Ronald Smith Heaves and Coughs During Alabama Execution After Tie Vote in Supreme Court Denies Him A StayPosted: December 9, 2016
After a divided U.S. Supreme Court twice temporarily halted the execution of Ronald Bert Smith, Jr. (pictured), Alabama put Smith to death on December 8 in a 34-minute execution in which Smith heaved, coughed, clenched his left fist, and opened one eye during one 13-minute period. Smith's jury had recommended by a vote of 7-5 that he be sentenced to life without parole, but, in a practice permitted by no other state, his trial judge overrode that recommendation and sentenced Smith to death. At the time his execution was scheduled to begin, Smith had a stay motion and a petition for certiorari pending in the U.S. Supreme Court arguing that judicial override violated his Sixth Amendment right to a jury trial and was unconstitutionally arbitrary under the Eighth Amendment. After Alabama announced its intention to proceed with the execution despite the pending petition, Justice Thomas granted a temporary stay, a procedure to allow time for the full Court to act. Half the Court—enough to review a case—voted to grant Smith a stay, but five votes are required to halt an execution. Smith's lawyers then filed a motion for reconsideration, criticizing as arbitrary the rule that allows four votes to grant review of a case, but requires five to stay an execution. His motion argued that when four justices vote to hear a case, "all certiorari petitioners, public and private parties in civil and criminal cases of every kind" are entitled to have their cases reviewed except condemned prisoners facing an imminent execution. He asked the Court to reconsider his stay motion "[b]ecause the Court’s inconsistent practices respecting 5-4 stay denials in capital cases clash with the appearance and reality both of equal justice under law and of sound judicial decision-making." Justice Thomas granted another temporary stay so the full Court could consider that motion; after about an hour, the Court denied the request and also rejected a last-minute challenge to the state's lethal injection procedure. Alabama used a three-drug procedure in its execution, beginning with midazolam, a sedative that has contributed to botched executions in several other states and that was the subject of a challenge before the Supreme Court in 2015. Though midazolam is intended to render the inmate unconscious and therefore protect against the pain and suffering that would be experienced from the second and third drugs, witnesses reported that Smith showed signs of consciousness after it was administered.
Since 1973, juries in Texas have had to determine whether a defendant presents a future danger to society before imposing a death sentence. But while they have found that each of the 244 men and women currently on the state's death row poses "a continuing threat to society," experts argue that juries cannot accurately predict a defendant's future. According to Dr. Mark Cunningham, a psychologist and leading researcher on the issue of future dangerousness, “[j]uries show absolutely no predictive ability whatsoever” on this issue. In Texas capital cases, prosecutors typically present testimony from psychiatric witnesses who offer their opinion that the defendant will commit future acts of violence. One witness, psychiatrist Dr. James Grigson, testified in 167 capital cases, repeatedly responding to hypothetical questions posed by prosecutors (even after he was expelled from state and national professional associations because of this practice) that defendants whose institutional records he had never reviewed and whom he had never evaluated were certain to commit future acts of violence. The Texas Court of Criminal Appeals recently granted a stay of execution to Jeffery Wood—who had no history of violence and did not himself kill anyone—to permit him to challenge Dr. Grigson's testimony in his case as false and unscientific. Studies show that the ostensibly objective inquiry into future dangerousness has not reduced the arbitrary imposition of death sentences and that, in fact, testimony on the issue has often instead introduced racial bias into trials. The U.S. Supreme Court is currently considering the case Buck v. Davis, in which a psychologist testified that the fact that defendant Duane Buck (pictured) is African-American increases the likelihood that he presents a future danger to society. A study led by Stanford University Prof. Jennifer Eberhardt found that in interracial murders involving a White victim and a Black defendant, the physical features of the defendant greatly affected the outcome of the case. In those cases, defendants with stereotypically African facial features were more than twice as likely to be sentenced to death as Black defendants who had a less stereotypically African appearance. The American Psychiatric Association has sought to eliminate the question of future dangerousness from jury decisions, writing in an amicus curiae brief to the U.S. Supreme Court: “[t]he unreliability of psychiatric predictions of long-term future dangerousness is by now an established fact within the profession.” Kathryn Kase, director of the Texas Defender Service, described the determination of future dangerousness as "akin to giving jurors two cotton swabs, asking them to look at them and saying, ‘Does the DNA match?’ If an expert can’t figure it out, then how can jurors do that? It is no accident that African Americans are overrepresented on death row.”
American Bar Association Issues White Paper Supporting Death Penalty Exemption for Severe Mental IllnessPosted: December 7, 2016
At a December 6-7 national summit on severe mental illness and the death penalty, the American Bar Association Death Penalty Due Process Review Project released a new white paper that it hopes will provide law makers with information and policy analysis to "help states pass laws that will establish clear standards and processes to prevent the execution of those with severe mental illness." The ABA does not take a position on the death penalty itself, but believes that "[i]ndividuals with severe mental disorders or disabilities ... should not be subject to capital punishment." The white paper describes the range of problems faced by seriously mentally ill defendants in capital cases and sets forth possible legislative approaches for exempting them from capital sanctions. The white paper, and ABA President-elect Hilarie Bass in her address to the summit, likened the diminished moral culpability of the severely mentally ill to that of two other "vulnerable groups"—juvenile offenders and defendants with intellectual disabilities—whom the court has exempted from the death penalty. The application of the death penalty to these defendants, she said, "has been deemed unconstitutional because our society considers both groups less morally culpable than the 'worst of the worst' murderers for whom the death penalty is intended. They are less able to appreciate the consequences of their actions, less able to participate fully in their own defense and more likely to be wrongfully convicted. These exact characteristics apply to individuals with severe mental illness." Citing national polls in 2014 and 2015, Bass said the American public "support[s] a severe mental illness exemption from the death penalty by a 2 to 1 majority." At least 8 state legislatures are expected to consider serious mental illness exemptions in 2017. Among those states is Virginia, where just this year, a jury disregarded prosecution and defense experts in the death penalty trial of Russell Brown and found him guilty despite testimony that he was insane and did not understand the nature or consequences of his actions. The jury ultimately sentenced Brown to life in prison, but, as University of Virginia Law Professor Brandon Garrett explained, "there was no statutory protection available against the highest punishment for a man who, by the admission of all experts, did not have the highest culpability." As does the ABA, Professor Garrett argues that a serious mental illness exemption is a safeguard that is necessary to reduce unfairness in the administration of capital punishment. "If lawmakers believe that we should retain the death penalty in Virginia," he wrote, "we must be confident that we are not sentencing to death severely mentally ill people who cannot be fully blamed for their actions."
Alabama is set to execute Ronald Smith on December 8, although the sentencing jury in his case recommended that he be sentenced to life. Under a practice that is no longer permitted in any other state, Smith's judge overrode the jury's sentencing recommendation and imposed a death sentence. As his execution approaches, Smith has filed a petition in the U.S. Supreme challenging the constitutionality of Alabama's law. He argues it violates both his right to have a jury determination of all facts that are a prerequisite to imposing the death penalty, and a national consensus against judicial disregard of jury capital sentencing verdicts. Smith's petition notes that "Alabama is the only state that allows a judge to sentence a defendant to death when the jury has recommended a sentence of life." His lawyers also have petitioned Governor Robert Bentley for clemency, quoting a juror who said, "It was very painful to make such a difficult decision, only to have the judge disregard it." A recent report by the Brennan Center on Justice found that "electoral pressures influence judges' decisions in capital cases," including Alabama's practice of judicial override, which accounts for one-fifth of Alabama's death row. Earlier this year, state courts in Florida and Delaware--the only other states that had permitted judicial override--struck down sentencing statutes that permitted judges to impose death sentences in the face of jury recommendations for life or non-unanimous recommendations for death. These decisions grew out of the U.S. Supreme Court's January 2016 ruling in Hurst v. Florida that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." Smith's attorneys argue that Alabama's judicial override practice violates Hurst. Alabama's attorney general disagrees, arguing that the Alabama statute is different from Florida's because it requires the jury to find the existence of an aggravating factor making the defendant eligible for death. Smith's lawyers also argue that "[t]his life-and-death decision is being made by judges facing intense electoral pressure," rendering such overrides unconstitutionally arbitrary. Smith was never able to obtain review of these issues in federal court because his attorney made an error in paying a filing fee. Though his claims were filed by the deadline, his lawyer, who was on probation for public intoxication at the time, assumed he did not have to pay a filing fee of $154 because his client was indigent. In addition to his judicial override challenge, Smith is also part of a group of death row inmates challenging Alabama's new lethal injection protocol, which would use midazolam, a drug involved in several botched executions over the last few years.
UPDATE: The Georgia Board of Pardons and Paroles denied Sallie's request for clemency. PREVIOUSLY: Georgia plans to execute William Sallie (pictured) on December 6 in a case his attorneys argue is tainted by egregious juror misconduct that no court has considered because Sallie missed a filing deadline during a period in which he was unrepresented and Georgia provided him no right to a lawyer. It is a case that Andrew Cohen, a Fellow at the Brennan Center for Justice and long-time legal analyst, says "should shock the conscience of every person who believes [in] due process of law." Sallie was convicted of killing his father-in-law and wounding his mother-in-law during a 1990 custody fight with his estranged wife. Because the case involved domestic violence, divorce, and a custody battle, potential jurors were questioned about their experiences with those issues in an effort to eliminate possible bias. One juror lied about her background, which included four contentious divorces, child custody and support fights, and family violence. Although the trial judge had presided over three of the juror's four divorce proceedings -- including one said to have involved dramatic scenes in the courtroom -- he failed to remove her from the jury. During questioning, the same juror stated that she would follow Biblical law over Georgia law, which Cohen says also should have disqualified her from serving in the case. However, over the objections of Sallie's attorney, the judge permitted her to serve and the Georgia courts rejected this challenge to the juror on appeal. During the course of the trial, the juror then carried on an extramarital affair with a male juror, and law enforcement personnel were dispatched to her house after the trial to tell the man his wife had been looking for him. The judge subsequently informed Sallie's lawyers of that affair, but in the 15 months before filing a motion for a new trial, they did nothing to investigate the juror and did not raise her marital history or in-trial misconduct as an issue. The juror later said in an affidavit that she had pressured six other jurors into voting for a death sentence for Sallie. No appeals court has heard evidence of the juror misconduct because Sallie missed a filing deadline by eight days during a period when he had no lawyers representing him. Former Georgia Supreme Court Chief Justice Norman S. Fletcher decried Georgia's failure to provide death row inmates with attorneys throughout the appeals process, saying that "[f]undamental fairness, due process and the prohibition against cruel and unusual punishment require the courts to provide an attorney throughout the entire legal process to review a death sentence. Virtually every capital-punishment state has this safeguard. Georgia is an outlier." In his clemency petition, Sallie's attorneys argue, “The determination of a death sentence must occur only with the most pristine and careful proceedings uncorrupted by bias and dishonesty. That simply did not happen here.”
With 55 executions since the 1970s, Dallas County, Texas, ranks second among all U.S. counties -- behind only Harris County (Houston), Texas -- in the number of prisoners it has put to death. It is also among the 2% of counties that account for more than half of all prisoners on death row across the country, and produced seven new death sentences and one resentence between 2010 and 2015, more than 99.5% of all U.S. counties during that period. Dallas County has a long history of prosecutorial misconduct and racial discrimination, evidenced most tellingly in its biased jury selection practices. Long-time Dallas District Attorney Henry Wade, whose tenure in office spanned the years 1951 to 1987, once told an assistant prosecutor, “If you ever put another n****r on a jury, you’re fired.” An office manual first written in 1963 instructed Dallas County prosecutors not to “take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.” In 2005, the U.S. Supreme Court took notice of what Justice Anthony Kennedy described as a "culture of discrimination" that was “suffused with bias against African-Americans," and overturned the capital murder conviction of Thomas Joe Miller-El because prosecutors removed 10 of the 11 Black potential jurors on the basis of race. 51 people have been exonerated of serious crimes in Dallas County since 1989, including Randall Dale Adams, who had been sentenced to death after witnesses for the prosecution committed perjury at his trial. Dallas has shown signs of change in recent years. No new death sentences have been imposed since 2013. That year, District Attorney Craig Watkins said he would advocate for the Texas legislature to pass a Racial Justice Act, permitting death row prisoners to challenge their sentences based upon statistical evidence of racial discrimination. Former Assistant District Attorney James Fry said in 2009 that concerns about innocence had changed his views on the death penalty: "For years I supported capital punishment, but I have come to believe that our criminal justice system is incapable of adequately distinguishing between the innocent and guilty. It is reprehensible and immoral to gamble with life and death."
Missouri is Disproportionately Producing Federal Death Sentences Amidst Pattern of Inadequate RepresentationPosted: December 1, 2016
Federal capital defendants are disproportionately sentenced to death in Missouri compared to other states, with 14.5% of the 62 prisoners currently on federal death row having been prosecuted in Missouri's federal district courts. By contrast, a DPIC analysis of FBI Uniform Crime Reporting Statistics shows that Missouri accounted for only 2.26% of murders in the United States between 1988, when the current federal death penalty statute was adopted, and 2012. Not surprisingly, an article in The Guardian by David Rose reports that, since the 1990s, the chances that a defendant will be sentenced to death in a Missouri federal court are significantly greater than in other federal jurisdictions. Rose suggests that the questionable performance of defense counsel and repeated failures to investigate and present mitigating evidence relating to the backgrounds and life histories of Missouri federal capital defendants has significantly contributed to that disparity. Though federal funding for defense attorneys is more generous than state funding, Rose says the federal death penalty system shows evidence of the same failures in representation that so often appear in state death penalty cases. Four of the nine prisoners sentenced to death in Missouri were represented by the same lawyer, Frederick Duchardt. In the three cases of Duchardt's clients that have reached the appeals stage, all three raised claims of ineffective assistance of counsel. In each case, Duchardt failed to employ a mitigation specialist, in violation of American Bar Association guidelines. Mitigation specialists investigate a client's background to find evidence that may convince a jury to impose a sentence less than death. Duchardt's clients all suffered serious abuse during their childhoods. One had an IQ of 68, placing him on the threshold of intellectual disability. Another had been diagnosed with psychosis, bipolar disorder, and post-traumatic stress disorder. None of these issues were presented to the jury, a decision Duchardt later claimed was "strategic," but which his client's appeal attorneys argue was a result of failure to prepare or investigate. Professor Sean O'Brien of the University of Missouri Law School, described the appointment of counsel for indigent defendants as a "lottery," saying, "Many defendants lose that lottery, and they get a lawyer more worried more about pleasing the court and the prosecutor than about fighting for the client. Those are the ones who die. When one lawyer produces nearly half the federal death sentences in a state, there’s a problem."
During argument November 29 in the case of Moore v. Texas, the U.S. Supreme Court expressed skepticism about Texas' idiosyncratic method of deciding whether a capital defendant has Intellectual Disability and is therefore ineligible for the death penalty. A trial court, applying the criteria for Intellectual Disability established by the medical community, found that Bobby James Moore (pictured) was not subject to the death penalty. However, the Texas Court of Criminal Appeal reversed that ruling in 2015, saying that Moore did not qualify as intellectually disabled under Texas' “Briseño factors” (named after the Texas court decision that announced them), an unscientific seven-pronged test based in part on the character Lennie Smalls from John Steinbeck's "Of Mice and Men." Moore's attorney, Clifford Sloan, argued that "Texas is very extreme and stands alone" in rejecting clinical standards used by the medical community to determine Intellectual Disability and replacing them with “nonclinical” and “anti-scientific” criteria. Five justices seemed sympathetic to Moore's case, raising concerns about the arbitrariness of allowing states to set their own criteria for deciding who is intellectually disabled. Justice Ruth Bader Ginsburg said, "You're opening the door to inconsistent results ... something that we try to prevent from happening in capital cases." Justice Stephen Breyer said that, without nationwide uniformity, there will be "disparities and uncertainties" and "people who are alike treated differently." Justices Elena Kagan and Sonya Sotomayor questioned whether application of the Briseño factors excluded some individuals whom clinicians would regard as being intellectually disabled. Justice Anthony Kennedy asked Texas Solicitor General Scott Keller whether the purpose of Texas' system was to "really limit" the definition of intellectual disability. When Keller said that was not the intent, Kennedy asked, "But isn't that the effect?" The Court is expected to rule on the case by June 2017.
On November 23, the Florida Supreme Court overturned the death sentence imposed by a judge on Richard Franklin after his jury split 9-3 in recommending he receive the death penalty for a 2012 murder. "In light of the non-unanimous jury recommendation to impose a death sentence," the court found that the death sentence violated Franklin's right to have a unanimous jury determination of all facts necessary to impose a death penalty and that the violation could not be excused as harmless. The court ordered that Franklin be given a new sentencing hearing. Although the court did not rule on any case other than Franklin's, the decision suggests that the court will order new sentencing hearings in at least several dozen cases involving prisoners whose non-unanimous death sentence were still pending on direct appeal at the time of the U.S. Supreme Court's ruling in Hurst v. Florida in January 2016. In Hurst, the U.S. Supreme Court struck down Florida's death sentencing scheme because key sentencing facts were determined by a judge, rather than a jury. In October, the Florida Supreme Court interpreted that decision as requiring that the jury unanimously recommend the death penalty before the trial judge could impose capital punishment. The Florida Supreme Court's description of Franklin's claim as a "Ring-Hurst claim" further suggests that the court may order new sentencing hearings for approximately 170 death row prisoners whose sentences became final since Ring v. Arizona, a 2002 U.S. Supreme Court decision requiring that a jury, rather than a judge, determine the existence of aggravating facts making a defendant eligible for the death penalty. The court has yet to rule on whether it will apply the constitutional protections recognized in Hurst to all death row prisoners, irrespective of their sentencing date, which could require resentencing of up to 290 people. Earlier, the court upheld judge-imposed death sentences when the defendant waived his right to a jury or the sentence followed a unanimous jury recommendation for death. According to retired Florida Supreme Court Chief Justice Harry Lee Anstead, "Tragically, in the 13 years since Ring, some 47 persons have been executed in Florida under an unconstitutional statute. Had the U.S. Supreme Court accepted review of a Florida case soon after Ring, those executions may arguably not have occurred – at least not until further review for harmless error, waiver or some other possible argument by the state was first evaluated."
U.S. District Court Judge Richard M. Gergel granted a request on November 28 from Dylann Roof (pictured), the 22-year-old charged with the murders of nine members of the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, to represent himself in his federal capital trial. Judge Gergel described Roof's decision as “strategically unwise,” but said, “It is a decision you have the right to make.” A criminal defendant's right to self-representation was established by the Supreme Court in 1975 in Farretta v. California, a non-capital case where the Court held that a defendant may waive his right to counsel provided such waiver is knowing, voluntarily, and intelligent. In Roof's trial, the judge had temporarily halted jury selection in the trial on November 7, when Roof's attorneys requested a determination of Roof's mental competency to stand trial. After a two-day hearing, which was closed to the public because statements Roof made to a psychologist might taint the trial, Judge Gergel found Roof fit to stand trial. Jury selection is set to begin on November 28th, with 516 potential jurors reporting to the courthouse for questioning. After Roof's federal trial, the state of South Carolina also plans to try him. He faces a death sentence in both trials. While the Supreme Court has not addressed whether a capital defendant may waive his right to counsel, death penalty experts have argued that such defendants should not be allowed to represent themselves, because of the complexity of capital cases and the finality of the sentence. Cornell Law Professor John Blume wrote, "when it comes to a criminal defendant facing society's ultimate punishment, the defendant's more symbolic interests in dignity and autonomy are outweighed by the criminal justice system's interests, as well as society as a whole's interests, in accuracy and fairness." Last year, a Kansas judge permitted White Supremacist Frazier Glenn Cross to represent himself in a case in which he was charged with murders at a Kansas City Jewish Community Center. His lawyers had intended to present a mental health defense to the murders. After a controversial trial punctuated by outbursts by the defendant, the jury sentenced Cross to death.