The Death Penalty Blog

In Memory of Rubin "Hurricane" Carter

Posted by on April 23rd, 2014

On April 20th, 2014, Rubin "Hurricane" Carter passed away. Carter was a renowned professional boxer who fought for the world middleweight title in 1964. In 1966 he was wrongfully arrested and convicted of a triple murder. After finally winning his release, Carter became a tireless advocate for the wrongfully convicted and served as the Executive Director of the Association in Defense of of the Wrongly Convicted.

Rubin Carter was a longtime friend of Death Penalty Focus and a recipient of the Death Penalty Focus Abolition Award at our 1996 Annual Awards Dinner. We are honored to have known this inspiring man, and will remember his commitment to justice.

Much has been written about Rubin "Hurricane" Carter, but Andrew Cohen of The Atlantic truly captured the spirit and commitment of Carter. Originally printed in The Atlantic, you can read the article below.
By Andrew Cohen
April 22, 2014
The Atlantic

The wrongfully convicted boxer was a cause célèbre for the likes of Bob Dylan. But he built his true legacy after he was released from prison.

The New York Times rref=obituaries">obituary of Rubin "Hurricane" Carter was long on detail about the man's grim upbringing, boxing prowess, and wrongful convictions, but dreadfully short on the many ways in which he spent the last decades of his life helping other exonerees. Of the 2,500 words or so the paper employed to describe Carter's remarkable (and remarkably well-chronicled) journey, less than 200 words emphasized the good works he did for countless people upon his release from prison. Bob Dylan may have drawn attention to his wrongful conviction, but Bob Marley serves as a better soundtrack for his life. It was a redemption song.

William C. Rhoden, the Times' venerable sports columnist, did better, writing in his tribute Sunday that "Carter offers a reminder that one’s deeds on the court or on the field will be quickly forgotten; contributions to society resonate across decades. Carter’s name endures not because he had a great left hook but because of the principles he represented until the day he died." Let us now spend a few minutes highlighting the ways in which those principles were distributed to countless men and women less fortunate than Carter, who had little of his natural charisma or talent or celebrity, and who desperately needed him to help bring their cases and their causes into light.

Let us spend a few minutes, for example, with Mike Farrell, the noted actor and activist, who had this to say late Sunday night (in an email response to a query) as word of Carter's death spread around the world:

Like many, I had read Rubin's book (The Sixteenth Round) many years earlier and been deeply touched by it. In one of those incredible strokes of luck years later I was interviewed by a fellow for a documentary film and it turned out he was a friend. In fact, I think he was somehow involved in the making of the feature. At any rate, he put us in touch and became fast friends...

Rubin was such a life force, such a powerful fountain of energy, it's hard to think of him as low or sick or now gone. He was magnetic; his energy, his charisma, I suppose, affected everyone around him. Bringing smiles and laughs and a sense of possibility to everyone in his immediate vicinity.

We've spoken together in so many situations, in lectures, in debates, in press conferences calling attention to unjust and inappropriate incarcerations (his specialty), that I smile now when I think of his forever opening line: "Hello, my name is Rubin "Hurricane" Carter and I'm happy to be here. (pause) I'm happy to be ANYWHERE!" Then he would laugh that wonderful laugh and tell whatever part of his story was relevant to the situation at hand. He was a laughing, dancing, ambassador of possibility.

I know many exonerees and am proud to work with them. Too many of them are damaged, in some cases virtually destroyed by their experience. But in the best of instances, when the experience of having been wrongly convicted, imprisoned and dehumanized the way our system does has not crushed the spark of humanity within them, some seem to find an ability to rise above the anger and resentment and use their experience as a motivation to dedicate themselves to correcting the wrongs in our society.

They are, when given the opportunity, an inspiration to us all, and Rubin, with his joyful, indefatigable energy, was the prime example. We've lost a warrior.

Let us now spend a few minutes with Barry Scheck, the co-director (along with Peter Neufeld) of the Innocence Project, which has brought a measure of justice to hundreds of wrongfully convicted men and women in America over the past 22 years. The Innocence Project both enabled and benefited from Carter's indefatigable work. It both helped him and was helped by him, especially at the beginning, when he was famous and it was not. On Monday, via phone, Scheck told me that Carter was there at the very beginning of the current (and most successful) iteration of the exoneration movement:

People don't give him enough credit. When we did the first big [innocence] conference at Northwestern, on innocence and the death penalty, which led ultimately to the moratorium on executions by Illinois Gov. Ryan, Rubin was the keynoter. He did the keynote speech he always did. He would pull out of his pocket a copy of his writ of habeas corpus signed by [U.S. District Judge] H. Lee Sarokin, [the document that freed him from confinement, for the final time, in 1985]. "I never go anywhere without it," he would say.

 He would appear whenever we would ask him, at conferences all over the country. He always answered the bell. I met him two years ago, in Perth, after he had been diagnosed with cancer. I immediately asked him to come to New York to our dinner. And he came. And there were like a thousand people there, at the Hilton, and the only thing that people wanted to do that night was to have their picture taken with Rubin. He was such a thoughtful man.

And, finally, let us spend a minute or two with another man who became famous around the world for having been wrongfully convicted and then later exonerated amid great fanfare. Few people understand Carter's life better than Gerry Conlan, the Irish exoneree of the Guildford Four, whose legacy (like Carter's) was memorialized both in song and in film. Conlan is in New York this week, by chance, and took the opportunity to tell me he considers Carter "a great man" who traveled across the pond to speak on behalf of the voiceless there, and who understood that "tragedies usually happen to the most disadvantaged people in the most disadvantaged circumstances."

The point here is not to enlarge Carter in death beyond what he was in life, or to diminish the profound legal and political significance of his wrongful conviction. He will forever be a symbol of a racially unjust justice system—a system that still exists today. The circumstances of his incarceration will always engender debate. Even some of the dubious choices he made after his release, some of the challenges he created for himself, allow us all to appreciate today that he was a quintessentially American hero—flawed, raw, edgy, but eventually resolute and on a righteous path.

"If I find a heaven after this life, I’ll be quite surprised," he said shortly before his death. "In my own years on this planet, though, I lived in hell for the first 49 years, and have been in heaven for the past 28 years." It's a shame so many news outlets focused on the former and disregarded the latter. For in those 28 years of "heaven," Rubin Carter changed the world, one speech, one photograph, one exoneration case at a time. He had every right to give in to the anger he surely felt. Instead, famously, he said that "hatred and bitterness and anger only consume the vessel that contains them. It doesn't hurt another soul.

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More Doubts Raised in Texas Execution

Posted by on February 28th, 2014

Before his execution, the arson evidence used to convict Cameron Todd Willingham was debunked by experts as junk science. Yet the State of Texas ignored the serious doubts and crumbling evidence in the case against Willingham, and proceeded with his execution in 2004.

Now, even more evidence has come to light that prosecutors deliberately concealed information about a deal with a jailhouse informant from the Texas Board of Pardons & Paroles when opposing a stay of execution.

This evidence is simply more proof that Texas committed a grave injustice in the case of Cameron Todd Willingham. It is time they admit their mistake.

Read more about this latest development in the effort to clear Willingham's name in the New York Times.

Learn more about the case of Cameron Todd Willingham at the Innocence Project.

You can also watch an excerpt from the documentary Incendiary which details the flaws in the case against Willingham.

Cameron Todd Willingham Documentary Excerpt from texastribune on Vimeo.

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Remembering Greg Wilhoit

Posted by Chelsea Bond on February 18th, 2014
Greg Wilhoit at the DPF Annual Awards Dinner, with attorney Ellen Eggers, exoneree Franky Carrillo, his wife Judy, and sister Nancy.
Greg Wilhoit at the DPF Annual Awards Dinner, with attorney Ellen Eggers, exoneree Franky Carrillo, his wife Judy, and sister Nancy.

I am incredibly saddened to share the news that Greg Wilhoit, a death row exoneree, passed away late last week.

Greg spent five years on Oklahoma's death row for the murder of his wife, the conviction based on junk science around a bite mark. Later, experts proved that the bite mark on Greg's wife could not have belonged to him, and he was freed.

Greg was never compensated for his wrongful conviction. In fact, he never even received an apology. It is shameful that the state of Oklahoma would never admit their wrongdoing in his case, because it would have meant so much to Greg and his family.

After being exonerated, Greg devoted his life to ending the death penalty. He worked with Witness to Innocence, Journey of Hope...From Violence to Healing, and DPF as a Justice Advocate. His compelling and tragic story, along with his passion, spirit, and determination to stop the system that tried to kill him, changed minds.

Though his life was challenging and he endured more than any person should have to, Greg was a kind person who was loved by many. His courageous activism and his captivating personality will not be forgotten.

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RIP Delbert Tibbs

Posted by Chelsea Bond on November 25th, 2013

We are saddened to learn about the death of Delbert Tibbs, a death row exoneree who dedicated his life to ending the death penalty.

Delbert  was convicted in 1974 of the murder of a 27-year-old man near Fort Myers, Florida, and spent three years in prison, two on death row, before the Florida Supreme Court reversed the case. The original prosecutor, James S. Long,
declared that the case had been “tainted from the beginning and the investigators knew it.”

Delbert later moved to Chicago where he wrote poetry and continued his advocacy against the death penalty as the Assistant Director of Membership and Training for Witness to Innocence.

Delbert Tibbs inspired people wherever he went, and will continue doing so even after his passing.Thank you for sharing your story with the world.

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BREAKING: New death row exoneration!

Posted by Chelsea Bond on October 31st, 2013
Reggie Griffin discusses his experience being sentenced to death for a crime he did not commit.

 On October 25, Reginald Griffin became the 143rd person to be exonerated from death row since 1973. 

Griffin was sentenced to death for the murder of a fellow inmate in 1983. His conviction rested on testimony from two jailhouse informants, who received benefits for their testimony. Prosecutors also withheld key evidence from Griffin's defense regarding a screwdriver that had been found on another inmate.

Griffins sentence was eventually changed to life in prison without the possibility of parole, and in 2011, the Missouri Supreme Court overturned Griffin's conviction, saying that the conviction was not "worthy of confidence." He was released, but prosecutors immediately filed charges to retry him, citing DNA evidence that allegedly tied him to the murder.

 However, that DNA evidence didn't "pan out", according to prosecutors, and the state dismissed the charges.

It took 30 years to clear his name, but Griffin is glad to put the nightmare behind him. "To not have this over my head is more than what words can describe.Now that it's over, I'm going to try to put my life back together, to go on with my life," he told The Associated Press.

Griffin is the first death row exoneration of 2013, and the 4th person exonerated from Missouri. To find out more about death row exonerations, visit DPIC's Innocence Database.

Congratulations to Reggie, and to the team of lawyers who worked tirelessly to clear his name.

Read more here:
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One for Ten

Posted by on February 21st, 2013

We're really excited to be supporting a new documentary series - One For Ten - that will tell the stories of ten innocent people who were exonerated and released from America's death row.

Ray Krone is just one of those innocent people. One for Ten chose Ray's story to be the first of their short films. You can check it out here (Danny Glover even introduces it!)

Over five weeks in April and May, One for Ten will travel across the country, producing two films a week for immediate online distribution. All the films will be free to watch and free to share.

They are supported by a broad coalition of charity partners of which we're excited to be a part and the project is totally interactive, which means you can have a hand in asking the questions and giving your feedback on the films as they're released.

In order to make this project happen, One for Ten needs support and funding. Watch what their project is all about, and if you want to see more, consider contributing to their campaign.

You can support this project by LIKING them on Facebook, FOLLOWING them on Twitter and SHARING their campaign with your networks.

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Death Penalty and California

Posted by on January 22nd, 2013

We know that California's death penalty is broken. This new infographic by the California Innocence Project breaks down why - cost, wrongful convictions, and racial injustice. While California didn't vote to end the death penalty this time, the conversation must continue and more people must learn about these staggering statistics.

Death Penalty Infographic - An Infographic from CA Innocence Project

Embedded from CA Innocence Project

Wrongful conviction and the path to justice

Posted by Jessica Lewis on July 6th, 2012

Death Penalty Focus Justice Advocates and Witness to Innocence joined forces with the SAFE California campaign to showcase three men’s inspiring stories of wrongful conviction and the fight to prove their innocence.

Francisco “Franky” Carrillo Jr. was exonerated in March 2011 after serving two decades for a drive-by shooting he did not commit. Franky was just 16 years old when six witnesses identified him as the shooter. All six eventually recanted their testimony, admitting that they were influenced to make their identifications by the police and by each other. Franky now works as a Justice Advocate with DPF to tell his story and educate the public about the real danger of incarcerating and even executing the innocent.

After almost nine years in prison (two of which spent on death row), DNA evidence acquitted Kirk Bloodsworth of the 1984 rape and murder of nine-year-old Dawn Hamilton. Kirk, a former Marine, was connected to the crime by testimony from five witnesses and forensic evidence that supposedly linked the print of his shoes with marks on the victim’s body. It wasn’t until 1992, thanks to the help of Centurion Ministries of Princeton, New Jersey, that Kirk obtained approval for the DNA testing that proved his innocence. The first U.S. death row prisoner to be exonerated by DNA, Kirk now travels the country speaking for Witness to Innocence.

Nathson “Nate” Fields spent almost 20 years in prison, including more than 11 years on death row, for a double homicide he did not commit. Nate and a co-defendant were accused of killing members of a rival gang in 1984, and in 1998, it was uncovered that the judge in Nate’s case had taken a $10,000 bribe. Nate was granted a new trial, but his co-defendant exchanged testimony against him for a lesser sentence. However, in 2009, Nate was acquitted of all charges and was awarded a certificate of innocence. Nate serves on the board of Witness to Innocence.

Franky, Kirk, and Nate spoke out about their experiences and why they support SAFE California at Sacred Heart Catholic Church and Bethel AME Church in Los Angeles and at St. Rita’s Catholic Church in San Diego.

(Image: Nate Fields and Kirk Bloodsworth enjoying the Los Angeles sun in between speaking engagements.)

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Final Hours

Posted by Christine Meuris on September 22nd, 2011


Originally posted on Fair and Unbalanced

In the earthquake cottage I shared with my husband, on the night of July 13th 1998, the phone rang. It was about 10:00pm. The summer fog would have rolled through the Alemany gap several hours before. It would have been a cold damp night and though bed was the reasonable place to be on a night like that, I was up waiting. My husband and his colleagues were awake too, trying not just to wait, trying to stave off the helplessness they were feeling. They were at the office working to bring as much media attention to the night as they could, legal options having been exhausted.

Thomas Thompson had been within hours of his execution a year before when a decision by the 9th Circuit Court of Appeals had spared him. This stay was now permanently vacated and once again he was scheduled to die within hours.

My husband had been with him at the prison. Thompson's mother had been there too in the private visiting room, where state procedure allows for a shackled last few hours. Trays of cold cuts and cheeses lay on a table bringing to mind working lunches, staff meetings and birthday parties. Was anyone hungry?

At six o'clock, the visitors including the lawyers were required to leave. A member of Thompson's legal team would come later to be a witness, while the rest worked on.

That is how my husband came to be at the office while the collect call from San Quentin came to our house. Upon accepting the charges I heard for the first time the voice of the man who had occupied so much of my married life, the man who my husband was fiercely trying to protect from the ultimate punishment.

In the summer of 1981, I was a skinny kid in a red and white bathing suit playing in the waves and collecting shells washed up on the sand in Laguna Beach, California. That same summer in that very vacation town an awful situation or plot, depending on how you look at it, was brewing for Ginger Fleishli and Thomas Thompson. By early September of that year, Ginger's body was found wrapped in a sleeping bag in a field.

The man convicted of this crime was now asking me whether my husband was home. No he was not, he was at the office. Did he have the number I asked? He did, and that was all there was to say. What does one say to someone who is keeping a stiff upper lip and who for the second time in a year is staring into the face of death by injection? I stumbled and bumbled, almost saying "good luck" before I said the only thing there was to say, "Goodbye."

I hung up the phone feeling as though the wing of death had brushed overhead, through the fog that blanketed my husband's office, our home and the prison.

Last night, my husband listened to the radio quietly to hear the fate of Troy Davis while I put the kids to bed. This morning I woke to find him going through his morning chores, heavy hearted. The U.S. Supreme Court had cleared the way for Troy Davis' execution and he had been put to death.

A reporter had called my husband in Troy Davis' final hours to ask whether my husband saw any connection between the Thompson and the Davis case. There was so much doubt raised upon appeal about the defendant's guilt. Each man faced a breathtaking stutter-stop journey of temporary defense victories on the way to the death chamber. My husband pointed out these things.

But it is the second thing, common to all cases, this bumpy road of hope and despair while fate hangs in the hands of others that is the final, impossible obscenity of the death penalty and the creepy thing that made our hearts heavy this morning as we got the kids ready for school.

These cases are subjected to level upon level of review in an attempt to ensure that the death penalty is administered properly; states search for ways to kill people that do not set their hair on fire or suffocate them while the are too tightly strapped to writhe; as we do all this, the one thing we cannot do anything about, is the forcing of an otherwise healthy person to stare for years at their untimely death, as they swing between hope and despair.

It is impossible to imagine what this is like, as impossible as finding the right words to say, when a man in this position, in his last hours, calls on the phone.


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West Memphis 3 Freed

Posted by Stefanie on August 24th, 2011

We are thrilled to report that after 18 years, Damien Echols has been released from death row and Jason Baldwin and Jessie Misskelley have been freed from prison. The three men, known as the West Memphis Three, have always maintained their innocence. Read the New York Times breaking story.

We'd like to thank the nearly ten thousand supporters who took action last year on behalf of Damien Echols and the other two men.

Your action made a difference.
You helped save three lives--one from execution and two from a lifetime behind bars.

Thank you for standing up for justice and speaking out for the innocent. These victories remind us that we are winning. With your continued activism and financial support, we are confident that the wins will continue.

Dr. Martin Luther King, Jr. often repeated the saying, "The arc of the moral universe is long, but it bends toward justice."

Thanks to your actions and your support, we know that we will keep bending that arc and we will end the death penalty in our lifetime.

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Author of CA Death Penalty Law Has Change of Heart

Posted by Stefanie on July 21st, 2011

Los Angeles Times columnist and radio personality, Patt Morrison, interviewed Donald Heller, author of California's current death penalty statute, on July 16th about why he no longer supports capital punishment. In the interview Heller cites "the enormous toll it [takes] on people involved" including defense lawyers, judges and other players in the system, the high cost and the risk of executing the innocent.

Heller, a former prosecutor, only became vocal about his opposition to the death penalty after the execution of Thomas Thompson in 1998, a man Heller believes was innocent. 

He admits, "The way I look at it, what I created can and may already have resulted in the death of an innocent person. And that's pretty heavy."

"The thing I regret most that I cannot change -- except by what I do now -- was drafting the death penalty initiative," Heller laments. 

Read the full interview with Donald Heller

Forensic Science Commission Issues New Guidelines, Waits to Assign Responsibility

Posted by James Brockway, Guest Blogger on April 26th, 2011

The Texas Forensic Science Commission (TFSC) issued sixteen recommendations on Friday, April 15th, which will provide guidance for investigators, attorneys, and lawmakers charged with looking into potential arsons.  The recommendations, which include calls for more education and training for arson investigators, as well as a new system for reviewing closed cases as science evolves, represent good faith efforts to improve Texas’ forensic science in the face of serious questions about the methods used to convict Cameron Todd Willingham, a Corsicana man who was executed in 2004 for allegedly starting a fire which took the lives of his three children.

Mr. Willingham, an unemployed mechanic, consistently maintained his innocence throughout the course of his incarceration, and multiple posthumous investigations have revealed that there was no conclusive evidence that the fire was set intentionally.  The nine-member commission has been tasked with sorting out exactly what happened in the Willingham case and its reports are designed to provide a framework which aligns Texas’ procedures with the most modern scientific techniques.

Unfortunately, the TFSC has faced resistance as it searches for the truth, much of it coming from the Governor’s office.  Governor Rick Perry seems to have a vested interest in suppressing debate over the circumstances of Mr. Willingham’s conviction as it was he who ignored scientific studies which suggested that there was “nothing to suggest to any reasonable arson investigator that this was an arson fire” when he denied Mr. Willingham’s clemency request in 2004.  Governor Perry has played politics with the Commission, changing its composition right before it was scheduled to review a report which took serious issue with the trial testimony used to convict Mr. Willingham.  The new Commissioner cancelled this meeting, introducing another year of delay before a July 2010 panel issued analysis which condemned the prosecution’s “flawed science.”

This sort of political gamesmanship is not completely absent from the Commission’s current proceedings, as last week’s report does not, and will not, include any official assessments of investigator misconduct until it receives word from the state’s attorney general who will decide if such sanctions are within the Commission’s jurisdiction.  According to Sam Bassett, the Commissioner deposed by Perry in 2009, such judgments are already within TFSC’s purview, and the current maneuvering indicates that “politics rather than science will influence the decision.”

In spite of these concerns, the report represents an important tool for preventing miscarriages of justice like those experienced by Mr. Willingham from happening again.  As long as Texas continues to execute people at an alarmingly fast rate, there will be a premium on devising safeguards which will prevent further wrongful convictions, and in this respect, the new regulations are truly life savers.

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DNA Evidence Offers Longtime Death Row Inmate a Chance at Justice

Posted by Zac Stone on April 19th, 2011
William "Tommy" Zeigler last year, photo by Jacob Langston of the Orlando Sentinel

Last week Tommy Zeigler won an important battle for further DNA testing in his death penalty appeal. Zeigler was convicted of murdering his wife, in-laws, and a customer at his furniture store in Winter Garden, Florida on Christmas Eve 1975. Having sat on Florida's death row for decades, a judge has now ordered new tests to be performed on blood from the crime scene that Zeigler claims will exonerate him.

Zeigler was arrested and tried on the theory that he killed his wife to collect half a million dollars in life insurance, and that he shot himself to cover up his crime and frame it as an invasion. Zeigler has never wavered in his account of what happened, and passed polygraph tests asserting that he and his family were victims of a robbery that may have been motivated by Zeigler's involvement in uncovering a loan-sharking ring victimizing migrant workers.

Numerous injustices occurred over the course of Zeigler's trial and subsequent incarceration, including the misplacing and knowing destruction of evidence; reports offering exculpatory evidence were turned over to the defense team with very little time to prepare, or were not disclosed at all; a number of jurors in his original trial (half of whom first voted to acquit Zeigler, but were persuaded to convict) have come out in his support, and a couple have admitted to being prescribed Valium so they would be more amenable to convict a man whose guilt was in doubt. Prosecutors used witnesses that identified Zeigler as the killer while ignoring those eyewitnesses whose stories did not mesh with the state's fictionalized account.

Christine Cooper is the daughter of Robert Thompson, the former Central Florida police chief who was the first police officer at the crime scene. Cooper said she believes "the justice system failed" Zeigler. Thompson was involved as a mercenary in the arms trade in Central America in the 1980s, and his daughter says he died in 1999 "taking a lot of secrets with him." Thompson suppressed a report after the crime that did not surface until 1987 in which he wrote that the blood on Zeigler was dry when he found him, yet in its case against him, the state claimed Zeigler had just shot himself minutes earlier.

While the suspicions of the daughter of a deceased police chief are certainly not enough to overturn a murder conviction, Cooper's doubt and that of a number of witnesses and jurors lend credence to Zeigler's claim of innocence. It is clear that the case was mishandled, and justice was not properly served. Failed by the justice system on more than one occasion, Tommy Zeigler has been afforded his best chance in decades of receiving true justice with this admission of new DNA evidence. Should his sentence ultimately be reversed, Zeigler will join the nearly two dozen former Florida inmates who have been exonerated from death row since the 1970s. Please visit our Florida Action page to add your voice to those in favor of abolishing the state's failed death penalty system.

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The Courts, they are a-changin'

Posted by Zac Stone, Guest Blogger on April 13th, 2011
Our 2011 Supreme Court

The Roberts Court really hit its groove in 2010, stripping cities' gun control laws and destroying longstanding campaign finance regulations (or as they would have it: extending free speech rights to corporate Americans), but we're just one quarter of the way through 2011 and we have already seen far-reaching decisions by the Roberts Court resulting in an assault on Americans' civil liberties. The Court is ignoring and defying a mounting chorus of opposition to the death penalty both nationally and globally, and setting precedents that will not just harm violent criminals, but innocent citizens and their loved ones. The Supreme Court has had its share of death penalty advocates in its history, but John Roberts and his conservative cohort on the Court - Antonin Scalia, Clarence Thomas, Samuel Alito, and from time to time Anthony Kennedy (the "swing" voter) - have proven themselves willing to put finality above justice and fairness.

In 1972, by a vote of 5-4, the U.S. Supreme Court decided in Furman v. Georgia that the nation's death penalty laws were constitutionally flawed because the statutes failed to narrow the use of the death penalty to just the worst of the worst. They extended a moratorium on new sentences until each state "fixed" its statute. Among those justices favoring the moratorium were William Douglas, William Brennan, Potter Stewart, Byron White, and Thurgood Marshall. Those dissenting, who believed the death penalty to be constitutional as it was applied, were Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. Four years later, the Court, with John Paul Stevens in place of Douglas, would vote to reinstate the death penalty 7 to 2 in its historic Gregg v. Georgia decision. Only Justices Brennan and Marshall dissented, arguing that the death penalty has no deterrent effect and that our society has evolved beyond the need to kill for retribution.

By the time the Court issued its 1987 decision in McCleskey v. Kemp, Sandra Day O'Connor and Antonin Scalia had joined them, replacing Stewart and Burger. Writing for the majority, Lewis Powell dismissed a statistical study that showed killers of whites were 11 times more likely to be sentenced to die than those whose victims were Black. Four other justices agreed with Powell, who said the study failed to "demonstrate a constitutionally significant risk of racial bias," and was insufficient to invalidate Georgia's death penalty.

Time and time again, however, the statistics would prove consistent - to this day those who kill whites are significantly more likely to face execution than those who kill African-Americans or Latinos. His decision in McClesky v. Kemp would become one of Powell's great regrets; Powell told his biographer in 1991 he would reverse his McClesky decision if afforded the opportunity, saying he had "come to think that capital punishment should be abolished."

Harry Blackmun and John Paul Stevens both dissented in McClesky, but qualified their statements, distancing themselves from Justices Marshall and Brennan, who since Furman had openly stated that they believed the death penalty to be cruel and unusual punishment in any circumstance and that it could not be made fair. Blackmun would wait another six years before finally declaring the death penalty system "fraught with arbitrariness, discrimination, caprice and mistake" (Callins v. Collins, 1993).

"The problem," Justice Blackmun said, "is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution."

John Paul Stevens' position on capital punishment evolved over his three decades on the court, but he too eventually concluded in 2008 that capital punishment is both "pointless and needless." He offered further insight in a New York Times essay published in late 2010, in which he wrote, "While support of the death penalty wins votes for some elected officials, all participants in the process must realize the monumental costs that capital cases impose on the judicial system. The financial costs…are obvious; seldom mentioned is the impact on the conscientious juror obliged to make a life-or-death decision despite residual doubts about a defendant's guilt." Consider also the impact on corrections officials and medical personnel put in the position of executing a person whose guilt is uncertain.

"Many [inmates] have repented and made positive contributions to society," Stevens wrote. "The finality of an execution always ends that possibility. More importantly, that finality also includes the risk that the state may put an actually innocent person to death."

The Roberts Court would do well to heed the wisdom of three of its predecessors, appointed by Republicans, informed by years on the bench, who all reversed course on the death penalty after or near the end of their tenure on the Court. It seems clear, however, that they don't share Justice Blackmun's resistance to "tinker with the machinery of death."

Just last month, the Court reversed a jury verdict and lower court ruling that had awarded a wrongfully-convicted man, John Thompson, a $14 million dollar settlement for the 14 years he spent on Louisiana's death row. Prosecutors supervised by Orleans Parish district attorney, Harry Connick, Sr. had covered up exculpatory evidence that demonstrated Thompson's innocence. Though Thompson was able to prove that multiple prosecutors withheld evidence that would have exonerated him, the Court found with Clarence Thomas, writing for the majority that, "a district attorney cannot be held liable for the actions of his subordinates." Justice Thomas claims one must prove a pattern of similar violations exists in order to justify holding the city's government liable for the misconduct; one Brady violation in Thompson's case, albeit egregious and involving numerous prosecutors, just doesn't cut it.

The Court has issued a dangerous precedent in Thompson's case. As Ruth Bader Ginsburg stated in her dissent, "The prosecutorial concealment Thompson encountered…is bound to be repeated unless municipal agencies bear responsibility." By saying the buck stops nowhere, the Court has effectively eliminated a defendant's ability to hold prosecutors accountable for willfully violating his civil liberties, giving prosecutors everywhere incentive to use similar underhanded tactics to achieve future guilty verdicts and death sentences.

Last week the Court's majority took the bizarre step of actually reinstating a death sentence in the case of Scott Lynn Pinholster, who suffered brain damage as a child that resulted in his intellectual disability, despite rulings by a federal judge and a federal appeals court that found Pinholster's attorneys had failed him by offering no mitigating evidence during his sentencing trial. You don't have to be a legal scholar to see the how knowingly ignoring evidence - exculpatory, mitigating, or otherwise, can lead to an injustice.

In light of its recent rulings, it is evident that a majority of the justices currently on the Court are willing to dismiss the opinions of those that came before them and a growing majority of the global community. The Court's majority has shown an indifference to human life and a willingness to erode civil liberties with no discernable benefits to our society.

If Justices Blackmun, Powell, and Stevens were able to travel back in time and reconsider Gregg v. Georgia, they would likely join Justices Brennan and Marshall in striking down the death penalty.

If just one of the Court's current sitting justices revised his thinking about the death penalty, we would likely see a drastic sea change on the matter.

Unfortunately, we cannot wait for reason to strike. America's 30-year experiment with the death penalty has failed. To protect human life, to save states' depleted financial resources, we must embrace ending the death penalty where we can, and limiting its use where abolition is currently politically impossible. To artificially prop up what Justice Blackmun described so long ago as a failed experiment is nonsensical. Upending the status quo has never been easy, but the Roberts Court and all of us ought to strongly consider the viable, life-affirming alternatives to America's overworked courts and bloated death row prisons.

U.S. Supreme Court Rejects Petition by Troy Davis

Posted by Zac Stone on March 30th, 2011

After some uplifting news from Los Angeles in the case of Francisco Carrillo, freed from prison last week after faulty eyewitness testimony wrongfully put him there 20 years ago, there is distressing news from Georgia, where Troy Davis, who has steadfastly maintained his innocence in the 1989 murder of an off-duty police officer in Savannah, has had his final appeal denied by the U.S. Supreme Court. And though Davis has been here before - his execution has been scheduled on three occasions, each time stayed by a judge for review - barring clemency by Georgia's Governor or Board of Pardons and Paroles, Troy Davis will soon face execution.

Convicted with no physical evidence linking him to the crime, Davis was unable to convince a federal judge that seven out of nine eyewitnesses recanting their testimony suggested doubt about his guilt. Because prosecutors lacked any physical evidence, including the murder weapon, which might link Davis to the crime, they relied entirely on the eyewitness testimony of, according to original defense lawyer Robert Barker, a "cast of characters" including "jail birds, felons, [and] twice convicted felons." This served to limit Davis' options for appeal, forcing him to try and prove that the seven eyewitnesses who recanted their testimony were now credible, and that their recantations diminished the state's case against Davis. Despite evidence of police coercion and other underhanded tactics used to obtain witness identifications, and two witnesses claiming another man confessed to the crime, it was apparently not enough to sow doubt in the mind of U.S. District Judge William T. Moore, nor the 11th Circuit Court of Appeals, nor the U.S. Supreme Court, which both declined to hear Davis' challenge.

Because the Drug Enforcement Agency recently seized Georgia's supply of sodium thiopental, the anesthetic used in executions which the state acquired illegally from sources abroad, Davis' execution will likely be delayed until the DEA completes its investigation or Georgia switches to another sedative in its lethal injection protocol. Arizona, Ohio, and Texas have adopted pentobarbital.

Execution drugs aside, serious doubts still exist about Davis' guilt, and they cast a pall over his death sentence. We know the dangers of relying on eyewitness testimony, and this case rests solely on the credibility of a pair of eyewitnesses, with nary a shred of physical evidence to tie Davis to the murder. How so many learned individuals are able to convince themselves Davis is guilty without a doubt is both astounding and disheartening. We must take action to ensure that justice is fairly served and not undermined, for Troy Davis, his family, and for the victims of this crime and others.

Please help stop the execution of Troy Davis by signing this petition to Georgia Governor Nathan Deal and the State Board of Pardons and Paroles today.

An Open Letter to Gov. Jerry Brown from the Former "Hanging Judge of Orange County"

Posted by Donald A. McCartin, Guest Blogger on March 30th, 2011

Dear Governor Brown,

Welcome back. I offer here a few thoughts for your consideration.

After you were gutsy enough to appoint me, a right-wing Republican, to the Superior Court of Orange County, I served there from 1978 to 1993, after which I sat on assignment on death cases throughout California. In all, I presided over more trials than I can possibly recount. Among those I do remember, however, were ten murder trials in which I sentenced the convicted men to die in our state's execution chamber. As a result, I became known as "the hanging judge of Orange County," an appellation that, I will confess, I accepted with some pride.

The ten were deemed guilty of horrifying crimes by their peers, and in the jurors' view as well as mine they deserved to die at the hands of the state. However, as of today, one has died of natural causes in prison and none of the others has been executed, a fact that stirs deep anger within me.

Let me explain:

I am angered by the fact that our system of laws has become so complex and convoluted that a decision I was put in the position to make, one that I then believed promised resolution for the family members of the victims of those crimes, has been made a mockery.

I have followed the development of legal thinking and understand why our nation's Supreme Court, in holding that "death is different," required that special care be taken to safeguard the rights of those accused of capital crimes, especially those sentenced to death. Such wisdom protects our society from returning to the barbarism of the past. And while I find it discomfiting and to a significant degree embarrassing that appellate courts have found fault with some of my statements, acts or decisions, I can live with the fact that their findings arise out of an attempt to ensure that the process has been scrupulously fair before such a sentence is carried out.

I can live with it and, apparently, so can the men I condemned. The first one, Rodney James Alcala, whom I sentenced to die over 30 years ago for kidnapping and killing 12-year-old Robin Samsoe, was, just last year, again sentenced to death for killing little Robin Samsoe and four other young women who, it has subsequently been determined, were his victims at around the same time.

I need not here go into the permutations of Mr. Alcala's legal journey. Behind bars since 1979, he has not harmed, nor can he harm, any other young women. That's instructive because harm has been done and that's what infuriates me. Robin Samsoe's mother has been re-victimized time and time again as the state of California has spent millions upon millions of dollars in a series of unsuccessful attempts to fulfill its promise that her daughter's murder can be resolved and she can go on with her life.

Had I known then what I know now I would have given Mr. Alcala and the others the alternative sentence of life in prison without the possibility of parole. Had I done that, Robin's mother Marianne would have been spared the pain of 30 years of misery, wondering if her daughter's murder would ever be finally resolved. She could have dealt then and there with the fact that her daughter's killer would be shut away, never again to see a day of freedom, and gone on to put her life together. Had I done that, the State of California would not have put her through the torture of hearing after hearing, trial after trial. Had I done that, the people of California would have been spared the hideous expense of hundreds of millions of their tax dollars that were squandered in this meaningless and ultimately fruitless pursuit of death.

It makes me angry, Governor Brown, to have been made a player in a system that is so inefficient, so ineffective, so expensive and so emotionally costly to those to whom it promises peace but delivers only pain.

I watch today as you wrestle with the massive debt that is suffocating our state and hear that you don't want to "play games." But I cringe when I learn that not playing games amounts to cuts to kindergarten, cuts to universities, cuts to people with special needs and I hear no mention of the simple cut that would save hundreds of millions of dollars, countless man-hours, unimaginable court time and years of emotional torture for victim's family members waiting for that magical sense of "closure" they've been promised by prosecutors once the perpetrator has been killed by the state.

You and I know, Governor, that there is no such thing as "closure" when a loved one is taken. What family members must find is reconciliation with the reality of their loss, and that can begin the minute the perpetrator is sent to a prison he will never leave. But to ask them to endure the years of being dragged through the courts with the promise that the state will end their pain by causing the death of another is a cruel lie.

So I agree that we should no longer play games, Governor Brown. You and I are both older now, so let's stop playing the killing game. Let's use the hundreds of millions of dollars we'll save to protect some of those essential services now threatened with death. Let's stop asking people like me to lie to those victim's family members.

I'm told you don't have the power to end the death penalty by yourself, but you can point the way. You can have a huge financial impact on California by following the lead of Governor Ryan of Illinois and commuting the sentences of all the men and women on California's death row - all 700-plus of them - to life without parole. And you can direct the millions you save to making some of our citizens' lives brighter and more promising.

Let's stop playing games, Governor. Let's stop lying to the people; let's stop being politicians and start behaving like the grownups we've become.

With Respect,

Donald A. McCartin,

Judge, Superior Court (Ret.), Orange County

Illinois Says No to Capital Punishment

Posted by James Brockway, Guest Blogger on March 9th, 2011

Illinois Governor Pat Quinn signed a bill today which made his state the 16th to abolish its death penalty (Take action to thank him now).  The bipartisan bill, which passed the state legislature in January, commutes the sentences of Illinois’ 15 death row inmates to life without parole, and reallocates the funding previously slotted for capital defense to law enforcement training and increased restitution for victims’ families.  

Quinn’s decision is the culmination of years of public debate that has been raging since at least 2000 when then Governor George Ryan declared a moratorium on executions.  For Governor Ryan, the state’s system looked increasingly broken, and the probability that innocents would be executed was too great to keep moving forward with capital punishment absent serious modifications. In the following eleven years, the state created two study commissions and attempted to implement multiple reforms to resolve these concerns, but found that such efforts were both ineffective and too costly.  Governor Quinn’s decision marks an awareness of the diminishing returns intrinsic to the already extremely expensive system, as attempts to make capital punishment ‘fair’ were always going to be more costly and less effective than abolition.  As Quinn put it, “Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it.”  He went on to note that in a world of limited resources, it was wiser policy to take “the enormous sums expended by the state in maintaining a death penalty system [and spend them] on preventing crime and assisting victims’ families in overcoming their pain and grief.”

Quinn did not make this decision lightly, as shown by the two-month wait between the bill’s passage and his signing it into law.  He carefully considered arguments from supporters and opponents, taking a particularly hard look at the feelings of the family members of murder victims.  In his statement, the Governor acknowledged the unimaginable heartache that accompanies losing a loved one and made clear that he understood and could not blame families for desiring retribution.  His decision to sign the bill, however, was motivated by numerous conversations with families who felt that the death penalty only prolonged their pain and suffering.  By ensuring that murderers are locked away for life, Illinois’ policy will help victims avoid years of painful hearings while also providing the state with the funding necessary to prevent similar crimes before they happen.

Illinois decision to abolish should be understood as part of a national trend away from capital punishment, as it is the fourth state in as many years to end its death penalty.  New Jersey and New York both removed all their prisoners from death row as of 2007, with New Mexico following suit two years later.  Today finds the fewest number of states’ practicing capital punishment since its reinstatement in 1978, and it appears as though the number could drop even lower as several other states are currently considering abolition with bills in various stages of debate in Connecticut, Florida, Kansas, Maryland, Montana, and Washington.  

Governor Quinn’s decision should provide inspiration for death penalty opponents nation-wide, as his actions show that there is nothing inevitable about capital punishment.  As concerns over the cost and fairness of the death penalty rise, public opinion has swung increasingly against it, suggesting that a post-death penalty America may soon be a reality.  Illinois is not the first or last step in the process, but it is an important one nonetheless, as each victory adds momentum to the push for more effective alternatives to capital punishment.

Texas Appeals Court Stops Death Penalty Hearing

Posted by James Brockway, Guest Blogger on January 12th, 2011

The Texas Court of Criminal Appeals has decided to permanently stop the hearing in Texas v. Green, which examined the constitutionality of Texas's death penalty in light of the frequency of wrongful convictions.

The Court ruled that District Judge Kevin Fine did not have the jurisdiction to hear arguments on capital punishment's constitutionality, especially at the pre-trial stage of the process.  The Court did recognize the seriousness of Green's concerns and urged the legislature to look closely at the problem.

While it is good to hear the Court recognize the seriousness of the risk of wrongful conviction, it is unfortunate that they were unwilling to take their responsibility to ensure that Texas's judicial system does its part to prevent the execution of innocents.  The two days of testimony prior to the original stay represented an attempt to honestly and thoroughly investigate Texas's death penalty.  This is a conversation that must be continued both in the legal system and in the court of public opinion.

Progress Being Made for West Memphis Three

Posted by James Brockway, Guest Blogger on January 12th, 2011

The new year has breathed fresh life into the cases of Damien Echols, Jason Baldwin, and Jessie Misskelley Jr., collectively known as the West Memphis Three. The three men were convicted in 1994 for the killing of three West Memphis children, though there has been persistent doubt about their guilt dating back to the original trial. The campaign to prove their innocence scored a serious victory last November when the Arkansas Supreme Court ruled that a lower court must hold an evidentiary hearing to examine whether new DNA evidence which potentially exonerates the West Memphis Three, as well as accusations of jury misconduct in their original trials, sufficiently calls into question their sentences such that a new trial must be held.

January 4th marked the beginning of the preparation for the evidentiary hearing. Circuit Court Judge David Laser took meetings with attorneys for both sides, and set February 18th as a deadline for the submission of pre-hearing briefs. Judge Laser has replaced David Burnett as the appeals judge, which itself represents a positive development as Burnett had repeatedly upheld the original verdict. Judge Laser has made it clear that this case represents a top priority, and he stated plans to "get this done as soon as possible."

Among the issues discussed last week were concerns about scheduling the hearing in light of outstanding Rule 37 appeals for Mr. Misskelley and Mr. Baldwin which contest the adequacy of their representation at the original trial. Judge Laser agreed with arguments made by Mr. Echols attorney who said that while the Rule 37 appeals are certainly important, they cannot delay the evidentiary hearing for Echols as he is the only prisoner facing the death penalty. There was also discussion of new standards for DNA testing which included a commitment to greater transparency in the process. This point is of great significance in the case as the District Attorney's office had previously conducted secret tests when their original screenings of crime scene material appeared to clear Echols, Baldwin, and Misskelley. Judge Laser has also issued a gag order surrounding the case, in part to help create a new jury pool in the case of a retrial.

These developments represent significant gains for the West Memphis Three, who have persistently professed their innocence. We should all be thankful that it finally seems as though the courts will give them a real chance to prove it.

Posted in Blog, Innocence | 2 comments

Stay in Texas case continues culture of silence around the death penalty

Posted by James Brockway, Guest Blogger on December 8th, 2010

A hearing to determine the constitutionality of Texas' death penalty was stayed yesterday by the Texas Court of Criminal Appeals. The hearing, which began on Monday in Houston as a pre-trial proceeding in the case Texas v. Green, sought to determine whether or not a high probability of wrongful conviction meant that capital punishment violated the Eighth Amendment's prohibition of cruel and unusual punishment.

The case concerns John Edward Green, a Houston man charged with fatally shooting a woman in a 2008 robbery. Because Texas is seeking the death penalty, Mr. Green's attorneys have challenged the constitutionality of the punishment, and Judge Fine has provided the hearing as an opportunity for both sides to plea their case.

Prosecutors have declined the invitation to defend capital punishment, deciding instead to "stand mute." The Harris County District Attorney's office has repeatedly objected to the hearing, arguing that it concerns law which is settled and thus irrelevant to the Green case. They have also challenged Judge Fine's impartiality, and have claimed that the hearing is premature, as the question of sentencing will be relevant only if Mr. Green is convicted. Mr. Green's attorneys have responded to these claims by arguing that the high likelihood of wrongful conviction, combined with the impact of Texas death penalty laws which set an unreasonably high barrier for appeals, make taking the death penalty off the table before trial begins an imperative. The Court of Appeal's stay is meant to provide each side with the opportunity to file briefs arguing whether or not the hearing should occur.

The hearing itself represents a new and important turn in the death penalty debate, as it is the first time a Texas district court judge has heard arguments regarding capital punishment's constitutionality. The defense called on several prominent legal experts who spoke about the risk factors that lead to wrongful conviction, including flawed science and unreliable testimony.

Before the stay was issued, the hearing was meant to feature testimony regarding the cases of Cameron Todd Willingham and Claude Jones, two prisoners who were executed on the basis of evidence which has been undermined. The prosecution's unwillingness to use this hearing to defend the death penalty speaks to their fear that it will not stand up to careful scrutiny. Even if their legal objections are correct, the hearing still represents an opportunity for a much-needed public debate about the problem of wrongful conviction and the legitimacy of capital punishment. If it is true that the death penalty system does not wrongfully convict people, then its proponents should be able to offer evidence to support that claim. If, on the other hand, innocent people are at risk of being executed, this is a fact that cannot be buried. Instead, this problem must be faced full on and should prompt a complete overhaul of the system to eliminate the risk of the wrongful convictions, or better yet, an agreement to move beyond the death penalty in search of more effective alternatives.

Posted in Blog, Innocence | no comments

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