October 2
TEXAS:
Federal judge raises questions of innocence in condemned Harris County
cop-killer
The gunshots screeched over the static of the police radio, followed by the
last breaths of sheriff's Deputy Barrett Hill. It was the dark, pre-dawn hours
of Dec. 4, 2000, and someone had just committed a capital murder.
There were no eyewitnesses and no forensic evidence. But 2 years later, Rob
Will was sentenced to die for the crime in front of a courtroom crowded with
uniformed police officers.
Despite the circumstantial case that sent him to death row, Will has always
maintained his innocence. His alibi? He says he was handcuffed at the time.
Now, nearly 2 decades into the legal wrangling, a federal judge is again
questioning whether Will may be telling the truth.
In a rare, strongly worded order, U.S. District Judge Keith Ellison in Houston
last week advanced the condemned cop killer's appeal even while bemoaning his
own inability to do more in a case that experts say highlights systemic issues
with the death penalty appeals process.
"The Court very much wishes it could take up all of these issues," Ellison
wrote. "Nevertheless, this Court lacks jurisdiction to explore the troubling
concerns that plague Will's capital conviction."
The federal judge would like to consider Will's "troubling" innocence claims
but he can't because of legal limitations, essentially technicalities. Instead,
he can only send the case up to the U.S. Fifth Circuit Court of Appeals on the
possibility that they greenlight a new appeal - which could ultimately end up
back in his court.
With allegations of withheld evidence, bad lawyering and vexing legal
entanglements, the case embodies "everything that is structurally wrong" with
key parts of the appeals process, according to Robert Dunham of the Death
Penalty Information Center.
"The death penalty is supposed to be reserved for the worst of the worst
cases," he said, "but nobody meant that that should be the worst of the worst
judicial process."
***
On the morning of the murder, 2 Harris County sheriff's deputies responded to a
call about 4 men breaking into cars. When they pulled up, Hill and his partner,
Deputy Warren Kelly, shined their spotlight on 2 of the thieves standing in a
cul-de-sac.
The pair took off in different directions, and Hill followed Will, while his
partner chased after Michael Alan Rosario. Hill radioed back that he'd gotten
"the tall one" and that he was "in custody," but Kelly lost sight of Rosario
behind a tree. A few seconds later, he heard the gunshots over the radio.
Afterward, Will carjacked a woman and sped away, only to be caught in
Washington County a few hours later.
It seemed, to prosecutors, impossible that anyone else could be the killer.
Will changed his story to his lawyers repeatedly, and Rosario had simply been
too far away, they said. But Will had no gunshot residue on him and a footprint
at the crime scene didn't match his.
And, his defense lawyers would later point out, he had a gunshot wound on his
hand that could have come from Rosario's effort to free his friend by shooting
off the handcuffs. To the state, that gunshot wound seemed evidence of Will's
guilt, an injury sustained while shooting at the deputy.
***
For more than a decade, the case has bounced back and forth between state and
federal appeals courts, generating a complex paper trail Ellison described as a
"procedural imbroglio." And, over time, new evidence emerged: jailhouse
snitches alleging Rosario had confessed finally agreed to come forward; jail
records about a suspected gang hit Rosario ordered on Will inexplicably
appeared in the prosecution's files; and previously undisclosed evidence that
could have called a witness into question surfaced.
"The Harris County DA's Office has a lot to answer for," Will's legal team,
Washington, D.C.-based attorney Jay Ewart and Houston attorney Samy Khalil,
said in a statement. "They are playing a game of hide - but Rob Will can never
seek - exculpatory evidence. Prosecution by concealment is how innocent people
end up on death row."
The district attorney's office disputed both the claims of withheld evidence
and the possibility of Will's innocence.
"The Harris County District Attorney's Office is not hiding evidence in Will's
case," said spokesman Dane Schiller. "That claim is a desperate effort to
divert attention from the wealth of evidence supporting Will being sentenced to
death for the capital murder of Harris County Sheriff's Deputy Barrett Hill."
Schiller went on to call it "more than ironic" that Will's attorneys would
accuse prosecutors of hiding evidence "because the factual record reflects that
Will repeatedly told inconsistent stories" to his trial team.
When some of the evidence in question landed in front of a state court in 2013,
the Harris County judge deemed it not credible or relevant to the outcome, and
instead signed off word-for-word on the version of events submitted by the
Harris County District Attorney's Office.
Some of those same claims eventually ended up in an appeal now in front of the
Fifth Circuit. It's separate from the appeal Ellison ruled on last week, but it
raises some of the same concerns: In both cases the federal district judge
didn't have the ability to side with Will. He could only forward the case to
the Fifth Circuit.
"This Court has repeatedly expressed deep concern for the factually complex
insinuations that Will may be innocent of the crime for which he faces a death
sentence," Ellison wrote last week. "The Court is particularly sensitive to the
absence of any direct evidence of Will's guilt, and the number of witnesses who
aver that another man confessed to the underlying murder."
****
Will was in the same position in 2012, when Ellison expressed similar concerns
over the case as he sent it up to the Fifth Circuit. A U.S. Supreme Court
decision over appeals involving claims of ineffective lawyering sent the case
through a new round of claims with the same result.
"Everything in the state procedure is inadequate and has been inadequate for
the last three decades," said Patrick McCann, a local attorney and past
president of the Harris County Criminal Lawyers Association, calling the extent
to which federal judges are expected to defer to state court rulings "an
absolute joke."
In regular criminal cases, Dunham explained, a judge can hear the facts and the
law and make a decision. But, under a 1996 law known as the Antiterrorism and
Effective Death Penalty Act, added limitations in appeals from prisoners mean
that federal judges are forced to go along with previous state court findings,
even if they don't necessarily agree with them.
In places like Harris County - where a year-long study recently found that
judges adopt the state's findings more than 90 % of the time in a key part of
the appeals process - Dunham likened the state court review to a ventriloquist
act, with judges repeating prosecutors' assertions made in state court.
Usually, "the federal court is pretending not to see the ventriloquist's lips
move," he said. "Here, Judge Ellison clearly sees the lips moving, but the
federal law prevents him from doing anything about it."
Eric M. Freedman, a Hofstra University law professor, said the case highlights
the need for changes in the law.
"The idea that it would be important to reconsider, rethink and recalibrate in
order to serve the very appropriate underlying goals of the statue is well
illustrated by this particular case," he said. "The purpose of the statute is
to provide a federal level of supervision of basic rights, like the right not
to be convicted and executed if you're an innocent person."
(source: Houston Chronicle)
VIRGINIA:
For Va. man who killed his wife and a police officer, a push for death and plea
for mercy
They called his crime "vile. Outrageous. Wanton. Horrible."
A team of 4 Prince William County prosecutors had convinced a jury to convict
Ronald Hamilton of capital murder in the shooting deaths of his wife and a
rookie police officer on her 1st weekend shift. Now they wanted to persuade the
jury that the 34-year-old father - who worked as an Army staff sergeant at the
Pentagon - deserved the death penalty.
On Monday, Senior Assistant Commonwealth's Attorney Brian P. Boyle was careful
not to utter Hamilton's name as he characterized him as "depraved" and
"dangerous," frequently referring to him as "the defendant" or "the man."
"While each of these words is an accurate description of what you've heard over
the last few weeks, here in the sentencing hearing, the words have a much
greater meaning." The crime, he said, demands "a response that is more than the
usual response."
In her opening remarks, one of Hamilton's attorneys pleaded for mercy on his
behalf. Vivian Hernandez told jurors that Hamilton - whose father, a retired
2nd-in-command of the Charleston, S.C., police department, sat in the courtroom
- deserved life in prison without a chance for parole. Not the death penalty,
she said.
"Mercy is not expected. It's given," Hernandez said. "It comes from the
recognition of the frailty and sacredness of life." She said Hamilton's family
members "know he will contribute to their lives from prison."
[He's a retired cop. Now, his son is accused of killing a police officer and
his own wife.]
Ronald Hamilton after he was charged with killing his wife, Crystal Hamilton,
and Prince William officer Ashley Guindon. (Prince William County Police)
More than 2 years have passed since Hamilton, who deployed to Iraq twice as a
member of the 101st Airborne Division, used 11 minutes of his life to tear
everything he had built apart.
On Feb. 27, 2016, Hamilton got into a fight with his wife, Crystal Hamilton,
29, a recovery care coordinator for wounded Marines, at their Woodbridge home.
The couple's marriage was crumbling, and by then, they were living in separate
bedrooms and, at various points, were each having affairs.
But when Crystal said she was going out with her girlfriends that night to an
adult entertainment club whether he liked it or not, Hamilton went into a rage.
With their then-11-year-old son Tyriq in the house, Hamilton threw Crystal up
against the wall of her bedroom. She called 911, pleading for police to come
quickly. And then, he shot her multiple times.
When Prince William police arrived, Hamilton emerged from the front doorway,
spraying bullets. He hit 3 officers, including Ashley Guindon, 29. She was a
former Marine reservist from New Hampshire who had just been sworn in as a
Prince William police officer. The day before the shooting, the department
tweeted out a photo of her dressed in her blue uniform and dark tie, with her
hands clasped in front of her. "Be safe!" the tweet said.
[Thousands turn out for funeral of slain Prince William officer]
Guindon got hit in the back and later died. 2 other officers, Jesse Hempen and
David McKeown, were also shot but survived their wounds. Hempen suffered a
massive gunshot in the leg threatening a vital artery, while McKeown - hit in
the groin, chest, leg and arm - was hurt so badly he could hear the blood
pouring of his body, according to prosecutors.
Soon, Hamilton surrendered and told police he was possibly suffering from
post-traumatic stress disorder. He even asked a police officer to "shoot me
now," according to testimony from an earlier hearing in the case. His trial
began Sept. 11 and he was convicted 2 weeks later on 17 charges, including
capital murder, making him eligible for juries to consider recommending life in
prison without parole or the death penalty. If a jury recommends death, it's up
to the judge to formally impose the sentence. Technically, the judge can
overturn a death sentence and give a defendant life in prison.
If Hamilton is sentenced to death, he would become the fourth person on
Virginia's death row.
Prince William County, whose commonwealth's attorney office has been helmed for
decades by Paul Ebert, has long embraced the death penalty for capital murder.
In a hearing 2 years ago, 1 of Hamilton's attorneys, Ed Ungvarsky, cited
statistics showing that Prince William has led the state in executions since
1976 and ranked among the top 2 % of counties nationwide in the modern era.
During Monday’s hearing, Hamilton was dressed in a dark suit as opposed to his
military uniform, which he had worn during his criminal trial.
Boyle argued to the jury, which includes 7 whites and 5 people of color, that
Hamilton deserved death because of 2 factors: the "vileness" of the murders and
his future dangerousness.
"The defense said this was a terrible 11 minutes but this went far beyond 11
minutes," Boyle said. "This was not the 1st time law enforcement had memorable
interactions with the defendant."
One witness, a former Prince William police officer, testified Monday he had
been dispatched to the Hamiltons' house in 2015 after a relative had called and
said that Hamilton had been sending disturbing text messages. When the officer
arrived, Hamilton repeatedly swore at him, ordering him to "get the f--- out of
my house" and demanding to know "what the f----" he and another officer were
doing there.
Hernandez, a defense attorney, acknowledged that Hamilton's crimes were
"horrible" and said there was no excuse. She said he and Hamilton's father were
estranged for much of their lives, but the younger Hamilton longed for a
relationship with him.
After Monday's hearing, Hamilton's father, also named Ronald Hamilton, told The
Washington Post: "I empathize with the feelings of the police officers and the
entire community, and I hope the jury will show my son some mercy," he said,
"because he is a good person who made a terrible mistake."
(source: Washington Post)
NORTH CAROLINA:
Duke Law professor among most cited criminal law faculty
Driven by his concern for underrepresented people, a Duke law professor has
developed numerous widely-cited studies in criminal justice and is now ranked
as one of the best-renowned scholar in his field.
Brandon Garrett, the inaugural L. Neil Williams professor of law, explained
that he grew interest in civil rights law while doing poverty and
eviction-prevention work in New York City - not long after he graduated from
law school.
"I learned how important due process is when people face losing their home or
their welfare benefits," Garrett wrote in an email. "And I saw how important it
is to have a prepared advocate."
Garrett is the 4th most-cited professor in criminal law and procedure in the
U.S, according to Brian Leiter’s Law School Reports. Ranging from being cited
by Associate Justice Stephen Breyer for his research on the death penalty to
books that have received national accolades, Garrett's work aims to incorporate
empirical studies with legal scholarship.
"In general, I have been pleased and honored to have my work cited by courts,"
Garrett wrote. "I do think that in criminal justice matters, judges are
increasingly aware that there is empirical evidence and research that can truly
help to inform their decisions. It is an exciting time for criminal justice
policy and research."
The youngest of all those ranked on his field, Garrett was cited 750 times from
2013 to 2017. He fell just behind Christopher Slobogin - Milton R. Underwood
chair in law at Vanderbilt University - with 770 citations and Rachel Barkow -
Segal Family professor of regulatory law and policyat New York University -
with 775 citations.
The most-cited professor was Orin Kerr - Frances R. and John J. Duggan
distinguished professor of law at University of Southern California - cited
1300 times.
In June 2018, Garrett's empirical studies on the death penalty were cited in
Associate Justice Stephen Breyer's dissent to the denial of death row inmates'
petitions for certiorari. Garrett wrote that Breyer tends to use
"evidence-based" arguments on the arbitrary nature of death penalty sentences.
Breyer referred to Garrett's research to illustrate that, despite death
penalties declining in recent years, they have become increasingly concentrated
in fewer counties. Garrett wrote that he believed Breyer cited his data
correctly and that it is "important for courts to make evidence-informed
decisions."
"In the mid-1990s, more than 300 people were sentenced to death in roughly 200
counties each year," Breyer wrote. "By comparison, these numbers have declined
dramatically over the past 3 years. A recent study finds, for example, that in
2015, all of those who were sentenced to death nationwide (51 people in total)
were sentenced in 38 of this Nation's more than 3,000 counties; in 2016, all
death sentences (31 in total) were imposed in just 28 counties nationwide
(fewer than 1% of counties)."
Garrett documented the findings featured in the opinion in his book, End of its
Rope: How Killing the Death Penalty Can Revive Criminal Justice, and in an
article entitled "The State of the Death Penalty Decline."
He also has online data sets pertaining to his research from the book,
including an interactive map displaying the geographic concentration of death
penalty sentences since 1991.
But this was not the only time Garrett's work has crossed the mind of a Supreme
Court justice.
"My research on wrongful convictions has been cited by the Supreme Court
several times," Garrett wrote. "For example, [former] Justice Antonin Scalia
cited to my research, with Peter Neufeld, describing the role that invalid
forensic testimony played in DNA exoneration cases. Justice Scalia was
highlighting how important it is to get scientific evidence right in the
courtroom."
Garrett has also been cited by lower federal courts, state supreme courts and
the supreme courts of Canada and Israel.
End of Its Rope is not Garrett's only book that has achieved national acclaim.
Another one of his books - Convicting the Innocent - was deemed an Atlantic
Best Book about Justice in 2012, received an honorable mention at the American
Bar Association's 2012 Silver Gavel Awards and was a co-winner of the
Constitution Project's 2011 Constitutional Commentary Award.
Garrett attended Columbia Law School as a Kent Scholar and served as an
articles editor of the Columbia Law Review.
After graduating, he clerked for the Pierre N. Leval of the U.S. Court of
Appeals for the Second Circuit and later became an associate at Neufeld, Scheck
& Brustin LLP in New York City. He wrote that his practice focused on the
intersection of civil rights suits and the criminal justice system.
"I represented people who had been exonerated by post-conviction DNA testing,
including people who had falsely confessed or been misidentified by
eyewitnesses," Garrett wrote. "The lawsuits focused on securing compensation
for the years those people spent in prison for crimes they did not commit. I
also worked on police use of force cases, challenging unreasonable use of
force, as well as a mixture of other matters."
From 2005 to 2018, Garrett was the Justice Thurgood Marshall Distinguished
professor of law and White Burkett Miller professor of law and public affairs
at the University of Virginia School of Law. For several years, he has
participated in research and education efforts as part of the Center for
Statistics and Applications in Forensic Science.
At Duke Law School, Garrett is currently teaching a forensics litigation course
and will co-teach a forensic science seminar in the spring. He also works with
two post-doctoral students along with affiliates of the Duke School of Medicine
on a series of projects studying criminal justice outcomes in North Carolina.
"Duke is a fantastic place to do this work because there is such a longstanding
focus on bringing together researchers from different disciplines to
collaborate," Garrett wrote.
(source: The Chronicle)
FLORIDA:
Colley's defense to make final pitch to save his life
Attorneys for James Colley Jr. will get one final chance to spare their
client’s life when he faces a judge Tuesday in what is known as a Spencer
hearing.
Jurors recommended Colley, 38, be put to death after convicting him in July of
2 counts of 1st-degree murder in the shooting deaths of his estranged wife and
her best friend.
Though the jury voted unanimously to suggest the death penalty, Colley's fate
ultimately lies in the hands of Circuit Judge Howard Maltz, who presided over
the trial.
Amanda Colley and friend Lindy Dobbins were shot dead in August 2015 when
Colley’s estranged husband went on a shooting spree inside the family's upscale
St. Johns County home.
The Spencer hearing, named after the 1993 case of Spencer vs. Florida, is held
in death penalty cases so a defendant can present additional evidence in the
hopes of getting a life sentence instead.
(source: WJXT news)
ALABAMA:
Mary Rice likely to face death penalty in Alabama
Now that Mary Rice has been convicted of helping Billy Boyette carry out a Gulf
Coast murder spree, the case still pending against her in Alabama has gained
strength.
An Escambia County jury on Friday night convicted Rice, 38, of accessory after
the fact to murder for the Jan. 31, 2017, double homicide of Alicia Greer and
Jacqueline Moore, and the Feb. 7, 2017, first-degree murder of Kayla Crocker.
Rice still faces a murder charge - and possibly the death penalty - in Alabama
for the Feb. 3, 2017, murder of Lillian woman Peggy Broz at the height of the
spree.
Broz was returning home from a shift at a Pensacola hospital the morning she
was killed, and police believe Boyette and Rice followed her from Florida in
order to steal her vehicle.
"She will be in prison the rest of her life, and the question is where will she
serve her time? And will she get the death penalty?" State Attorney Bill Eddins
said Monday. "Alabama had announced they would seek the death penalty, and if
they do, the Florida conviction of murder and accessory will both be
aggravating factors the jury could consider in its determination."
During the Florida trial, prosecutor Bridgette Jensen was able to admit into
evidence few details about Broz’s murder since it happened in a different
jurisdiction. She gave the jurors some details to help establish a timeline of
the Florida murders, because the judge had found the facts in the Alabama case
were “inextricably intertwined."
Now that 3 victims' families have seen justice, members of Broz's family are
hoping for the same in Alabama.
"We hope she never sees the light of day outside a prison and the death penalty
if and when she makes it to Alabama, an eye for an eye," Broz's sister, Gina
Herrington, said in a message to the News Journal.
Rice's Alabama defense attorney, Spencer Davis, could not be reached for
comment Monday. Her Florida attorney, Kenneth Brooks, is not involved in the
Alabama case but said the overwhelming amount of evidence surrounding the
murders makes it a complex case whether capital punishment is involved or not.
Brooks' defense throughout the week-long trial was that Rice was another of
Boyette's victims, forced to participate in his spree. She was seen on
surveillance footage by herself in numerous stores, buying items like alcohol,
camping supplies and ammunition - something the prosecution used to show Rice
acted willingly.
"It certainly was unfortunate that the jury ruled the way they did, but from
the beginning, there was an awful lot of evidence and it took us attorneys
months to comb through it all," Brooks said. "I think it was hard for a jury to
put aside the gruesomeness of what had happened in Billy's presence and the
state did a great job of putting the case on. We also had a defense (of duress)
that doesn't always happen in these cases."
More about Mary Rice: Victim or accomplice?
The Escambia County jury had close to 200 exhibits to study during
deliberation, hours of surveillance footage and the testimony of dozens of
witnesses. Eddins said Jensen personally read through 11,000 text messages from
Rice's phone to whittle down to only the most relevant items to be used as
evidence.
Brooks said he commends the jury on paying close attention throughout the
exhaustive trial, and called Boyette a "coward" for taking his own life to
leave Rice standing alone facing charges.
"These cases are always difficult, whether you're the state or the defense, and
especially when you're on the losing side, it's always difficult and it's just
a terrible case to have to go through," he said.
The Baldwin County District Attorney's Office could not be reached for comment
Monday to explain how, or if, the Florida conviction changes the state's death
penalty stance on Rice's still-pending murder charge.
Eddins said he hasn't been in communication with Alabama's District Attorney's
Office since Friday's verdict, but said he sees no reason their case couldn't
proceed as Rice begins to serve her Florida sentence.
(source: Pensacola News Journal)
*****************
Why the Battle Over Dementia Patients on Death Row? Better Lawyers
Vernon Madison has suffered multiple strokes that have left him blind, with
dead brain tissue and urinary incontinence, and unable to walk independently or
remember the crime that put him on death row 3 decades ago. On Tuesday, the
U.S. Supreme Court will consider whether the state of Alabama can legally kill
Madison - who murdered a police officer in 1985 - despite the degenerative
medical condition that has robbed him of the ability to understand the
circumstances of his execution. The case tackles questions about evolving
standards of decency and the Eighth Amendment's prohibition of cruel and
unusual punishment when the sentence is death. But it also spotlights an
increasingly difficult proposition facing prisons and prosecutors: an inmate
population that is rapidly aging and experiencing all of the physical and
mental damage of that process, heightened by the intense rigor and stress of
incarcerated life. Nowhere is that reality more dramatic than on death row,
where the wait time has more than tripled - from an average of 6 years and 2
months in 1984 to 19 years and 9 months for prisoners executed in 2018 so far,
according to Department of Justice data compiled by the Death Penalty
Information Center. Experts say a major reason why death row inmates are living
longer is that they are getting better representation.
That qualitative difference stems from a mix of legal, technological and
judicial advances made in the past few decades that are just bearing fruit now,
says Robert Dunham, the executive director at the Death Penalty Information
Center in Washington, D.C.
2 Judicial orders in the 1980s and 1990s barred a reassessment of a death
sentence if fresh facts came up after a conviction, making it hard for
defendants to seek retrials based on having been poorly represented. This
tilted the balance against death row inmates. But in three key cases in the
late 1990s and early 2000s, the Maryland, Virginia and Pennsylvania Supreme
Courts clarified that courts don't have to prove the defendant would be
acquitted to be able to submit habeas corpus twice. "More cases began to get
reversed," Dunham says, and "most of those people never ended up on death row."
Then, in Martinez v. Ryan in 2012, he adds, the Supreme Court ruled that
defendants who had been given an ineffective lawyer twice were no longer barred
from developing new claims in federal court under habeas corpus.
We may face ever more instances of state efforts to execute prisoners suffering
the diseases and infirmities of old age.----Justice Stephen Breyer, 2017
Increased training and licensing guidelines published by organizations like the
American Bar Association for public defenders in death penalty cases have also
added to the level of support potential death row inmates receive. And the
advent of genetic testing and the ability to consider DNA evidence in court has
opened up new avenues for defense lawyers to give better representation than
was possible earlier.
“If there is evidence in the case, it just takes longer - it's not CSI,” says
Peter Collins, a Seattle University criminal justice professor, referring to
the television show in which DNA results often are turned around in days, if
not hours.
The Madison case is in many ways an example of the broader ways in which an
aging prison population is impacting death row executions. In the last year,
Ohio and Alabama have both delayed separate executions because they could not
find suitable veins in sickly death row inmates for injecting the lethal drugs.
"We may face ever more instances of state efforts to execute prisoners
suffering the diseases and infirmities of old age," Justice Stephen Breyer
wrote in December of 2017, as part of a concurring opinion addressing a
previous appeal by Madison before the nation's highest court.
Close
Some argue that the longer death row stays have more to do with a lessening
appetite for capital punishment than with better legal defense options. "The
usual hypothesis is excessive litigation and people pursuing every avenue of
appeals," says Austin Sarat, a law professor at Amherst College. But he notes
that the Anti-Terrorism and Death Penalty Act of 1996 made it harder to exploit
loopholes and delay the process. States now sometimes decide not to expedite
executions owing to their questionable popularity. "When we think of death
cases now, we think of DNA and exonerations, disparities in racial justice,
botched executions," Sarat says. "In that context, executing them may seem like
less of an imperative."
Habeas corpus itself has been "gutted," adds Michael Radelet, a death penalty
expert at the University of Colorado, and a prolonged wait in death penalty
cases is hardly a reward for families and inmates. "It's like torture before
the killing," he says. "The additional time is another added stressor that can,
in and of itself, compound the mental illness."
But without better legal defenses in the form of past rulings, trained lawyers
and tech assistance, the debate over the death sentence may never have reached
where it is today - not just about whether the state can take a person's life,
but also, specifically, whether it can kill inmates who don’t remember what
crime they committed.
In McCleskey v. Zant (1987), the Supreme Court had essentially ruled that "you
only get 1 shot," Dunham says, regardless of what future evidence might come
up. However, federal lawyers who investigated multiple habeas corpus claims
alleging they had been improperly convicted at the state level started finding
a glut of facts that state lawyers should have used but didn't. Because of the
McCleskey decision, Dunham says, they were "powerless" to address those
problems: "What ultimately happened was that the Supreme Court over and over
and over again saw these meritorious claims that they were unable to address."
When defendants had legitimate complaints about their representation, it was
often difficult to do a retrial, because Strickland v. Wainwright in 1984 had
ruled that defendants must not just prove their lawyer acted unreasonably under
professional norms, but also that it materially affected the outcome of the
case.
The Maryland, Virginia and Pennsylvania Supreme Court verdicts and Martinez v.
Ryan helped restore the balance. And even Sarat concedes that sound litigation,
such as cases about states using untested or inappropriate chemicals for lethal
injections, also help delay executions. States often make unconstitutional
mistakes. "In states like Alabama that still don't care about the quality of
representation in state court, you end up with people having their convictions
and death sentences overturned sometimes 3, 4, 6 times in federal court,"
Dunham says.
For sure, because death row inmates can rarely, if ever, afford representation,
the quality of their representation often depends on what their jurisdiction
can afford. "There are places where bailiffs are acting as defense attorneys,"
Collins says. And while some morbidly argue that quick executions save on
taxpayer costs, "it doesn't really pencil out that way," says Collins, who
co-authored a study looking into the costs of capital punishment, which found
that incarcerating prisoners for life is almost always less expensive than
executing them.
One twist in the tale of Madison in Alabama: If Justice Antonin Scalia hadn't
passed away in 2016, an appeals court stay of execution could well have been
overturned, and Madison wouldn't be alive today. The Supreme Court remains
shorthanded once more as sexual assault allegations have delayed the nomination
of Brett Kavanaugh. And so after 3 decades, Madison could be spared a little
bit longer. The ramifications could be felt not just by him, but the entirety
of a population quickly resembling less a prison system than an elderly home.
(source: ozy.com)
*************************
Can Alabama execute Vernon Madison? U.S. Supreme Court will decide
If a person convicted of murder and sentenced to death suffers strokes that
affect his ability to remember the crime, can the state still execute him?
Attorneys for the Alabama Attorney General’s Office and Alabama death row
inmate Vernon Madison will argue that question before the U.S. Supreme Court on
Tuesday.
Madison, 68, was convicted and sentenced to death for the 1985 murder of Mobile
police officer Julius Schulte. While incarcerated, Madison suffered two strokes
- 1 in May 2015 and 1 in January 2016 - that both sides agree impaired him to
some degree.
What they disagree about is whether the strokes made it impossible for Madison
to understand the reason he faces the death penalty, or even whether that
should halt his execution.
In a brief filed in July, the Alabama Attorney General's Office wrote that
Madison's execution "will serve as an example to others that the intentional
murder of a police officer will be punished," and questioned whether Madison
cannot remember Schulte's murder or understand the reason for his execution, as
his defense attorneys argue. The state says Madison made arguments that he
didn't remember the murder as far back as 1990.
"Madison understands that he is being punished for a murder he committed and
for which he has never accepted responsibility," the state wrote.
But the Alabama Attorney General's Office went on to argue that an inmate with
amnesia "is no less subject to deterrence than an inmate who remembers the
crime that put him in prison."
“A failure to recall committing a crime is distinct from a failure to
understand why one is being punished for a crime," the brief said. "An inmate's
personal recollection of the crime is irrelevant to whether the inmate shares
the community's understanding of the crime, has a moral responsibility for
committing the crime, or understands why he is being punished for the crime."
The Equal Justice Initiative, representing Madison, argues that the inmate's
health problems put him "into the category of prisoners for whom an execution
would serve no retributive or deterrent purpose." According to his attorneys,
the strokes left Madison blind, with "vascular dementia, cognitive deficits,
severe memory loss, and brain damage." He has difficulty moving and speaking.
"He frequently urinates on himself and complains that no one will let him out
to use the bathroom when there is a toilet inches away from his bed," EJI wrote
in a brief filed in August. "His memory is so impaired that he can no longer
recite the alphabet or do a simple math problem. He is unable to remember that
his mother and brother are deceased and cannot identify the prison warden or
officers who have been guarding him for years."
As a result, his attorneys say, Madison "does not remember the crime for which
he has been convicted and does not have a rational understanding of why the
state of Alabama seeks to execute him."
In Panetti v. Quarterman, a 2007 U.S. Supreme Court decision, the high court
ruled that defendants sentenced to death cannot be executed if they do not
understand why. Madison's attorneys argue his dementia makes it impossible for
him to understand his execution.
"For purposes of retribution, there is no moral or constitutional distinction
between a person who cannot 'recogni[ze] ... the severity of the offence" as a
result of delusions and a person who is unable to do so as a result of
dementia, cognitive decline, and memory deficits," the attorneys wrote.
The state disputes the extent of Madison's impairment, arguing that he "has not
experienced delusions, psychosis, or confusion about the meaning of crime,
punishment or death," and also suggested to the court that Madison winning the
case would lead to baseless claims of amnesia in death penalty cases.
"Madison's position would give talismanic importance to an inmate's mental
disorder diagnosis, even though precise mental health diagnoses are shifting,
debatable, and subjective," the state argues.
Alabama Attorney General Steve Marshall, who will attend Tuesday's arguments,
said in a phone interview Monday that the question was "whether he's competent
to be executed" as state courts have held, "not whether he is a threat going
forward."
"The state has an interest on a couple of fronts here that transcend his
physical condition," he said. "What we have here is what amounts to the
execution of a police officer," he said.
A message seeking comment was left with EJI Monday.
The inmate's attorneys argue improved medical technology and methods have made
it easier to diagnose dementia. The state's ability to punish offenders, they
argue, would not suffer if the court vacated Madison's sentence.
"Mr. Madison has not and will not go unpunished," they wrote. "He has now been
held in solitary confinement on death row for 33 years facing the constant
threat of execution. He exists in a small cell where dementia has left him
disoriented, confused, blind, incontinent, and unable to walk."
On April 18, 1985, officer Julius Schulte responded to a report of a missing
child at a home Madison shared with his then-girlfriend, Cheryl Green.
According to a 1997 court ruling, Madison got into an argument with Green, then
left the scene. He returned with a pistol and shot Schulte point-blank in the
head. Madison also shot Green in the back as she shielded her 11-year-old
daughter.
Schulte died 6 days later. Green survived her wounds.
Madison was convicted of capital murder on Sept. 12, 1985, but the conviction
was set aside because prosecutors excluded blacks from the jury pool. He was
convicted a 2nd time in 1990, but that was also overturned after prosecutors
used expert testimony based on facts not in evidence.
A 3rd trial in 1994 led to Madison’s conviction, but the jury recommended
sentencing Madison to life in prison after hearing evidence of mental illness.
At his 1985 trial, a defense psychiatrist testified that Madison viewed himself
"as a combat solider, and anyone in front of him is the enemy." But Mobile
County Circuit Judge Ferrill McRae overrode the decision and imposed a death
sentence.
The Alabama Supreme Court set Madison's execution date for May 2016, but that
was held up after a federal court intervened.
At a subsequent competency hearing in the Mobile Circuit Court, 2 medical
experts - Dr. Karl Kirkland and Dr. John Goff - said they believed Madison
suffered damage from the strokes, but disagreed about their effects. Kirkland
testified that Madison "appears to be able to have a rational understanding of
the sentence," while Goff said Madison could not remember the crime or the
victim.
The court accepted Kirkland's testimony. A 3-judge federal panel overturned the
lower court's decision in March 2017, writing that Kirkland did not evaluate
whether Madison understood that his crime was the reason for his execution. But
that decision was later overturned by the U.S. Supreme Court, which ruled that
the state court's ruling was not "'so lacking in justification' as to give rise
to error 'beyond any possibility for fairminded disagreement.'"
Another execution date was set for January. But the U.S. Supreme Court stayed
the execution to consider Madison's arguments.
(source: Montgomery Advertiser)
OHIO:
2 plead guilty in killing of Jimmie Holland Jr.
2 people have pleaded guilty to charges in connection with the 2016 killing of
Jimmie Holland Jr. during a burglary, but neither will be sentenced until they
testify for the state against Elliott Kirkland, who faces the death penalty.
Mark Sanchez and Latrice Thomas each pleaded guilty to charges before Judge
James Miraldi.
Sanchez, 26, of Lorain, had been indicted for aggravated murder, murder,
aggravated robbery, aggravated burglary, felonious assault, burglary and
obstructing justice in November 2016. If convicted, he had faced a maximum
sentence of life in prison without the possibility of parole plus 14 more years
in prison.
The plea agreement reached with the state, though, would dismiss the aggravated
murder and murder charges, and Sanchez would be sentenced to an aggregate
sentence of 14 years if he cooperates with prosecutors, according to court
documents.
To receive the deal, Sanchez agreed to "answering questions, providing sworn
written statements, taking one or more government-funded polygraph examinations
and answering questions under oath and under penalty of perjury, according to
court documents. Sanchez also agreed to testify in any trials or other court
proceedings.
Thomas, 37, of Lorain, agreed to a similar deal, though she was indicted on a
much lesser charge of obstructing justice, which carried a maximum sentence of
three years in prison upon conviction. Thomas pleaded guilty to the indictment
with the promise the state would recommend a community control sentence rather
than prison.
Like Sanchez, Thomas' deal hinges on her cooperating with the state by
testifying in trials and other court proceedings.
The sentencing of both Sanchez and Thomas will not take place until 2019,
though, for which there are a couple reasons, according to Lorain County
Prosecutor Dennis Will.
"There's 2 reasons for the sentencing being delayed," Will said. "One, yes,
because we want to ensure their cooperation. Two, there is a case that came
down, probably about a year and a half ago, out of the Ohio Supreme Court that
said when you cut a negotiated plea with someone, if there is some specific
performance they’re supposed to perform to make that complete, once they get
sentenced, the court no longer has jurisdiction over them."
If Sanchez and Thomas were sentenced now, they could then refuse to testify
against Kirkland, and prosecutors and the judge would be unable to vacate the
plea agreement, Will said.
Kirkland faces capital murder charges for the slaying of Holland.
Lorain police were called to Holland's Lexington Avenue apartment Aug. 29,
2016, by Jasmine Schafer, who told officers she had gone to the apartment to
braid Holland’s hair. She said when she arrived, she grabbed 2 cans of root
beer out of the fridge before she found Holland's body.
She told police she tried to give Holland CPR before she fled the scene and
called 911. Police have said the relationship between Holland and Schafer is
unclear.
Police have said Schafer was initially cooperative, but said their
investigation revealed she was lying about key parts of her story and was
involved in stealing from Holland's ransacked apartment.
Police recovered several missing items, including electronics and 2 cans of A&W
root beer, from the borrowed Jeep Liberty that Schafer and a 2nd woman, Thomas,
were driving that night.
When officers confronted Schafer, she blamed Kirkland and Sanchez for the
robbery. A witness reported seeing Kirkland, who told police he had been with
his girlfriend the entire night, enter the apartment armed with a handgun.
Will has said because the robbery was planned, it elevated the killing to the
level where prosecutors could seek the death penalty.
Schafer is facing aggravated robbery, aggravated burglary and obstructing
charges. Her case is still pending in court.
A trial for Kirkland is scheduled to begin Jan. 7.
(source: The Chronicle Telegram)
***********************
Attorneys: Jurors crucial in homicide cases
The chances are pretty good if someone has a murder case bound over to court in
Mahoning County, that person will be spending time in prison.
A review of court, police and Vindicator files shows that of 211 cases of
people charged with a homicide by Youngstown police that were bound over to
Mahoning County Common Pleas Court between 2001-2017, 169 of those defendants
went to prison.
More specifically, 103 defendants were convicted of murder or aggravated murder
and 66 others took plea bargains that resulted in prison time.
Overall, Youngstown had 451 homicides during that time period, and city police
managed to solve or make an arrest in 262 cases.
Of those cases considered solved, several did not make it to court because a
suspect was either dead or killed in the commission of the crime.
Then there’s the case of Robert Seman. Facing a death-penalty case for the
murders of Corinne Gump, 10, and her grandparents, William and Judith Schmidt,
during a March 30, 2015, arson at the Schmidt's Powers Way home, Seman, 49,
committed suicide April 10, 2017, by leaping to his death inside the Mahoning
County Courthouse.
8 of the other cases were ruled self-defense.
The numbers also show that of cases bound over by a grand jury, 9 defendants
were acquitted, and 22 cases were dismissed.
12 cases that were bound over are still pending, the longest of which is from
2009.
A sampling of comments from defense attorneys who try murder cases say that
while each case is different, some things are the same. The prime one which
they said is the reversal of the axiom that a defendant is innocent until
proven guilty.
"Jurors don't view evidence and jury instructions the same way when there's a
body," said Lynn Maro, who has represented several defendants charged with
murder. "They'll flip the burden of proof."
That's why, for Maro, jury selection is the most important aspect of any murder
case. She said she looks for jurors who may be willing to listen to a defense
argument and set aside any bias.
"It does matter who is sitting in that box and what their perspective is," Maro
said.
Another attorney, Lou DeFabio, said he pores over coroner's reports and police
reports of murder scenes to make sure he knows what evidence prosecutors have.
He then examines that evidence with witness statements to look for anything
that does not match up to the physical evidence.
"One of my big things is if the physical evidence doesn't match up what the
witnesses are saying, there's reasonable doubt," DeFabio said.
"It's harder to try a murder case with a jury because juries are more likely to
want someone to pay," DeFabio said. "When someone's dead, the stakes are so
high."
DeFabio also said the prosecution has an advantage in a murder case before it
even starts because of the nature of the crime, so he says when he speaks to
jurors during selection, he makes sure not to sugarcoat any of the details of
the case.
He said it is a way to get them used to and familiar with what they will hear
in court.
"If you talk about it enough, the jury will do their best to put that aside,"
DeFabio said.
Tom Zena, another defense lawyer who has tried several murder cases, said often
in murder cases, prosecutors use witnesses who took part in the crime but
received plea deals for either reduced prison time or no prison time at all.
Zena, a former Mahoning County prosecutor, said jurors need to know about that
and jurors need to know why they are not being charged.
Zena said it is crucial for the defense to keep the case to the evidence and
testimony in the courtroom.
"You cannot let the gravity of the offense replace evidence," Zena said.
"That's a feature that's unique to death cases."
During jury selection, Zena said he pays close attention to the facial
expressions of potential jurors and also does that during the trial itself to
see what arguments may be working on his client's behalf.
On the prosecution side, assistant Prosecutor Nick Brevetta said he tries to
talk to the detective who is in charge of a case before it is presented to a
grand jury. He also examines all physical evidence to make sure everything
lines up so when the case is indicted, there are no surprises a defense
attorney may be able to exploit.
"We know how the defense will line up so we can put on our case," Brevetta
said.
Dawn Cantalamessa, chief assistant prosecutor, earlier this summer had 3 murder
cases in a row. She spent 6 weeks on jury selection and trial for the Lance
Hundley capital murder case, then followed that up with 2 other cases.
Cantalamessa said physical evidence is important in her preparation.
"Murders don't happen in crowded rooms a lot of times," Cantalamessa said.
She also agreed jury selection is the most important aspect of a trial from her
perspective.
"I think murder cases are won and lost in jury selection, but that's true in
every case," she said.
Prosecutors also have to explain to jurors, however, why a particular witness
in a case may have gotten a plea bargain or the process for collecting and
examining evidence, Cantalamessa said.
Sometimes, prosecutors have no other witnesses than someone who may have been
present at a crime scene and even participated but not to the point where they
inflicted the person's death.
She said she makes sure she brings up plea bargains with witnesses to jurors to
make sure why certain deals are made.
She also said a lot of jurors think evidence collection and use is like they
see on crime shows on television, and that is not so. Cantalamessa said she has
witnesses who collect evidence explain what they do and how they do it so any
misconceptions can be cleared up.
(source: Youngstown Vindicator)
*****************
'An execution date should not be scheduled' for Bomani Shakur (Keith LaMar)
Free Bomani Shakur (Keith LaMar)!
"An execution date should not be scheduled because Mr. LaMar's death sentence
is precisely the sort identified by the Joint Task Force to Review the
Administration of Ohio's Death Penalty. Mr. LaMar's conviction rests on
prisoner testimony which is not independently corroborated, there is no
physical or video evidence linking him to the crimes and he has always
maintained his innocence. Evidence supporting Mr. LaMar's innocence is slowly
coming to light after dogged efforts to unearth such proof following years of
suppression."
This is an excerpt from the response Keith LaMar's attorneys filed to
prosecutor Mark Piepmeier's motion requesting an execution date. As lead
prosecuting attorney on the Lucasville Uprising cases, Piepmeier is largely
responsible for the egregious misconduct and deal-making that secured these
convictions based on informant testimony and withheld evidence. He has a
documented pattern of doing the same to other defendants.
The response starts by pointing out ways that Keith’s case fits within
recommendations made by the joint task force on death penalty cases,
specifically: relying on uncorroborated snitch testimony, disproportionately
targeting Black people and relying on evidence improperly withheld at trial. It
goes on to detail that withheld evidence, including statements by trial
witnesses and others that could easily cast reasonable doubt if not fully
exonerate Keith if he were afforded a new trial.
Reading this portion of the document, which describes violent events occurring
in the first hours and days of the uprising, a few things may become clear.
First, the state of Ohio has no idea what actually happened during the
uprising. One of Piepmeier's accomplice prosecutors even admits this in an
interview for D Jones' documentary film, "The Shadow of Lucasville."
Second, the rank injustice of the U.S. criminal legal system is unconscionable.
This case has exhausted its appeals and is reaching an execution date, which
means the highest courts have found such evidence inadequate to win a new
trial, or impermissible for them to even hear. Such a system must be
unconcerned with justice and motivated by inferior drives.
First, the state of Ohio has no idea what actually happened during the
uprising. One of Piepmeier's accomplice prosecutors even admits this in an
interview for D Jones' documentary film, "The Shadow of Lucasville."
This is why we call for amnesty, for recognizing that the state was ultimately
responsible for the deaths that occurred at their "maximum security" prison in
April of 1993. No more blood should be shed, lives taken or freedom denied in
Ohio's futile effort to scapegoat prisoners for the ODRC's inability to keep
peace, let alone rehabilitate or correct anyone in their prisons.
In October of 2015, Keith's previous council presented only some of these
statements and arguments before the panel at his appeal, so this document is
the 1st official entry of this evidence into the court record. At that time,
the 3 judge panel found against Keith in a decision that seems both patently
absurd, but sadly unsurprising to Keith and his supporters who witnessed the
hearing.
2nd, the rank injustice of the U.S. criminal legal system is unconscionable.
Keith was not allowed to attend the hearing that advanced his case toward
execution and has not yet been able to see and respond to this document or
Piepmeier’s motion for his execution date. Since Sept. 17, when Piepmeier filed
his motion, Keith has been spending time with close supporters and friends,
continuing to focus on living his life despite restrictive supermax conditions
of confinement and not allowing the threat hanging over his head to dominate
his time. If the Supreme Court of Ohio ignores his lawyer's response and
approves Peipmeier's request, Keith will likely be given a 2023 execution date.
We call for amnesty, for recognizing that the state was ultimately responsible
for the deaths that occurred at their "maximum security" prison in April of
1993. No more blood should be shed, lives taken or freedom denied.
He intends to fight and defend himself against this murder the state has
premeditated against him, but at a time and means of his choosing, to whatever
degree possible.
In the meantime, supporters can read the motion and response, Keith's book
"Condemned" and other writings to deepen our understanding of his case and the
dearth of justice in the state of Ohio. We can share the motion and response
around, write about them and encourage journalists and others to help tell
Keith's story.
(source: Lucasville Amnesty is a project of renowned attorneys Staughton and
Alice Lynd----sfbayview.com)
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