lawsuit Challenging District Attorney's Decades-Long Exclusion of African Americans from Jury Service Is First of its Kind."  Here's the text of the news release:

Today, the Equal Justice Initiative (EJI) filed a civil rights lawsuit contending that District Attorney Douglas Valeska has illegally excluded qualified African Americans from serving on Houston and Henry County, Alabama, juries in serious felony cases, especially capital cases, for decades. The lawsuit, filed on behalf of African Americans who were barred from serving on juries after being summoned to court, was filed in the federal district court in Montgomery, Alabama, and alleges violations of the U.S. Constitution and federal anti-discrimination laws. Lawyers believe today's class action is the first-ever civil suit directed at a prosecutor's racially discriminatory use of peremptory strikes and filed by actual victims of discrimination.

The plaintiffs are five African Americans who state courts previously found were illegally excluded from jury service because they are black. The lawsuit seeks declaratory and injunctive relief, including ongoing federal court monitoring of jury selection in Houston and Henry Counties.

The complaint alleges that, from 2006 to 2010, state prosecutors in Dothan used peremptory strikes to exclude 82% of qualified black jurors in death-penalty cases. As a result, the jury in every death-penalty case in Houston County over this period has been all white or had only a single black juror despite the fact that the circuit is nearly 25% African American. Houston County has the highest per capita death sentencing rate in Alabama.

"Removing people from a jury on the basis of race is shameful and inexcusable," said Plaintiff Vicky Allen Brown. In 1998, an Alabama appellate court concluded that Valeska's office illegally struck Brown from jury service in a capital trial because of her race. An accountant who was born and raised in Houston County, Brown joined the lawsuit to expose and challenge Valeska's illegal jury selection practices because "many times you cannot do anything about discrimination – especially when it is committed by public officials who know how to disguise and justify their behavior."

Alabama appellate courts have reversed several cases after finding that Valeska's office excluded black prospective jurors in order to ensure that African Americans would not be on juries and that Valeska and his assistants were unfairly suspicious of black potential jurors.

"Mr. Valeska has repeatedly been found to have illegally excluded black people from jury service with peremptory strikes in capital cases but he continues the practice because most people don't know about it," said Bryan Stevenson, lead attorney for the plaintiffs. "The underrepresentation and exclusion of people of color from juries has seriously damaged the credibility and reliability of the criminal justice system. Individual case reversals haven't stopped this illegal practice, so there must be greater accountability."

The complaint also alleges that Valeska's racially discriminatory use of peremptory challenges violates the federal Civil Rights Act of 1875, which provides criminal penalties for officials who exclude any qualified citizen from jury service on account of race, color, or previous condition of servitude. The Department of Justice has not enforced this anti-discrimination law since its passage more than 135 years ago.

"Reports and advocacy are important for exposing racial discrimination," said Houston County civil rights leader Pastor Kenneth Glasgow. "But we need a lawsuit like this one to give anti-discrimination laws some teeth."

The plaintiffs are among hundreds of people of color called for jury service throughout the South who have been illegally excluded from juries after prosecutors asserted pretextual reasons to justify their removal, as documented in EJI's recent study, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy. African Americans have been barred from juries because they wore eyeglasses; were single, married, or separated; were too old for jury service at age 43 or too young at 28; and for countless other reasons that courts have rubber-stamped as "race-neutral." Many of these assertions are false, humiliating, demeaning, and injurious.

Attorneys contend that Valeska's illegal removal of qualified African Americans subjected the plaintiffs and all excluded African Americans to profound personal humiliation and harms the entire community by undermining public confidence in the fairness of the justice system.

Plaintiffs are also represented by attorneys with the law firm of Drinker Biddle & Reath LLP, in Philadelphia, Pennsylvania.

The civil rights lawsuit, Hall, et al v. Valeska, is available in Adobe .pdf format.  Related posts are in the jury and race indexes.

The Innocence Project on the New Jersey Ruling

"New Jersey Supreme Court Issues Landmark Decision Mandating Major Changes in the Way Courts Handle Identification Procedures," is the title of a news release issued by the Innocence Project.

Today the New Jersey Supreme Court issued a landmark decision requiring major changes in the way courts are required to evaluate identification evidence at trial and how they should instruct juries.  The new changes, designed to reduce the likelihood of wrongful convictions by taking into account more than 30 years of scientific research on eyewitness identification and memory, require courts to greatly expand the factors that courts and juries should consider in assessing the risk of misidentification.   

“Today the New Jersey Supreme Court has said that the legal architecture set by the U.S. Supreme Court 30 years ago to evaluate identification evidence must be renovated. This is a decision that will ultimately affect every state and federal court in the nation,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “The court has recognized the tremendous fallibility of eyewitness identifications, and based on the most thorough review of scientific research undertaken by a court, has set up comprehensive and practical guidelines for how judges and juries should handle this important evidence.”

The court’s decision requires judges to more thoroughly scrutinize the police identification procedures and many other variables that affect an eyewitness identification. The court noted that this more extensive scrutiny will require enhanced jury instructions on factors that increase the risk of misidentification. These factors include: 

• Whether the lineup procedure was administered “double blind,” meaning that the officer who administers the lineup is unaware who the suspect is and the witness is told that the officer doesn’t know.
• Whether the witness was told that the suspect may not be in the lineup and that they need not make a choice.
• Whether the police avoided providing the witness with feedback that would cause the witness to believe he or she selected the correct suspect.  Similarly, whether the police recorded the witnesses’ level of confidence at the time of the identification.
• Whether the witness had multiple opportunities to view the same person, which would make it more likely for the witness to choose this person as the suspect.
• Whether the witness was under a high level of stress.
• Whether a weapon was used, especially if the crime was of short duration.
• How much time the witness had to observe the event.
• How far the witness was from the perpetrator and what the lighting conditions were.
• Whether the witness possessed characteristics that would make it harder to make an identification, such as age of the witness and influence of alcohol or drugs.
• Whether the perpetrator possessed characteristics that would make it harder to make an identification.  Was he or she wearing a disguise?  Did the suspect have different facial features at the time of the identification?
• The length of time between the crime and identification. 
• Whether the case involved cross-racial identification.

To provide courts with these more enhanced jury instructions, the court gave the Criminal Practice Committee and the Committee on Model Criminal Jury Charges 90 days to submit proposed revisions to the current jury instructions on eyewitness identification, specifically directing them to consider the model jury instructions submitted by the Innocence Project.

The court’s decision stems from the 2004 conviction of Larry Henderson, a Camden man who received an 11-year prison sentence for reckless manslaughter and weapons possession related to a fatal shooting in January 2003. He appealed the photo lineup procedure because officers failed to follow the New Jersey Attorney General’s Guidelines, issued in 2001, for conducting identification procedures. The appeals court agreed and ordered a new hearing on the admissibility of the photographic identification of Henderson. Before that could occur, the state appealed, and the New Jersey Supreme Court decided that an extensive inquiry into witness identification procedures currently used by law enforcement was necessary.

The New Jersey Supreme Court appointed a Special Master to review the legal standard for the admissibility of eyewitness testimony known as the “Manson test,” established by the United States Supreme Court in 1977 and fully embraced by 48 out of 50 states, including New Jersey in 1988 in State v. Madison.  In addition to the parties to the litigation, the court invited the Innocence Project and the Association of Criminal Defense Lawyers of New Jersey to participate in an inquiry by the Special Master who considered over 200 scientific studies and heard from some of the nation’s most respected experts on eyewitness identification before issuing findings to the court in June 2010. 

The court remanded the Henderson case back to the trial court for further review in accordance with the decision. The decision will apply to all future cases, but will not be applied retroactively with the exception of the companion case, State v. Chen, in which the court held that suggestive identification procedures that resulted from private actors would also be subject to court scrutiny to ensure the reliability of the identification.  

Download today’s decision here. 

Download the legal findings that the Innocence Project submitted to the court, which includes the model jury instructions.

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of the 273 convictions overturned through DNA testing. Additional information about eyewitness misidentification is available here.

News coverage of the New Jersey Supreme Court ruling inState v. Henderson is in the preceding post.