March 24
USA:
How Drug Manufacturers Are Impacting The Death Penalty Debate
Polls generally show that the majority of Americans are on board with the death
penalty. In October 2014, Gallup reported that 63 % of Americans were in favor
of capital punishment while 33 % were opposed.
But when it comes to carrying out executions in recent years, the vote of 1
group of individuals - drug manufacturers - has begun to hold more sway.
Public pressure on drug manufacturers to stop selling the chemicals coupled
with some companies' opposition to the practice has cut off supplies, leading
to shortages of the drugs used in lethal injections. Now, several states
scrambling to figure out if and how they'll be able to be able to go ahead with
scheduled executions.
Why Manufacturers Matter
Lethal injection became the standard of executions about 33 years ago, after it
was widely accepted as more humane than firing squad, the electric chair or
hanging.
Most states use a deadly combo of 3 drugs - 1 sedative, 1 muscle relaxer and 1
heart-stopping drug. But other states have used a 1-drug method of a
barbiturate that's administered as an overdose.
But scrutiny of lethal injections started gaining steam in 2005, when a study
reported that it was possible inmates were experiencing extreme pain during
executions. Then in 2006, 1 inmate in Florida took 35 minutes to die after
being given his lethal dose, raising new questions about the cruelty of the
practice. Since then, several other botched executions have dispelled the idea
that injections were full-proof and peaceful.
Then in about 2011, the bans started. First the EU clamped down on exports of
drugs used for capital punishment. The same year, Hospira, the only U.S.
company that sold a sedative used in lethal injections, sodium thiopental,
announced it would stop selling the drug after its Italian plant refused to
manufacture it.
Afterwards, states began switching to another sedative - pentobarbital. But
then its Danish manufacturer, Lundbeck, discovered it was being used in lethal
injections and banned its sale to U.S. correctional facilities. States then
turned to a different sedative - midazolam - and again, its manufacturer in
Illinois, Akorn, announced a few weeks ago it would stop selling the drug to
correctional facilities.
With big pharma putting the squeeze on states to reconsider their options, many
have turned to smaller drug compounding companies - but now in some cases,
they're becoming an unreliable source. Pentobarbital is the key drug Texas has
run out of, either because compounding pharmacies won't sell it or because
they're struggling to get the raw ingredients needed.
The smaller compounding pharmacies are also operating with the threat of being
outed as a lethal drug injection maker could expose them to public condemnation
- making one wonder how much longer they'll choose to stay in the market.
So, now what?
Will The Future Lead to The Past?
In a twist that has got to have abolitionists wincing, instead of states
choosing to consider ending executions in light of drug shortages, many might
revert to old methods.
A few weeks ago, Alabama's House of Representatives voted to use the electric
chair if they can't secure a supply of new drugs. Virginia and Tennessee are
also considering electrocution, while Oklahoma is discussing the gas chamber.
Texas was recently down to its last dose of the lethal cocktail, leaving
hundreds of death-row inmates waiting to find out what the future holds.
Meanwhile, a lack of drugs in Utah has prompted legislators to approve bringing
back execution by firing squad.
It's likely an unintended consequence of cutting off the drug supply - but the
situation has set off a fresh wave of debates that's likely to force many
Americans to once again assess their comfort level with the sometimes gruesome
realities of executions.
A firing squad chamber.
After the fire squad bill was introduced in Utah a few weeks ago, Gov. Gary
Herbert, a Republican, received hundreds of messages urging him to veto it.
(Today he announced that he'd sign the bill into law anyway.)
The move shows that for now, when it comes to executions, many states may just
change course, rather than abandon it. But with more than 3,000 prisoners on
death row, how long will Americans be able to stomach hearing about inmates
dying from firing squads and electric chairs?
And even though the death penalty isn't going anywhere yet, many believe that
being cut off by drug manufacturers has contributed to a slowdown in executions
nationwide.
In almost every year since 2009 - which is about when drug shortages started to
become a problem in many states - the number of executions in the U.S. has
dropped. In 2009, America executed 52 prisoners, and by 2014, the number was
down to 35. Which begs the questions: Will the pressure from manufacturers
spawn a new moment of reckoning for Americans? At some point, will the slowdown
related to drug manufacturers help bring executions to an end?
As the story unfolds in the coming weeks, drug manufacturers will continue to
play their role in how the 32 states that allow the death penalty choose to
proceed. While this latest shortage may not mean that manufacturers have the
final say in the matter, their actions are clearly helping to steer the
conversation.
(source: manufacturing.net)
***************************
5 Death Penalty Cases Tainted by Racism----From race-baiting prosecutors to
Confederate courthouse displays.
The intersection of race and justice on the street has loomed in the headlines
this past year or 2, with racially charged killings - Trayvon Martin, Michael
Brown, Eric Garner, and Tamir Rice, among others - sparking widespread protests
and highlighting stark police biases: A recent Justice Department
investigation, for instance, found that blacks in Ferguson, Missouri, accounted
for an overwhelming majority of traffic stops, traffic tickets, and arrests
over a 2-year period - nearly everyone who got a jaywalking ticket was black.
When black drivers were pulled over in Ferguson, the DOJ found, they were
searched at twice the rate of white drivers.
Racism in the courtroom has received far less attention recently. Yet it is
virtually impossible to walk into a courthouse anywhere in the United States
without seeing its impact. The prejudice is seldom overt these days; you'll
find it reflected instead in the underfunded, undertrained, overworked, and
sometimes incompetent lawyers appointed by the courts to represent criminal
defendants who can't afford counsel. Even so, the fates of countless men and
women - see my in-depth piece on the case of Kenneth Fults in Georgia - have
been affected by plain, old-fashioned racism. Consider these 5 examples.
Watch your daughters
In 2005, Andre Thomas, a black man with a history of severe mental illness, was
convicted and sentenced to death in Texas for killing his estranged wife (who
was white) and her 2 children (1 of them his). To obtain the all-white jury
that sentenced Thomas, prosecutors Kerye Ashmore and Joe Brown utilized an
only-in-Texas procedure called a "shuffle," which eliminated most of the
potential black jurors from consideration.
In a jury questionnaire, 4 white prospective jurors indicated their opposition
to miscegenation - 1 man emphasized that he "vigorously" opposed people of
different racial backgrounds marrying and/or having children and was "not
afraid to say so," and further wrote on the questionnaire: "I don't believe God
intended for this." Court-appointed defender R.J. Hagood, who had the responses
in front of him, neglected to question or challenge these jurors, all of whom
ultimately sat in judgment of his client.
During closing arguments, prosecutor Ashmore gave the jury this loaded
ultimatum: "Are you going to take the risk about him asking your daughter out,
or your granddaughter out? After watching the string of girls that came up here
and apparently could talk him into - that he could talk into being with him,
are you going to take that chance?"
Thomas remains on death row.
King Kong and the "blond lady"
In 2000, Johnny Bennett, a black man, was sentenced to death in South Carolina
for stabbing and killing a friend. During the trial's sentencing phase,
prosecutor Donald Myers spent a great deal of time talking about Bennett's
conviction, a dozen years earlier, for a cross-racial assault.
The prosecutor offered a not-so-subtle reminder to the all-white jury that the
defendant had dated a white woman.
He called to the stand one of the victims, who testified that he'd dreamed
"black Indians" were chasing him. Myers himself referred to Bennett as "King
Kong" and a "beast of burden," and elicited from another witness that Bennett's
prior girlfriend had been "a blond lady" - a not-so-subtle reminder to the
all-white jury that the defendant had dated a white woman.
The state Supreme Court would later rule that the black Indians reference
"merely described" the victim's "emotional injury." It recognized that the
blond lady and King Kong references could have racial connotations, but the key
question was whether these comments "so infected the trial with unfairness" as
to taint the verdict - and they did not, the court determined.
1 juror, asked later what he thought might have prompted Bennett's seemingly
motiveless crime, responded: "Because he was just a dumb nigger."
Bennett remains on death row.
"Offensive to some"
Felton Dorsey was convicted of murder and sentenced to death in 2009 in Caddo
Parish, Louisiana. Dorsey complained that the courthouse, located in
Shreveport, had created a racist atmosphere by maintaining a Confederate flag
memorial on its grounds.
1 prospective juror indicated that he could not serve in a courthouse with a
Confederate display.
The flag, his lawyers argued, was placed there to remind anyone entering of an
era when the lynching and enslavement of blacks was permitted by law. Indeed, 1
prospective juror indicated that he could not serve in a courthouse with a
Confederate display nearby.
The state Supreme Court rejected Dorsey's claim, concluding that, while the
display might be "offensive to some," his lawyers didn't object at the time of
the trial, so the claim was improperly before the court. The judges also
rejected a statistical claim offered by the Louisiana Association of Criminal
Defense Lawyers, which had studied 120 jury trials over a 12-year period and
determined that Caddo Parish prosecutors dismissed black jurors at more than
triple the rate of white jurors.
2 months after the Dorsey ruling, Caddo Parish commissioners voted 11-1 to
remove the Confederate flag.
Dorsey remains on death row.
"They deal crack over there"
Victor Walther was one of 12 white jurors who sentenced a black man, Gary
Sterling, to death in 1989 for murdering a white man in the course of a
robbery. Robert Dunn, Sterling's lawyer, had known Walther for decades and knew
he "probably" was a racist. In fact, Walther subsequently provided an affidavit
during Sterling's postconviction proceedings that left little doubt about his
sentiments:
There are some niggers who live [a] couple blocks over. They deal crack over
there. Sometimes those niggers will start hollering and cursing. And pretty
soon they'll start shooting. One of them stays in jail all the time. He'll be
in jail a few days and then he'll be right back out. A couple of 'em shot each
other last Juneteenth over a card game.
Yet at the trial, attorney Dunn never asked the jurors about their racial
attitudes, explaining later that he didn't think they would answer the
questions honestly. It's hard not to question his rationale, given that Dunn
himself was faulted in another case for calling his Salvadoran client a
"wetback" in front of the jury. The 5th Circuit ruled that Dunn's failure to
question Walther on his racial views did not fall "outside the wide range of
reasonable strategic professional assistance."
Sterling was executed in 2005.
Racist representation
Demetrie Mayfield received a death sentence in California for killing a
neighbor and her companion in 1983. He later alleged that his attorney, S.
Donald Ames, had failed to represent him properly because of his race. There
was compelling evidence that Ames was a virulent racist. As one of his own
daughters put it:
"His contempt for us was exceeded only by his contempt for people of other
races and ethnic groups."
His contempt for us [his family] was exceeded only by his contempt for people
of other races and ethnic groups. He especially ridiculed black people,
referring to them with racial invectives. He used such terms and phrases as
"nigger," "schwartze," "jig," "jungle bunnies," "trigger the nigger," and
"shoot the coon to the moon."
Ames' former secretary, a superior court employee, and an investigator all
confirmed his frequent use of racial epithets to describe clients, lawyers, and
secretaries. But the 9th Circuit Court of Appeals was unmoved. The judges noted
that Ames' racial animus was not aimed specifically at Mayfield, and that any
prejudice Mayfield suffered could not be traced directly to his lawyer's hatred
of blacks.
The court did, however, find that Mayfield deserved a new sentencing because
Ames, whom he first met on the morning of his trial, had not provided adequate
representation.
Mayfield is still in prison, but no longer on death row.
***************************
"That's What That N----- Deserved; A prejudiced juror, a racist lawyer, and a
death sentence no court is willing to reconsider.
"The one place where a man ought to get a square deal is in a courtroom, be he
any color of the rainbow, but people have a way of carrying their resentments
right into a jury box." - Lawyer Atticus Finch in Harper Lee's To Kill A
Mockingbird
In April 2005, nearly 8 years after Kenneth Fults was sentenced to death for
kidnapping and murdering his neighbor Cathy Bounds in Spalding County, Georgia,
1 of the trial jurors made a startling admission under oath: He'd voted for the
death penalty, he said, because "that's what that nigger deserved."
It shouldn't come as too much of a surprise, given the circumstances - a black
man admitting to the murder of a white woman in the deep South -that some white
jurors might secretly harbor racist views. The surprising part was that this
juror, Thomas Buffington, came right out and said it. And what should have been
the most surprising development of all (alas, it wasn't) came this past August,
when a federal appeals court, presented with ample evidence, refused to
consider how racism might have affected Fults' fate.
In fact, state and federal courts have routinely avoided the evidence and
consequences of racism in the criminal-justice system. (See "5 Death Penalty
Cases Tainted by Racism.") Consider one of the most famous examples, the 1987
Supreme Court case of McCleskey v. Kemp, in which lawyers for Warren McCleskey,
a black man sentenced to death for killing a white police officer, presented
statistics from more than 2,000 Georgia murder cases. The data demonstrated a
clear bias against black defendants whose victims were white: When both killer
and victim were black, only 1 % of the cases resulted in a death sentence. When
the killer was black and the victim white, 22 % were sentenced to death - more
than 7 times the rate for when the races were reversed.
Prosecutors sought death for black defendants in 70 % of murder cases with
white victims, but just 15 % of cases in which the victim was black.
It wasn't just jurors who were biased. Prosecutors sought the death penalty for
black defendants in 70 % of murder cases when the victim was white, but only 15
% when the victim was black.
The Supreme Court was less than impressed with all of this. Justice Lewis
Powell, in a 5-4 majority opinion he would later call his greatest regret on
the bench, wrote that McCleskey could not prove that "the decisionmakers in his
case acted with discriminatory purpose." In short, evidence of systemic racial
bias had no relevance in individual cases. Further on, Powell got down to his
true concern: "McCleskey's claim, taken to its logical conclusion, throws into
serious question the principles that underlie our entire criminal justice
system."
Justice William Brennan dissented with one of the most memorable statements of
his iconic career: "Taken on its face, such a statement seems to suggest a fear
of too much justice." He went on: "The prospect that there may be more
widespread abuse than McCleskey documents may be dismaying, but it does not
justify complete abdication of our judicial role."
Georgia executed McCleskey in 1991, but the McCleskey rationale - which the New
York Times labeled the "impossible burden" of proving that racial animus
motivated any particular prosecutor, judge, or jury - has been used by dozens
of courts to reject statistical claims of discrimination in capital cases, even
though today's numbers are not much better.
The Fults case was different, though. Here was an actual juror explaining his
decision to impose the death sentence through a blatantly racist lens. It was
precisely the sort of evidence the Supreme Court claimed was lacking in the
McCleskey case. So why has Kenneth Fults not been granted a new sentencing?
Fults during a prison visit with his son
Justice Powell's concerns are understandable. After all, what part of the
criminal-justice system is untouched by racism? Some death penalty critics, in
fact, view capital punishment as a direct descendent of lynching. The phrase
"legal lynching" first appeared in the New York Times during the infamous 1931
Scottsboro Boys trials, in which nine black youths were charged with raping 2
white women in Alabama. Their lack of counsel, coupled with the explicit
exclusion of black jurors, led the Supreme Court to intercede twice and reverse
convictions.
It's hard to read those opinions today without feeling a sense of horror.
Within 2 weeks of the alleged crime, eight of the 9 young men had been
sentenced to death in 3 separate trials by the same jury. Although there was no
shortage of black men in Scottsboro County who were legally eligible to serve
on juries, there was no record of any of them ever serving on one. Perhaps most
remarkably, none of the defendants had a lawyer appointed to represent him
until the morning of trial. In 2013, more than 80 years after the arrests, the
Alabama Board of Pardons and Paroles posthumously pardoned the 3 Scottsboro
Boys whose convictions still stood.
Do "not take Jews, Negroes, Dagos, Mexicans, or a member of any minority race
on a jury, no matter how rich or well educated," reads a 1963 Dallas
prosecution manual.
We have not come nearly as far from these outrages as you might think. People
of color are still dramatically underrepresented on juries and grand juries,
even though excluding people based on race is illegal and undermines "public
confidence in our system of justice," as the Supreme Court put it in 1986.
Prospective black jurors are routinely dismissed at higher rates than whites.
The law simply requires some rationale other than skin color.
"Question them at length," a prominent Philadelphia prosecutor suggested to his
proteges after the Supreme Court banned race as a reason for striking jurors.
"Mark something down that you can articulate at a later time." For instance, a
lawyer might say, "Well, the woman had a kid about the same age as the
defendant, and I thought she'd be sympathetic to him."
In 2005, a former prosecutor in Texas revealed that her superiors had
instructed her, if she wanted to strike a black juror, to falsely claim that
she'd seen the person sleeping. This was just a dressed-up version of the
Dallas prosecution training manual from 1963, which directed assistant district
attorneys to "not take Jews, Negroes, Dagos, Mexicans, or a member of any
minority race on a jury, no matter how rich or how well educated."
The 1969 edition of the manual, used into the 1980s, promoted a more subtle
brand of stereotyping, noting that it was "not advisable to select potential
jurors with multiple gold chains around their necks." But it hardly mattered:
Overt, covert, or in between - the result was the same.
North Carolina prosecutors were striking black jurors at twice the rate of
whites; the odds of that being race-neutral were less than 1 in 10 trillion.
Virtually every state with a death penalty has dealt with accusations that
black jurors have been improperly kept off juries. During the 1992 death
penalty trial of a defendant named George Williams, for example, a California
prosecutor dismissed the 1st 5 black women in the jury box. "Sometimes you get
a feel for a person," he explained, "that you just know that they can't impose
it based upon the nature of the way that they say something." The judge went
even further, noting that "black women are very reluctant to impose the death
penalty; they find it very difficult." In 2013, the California Supreme Court
ruled that these jury strikes were not race-based, and deemed the judge's
statement "isolated." Williams remains on death row.
After North Carolina passed its Racial Justice Act, a 2009 law that let inmates
challenge death sentences based on racial bias, a state court determined that
prosecutors were dismissing black jurors at twice the rate of other jurors. The
probability of this being a race-neutral fluke, according to 2 professors from
Michigan State University, was less than 1 in 10 trillion; even the state's
expert agreed that the disparity was statistically significant. Based on these
numbers, the court vacated the death sentences of three inmates and resentenced
each to life without parole. 6 months later, the state legislature repealed the
Racial Justice Act.
Perhaps You're Still wondering, despite all of the above, how Thomas Buffington
ended up on the Fults jury.
The answer is simple. He lied:
Defense attorney: Do you have any racial prejudice resting on your mind?
Buffington: No, sir.
Defense attorney: Does it make any difference that in this case the defendant
is black and the victim was white?
Buffington: No, sir.
Even this sort of cursory questioning wasn't required by the Supreme Court
until 1986, and then only in capital cases - and when the defense requests it.
In order to function, the justice system has to presume that jurors will tell
the truth under oath, just as it presumes lawyers are competent.
And what of the lawyers' role? Since 1976, when mandatory death sentences were
ruled unconstitutional, the decision of whether to seek execution has rested
entirely with the local district attorney. In practice, this means a white man
usually gets to decide who should face the death chamber. A 2009 study found
that more than 85 % of chief prosecutors in the United States were white, and
the majority were male.
Prosecutor William McBroom wasn't the type to fret over moral ambiguities: He
sought death sentences at every opportunity.
In the Fults case, that white man was William McBroom, district attorney of the
Griffin Judicial Circuit. McBroom had already put two men on death row by the
time he prosecuted Fults, and continued to aggressively seek and obtain death
verdicts until 2004, when he lost his reelection by a hair. He wasn't the type
to fret over moral ambiguities: McBroom sought death sentences at every
opportunity, thereby avoiding allegations of discrimination in the charging
process.
His tough approach found an unlikely ally in Johnny Mostiler, the Spalding
County public defender, who happened to be representing Kenneth Fults. "We're
finding ourselves facing crimes we think are Atlanta big-city crimes," Mostiler
proclaimed at one point. "We're a law-abiding town. We want our criminals
prosecuted."
McBroom and Mostiler knew each other so well that the Fults transcript
sometimes reads like old friends reminiscing: McBroom points out how Mostiler
is going to respond, mentions an argument his rival made in an earlier case,
and refers to him by first name before handing over the floor for closing
arguments. "Mostiler was the toughest trial lawyer in Spalding County," McBroom
recalled some years after the Fults trial. "He would take cases where you
didn't think defendants had a chance, and you'd be fighting for your life."
He had every reason to praise Mostiler. A death verdict is invariably followed
by appeals in which the defense attorney's work comes under close scrutiny.
Prosecutors routinely hail their adversaries as giants in the field of capital
defense to make it harder for any defendant to claim his lawyer was
incompetent. And McBroom, who had obtained death verdicts against Mostiler in
several prior cases, needed to defend some deplorable behavior: For all intents
and purposes, Johnny Mostiler, like Thomas Buffington, was a racist.
Spalding County, 40 miles south of Atlanta, has but a single public defender to
represent criminal defendants who can't afford an attorney - and a great
majority cannot. All through the 1990s, Mostiler was that defender, responsible
for handling as many as 900 felonies a year. He also maintained a significant
civil practice on the side and took on serious felony cases outside of Spalding
County. But he was hardly your humble, nose to the grindstone type. According
to a 2001 profile in The American Prospect, he stood out in a black cowboy hat;
a silver beard with handlebar mustache; 6 gold, silver, and onyx rings; and
three gold bracelets. He also drove a mustard-green 1972 Cadillac El Dorado
convertible - with cattle horns as a hood ornament.
Clients and fellow lawyers recalled Fults' defense attorney using the N-word.
Of one client, he allegedly said: "That little nigger deserves the chair."
But Mostiler's true legacy - he died of a heart attack a few years after the
Fults trial - involved the case of his former client Curtis Osborne, who was
tried in 1991, found guilty of murder, and finally scheduled for execution in
2008. As the clock wound down on Osborne's appeals, a former US attorney
general, a former Georgia chief justice, and former President Jimmy Carter
(previously the governor of Georgia) all spoke out against the execution. They
had heard the allegation by another one of Mostiler's clients, a white man
named Gerald Huey, that Mostiler had told him, speaking of Osborne, that "that
little nigger deserves the chair."
Some time later, a Georgia lawyer named Arleen Evans stepped forward with a
sworn recollection about Mostiler's personal conduct:
I recall 1 occasion when I was in the lawyer's lounge at the Spalding County
Courthouse. There were a number of other lawyers there including Mr. Mostiler.
Mr. Mostiler began telling racist jokes filled with racial epithets like
"nigger." Some of the lawyers would laugh. Some would laugh nervously. Some
would try to ignore it. And others would leave the room to get away from it. On
another occasion, I remember walking into the lawyer's lounge and Mr. Mostiler
was again telling racist jokes. Ms. Nancy Bradford, who is now deceased, looked
at me, noticed that it was making me uncomfortable, and told me "that's just
Johnny."
Osborne's lawyers soon dug up yet more evidence: a transcript from the trial of
Derrick Middlebrooks, a black defendant who was so troubled by the racist talk
that he asked the judge to dismiss Mostiler as his public defender: "He
indicated to me that he wouldn't - he couldn't go up there among them niggers
because them niggers would kill him," Middlebrooks said. "Now personally I
don't know if he meant anything really by it. But I find it, you know, kind of
hard to have an attorney to represent me when he uses those type of words. It
doesn't help my confidence in my attorney."
"I honestly don't remember," Mostiler responded when the judge asked him about
it. "I don't use those terms out in public. And I probably - if I did use it I
certainly am sorry. I didn't mean to indicate that it was any - or any racial
overtones. I think my - I think my record on race is..."
"Well documented in this court," the judge interjected.
Mostiler was long dead by the time his racist language became an issue in the
Osborne case, but several prosecutors, including McBroom and his successor,
District Attorney Scott Ballard, spoke up in his behalf. Mostiler had presented
a "very adequate defense" of Curtis Osborne, Ballard argued. He urged that the
execution go forward.
Small counties tend to have incestuous legal communities. Public defenders and
assistant district attorneys often swap sides and socialize together too; top
assistants become bosses, and, most predictably, district attorneys end up on
the bench. Such was the case with Johnnie Caldwell, Fults' trial judge.
Caldwell had preceded McBroom as district attorney of the Griffin Judicial
Circuit. As both a prosecutor and a judge, Caldwell was well aware of the
racism allegations surrounding Mostiler. It was he, in fact, who had heard
Middlebrooks' claim and used the opportunity to assure the public defender,
saying: "It's unchallenged in this court with your actions concerning the races
and certainly of standing up for the rights of all individuals regardless of
their race or color or religious preference." Turning to Middlebrooks, he
added: "I find nothing in Mr. Mostiler's conduct of this trial or in
representing you that would cause me to disqualify him."
"I find nothing in Mr. Mostiler's conduct of this trial or in representing you
that would cause me to disqualify him."
By suggesting that the public defender of Spalding County???a man hired year
after year by the county commissioners - was a racist, Middlebrooks had also,
unwittingly, impugned the dignity of the prosecutor and the presiding judge.
Caldwell was clearly put out:
Middlebrooks: My motion for a new attorney is denied?
Caldwell: Yes, sir.
Middlebrooks: Okay. Thank you.
Caldwell: And I know you're sitting over there reading a book on ineffective
assistance of counsel, you read it real well and write everything down, okay.
Middlebrooks: Yes, sir.
Caldwell: I'm directing you to. You write everything down and you write it
well. You've been reading that book ever since you've been sitting over there.
Middlebrooks: Judge, that has-
Caldwell: Sir, don't say anything else.
Middlebrooks: Yes, sir.
When race became an issue in the Osborne case, Caldwell didn't step forward to
disclose his interactions with Mostiler, nor did any of those other lawyers in
the lounge, who had certainly heard the same racist jokes and comments Arleen
Evans had. (Caldwell had his own problems: He resigned his judgeship in 2010 in
light of allegations that he was soliciting female attorneys in open court. He
was nonetheless elected, soon after, to the Georgia Legislature.)
Ultimately, neither local nor federal courts were moved by the consistency of
the race testimony. In 2006, the 11th Circuit Court of Appeals soundly rejected
Osborne's claim that Mostiler was ineffective due to racial animosity. (Osborne
was executed two years later.) Citing McCleskey, the court said it was the
racial animus of the decision makers???the prosecutors and the jurors, not the
defense attorney - that mattered.
So what would the same court say 8 years later, when lawyers for Kenneth Fults
came before it with claims of racial animus involving a decision maker, the
juror Thomas Buffington?
In September 2013, a 3-judge panel of the 11th Circuit Court of Appeals
convened in Miami to hear Fults' claim. Half of their questions focused on
legal hurdles, such as procedural default, cause and prejudice, impeachment of
the verdict, and waiver. The other half dealt with the inexcusable nature of
Buffington's admission. The state wanted the court to reject Fults' bias claim
on a procedural technicality involving the rules of evidence, and Adalberto
Jordan, the most outspoken of the judges, was struggling to understand why.
"When you have a claim of a juror potentially recommending a sentence of death
because of flat-out racial bias," Jordan asked, "why would the state of Georgia
not want that claim heard on the merits?"
Assistant Attorney General Sabrina Graham insisted that Georgia law was clear
on the issue. A verdict could not be reversed based on jury deliberations, no
matter what any juror had to say about them afterward. In the process, she
spent some awkward moments trying to persuade Jordan and Judge Stanley Marcus
that what Buffington said wasn't as damning as it sounded.
Graham: I think there could not be any prejudice.
Marcus: Tell me why there wouldn't be prejudice, if in fact the juror was
tainted with racism that affected his decision-making process?
Graham: I don't think you would have enough information to show that. Certainly
Mr. Buffington uses a racially derogatory term. I do not think that his
particular affidavit shows that he sentenced Mr. Fults to death based upon his
racism. People have many prejudices -
Jordan: "I knew I would vote for the death penalty because that's what that
nigger deserved." You want something more specific than that?
Graham: I think you do want something more specific.
Jordan: Like?
Graham: That was 8 years after -
Jordan: Like? Like what?
Graham: Like "I sentenced him to death based upon his race -
Marcus: Let's suppose, just to take this to its logical conclusion, that there
were 12 affidavits from all 12 jurors who voted for death, and each and every
one of them said the same thing ... Even if every juror says, "I voted to
execute him because he was black," you say, "That's the law"? Graham: That is
the law.
That's when Jordan, seemingly surprised by Graham's answer, suggested that
there was a "safety valve under Georgia law." That is, if an evidentiary rule
resulted in a violation of a defendant's constitutional rights, it might
justify an exception to that rule.
Graham conceded that such a ruling might be possible. "They have left that
possibility open, but they have never actually done anything about it." She
then pointed out that there are many reasons to trust a juror's answers during
jury selection rather than statements the juror might make after a verdict of
death is returned: "Fine, you want to say Mr. Buffington lied during voir dire.
[But] you have the trial court, and you have defense counsel all watching these
jurors."
She was suggesting, in essence, that Johnny Mostiler, who had been accused of
racism more than once, and Judge Caldwell, who'd belittled the claim of racism
against Mostiler before being removed from the bench for harassing women in his
own court, were suitable watchdogs to ensure an impartial jury. Was it possible
she didn't realize who they were?
The 11th Circuit was not entirely unfamiliar with juror bias. Back in 1986, a
man named Daniel Neal Heller had been convicted of tax evasion in Florida.
Evidence showed that Heller, a Jewish man, was the butt of anti-Semitic jokes
in the jury room that consistently prompted "gales of laughter." The trial
judge, when confronted by vague claims of discriminatory comments by the jury,
cursorily asked each juror if he or she was "affected by prejudice." The 11th
Circuit's three-judge panel reversed Heller's conviction, writing that the
jurors' religious prejudice was "shocking to the conscience," and concluding:
"The people cannot be expected to respect their judicial system if its judges
do not, first, do so."
The judges hearing the Fults case seemed to have forgotten the lessons of
Heller. Despite their pointed questioning during oral arguments, the opinion
they released 11 months later expressed neither shocked consciences nor fear of
diminished respect for the system. If they were offended by Buffington's
admission, it was lost amid all of the procedural arcana.
The prevailing narrative about legal technicalities is that they open jailhouse
doors. Quite the opposite.
The prevailing narrative about legal technicalities, thanks to Hollywood
portrayals and posturing politicians, is that they open jailhouse doors - which
is one reason crime sometimes seems to be on the rise when in fact it is
plummeting. In reality, though, legal technicalities are far more often used to
preclude people from having their postconviction claims heard. The Fults
opinion, written by the outspoken Judge Jordan, is a virtual primer on how the
law has evolved to block, rather than illuminate, allegations of injustice.
During oral arguments, Jordan seemed to be advocating a hearing to determine
the circumstances of Buffington's admission. In his opinion, however, he
condemned the defense for failing to provide sufficient detail about how or
when Buffington's prejudice was discovered. While he had earlier questioned why
Georgia didn't want a claim of "flat-out racial bias" heard on its merits, his
opinion articulated every reason the claim had not been properly presented, and
now could not be considered.
Finally, "in an abundance of caution," he addressed the argument he seemed to
be championing 11 months earlier: that the failure to consider Fults'
racial-prejudice claim would be a miscarriage of justice. Once again, Jordan
felt compelled to explain that this claim had not been properly presented. In
any case, he concluded that Fults had not shown that his sentence was a
miscarriage of justice. For while it's true that in Georgia a single juror can
stop a death sentence from being imposed - the jury has to be unanimous - the
bar is much higher for a death row inmate seeking to overturn his sentence.
Fults' legal burden was to demonstrate that no reasonable juror would have
voted to give him the death penalty. And this, in the court's view, he had not
done.
So how, exactly, does a "reasonable juror" think?
It's difficult to think of any decisions more subjective than who should live
or die. Every death penalty state has a statute with language intended to
objectify the determination, but when all is said and done, it's highly
personal: Will the person be a danger in the future? Do the circumstances of
the crime trump the defendant's background? Do the reasons for a life sentence
outweigh those for a death sentence?
And how might this hypothetical reasonable juror regard Kenneth Fults? The man
pleaded guilty to a horrible crime. He committed two burglaries and stole some
handguns, all with the intention of killing a man involved with his former
girlfriend. Instead, he ended up shooting a neighbor, Cathy Bounds, 5 times in
the back of the head.
But, as the Supreme Court has pointed out, there are "potentially infinite"
reasons a juror might want to sentence someone who has committed a heinous
crime to something less than death. Kenneth Fults' history was packed with
them.
"We stayed there alone without any adults watching over us so long that the
power company had turned off all the utilities."
"I just lost sight of raising my kids," his mother, Juanita Wyatt, told a state
court judge, explaining the result of her crack and alcohol addictions. She was
court-martialed from the military for writing bad checks to buy drugs, moved
her children from house to house and state to state, abused them with switches
and belts and electrical cords - using the plug end when the cord itself ceased
to have the necessary impact. Whatever boyfriend happened to be with her at the
time often joined in. As for Kenneth's father, the man was no more than a name
to him.
Kenneth's mother didn't just lose sight of raising her children - she lost
sight of them entirely. His younger sister remembered how their mom had
abandoned the kids after moving the family to Houston:
We stayed there alone without any adults watching over us so long that the
power company had turned off all the utilities. We didn't have heat or lights;
I don't remember if we had water. I don't remember how long we were alone ... I
know it was at least a couple of months. I was really scared. Kenny and Michael
tried to make it like it was fun and we were just camping out or something. I
know they started stealing for us to have something to eat, because we did not
have any money. I also remember that Michael had them dig a hole in the ground
in the backyard to bury some of our food to try and keep it cold when our
electricity was turned off.
Legally speaking, the most compelling reason not to sentence Fults to death is
that he may be intellectually disabled. 3 separate IQ tests over a 16-year
period, one of them seven years prior to the murder, all fall within the range
for mental retardation. By 7th grade, Fults was testing near the bottom in
basic skills. In eighth, he was placed in a "special class ... for slow
learners." In that class, a former teacher recalled, Kenny was the "poorest
performing student." There also was abundant testimony that he was incapable of
keeping his money straight or filling out job applications. And as a child, he
related to far younger children.
Even Judge Jordan, in rejecting Fults' claim of intellectual disability in the
11th Circuit, acknowledged that his lawyers' argument was "not without some
force." But again, procedural rules came into play: Since the state court had
rejected the claim, its decision was presumed correct, and only "clear and
convincing" evidence could overturn it. The IQ tests, the academic struggles,
the affidavits of family members and teachers and friends detailing his
"slowness," none of that was enough.
As for what a reasonable juror might have done with all of this information,
we'll never know. Johnny Mostiler didn't present any of it to the jury.
Kenneth Fults has one last stop before his appeals run out. The likelihood that
the US Supreme Court will review any matter is remote, but there could be a
tiny sliver of hope for him in a civil case, Warger v. Shauers, that the court
decided last December. On its face, the unanimous ruling seems as though it
would be to Fults' detriment: Justice Sonia Sotomayor's majority opinion echoes
what lawyer Sabrina Graham had argued on Georgia's behalf in the Fults case:
that what a juror says later cannot be used to attack the verdict.
How do we know when we've crossed the line, when our justice system can't
tolerate a result that its technical rules encourage?
You have to read the fine print, footnote No. 3 to be exact, to find the
passage that could be Fults' saving grace: "There may be cases of juror bias so
extreme that, almost by definition, the jury trial right has been abridged. If
and when such a case arises, the Court can consider whether the usual
safeguards are or are not sufficient to protect the integrity of the process."
As much as Georgia wants to make the case about a rule of evidence, it is not
really about that at all. It is, instead, about Footnote No. 3, and that most
extreme form of juror bias: sentencing a man to death based on racial
hostility. And maybe it's also about how far we are willing to go, and how many
procedural barriers we are willing to erect, to avoid dealing with the
ramifications of such behavior.
How do we know when we've crossed the line, when our system of justice simply
can't tolerate a result that its technical rules encourage? Here's Buffington's
full statement: "That nigger got just what should have happened. Once he pled
guilty, I knew I would vote for the death penalty because that's what that
nigger deserved."
Racism doesn't get much clearer than that. Now it'll be up to the Supreme Court
to decide whether the rules of evidence might, just this once, take a backseat
to the principle that no man should be judged by the color of his skin.
(source for both: Marc Bookman, Mother Jones)
******************
The Difficulty Of Picking A 'Death Qualified' Jury
The trial continues in Boston this week for the man accused in the bombing of
the Boston Marathon. Dzhokhar Tsarnaev faces the death penalty for those
crimes. And next month, a pre-trial hearing in Vermont will begin in the case
of Donald Fell, who faces the death penalty for the murder of a Clarendon woman
in 2000.
Neither Vermont nor Massachusetts are states that have the death penalty, but
having a trial that could end with capital punishment in those states is not an
uncommon occurrence.
"Some offenses are both state and federal offenses. And in those circumstances
where there is concurrent jurisdiction in the state and federal systems,
generally what happens is that the prosecutors in both systems get together and
make a decision about who will prosecute the offense, and sometimes it's both,"
said Jessica West, director of the Experiential Advocacy Program and an
associate professor at Vermont Law School.
Under the federal system there is a possibility of capital punishment. Both
cases involve federal offenses as well as state offenses. The Tsarnaev case is
considered an act of terrorism, which is a federal offense.
Donald Fell, meanwhile, was charged with committing the murder of Terry King,
but before allegedly killing her he transported her from Vermont to New York,
and West said that is the justification for a federal offense in that case,
which makes Fell eligible for the death penalty. Fell also killed his mother
and her friend earlier before kidnapping King from a parking lot. Fell's
accomplice in the crime, Robert Lee, killed himself in prison before being
tried.
Donald Fell is getting a second trial because one of the jurors went and
visited the crime scene and told other jurors about his visit. West said the
juror's actions were troubling because the judicial system controls the
evidence that is presented, or not presented, to the jury. "In a circumstance
where a juror, here Juror 143, goes out and visits a scene that juror can come
back and provide additional information that's not able to be cross examined or
refuted, or rebutted or weighed or balanced by the other jurors," West
explained. "So it does in some circumstances, and did here, result in a new
trial."
West said jurors are given instructions to follow, including not to decide or
think about the case in a way of deciding the outcome until all of the evidence
is presented. "Yet, social scientists will tell us that's not in fact the way
the brain operates." West said it's clear in the Fell case, however that Judge
William Sessions had instructed jurors not to try to collect their own
information, and Juror 143 violated that in something that was more than just
negligence.
The jury will need to decide for a second time whether Fell committed the
crimes and they'll have to make another determination on sentencing. "I don't
think they're going to have a hard time coming to a conclusion with regard to
the guilt or innocence of Mr. Fell," West said. "But the issue of the
appropriate penalty is probably one that they're going to struggle with all
over again."
West said picking a jury in a death penalty case presents its own challenges,
in part because they are difficult cases to sit on, and jurors are reluctant to
do that, both because of the length of the trials, and because of the emotional
weight of making a sentencing decision.
"It's one of the things that abolitionists, people opposed to the death penalty
point to, is the burden on those people who need to decide, the burden on the
system, those kind of issues," West explained. "In a place like Vermont where
there isn't the death penalty, where there may be a number of people opposed to
the death penalty, the system has a mechanism for weeding those people out. A
jury in a death penalty case must be 'death qualified' meaning the could impose
the death sentence."
If you are picking people who are willing to oppose the death penalty are they
biased in favor of the death penalty? West said that argument is made all the
time. "And it's true. They are biased in favor of conviction, and they are
biased in favor of the death penalty. But the system doesn't know another way
to navigate the fact that it wants to have a set of jurors who can and are able
to impose the law."
(source: Vermont Public Radio)
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