February 25
TEXAS:
Texas Rebuffed On Mental Fitness Review For Death Row
A Texas court relied on outdated and stereotypical rationales to determine that
a death row inmate who struggled as a teenager to grasp basic math was not
intellectually disabled and should be executed, the U.S. Supreme Court has
ruled, reinforcing that established clinical guidelines must underpin such
decisions.
The justices held on Feb. 19 that the Texas Court of Criminal Appeals, the
state's highest court for criminal cases, did not follow instructions issued by
the Supreme Court in March 2017 when it first reviewed the proposed execution
of Bobby James Moore.
The state court in June ran afoul of prior high court decisions that barred
executions of the intellectually disabled and found that any determination of
whether a defendant was indeed disabled had to include criteria "informed by
the medical community's diagnostic framework," the opinion said.
The high court's unsigned opinion said the Texas court erred in using criteria
that includes the inmate's alleged ability to show leadership capabilities and
whether he could respond "rationally and coherently to questions."
"The appeals court's opinion, when taken as a whole and when read in the light
both of our prior opinion and the trial court record, rests upon analysis too
much of which too closely resembles what we previously found improper," the
opinion said. "And extricating that analysis from the opinion leaves too little
that might warrant reaching a different conclusion than did the trial court."
The Supreme Court reversed the state appellate court's ruling and sent the
matter back so the court can again determine whether Moore may be executed.
The American Psychological Association, which had filed an amicus brief in the
case, commended the high court for again finding that Texas sought to use
"outdated means" of ascertaining whether individuals are mentally fit to be
executed.
Correctly diagnosing whether someone has an intellectual disability should
include assessing how an individual adaptively functions in social and
practical spaces and whether deficits were present as the person was growing
up, among other criteria, the association told the court in November.
"APA is pleased that the Supreme Court continued to uphold the need for modern,
scientific standards for assessing intellectual and developmental disabilities,
especially cases involving capital punishment," Arthur C. Evans Jr., the
association's CEO, said in a Feb. 19 statement.
Moore was found guilty in 1980 of fatally shooting a grocery store clerk during
a robbery, according to court documents.
A Texas trial court found he was ineligible for execution in part because of
evidence such as that at age 13, he could "scarcely" understand time or know
that subtraction is the opposite of addition, according to court documents. The
state appellate court reversed the trial court's ruling in September 2015.
Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissented on Tuesday,
asserting that the Supreme Court had previously failed to give Texas
sufficiently specific instructions on how to comply with its 2002 Atkins
decision banning execution of the intellectually disabled, and that the current
majority goes against long standing high court precedent by delving into the
specifics of the case.
"The court's foray into fact finding is an unsound departure from our usual
practice," Justice Alito wrote. "The error in this litigation was not the state
court's decision on remand but our own failure to provide a coherent rule of
decision in Moore."
Chief Justice John Roberts, who had dissented in the previous case, on Tuesday
issued a concurring opinion with the majority, writing that Texas had "repeated
the same errors that this court previously condemned," such as focusing on
Moore's "adaptive strengths rather than his deficits."
"That did not pass muster under this court's analysis last time," Justice
Roberts wrote. "It still doesn't."
After prosecutors in Harris County agreed with Moore's attorneys that he should
not be executed, the Texas attorney general's office unsuccessfully tried to
take over the case, according to court documents.
"The Harris County District Attorney's Office disagreed with our state's
highest court and the attorney general to stand for justice in this case,"
District Attorney Kim Ogg said in a statement. "The U.S. Supreme Court agreed.
Bobby Moore is intellectually disabled."
The Texas attorney general's office could not be reached for comment on
Wednesday.
"We greatly appreciate the important ruling from the Supreme Court," Clifford
M. Sloan, an attorney at Skadden Arps Slate Meagher & Flom LLP representing
Moore, told Law360 on Wednesday. "We are very pleased that justice will be done
for Bobby Moore."
(source: law360.com)
****************
Supreme Court ruling sparing Houston killer's life may finally inspire Texas
Legislature to act
A Supreme Court ruling last week to once again block the execution of a Houston
killer may finally force the Texas Legislature to set a clear standard for whom
the state deems mentally unfit for the death penalty.
With its decision, the U.S. high court vacated a ruling from Texas’ highest
criminal appeals court that would have allowed the execution of a man experts
say is intellectually disabled.
Tuesday’s ruling was the second time the court stopped the execution of Bobby
James Moore, who in 1980 killed James McCarble, a 72-year-old grocery store
clerk, during a Houston robbery.
Moore, 59, has been on death row for nearly 4 decades.
The Supreme Court prohibited executions of intellectually disabled people in
2002, calling them "cruel and unusual punishment," but allowed states to set
their own standards for what constitutes mental disability.
Now, more than 15 years after its adoption, Texas' standard, called the Briseño
rules, may finally be on its way out. Critics refer to those rules as the
"Lennie standard," named for the simple-minded character Lennie Small in John
Steinbeck's Of Mice and Men.
The nation’s highest court in 2017 overturned a Texas appeals court’s ruling
that Moore was not intellectually disabled, saying its use of the Briseño
standards was unacceptable. The state court delivered the same decision on
Moore in 2018, this time saying it had not used Briseño factors.
The Supreme Court disagreed.
“Texas has had a long history of problematic verdicts including death penalty
verdicts with defendants who were low-functioning,” said Harris County District
Attorney Kim Ogg, who opposes the death sentence for Moore. “We were on the
right side of history.”
In its 6-3 decision, the Supreme Court said Texas' judgment of intellectual
disability relied too heavily on "lay stereotypes."
James Ellis, now a law professor at the University of New Mexico, argued the
pivotal 2002 Atkins v. Virginia case in which the Supreme Court barred
executing the mentally disabled.
“2 years ago, the court said you can’t substitute clinical understanding with
something you find more convenient,” Ellis said. “The decision 2 days ago said,
'No, we really meant it.'"
In defining “mental retardation” under Briseño, the appeals court named Lennie
Small as someone most Texans would agree is mentally disabled and therefore
should not be executed.
John Blume, a professor of trial techniques and director of the Cornell Death
Penalty Project at Cornell University, said Lennie represents a stereotype of
the intellectually disabled as simpletons.
Medical professionals agree that in reality, intellectually disabled
individuals may be verbally competent, working individuals and socially
capable.
“Texas, in a sense, stands alone because it was so clearly basing its judgment
on nonscientific factors,” Ellis said.
The Supreme Court’s latest decision on Moore does not offer a framework to
replace the Briseño standard. That responsibility falls to elected
representatives, and legislators have been slow to introduce a new standard in
the nearly 2 decades since the Atkins ruling.
“The Briseño standard is just a court standard that they came up with in the
absence of the Legislature doing anything," said Christi Dean, chief of the
Capital Murder Division in the Dallas County public defender’s office.
Now, legal professionals are hopeful the Supreme Court’s latest decision on
Moore will spur Texas legislators into action.
“The Legislature has so far declined to act,” said Brad Lollar, assistant chief
of Dean’s division. “I’m hoping with this latest opinion the Legislature will
take up the issue and give us some written laws that comport with" the Atkins
and Moore rulings.
In fact, a bill designed to do that is gaining momentum in the Texas House
after last week’s ruling on Moore's case. Two Republican lawmakers signed on to
House Bill 1139 on Wednesday, the Texas Tribune reported.
The bill would allow pretrial hearings to determine the intellectual fitness of
capital murder defendants, and determinations would be based on “prevailing
medical standards.”
“The Court of Criminal Appeals has wrestled with this issue for the 30 years
I’ve been a lawyer,” Ogg said. “It will be good to have some finality on the
topic.”
(source: Dallas Morning News)
GEORGIA:
30 Years Ago, a Racist Juror Sentenced This Black Man to Death
On September 25, 1990, Keith Tharpe disobeyed a judge’s orders requiring him to
stay away from his estranged wife and her family after he had threatened them
with violence. While his wife and her sister-in-law Jaqueline Freeman were on
their way to work, Tharpe blocked their car, ordered them out of the vehicle,
and shot Freeman twice, killing her. He then drove away with his wife, parked
on the side of a road, and raped her. Tharpe was charged with malice murder,
two counts of kidnapping with bodily injury, and armed robbery. In January
1991, he was convicted of the murder and kidnapping charges and sentenced to
death. He’s been on death row at Georgia Diagnostic and Classification Prison
ever since.
Despite some of the facts, this isn’t an open-and-shut case. One of the white
jurors on the case may have voted for the death penalty because Tharpe is
black. According to court documents, Barney Gattie, a white juror, said he
believed there were two types of black people: “regular black folks” and
“niggers.” The victim, in Gattie’s opinion, was black, but Tharpe was a
“nigger.” He told one of Tharpe’s lawyers that this distinction factored into
his decision on whether to vote for death. Although this raises serious
questions about racial bias in cases involving capital punishment, no court has
ever examined Tharpe’s claim. Now, nearly 30 years after he was first sentenced
to die, the US Supreme Court is going to decide if a death penalty case tainted
by racism will be reviewed by the highest court in the land.
The death penalty has been slowly losing support among even its most
traditional supporters for many reasons. Studies have demonstrated it doesn’t
deter crime, for instance, and repeated problems with the drugs that are used
has undermined arguments that it’s a humane way to die. But another reason for
its dwindling popularity is its systemic racial bias. Countless studies have
shown that race plays an outsized role in who lives and who dies. For example,
all seven of the death sentences handed down in 2018 were to men of color.
Between 2014 and 2018, Texas sentenced 28 people to death—20 of them belonging
to a minority race. “Racial bias, conscious or unconscious, plays a role in the
death penalty decisions across America, influencing who faces this ultimate
punishment, who sits on the jury…and who is given life or death,” Jeff
Robinson, the director of the Trone Center for Justice, said in 2018. “Racial
bias, conscious or unconscious, plays a role in the death penalty decisions
across America, influencing who faces this ultimate punishment, who sits on the
jury…and who is given life or death.”
The Supreme Court has weighed in on racial bias before. In 2017, the justices
ruled in Pena-Rodriguez v. Colorado that laws that prevent the jury’s verdict
from being impeached do not apply when racial bias plays a role. Notably,
Justice Clarence Thomas, the lone black justice and only the second black
person to sit on the court, filed the dissenting opinion. That same year, in
Buck v. Davis, the justices ruled in favor of Duane Buck, a death row inmate
who alleged racial bias during his trial. In Texas, jurors can only sentence a
defendant to death if prosecutors can prove that he will be a future danger to
society. At Buck’s trial, a psychologist testified that black defendants are
more dangerous than white ones. Once again, Thomas filed the dissenting
opinion. Buck’s sentence was ultimately reduced to life in prison.
But Tharpe’s case focuses on the question of how an individual juror’s views on
race affected the defendant’s sentence. “Mr. Tharpe is clearly facing execution
in part because he is black,” said Sam Spital, the counsel of record for the
NAACP Legal Defense Fund, which has filed an amicus brief on behalf of Tharpe.
“The Supreme Court has to take a very firm position that racial discrimination
has no place in the administration of the criminal justice system.”
As is customary in death penalty cases, Tharpe’s post-conviction lawyers began
the appeals process. As part of his appeals to the state, in 1998 his lawyers
interviewed the 12 jurors who had sentenced their client to death. Gattie
signed a sworn affidavit. In it, he stated abhorrent views about black people.
“After studying the Bible,” he said, “I have wondered if black people even have
souls.” Referring to O.J. Simpson, the black football player who was acquitted
in the murder of his white ex-wife, Gattie noted, “Integration started in
Genesis. I think they are wrong. For example, look at OJ Simpson. That white
woman wouldn’t have been killed if she hadn’t have married that black man.”
After attorney Laura-Hill Patton interviewed Gattie, she concluded that clearly
the juror harbored racist views. Another lawyer, Diana Holt, returned one week
later and asked Gattie to review the draft of the affidavit from the first
interview. Before signing the document, Gattie stated that all of it was
correct save for one sentence in which he intended to say “integration” instead
of interracial marriage. He initialed the correction. The following day, Gattie
signed a second affidavit on behalf of the state, claiming he was drunk and
never used a racial slur when describing Tharpe. He did not disavow his
statements about black people being divided into two groups. After filing the
second affidavit, the state also moved to exclude Gattie’s original affidavit
because it violated a Georgia law that does not allow the jury’s verdict to be
impeached.
According to court documents, after an evidentiary hearing in 1998, Tharpe’s
case languished and both sides changed attorneys. Then, in 2007, the state
appeals court held hearings about an intellectual disability claim, but did say
this about the juror bias claim: “[T]he fact that some jurors exhibited certain
prejudices, biases, misunderstandings as to the law, or other characteristics
that are not conducive to neutral and competent fact-finding is not a basis for
impeaching the jury’s verdict.”
Finally, in 2010, Tharpe’s case made it to the 11th Circuit. It ruled that the
state’s previous ruling on his juror claims could stand because he hadn’t
raised the claim early enough. In other words, the delay prevented Gattie’s
racial bias from being taken into consideration.
Tharpe’s attorneys appealed, and the day he was supposed to be executed,
September 26, 2017, the Supreme Court issued a last-minute stay and remanded
the case back to the 11th Circuit for reconsideration. In 2018, the federal
court once again denied the defendant, saying he was barred from raising the
claim.
“The ultimate goal is to not have Mr. Tharpe executed on the basis on racism,”
says Marcy Widder, one of Tharpe’s lawyers. “The Supreme Court is really the
last court that can do anything about it.” She describes the case as being
“pretty starkly racist in the standard, old-fashioned way.”
The court is expected to decide in early March whether it will hear Tharpe’s
case. Their decision, either way, will speak volumes. “It will be very
troubling if the court does not intervene,” Spital says. “You have such strong
evidence that racial discrimination affects [his case].”
(source: Mother Jones)
******************
New rules aim to speed up court appeals
In a ruling last fall on a case that had lagged 20 years before reaching the
Georgia Supreme Court, the justices had had enough. They directed the state’s
trial court judges to fix what had made Georgia’s criminal justice system
appear unfair and grossly inefficient.
The long delays between a trial conviction and appeal stemmed from the first
step of the appellate process – a motion for a new trial before the trial
court. The state’s highest court told the Superior Court judges to devise a
system to move cases faster to the appellate courts.
As part of the new rules, Chief Judge Carl C. Brown Jr. earlier this month
certified the 1st report about all cases pending appeal in each of the Augusta
Judicial Circuit counties to the Supreme Court.
Richmond, Columbia and Burke counties have a total of 148 cases pending appeal.
10 have been in limbo a decade or more, and 1 that sat for more than 18 years
wasn’t included on the list.
Garry D. Johnson was convicted of murder in 2000 and has yet to have a hearing
on his motion for a new trial in Burke County. He was convicted of killing
killed his estranged girlfriend, 31-year-old Irene Shields, on Dec. 27, 1997.
“That’s one that fell through the cracks,” said Judge James G. Blanchard Jr.,
who was appointed by the chief judge in 2017 to preside over Johnson’s motion
for a new trial. The judge who presided over Johnson’s trial retired, his lead
attorney died and the 2nd attorney on his case was disbarred.
It’s not that cases are intentionally neglected, Blanchard said. A constant
stream of new criminal, civil and domestic relations cases stack on top of
pending caseloads. In the past, judges relied on defense attorneys to move
cases after a trial conviction.
But before a case can move, a trial transcript must be prepared, which takes
time, Blanchard said. A court reporter needs four days to prepare a transcript
for each day of a trial, Blanchard said. In recent years he has had 20 or more
trials annually. To complete a transcript of a death penalty trial on time, his
court reporter had to take vacation time to do it, Blanchard said.
For years the Supreme Court and Court of Appeals admonished attorneys and trial
judges to move cases to appeal quicker. But when faced with a 20-year-old
appeal in which the defendant killed her husband in 1998, the Supreme Court
stopped admonishing and issued a mandate.
It was a good thing because now the judges have devised a practical system of
staying on top of these cases, Blanchard said. The biannual reports to the
Supreme Court include the names of all defendants entitled to appeals, the
judge assigned to each case, the defense attorney, dates of sentencing and when
motions for a new trial are filed. It also states whether a transcript has been
prepared, whether the motion has been ruled on, and whether the case is ready
to send to the appellate court. In that last category, judges have moved 27 of
the 148 pending cases to the appellate courts in the past year.
Moving the cases pending appeals can be like herding cats. Last week, Blanchard
had 6 cases set for motions for new trials. 5 had to be postponed, and the 6th
was dismissed after attempts to reach the defendant – who was convicted of a
misdemeanor theft charge in 2013 – failed.
Judge Sheryl B. Jolly also had hearings on motions for a new trial. On Friday
afternoon, Antonio Patterson was back in Richmond County Superior Court where a
jury convicted him nine years ago of burglary and robbery. His appellate
attorney argued that Patterson’s attorney should have asked for the district
attorney’s office to be recused from the case because one of the victims was an
assistant district attorney. Jolly ruled against him. Patterson can now appeal
to the Georgia Court of Appeals.
(source: Augusta Chronicle)
TENNESSEE:
Fire Scientists Say the Arson Case Against Claude Garrett Was Fatally Flawed.
Will Anyone Listen?
In a tense, crowded room inside Nashville’s Riverbend Maximum Security
Institution, Claude Garrett sat before a large TV monitor and stared at the
screen. Behind him, a crowd of people gathered before a long conference table.
Garrett wore prison-issued blue jeans, glasses, and a serious expression.
Looking back at him on the screen was Richard Montgomery, chair of the
Tennessee Board of Probation and Parole. Soon he would say whether Garrett
should be released or remain in prison.
It was a Monday in October 2018. The hearing had started at 10:30 a.m. “Mr.
Garrett, what is your inmate number, sir?” Montgomery asked. Garrett recited
it: #225779. “You were born on November 17, 1956, and you’re 61 years old?”
Yes, Garrett said. Montgomery thanked everyone in attendance. “The more
testimony we hear, the more facts we hear from each and every one of you, the
better decision we can make,” he said.
Montgomery summarized Garrett’s record dating back to the 1970s: a handful of
misdemeanors, followed by felonies, the most serious of which were some
burglaries in Indiana. He then reviewed Garrett’s disciplinary write-ups in
prison. There were only five, total. Four dated back to the mid-’90s. Finally,
Montgomery asked the question Garrett had been pondering for more than 25
years.
“Tell me, on February 24, 1992, what happened?”
Garrett told the story as he had countless times. How he and his girlfriend,
Lorie Lee Lance, had been out drinking at a local bar the night before; how
they came home late and dozed off in the living room, then moved to their
bedroom. “Sometime later I was woken up,” Garrett said. “I don’t know what woke
me up. I recall looking into the living room and seeing a light flickering on
the wall.” It was a fire. “I yelled at Lorie. She got up behind me and I had
ahold of her wrist. We went toward the front door, which was to the right of
our bedroom.” But then Lance “pulled back,” Garrett said. “She didn’t follow me
through the door.”
Lance was later found in a utility room toward the back of the house. She died
from smoke inhalation. The next year, Garrett went on trial for her murder.
Jurors did not believe his story. They believed what prosecutors said: that
Garrett had locked Lance in the back room and poured kerosene throughout the
house. The state’s case was shaky — in fact, Garrett won a new trial after he
discovered that prosecutors had concealed a police report showing the door in
question had actually been found unlocked. Nevertheless, in 2003, a jury
convicted him again.
For more than 25 years, Garrett has maintained his innocence. He has also
gained the support of numerous people on the outside, who wrote letters to the
board on his behalf. His most vocal advocate is a veteran fire investigator,
Stuart Bayne, the defense expert at his 2003 retrial. A tall man with a formal
air, Bayne was one of four supporters who spoke at the hearing. He wore a dark
suit and carried prepared remarks. “As a representative of the fire
investigation community, I owe allegiance to only one thing, and that is the
truth,” Bayne began. Garrett’s conviction was “fundamentally unjust,” he said —
and there was scientific evidence to prove it.
Like all fire investigators of his generation, Bayne explained, he had lived
through a sea change that began in the 1980s. Until then, “I believed in arson
pattern indicators that have since then been proven untrue,” he said. In 1992,
the same year as the fire in Garrett’s case, the National Fire Protection
Association published “NFPA 921,” a groundbreaking guide that would transform
the field. Rather than rely on instinct, experience, and visual interpretations
of fire scenes, it held that fire investigators should follow the scientific
method: using all evidence from a scene to test a hypothesis before making a
determination about a fire’s origin and cause.
The investigators in Garrett’s case had done no such thing. Instead, they
discarded the furniture and other contents of the house and zeroed in on false
indicators. At trial, the state’s key witness, James Cooper, a special agent
with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, swore by “pour
patterns” on the floor, which supposedly proved an accelerant had been spread
throughout the home. He continued to insist upon the evidence at the 2003
retrial, despite the fact that “pour patterns” were widely understood to be
unreliable junk science by then. To Bayne’s distress, Garrett’s retrial
attorney took him off the stand before he could explain the vast changes in
fire investigation over the previous decade.
In the weeks before the October parole hearing, Bayne had mailed each parole
board member a set of reports. “The information I sent you are the result of
systemic analysis of the fire,” he told Montgomery. One report came from
renowned fire scientist John Lentini, who first reviewed Garrett’s case in 2010
and concluded it was based on junk science. Another came from a group of
international fire experts called the Tetrahedron Committee, who also found
that the arson determination in Garrett’s case was fatally flawed. “Today’s
fire investigation standards reject the non-scientific methods used at the
Lance-Garrett fire in 1992,” Bayne explained. It was not the kind of evidence
parole boards usually hear. But Bayne urged Montgomery to consider it.
Opposing Garrett’s release were members of Lance’s family. In emotional
statements, they described Garrett as an abuser who had killed Lance because
she planned to leave him. The family shared stories of his volatile behavior
that they also told me when I first investigated the case, for an article
published in 2015. “He’s conned every one of these people in this room,”
Lance’s younger sister, Hayley, said. They were not swayed by the explanation
of outdated fire investigations. “All this about the junk science, that may be
true in some cases,” Lance’s aunt said. But not in this one.
Just before noon, it came time for Montgomery to announce his decision. “The
board does not try cases,” he said. “We do not determine whether a person is
innocent or guilty.” What mattered now was that Garrett had served the sentence
required by the state of Tennessee. “I look at your record and I see a person
that is trying to improve his life,” Montgomery told Garrett. His vote would be
for Garrett to be released in March 2019.
Garrett was stunned. But the outcome was still far from certain — he needed
three more votes in his favor for release. Montgomery said the board members
would make their decision within 7to 10 days.
About a week later, Garrett got the news. The board had denied his parole
application. He won’t have another chance until 2022.
“I’m disappointed but not discouraged,” Garrett told me a few weeks later. It
is rare for anyone to get paroled their 1st time before the board, he said. In
fact, compared to many people in his position, Garrett was lucky to face the
parole board at all. Not long after he was convicted, legislators doubled the
amount of time lifers with parole eligibility in Tennessee had to serve before
their first hearing, from 25 to 51 years.
For Bayne, however, the denial was an intolerable blow. In a six-page letter
last November, he urged the board to reconsider its decision. He reminded
members of the seven flash drives he had sent them earlier that fall, which
included affidavits and reports from leading fire experts. “There are reputable
fire investigators/scientists who are trying to tell you that this whole matter
is fundamentally unjust,” Bayne wrote. He did not hear back.
February 24 marks the 27th year since the fire that took Lance’s life and sent
Garrett to prison. As he continues to fight his conviction, Garrett is trapped
in a kind of paradox. Even as decades of scientific advancements have debunked
old forensic techniques and provided more tools to identify wrongful
convictions, the legal architecture that surrounds him has made it harder to
win relief. The same tough-on-crime era that gave rise to the Antiterrorism and
Effective Death Penalty Act — which has shut defendants out of court even when
they have compelling innocence claims — brought a wave of state-level reforms
shortly after Garrett was first convicted. In 1995, Tennessee Gov. Don
Sundquist signed sweeping legislation “designed to make convicting criminals
easier and keep them in prison longer,” as The Tennessean reported at the time.
The tough-on-crime overhaul included major revisions to the state’s
Post-Conviction Procedures Act, imposing a one-year deadline for people to
challenge their convictions in state court. While in theory it also included a
safeguard to address wrongful convictions — allowing for the reopening of a
state post-conviction petition based on new scientific evidence — the
limitations were rigid. In 2017, Garrett filed such a motion in state court,
based on the reports of Lentini and the Tetrahedron Committee. Prosecutors
protested on several grounds: The motion had been filed too late; it revealed
no new evidence; and it did not prove Garrett’s “actual innocence” as required
by the law. The court swiftly ruled for the state.
Today, Garrett is nearly out of legal options. Yet there is a key avenue that
could provide a way out. In 2016, Davidson County Attorney General Glenn Funk
announced the launch of a conviction review unit. Modeled partly on the
Brooklyn District Attorney’s groundbreaking CRU, it was supposed to provide a
chance for people like Garrett to have their cases re-examined and possibly get
exonerated — at least in theory. But while the Brooklyn unit has led to 24
exonerations in the past five years, similar units across the country have
proven ineffective. In Arizona, the Pima County Conviction Integrity Unit has
done nothing to intervene in the case of Barry Jones, even after his conviction
was overturned last summer. In Ohio, where prosecutors used junk science to
convict Angela Garcia for a fire that killed her two daughters, the Cuyahoga
County Conviction Integrity Unit rejected Garcia’s application on its face.
Garcia later pleaded guilty to arson in exchange for a reduction in her
sentence.
Until very recently, the Davidson County CRU had shown similarly meager
results. In January, Nashville Public Radio released the results of a two-year
investigation into the office. It revealed that while 38 cases had been
submitted to the unit for review, not a single one had been ordered to be
reinvestigated. Part of the problem was the structure of the unit. Cases were
screened by a seven-member panel of prosecutors, which bred inevitable
intransigence. As Nashville defense attorney Daniel Horwitz pointed out, it
also created conflicts of interest; in the case of his client Joseph Webster,
whose application was rejected in July 2018, the panel included the same
prosecutor who sent Webster to prison in the first place.
The attorney general’s office announced an overhaul of the unit’s protocol. On
February 8, news broke that the CRU would take on the Webster case after all,
the first to move forward since Funk launched the unit. All of this is
potentially good news for Garrett. But there is one major obstacle keeping him
from applying. The unit’s rules dictate that it “will not consider requests for
review while any appeal, petition, or writ is pending in court.” For Garrett,
whose federal appeal has been winding its way through the courts since 2013, it
is a wait he can ill afford.
Although Davidson County is not unique in this requirement, it’s not even clear
why it exists. “As a general rule, we stay out of it while it’s in the courts,”
Assistant Attorney General Robert Jones, who leads the unit, explained over the
phone earlier this month. But he insisted that such language would not
foreclose on a deserving application. He pointed to the next line in the unit’s
protocol: “The CRU retains the discretion to review the case if it is in the
interest of justice.” If there is compelling evidence of innocence, he said,
“we’re not gonna sit here for years and wait for the case to go through the
courts.”
Even so, the language of the unit’s official protocol suggests the bar for
relief will be high. In order for the CRU to recommend that a conviction be
vacated, an applicant must show “clear and convincing evidence” of “actual
innocence,” as defined by the Tennessee Supreme Court. In a case like
Garrett’s, where the physical evidence was discarded almost immediately, there
is no new testing that can establish such clear proof of his innocence, let
alone something like DNA.
If there is one thing that might help Garrett between now and whenever he
submits his case for review, it would be a willingness on the part of the
state’s main expert to admit he was wrong, at least in his methodology, which
would never pass muster today. But until now, this has proven impossible. When
I went to see Cooper last year, he defended his work and refused to consider
the reports by Lentini or the Tetrahedron Committee. Although he backed away
from certain evidence he once emphasized on the stand, he reiterated his belief
in Garrett’s guilt and reminded me of a crucial piece of evidence: the lock on
the utility room door. “That was key,” he said.
In fact, there have always been reasons to doubt that the door was locked.
There was the police report that was withheld from Garrett’s defense at the
first trial, in which Fire Captain Otis Jenkins said that the door was
unlocked. But even without this, Jenkins — the only firefighter who directly
testified to this critical piece of evidence — never had the most convincing
recollections. At Garrett’s first trial in 1993, he testified that he had to
“turn and move a knob to get the door open,” even though the door had no knob.
Was it possible the door was “just jammed”? Garrett’s attorney asked. “I
wouldn’t rule that out,” Jenkins said, but he insisted he was almost certain
the door was locked. At the 2003 retrial, Jenkins testified that he “shuffled
something or did something to make the door open,” but he could not recall
what.
In court rulings upholding Garrett’s conviction, reviewing judges have relied
on Cooper’s recounting of what Jenkins supposedly told him: that he “had to use
2 hands to slide the bolt on the latch to the other side to open the door.” But
at the retrial, Jenkins said he did not even remember Cooper. In its 2016
report on the fire, the Tetrahedron Committee found that his testimony should
be “viewed very skeptically.” For one, there was the “near-zero visibility,
high heat, and confusion” of a fire scenario. Then there was the fact that
firefighting gloves are designed for protection and not conducive to operating
a latch as small as the one on the door. “The difficulties of opening a latch
in firefighting gloves was never addressed and demonstrated at trial,” the
report noted. Finally, it flagged the exculpatory statement attributed to
Jenkins and withheld by the state at the first trial: that the door was
unlocked. “Given what we know from memory research, the original recollection
is the most credible source [of] information,” the experts said. “That is not
to say that Capt. Jenkins was knowingly lying about the latch position.
However, we must be cognizant of the effect of potential suggestion by
investigators and prosecutors on a witness’s recollection.”
Jenkins, who is long since retired, has not responded to numerous messages or a
note left at his home. Nor has he acknowledged the expert reports from Lentini
and the Tetrahedron Committee, which I mailed to him last fall. While there is
no reason his memory would be sharper decades after the fire, there is very
good reason to revisit the question of the door. Should the CRU eventually take
up the case, it would do well to consider a key finding in Lentini’s report,
one that only recently reminded me of something Garrett told me years ago: the
reason he bought the cheap latch in the first place was because the door had a
tendency to swing open. A photo included in Lentini’s report shows heavy smoke
deposits on the edge of the door — the part that would presumably have been
shielded by the door frame had it been closed during the fire. Garrett’s
conviction rests on the claim that he locked Lance inside that room and left
her to die. But the smoke deposits debunked this, according to Lentini. Not
only was the door unlocked, he wrote, “it was not even closed.”
(source: theintercept.com)
NEVADA:
It’s been a year since Las Vegas homeless man was killed. His friends, family
still impacted
A relieved Oneida Lewis would throw her arms around her dad in pure elation.
Daughter and dad would then embark on a trip to visit family that also had been
concerned about his whereabouts. They would reminisce, catch up and create new
memories.
Their reunion would feel like winning the lottery, Lewis imagined.
She was so certain of this that she fixed James Edgar Lewis a cozy space in her
Las Vegas home’s garage and equipped it with a portable heater. A bed, a couch,
a dresser and a TV awaited in case he needed a place to live, sleep or simply
visit.
It had been almost 20 years since Oneida Lewis saw him and more than dozen
since she heard his voice. Loved ones unsuccessfully spent years searching for
him, not knowing he had relocated to Las Vegas or, much less, that he’d become
homeless.
“I’m going to find my dad,” Oneida Lewis recalls saying. On a recent evening,
she sat on his bed in her south valley house.
She cries when describing her quest to find him during the early hours of Feb.
4, 2018, when she got a call that her father might have turned up.
The long-awaited encounter took place hours later in a Las Vegas funeral home.
It was drastically different than she could have imagined: a slaying victim
listed as John Doe was waiting to be officially identified.
“The word homicide just shocked (me),” she said. “But to hear the word
homeless, I’m like, ‘nope … wrong person, that’s not my dad.”
Lewis, 64, was bundled underneath a blanket, under the U.S. 95 overpass at 14th
Street when a gunman drove up, got out of his compact SUV, approached him, and
shot him point blank on Feb. 2, 2018. The crime was captured on grainy
surveillance footage.
By the time the spree was finished, Joshua Castellon had randomly shot four
men, three of whom were homeless, Metro Police said. Castellon has also been
charged in the deaths of Lewis and Brian Wayne Clegg, 51. The allegations
against Castellon, 26, are severe enough that the state decided to pursue
capital punishment.
For Lewis’ friends in the area’s homeless community — where he was
affectionately known as “Pops” — his slaying is a constant reminder of the
dangers on the streets. They are always looking over their shoulders and
frequently turn to drug use because “that’s the only way to deal with the
street,” one of them said on a recent afternoon.
A year later, the grieving daughter continues to try to reconcile the
likelihood that she will never know why he left and never reached out. The pain
is numbing, she said.
Clark County District Attorney Steve Wolfson discusses the death penalty during
an interview Wednesday, Feb. 14, 2019. Joshua Castellon is facing the death
penalty for four shootings, two of them fatal. James "Pops" Lewis, 64, is one
of the victims.
Death penalty for suspected killer?
Castellon was picked up Feb. 8, 2018, 2 days after Metro Police publicly
connected him to the four shootings. He was in federal custody on a gun charge
until August, when U.S. prosecutors dismissed the charge and he was transferred
to Clark County to face counts related to the shootings.
Castellon remains behind bars. His legal team is preparing his defense. There
is “no stone that we can leave unturned,” said Lisa Rasmussen, his attorney,
noting his family is devastated by the accusations.
Clark County prosecutors are mounting what will likely be a timely and costly
death penalty case, District Attorney Steve Wolfson said. “It’s a lot of work.”
In doing so, multiple factors are considered, Wolfson said. There’s the
suspect’s criminal history, the crime itself, its circumstances, and the harm
caused.
Then, there’s the “randomness” of the acts, Wolfson said. All slayings are
disturbing, but most could usually be explained, said Wolfson, noting examples
like heat of passion, revenge and mental illness.
With Castellon, authorities haven’t figured out a why.
He “murdered 2 people and attempted to murder 2 others,” Wolfson said. “We
could be looking at 4 deaths, rather than 2.”
By Wolfson’s estimate, his office seeks death in about 20 % of the murder cases
it prosecutes. As with any case, he hasn’t completely shut down the idea of
reaching a plea agreement.
“I never say no at considering anything,” he said. “It depends on the facts and
circumstances.”
Prosecutors don’t view crimes against the homeless differently than they do
with victims with steady lives, Wolfson said.
“It’s a ‘duh’ comment,” Wolfson said. “Of course perpetrators shouldn’t commit
crimes, but if they think that by preying on the homeless is going to give them
a different, unique consideration because maybe we don’t care as much about
these victims, they’re wrong.”
Oneida Lewis is opposed to the death penalty. But she said learning the verdict
and subsequent sentence will help her find closure. Her father’s killer had no
right to take his or anyone else’s life. “You’ve seen trash on the ground. You
felt like the person under the blanket was less than zero” when he was “worth
more than gold,” she said.
“You took someone that you thought shouldn’t be here and that wasn’t the case —
you shouldn’t decide,” she continued. “That wasn’t your place to say who should
be here, and I pray that God sends angels to watch over your (children) and
that no one takes their lives, and you won’t be in pain like I am.”
Nevada hasn’t executed an inmate in more than 12 years, and the last execution
was embroiled in legal challenges,
Wolfson said, “At the end of the day, it’s still the law. And in the right case
we should still seek it, because that’s what Nevadans want.”
“If we change the law,” he said, “it will change my thinking.”
Pops’ community still misses him
On a recent afternoon, an impromptu memorial that popped up at a utility pole
in the days after Lewis’ slaying was long gone.
There weren’t any physical indicators that pointed to there being a senseless
killing of a sleeping, innocent man. But the crime is still fresh in the minds
of the community Lewis was taken from.
Lisa Duardo would see him every morning, she said. He would be pedaling back
after selling aluminum cans when they’d cross paths. No matter what he may have
been going through, she said, his kindness and “high spirits” would never
waiver.
“I miss my friend, and I miss those good morning smiles; it makes a good day go
by a hell of a lot of nicer and smoother,” she said, increasingly emotional. "I
would give anything to have that one good morning.”
Over the past year, Oneida Lewis has heard from other people like Duardo. There
was the woman who would take food for her father and found him dead.
He would chase after the woman and her daughter’s dog, “Chico,” when it ran
away. Although his pockets weren’t lined with cash, he would buy ice cream for
the neighborhood children. Oneida Lewis learned that residents of a retirement
housing project would let her father sleep outside. He wasn’t trouble and would
help out. A man told her that Pops would help him tinker with cars.
Oneida Lewis holds a photo of her father James Edgar Lewis during an interview
at her home Wednesday, Feb. 14, 2019. Baker said she was searching for her
father and kept a room ready for him.
A daughter’s ache
For a while after the death, Oneida Lewis was skeptical but kept hope that
maybe somebody stole her father’s identity or that he would somehow appear.
Maybe he bumped his head, had Alzheimer’s or amnesia, she wondered, and that’s
why he never contacted her. Maybe he was a proud man and didn’t want his family
to see him struggle, she said. “I just wanted to find him and hug him.”
She vividly remembers her youth. Her dad would watch sports on TV, sitting in
the living room. She would scoot in, and he would offer to change the channel.
But she wanted to learn about sports, so he taught her, and she learned all the
rules, becoming a big fan of the major leagues. Once, he gave her boxing
lessons.
Originally from Colorado, the family was cheering for the Denver Broncos in the
1987 Super Bowl.
The little girl wasn’t happy, and James Lewis noticed, she said. “Come here,
Boo.”
“Yes, Daddy,” she remembers saying. “You didn’t cheer when the Broncos scored,”
he said.
He probed and finally got an answer: She didn’t like the home team. James Lewis
said he would keep her secret when she said she liked Pittsburgh’s team.
In her family, Super Bowl Sunday means a big gathering and a massive feast,
Oneida Lewis said.
And she hoped her father would rejoin them one day, she said. So, when she got
a call the day of last year’s championship informing her that her father was
dead, it was a painful irony.
Since his death, Oneida Lewis doesn’t plan ahead. If anything, she’s learned to
appreciate the plight of the homeless.
“Just because you see someone who is homeless, it doesn’t mean that they’re
addicts,” she said. "Something in life brought them there. And never assume
that someone who is homeless is nothing, because they are human just like the
rest of us.”
Oftentimes, they can be more human, she said. If she’s cold, raining or windy,
Oneida Lewis explained, she can go in a bedroom. And she doesn’t have to worry
about her next meal.
Testimonies from strangers have helped her piece together her father’s story,
though many questions remain unanswered. A rosary, coins, a crumpled newspaper
and a blanket was all she was able to recover.
(source: Las Vegas Sun)
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