March 21
TEXAS----impending execution
Death Watch: “Texas 7” Member Contests “Law of Parties”----A robbery ended in a
police officer death while Patrick Murphy waited outside. Current Texas law
holds him responsible.
If the state has its way, 57-year-old Patrick Murphy of "Texas 7" infamy will
be executed on March 28, though he didn't commit the murder that landed him on
death row.
Murphy, along with 6 other prisoners (including Joseph Garcia, who was executed
in December), achieved the biggest prison escape in Texas history in 2000 when
they broke out of a maximum-security facility near San Antonio armed with
stolen weapons. The men committed several robberies across Texas before hitting
a sporting goods store outside of Dallas on Christmas Eve, an act which went
awry, leading to the shooting death of Irving police officer Aubrey Hawkins.
Murphy, however, maintains he did not wish to participate in the robbery and
instead waited outside in the car. He, Garcia, and four others were caught in
Colorado soon thereafter (the 7th committed suicide), and each was sentenced to
death for Hawkins' capital murder under the controversial Texas "law of
parties," which allows accomplices to another felony – such as robbery – that
results in murder to be held responsible for the slaying even if they had no
part in the killing.
As his death date nears, Murphy, who was originally serving a 50-year sentence
for aggravated sexual assault, has asked the Texas Board of Pardons and Paroles
to commute his sentence or offer a 90-day reprieve to await possible new
"bipartisan and bicameral" legislation. Several bills have been filed this Lege
session, including Sen. Juan Hinojosa's Senate Bill 929 and Rep. Jeff Leach's
House Bill 4113, which would prohibit executions of those found guilty of
capital murder under the law of parties (section 7.02(b) of the Penal Code). So
the filing asks the BPP to "recognize that Murphy should not be executed when
his conviction was obtained pursuant to a charge" that state lawmakers have
"recognized cannot sustain a death sentence." If nothing else, the filing
argues, Murphy's execution should be put on hold until the fate of the bills is
known, so the Texas Court of Criminal Appeals could reconsider his case if the
law is changed.
Murphy's BPP filing also points out that while Texas law allows juries to
sentence an accomplice of a lesser crime to death, under the Supreme Court's
Eighth Amendment jurisprudence, a defendant "can only be" executed for the
crime "if he was a major participant in the felony." But Murphy's trial jury
was never asked to determine whether or not he played a major role in the
robbery that resulted in Hawkins' murder. Hence, executing him without putting
this question before a jury would be a violation of the Eighth Amendment.
Killing Murphy, the filing argues, who "neither fired a shot at Officer Hawkins
nor had any reason to know others would do so," would "simply be vengeance."
In addition to his commutation plea, Murphy has asked the CCA to reconsider its
April 2006 Denial of Relief, or otherwise allow him to file for a rehearing.
Like his motion before the BPP, Murphy's CCA filing cites pending legislation
and violation of his constitutional rights. However, here Murphy's counsel
notes that the proposed legislation would not "provide relief for those" like
Murphy, because the change in law would only apply to criminal proceedings that
start on or after the effective date of Sept. 1, 2019. Instead, the motion
insists, "The same concern that has led these legislators to propose the
now-pending legislation is nonetheless present in Murphy's case."
It's been a long legal fight for Murphy; his last round of appeals – largely
arguing ineffective counsel – ended in denial at SCOTUS in November. Without
intervention, he'll the 3rd man executed by the state this year and the 5th
member of the "Texas 7" to be put to death, leaving only Randy Halprin alive.
Though Halprin has not yet been given an execution date, he has also maintained
he didn't fire any of the 5 guns that killed Hawkins.
(source: Austin Chronicle)
******************
Executions under Greg Abbott, Jan. 21, 2015-present----42
Executions in Texas: Dec. 7, 1982----present-----560
Abbott#--------scheduled execution date-----name------------Tx. #
43---------Mar. 28----------------Patrick Murphy----------561
44---------Apr. 11----------------Mark Robertson----------562
45---------Apr. 24----------------John King---------------563
46---------May 2------------------Dexter Johnson----------564
47---------Aug. 21----------------Larry Swearingen--------565
48---------Sept. 4----------------Billy Crutsinger--------566
(sources: TDCJ & Rick Halperin)
****************************
USA----countdown to nation's 1500th execution
With the execution of Billie Wayne Coble in Texas on February 28, the USA has
now executed 1,493 condemned individuals since the death penalty was
relegalized on July 2, 1976 in the US Supreme Court Gregg v Georgia decision.
Gary Gilmore was the 1st person executed, in Utah, on January 17, 1977. Below
is a list of scheduled executions as the nation approaches a terrible milestone
of 1500 executions in the modern era.
NOTE: The list is likely to change over the coming months as new execution
dates are added and possible stays of execution occur.
1494-------Mar. 28------------Patrick Murphy------------Texas
1495-------Apr. 11------------Mark Robertson------------Texas
1496-------Apr. 11------------Christopher Pike----------Alabama
1497-------Apr. 24------------John King------------------Texas
1498-------May 2--------------Dexter Johnson------------Texas
1499-------May 16-------------Donnie Johnson-----------Tennessee
1500-------Aug. 15------------Stephen West-------------Tennessee
1501-------Aug. 21------------Larry Swearingen---------Texas
1502-------Sept. 4------------Billy Crutsinger---------Texas
(source: Rick Halperin)
PENNSYLVANIA:
Death Row Inmate’s Appeal Results in Lesser Sentence
A death row inmate’s appeal has resulted in a lesser sentence.
Daniel L. Crispell, now 48, was convicted in 1990 of the murder, kidnapping and
robbery of Ella M. Brown, 48, who he and Christopher Weatherill abducted from
the DuBois Mall in October of 1989.
According to previous reports, Crispell and Weatherill took her to a remote
location in Sandy Township where she was stabbed to death. They then fled the
area in her vehicle and were later taken into custody in Arizona after Crispell
was caught trying to steal a purse from another woman.
Although Crispell was given the death penalty, and scheduled to be executed on
Oct. 19, 2011, a stay of execution was issued in September of 2011 pending the
conclusion of his appeal, according to court documents.
The appeal eventually went to the Superior Court where it was ruled that his
attorney made a mistake by not using any information on Crispell’s troubled
childhood or other mental problems during the penalty phase of his trial, which
could have swayed the jury to give him life in prison rather than the death
penalty.
Crispell was granted a new penalty phase hearing, which was scheduled for
Wednesday morning.
After Crispell waived his right to a new hearing, Senior Judge John B. Leete of
Potter County sentenced Crispell to life in prison without parole on the murder
charge, a concurrent term of 10 to 20 years for robbery, 10 to 20 years
consecutive for the kidnapping, 5 to 10 years consecutive for conspiracy, and
42 months to 90 months consecutive for theft, according to a court employee.
Part of the condition of this sentence required that Crispell waive all future
appellate rights.
Weatherill, who is serving a life sentence in the state prison system, was
convicted of 2nd-degree murder, kidnapping and robbery in August of 1990.
His case is also on appeal because life in prison without parole has been
determined to be cruel and unusual punishment for a juvenile offender. He was
only 17 years old at the time of the crime.
His case is reportedly scheduled for a status conference in May.
(source: gantdaily.com)
********************
Death sentence for Grace Packer’s killer? Jurors to decide after hearing from
girl’s family
Family members of a slain 14-year-old girl said Thursday they remain haunted by
her torture and excruciating death, describing for jurors their unrelenting
pain at a hearing that will determine whether her killer will be sentenced to
life or death.
Jacob Sullivan, 46, pleaded guilty in the 2016 rape, murder and dismemberment
of his girlfriend's daughter, Grace Packer. Grace's adoptive mother, Sara
Packer, has agreed to plead guilty in exchange for a life sentence.
Prosecutors have said Sara Packer hated Grace, shared a rape-murder fantasy
with Sullivan, watched as he sexually assaulted and strangled her in a hot
attic outside Philadelphia, and helped hack up her body and dispose of it
months later.
Sara Packer took the stand Wednesday and said Grace had a tendency to be a
"very difficult child."
The defense has said that Sullivan should get the same sentence as Packer —
life in prison.
Sara Packer, who wore a red prison jumpsuit, also said she has a degree in
psychology and an IQ over 140.
"It sickens me to know that Grace was abused, tortured and literally thrown
away like she was a piece of trash," her cousin, Karie Heisserer, with whom
Grace lived for a time in 2015, said in court Thursday. "Grace is in a better
place now, free from evil and pain."
Jurors saw photos of the bubbly but troubled teen in happier times: Sitting in
the cab of her uncle's big rig, frolicking in the sand at her first trip to the
beach, delighting in birthday cake at a pool party. But all of that happened
with relatives, not with Sara Packer, a former county adoptions supervisor who
prosecutors say spent years physically and mentally abusing the little girl she
fostered and then adopted.
Bucks County District Attorney Matthew Weintraub told the jury Thursday that he
agreed to a life sentence for Sara in exchange for her confession and guilty
plea because the physical evidence against her was weak, because it was
Sullivan who raped and killed Grace, and because her crimes did not qualify for
the death penalty.
In a confession to police, Sullivan said he and Sara Packer plotted Grace's
death. Sullivan admitted he punched and raped Grace as Sara Packer watched,
bound her hands and feet with zip ties and stuffed a ball gag in her mouth.
Prosecutors said Sullivan and Packer also gave her what they intended to be a
lethal dose of over-the-counter medication and left her to die in a sweltering
attic.
Grace eventually managed to escape some of her bindings and spit the gag out,
but was unable to make it out of the house before Sullivan and Packer returned
overnight — some 12 hours later — and Sullivan strangled her as Sara Packer
looked on.
The couple stored her body in cat litter for months, then hacked it up and
dumped it in a remote area where hunters found it in October 2016, prosecutors
said.
Grace's younger brother, Josh Packer, now 14, told jurors the only way he can
bear his loss is if adults know her story and then act to prevent child abuse.
He said in a statement read by a detective that if his big sister was told she
could save other kids' lives by giving her own, she would ask, "What do I have
to do?"
"Watch out for all the kids so that a loss like Grace's loss never happens
again," Josh wrote. "Do your best to help kids who can't help themselves."
That's not what happened in Grace's case.
Sara Packer and her husband at the time, David Packer, adopted Grace and Josh
in 2007. The couple cared for dozens of foster children before David Packer was
sent to prison for sexually assaulting Grace and a 15-year-old foster daughter
at their Allentown home, about an hour outside Philadelphia.
Sara Packer lost her job as a Northampton County adoptions supervisor in 2010
and was barred from taking in any more foster children. But child welfare
authorities did not remove Grace from the home, despite evidence of abuse.
The Pennsylvania Department of Human Services launched an investigation after
Grace’s murder but its findings have not been made public.
(source: lehighvalleylive.com)
GEORGIA:
Facing death penalty trial, Brandon Conner to be back in court this week
The only person in Muscogee County currently facing death-penalty charges may
get a new trial date Friday when he appears in front of a Muscogee County
Superior Court judge.
Brandon Conner, 40, is facing capital murder charges in the August 2014
stabbing deaths of his girlfriend Rosella “Mandy” Mitchell, 32, and their
6-month-old son, Dylan Ethan Conner in front of Judge William Rumer..
"We hope Judge Rumer will be in a position to set a trial date," District
Attorney Julia Slater said on Wednesday.
Conner is facing 2 counts of malice murder.
Conner was scheduled to go to trial on Oct. 1, but his attorneys -- Mark
Shelnutt and William Kendrick -- were removed from the case by Rumer 2 weeks
before the trial was scheduled to start. The 2 Columbus attorneys had asked to
be replaced by Conner could no longer afford to pay them.
Conner is now represented by 2 public defenders who specialize in death penalty
cases and work for the Georgia Public Defender Council’s Office of the Capital
Defender. Emily Gilbert and Brad Gardner are now representing Conner. The judge
set a March 5 deadline for Kendrick and Shelnutt to turn over the complete case
file to Conner's new legal team.
The 9 a.m. Friday hearing in front of Rumer is to update the judge on the
progress of the case.
Conner's prosecution is being led by Slater. Senior Assistant District Attorney
Don Kelly and Assistant District Attorney Wesley Lambertus are assisting.
Police claim set the home at 1324 Winifred Lane on fire after stabbing his
girlfriend and son to death.
Conner was arrested on an unrelated charge less than an hour after the fire was
reported. He was found by Officer Jason Swails as he turned off Wynnton Road
near Davis Broadcasting and parked. There had been a number of burglaries in
the area.
Swails questioned Conner and the officer noticed he was shaking, sweating and
appeared to have blood on him, according to police.
(source: WRBL news)
FLORIDA:
New developments in death row inmate re-sentencing
New developments in the re-sentencing of death row inmate Michael Bargo Jr.,
the man convicted in 2013 of killing a child in Marion County.
His defense attorney filing paperwork Monday saying he was incapable of
understanding the criminality of his actions when he killed the 15-year-old in
2011.
Bargo's lawyer says that due to his misdiagnosis of ADHD, and the subsequent
prescription of psychotropic medications, Bargo should not be re-sentenced to
death.
Bargo was first sentenced in 2013, but the jury voted 10 to 2 for the death
penalty.
Since then, the Florida Supreme Court has ruled that a death sentence has to be
unanimous.
Bargo was convicted of killing Seath Jackson in 2013 when he and 4 other people
beat and shot Jackson to death after luring him to one of their homes.
The 4 others involved were given life sentences. Bargo's re-sentencing is set
to begin on April 1st.
(source: WCJB news)
ALABAMA:
Federal Court Orders Alabama to Release Execution Protocol
In a victory for the media and advocates of open government, a unanimous
three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit ruled
on March 18, 2019 that Alabama must disclose key portions of its highly
secretive lethal-injection execution protocol to the public. The Associated
Press, the Montgomery Advertiser, and Alabama Media Group had sued for access
to the protocol, which came under intense scrutiny in the wake of Alabama’s
failed attempt to execute Doyle Lee Hamm (pictured) in February 2018.
Hamm, who has terminal cancer, challenged Alabama’s execution protocol. He
argued that his veins had been compromised by his illness and executing him by
lethal injection would constitute cruel and unusual punishment. The courts
permitted the execution to proceed after Alabama said it would not attempt to
insert an IV-line in Hamm’s arms or upper extremities. On February 22, 2018,
executioners tried and failed for 2 1/2 hours to set an intravenous execution
line. Alabama Department of Corrections Commissioner Jeffrey Dunn called off
the execution but told the media, “I wouldn’t characterize what we had tonight
as a problem.” Dunn repeatedly asserted the state had followed its execution
protocol and claimed the execution had been halted only because the late court
rulings in the case did not leave corrections personnel sufficient time to
execute Hamm before his death warrant would have expired. Hamm filed a federal
civil-rights lawsuit seeking to prevent Alabama from attempting to execute him
a 2nd time. As part of that suit, he filed a doctor’s report—the only public
document describing the circumstances of the execution attempt—that indicated
execution personnel had unsuccessfully inserted IV needles more than 10 times
into Hamm’s feet, legs, and right groin, causing bleeding in his groin, and
likely puncturing his bladder, causing blood in his urine. Shortly thereafter,
Hamm and the state reached a confidential settlement in which Alabama agreed
not to seek another execution date, the court records of the case would be
sealed, Hamm would dismiss his lawsuit, and Hamm and his lawyers would not
disclose any additional information about the case. In the aftermath, the three
media outlets filed a motion to gain access to the protocol and execution
records. A federal district court ruled in their favor in May 2018.
Alabama appealed that ruling, arguing that the lethal-injection protocol had
never been formally filed with a lower court, and therefore was not a court
record subject to public access. The appeals court rejected that argument, with
Judge Charles Wilson writing: “Alabama’s lethal injection protocol may not have
been formally filed under the rushed timeline of Hamm’s approaching execution,
but the protocol constitutes a judicial record subject to the common law right
of access because it was submitted to the district court to resolve disputed
substantive motions in the litigation, was discussed and analyzed by all
parties in evidentiary hearings and arguments, and was unambiguously integral
to the court’s resolution of the substantive motions in Hamm’s as-applied
challenge to the protocol.” The decision also addressed the importance of
transparency to the public, saying “Judicial records provide grounds upon which
a court relies in deciding cases, and thus the public has a valid interest in
accessing these records to ensure the continued integrity and transparency of
our governmental and judicial offices.”
Alabama’s execution secrecy has been at the core of several other execution
controversies. In December 2016, execution witnesses reported that Ronald Smith
clenched his fists and gasped repeatedly for nearly 15 minutes. After the
execution, Dunn told the public only that the state had “followed [its]
protocol.” State officials later refused to provide any documentation about the
execution. In February 2019, late disclosure of its secret protocol provision
mandating that a Christian chaplain—and no other religious adviser—be present
in the execution chamber led to the controversial execution of Muslim prisoner
Domineque Ray without affording him access to an imam at the time of his
execution.
(source: Death Penalty Information Center)
MISSISSIPPI:
Justice Thomas breaks 3-year bench silence in Supreme Court death penalty
case----The case involved an inmate who said the prosecutor repeatedly kicked
black people off the jury when he was tried for the same murders.
The U.S. Supreme Court appeared likely Wednesday to rule in favor of a
Mississippi death row inmate who said the state prosecutor repeatedly kicked
black people off the jury each time he was tried for the same murders, in a
case that prompted Justice Clarence Thomas to break a 3-year silence on the
bench.
Curtis Flowers, who is black, was put on trial 6 separate times for the 1996
murder of 4 employees at a furniture store in Winona, Mississippi, where he had
recently worked. After the state supreme court threw out the 1st conviction
over questions about evidence, Flowers faced 5 more trials. 2 resulted in
mistrials.
But in 2 others, the state courts found that the prosecutor in the case, Doug
Evans, wrongly excluded potential jurors on the basis of their race. In the
case before the Supreme Court ON Wednesday, Flowers again accused the
prosecutor of impermissibly removing blacks from the jury.
"How do you look at that," asked Justice Brett Kavanaugh, "and not come away
thinking that there's a stereotype that you're just going to favor someone
because they're the same race as the defendant?"
When a jury is being selected, lawyers for each side are allowed to exclude a
certain number for potential bias or other cause. But they are also allowed to
make peremptory strikes, which require no explanation.
3 decades ago, the Supreme Court said prosecutors cannot use those strikes to
remove jurors solely because of their race. In rulings since then, the court
has explained how judges are to evaluate whether race was an improper factor in
jury selection.
Lawyers for Flowers told the justices ON Wednesday that Evans has a history of
pushing blacks off juries when he is a prosecutor. Of 43 potential black jurors
in the 6 murder trials for Flowers, Evans used peremptory challenges to remove
41 of them.
Justice Elena Kagan said the record also showed that Evans asked many more
questions of potential black jurors than he did of whites. "The numbers
themselves are staggering," she said.
A key issue for the justice is how far back courts should go in examining a
prosecutor's record to decide whether juror exclusions in a specific case were
motivated by racial bias.
"Is there anything in our precedent that suggests that there out to be a
limitation on looking to the history of the prosecutor involved?" asked Chief
Justice John Roberts.
Sheri Lynn Johnson, the lawyer for Flowers, said "there is no limitation on the
history."
Justice Samuel Alito, who also wondered about evaluating a prosecutor's record,
said, "This history of the case prior to this trial is very troubling."
Thomas asked a few questions during the final minutes of Wednesday's argument,
breaking his 3-year courtroom silence. He wanted to know if the defense lawyers
used any peremptory challenges to exclude potential jurors.
Told that, yes, they did, Thomas asked, "And what was the race of the jurors
struck there?"
Only whites, Johnson said.
Until February 2016, Thomas had not asked a question for 10 years.
The court will issue its ruling by late June.
(source: NBC News)
*************************
A “view” from the courtroom: Trials of Mississippi
Today will bring an intense hour of argument about race in jury selection in
the case of a Mississippi man who has been tried 6 times by the same
prosecutor, which will culminate in a series of short questions by Justice
Clarence Thomas, his 1st during oral argument in 3 years.
But first, there are a couple of lighter moments.
Chief Justice John Roberts announces that Justice Stephen Breyer has the
court’s opinion in Obduskey v. McCarthy & Holthus LLP, interpreting a provision
of the Fair Debt Collection Practices Act.
Breyer has been busy at opinion time this week. On Tuesday, he delivered the
first dissent from the bench of the term when he responded to Justice Samuel
Alito’s majority opinion in Nielsen v. Preap, which gave the federal government
greater authority to detain, without bond hearings, immigrants facing
deportation who have committed crimes. Breyer spoke of the “basic promises”
that the nation’s legal system offers all persons, including a bail hearing.
Breyer also announced the judgment and delivered a plurality opinion yesterday
in Washington State Department of Licensing v. Cougar Den Inc., about whether
an 1855 treaty between the United States and the Yakama Nation tribe pre-empts
a Washington state fuel tax as it applies to the tribe’s transport of fuel by
public highway.
Today, Breyer just has a straightforward announcement of a unanimous opinion in
Obduskey, holding that a business engaged in no more than nonjudicial
foreclosure proceedings is not a “debt collector” under the fair-debt law, with
one exception. Justice Sonia Sotomayor has filed a concurrence.
The chief justice then announces that the court is issuing a per curiam opinion
in the argued case of Frank v. Gaos, a challenge to “cy pres” settlements in
class actions in which the funds go to the lawyers and certain nonprofit
organizations, while class members get nothing.
Roberts begins a summary of the per curiam by explaining the underlying issue —
that Google has allegedly violated the Stored Communications Act by
transmitting search terms of the user to the server that hosts the selected web
page.
The chief justice explains that the class action applied to searches conducted
by Google users from 2006 to 2014, “so that means most of you.” He gets a good
chuckle from the courtroom.
He goes on to explain the reason for the per curiam treatment today — that the
solicitor general has raised concerns about whether any named plaintiff in the
case actually had the right to sue, known as standing. The court is sending the
case back for the district court and the U.S. Court of Appeals for the 9th
Circuit to consider standing in light of the Supreme Court’s 2016 decision in
Spokeo Inc. v. Robins. Thomas has filed a dissent.
Next up is bar admissions. There are a few individuals and two groups today.
One group is from the Los Angeles County District Attorney’s Office, whose
members will certainly find the argument engaging. The other group is from the
Western New England School of Law. The school official or alumnus who presents
the group draws growing laughs as he introduces his son, his nephew, his
cousin, then a few non-relatives, and then another son, who is a member of a
different state bar than the first son.
In his understated way, Roberts says, “Your motion is granted, and your
relatives and the other applicants will be admitted.” This triggers a wave of
laughter, and one person in the public gallery even claps at the quip.
The chief justice — he’s here all week.
But the mood quickly turns serious as Flowers v. Mississippi, the lone case for
argument, begins.
As Amy Howe reported in her argument preview, this case involves Mississippi
death-row inmate Curtis Flowers, who has been tried 6 times for the 1996
murders of 4 people in a Winona, Mississippi, furniture store.
Doug Evans, the local district attorney, served as the lead prosecutor at all 6
of the trials.
In Flowers’ first 2 trials, which involved a single murder charge, Evans used
his peremptory strikes to eliminate all 10 potential African-American jurors.
Flowers was convicted and sentenced to death, but both convictions were later
reversed by the Mississippi Supreme Court, which found that Evans had engaged
in intentional misconduct, such as introducing evidence of the other murders.
At his 3rd trial, Flowers was convicted and sentenced to death for the murder
of all four victims, as Howe wrote. But the Mississippi Supreme Court also
overturned those convictions. Evans had used all 15 of his peremptory strikes
to remove African-American members of the jury pool, the state court ruled, in
violation of the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky.
When Flowers was tried a fourth time, Evans used 11 peremptory strikes to
remove potential African-American jurors, resulting in a jury with 7 whites and
5 African-Americans. That jury deadlocked, as did the jury in Flowers’ 5th
trial, Howe noted. Evans used 5 peremptory strikes in that trial, but there is
no record of the race of the jurors whom he struck.
At Flowers’ 6th trial, in 2010, 6 of the 26 potential jurors in the jury pool
were African-American. Evans allowed the first one to be seated but then struck
the next 5 prospective African-American jurors, resulting in a jury of 11 white
jurors and just 1 African-American. Flowers was convicted and sentenced to
death for all 4 murders.
That 2010 conviction was upheld by the Mississippi Supreme Court, and upheld
again after it was remanded for reconsideration in light of the U.S. Supreme
Court’s 2016 decision in Foster v. Chatman, which held that the use of
peremptory strikes to remove potential African-American jurors, as reflected in
prosecutors’ notes, was unconstitutional.
This most recent conviction is the one before the justices today, and they will
consider whether the state high court erred in how it applied Batson.
When Sheri Lynn Johnson of Cornell Law School takes to the lectern representing
Flowers, she asserts that Evans began the 6th trial “with an unconstitutional
end in mind, to seat as few African American jurors as he could.”
She describes the numbers and some of the anomalies in the questioning and
striking of potential African-American jurors, factual matters that will be
batted around in great detail today.
Alito interrupts her with a question that will help set the tone for the
argument.
“The history of the case prior to this trial is very troubling,” he says, and
it is “cause for concern and is certainly relevant to the decision that
ultimately has to be made in the case.”
But “if we were to disregard everything that happened before this trial, and we
looked at the strikes of the black prospective jurors as we would in any other
Batson case, do you think you’d have much chance of winning?” he says.
The evidence is that Evans acted with discriminatory motivation, Johnson says.
Alito, a former United States attorney for New Jersey, presses her on some of
the relationships between many of the potential jurors and either the defendant
or the victims.
“Again, put aside the history,” Alito says. “In the end, we can’t do it, but if
you did, don’t you think a prosecutor or any attorney would be very wary of
having a juror who had been sued by one of the parties?”
The argument will veer several times to the close-knit nature of small-town
Winona, with a population of no more than 5,000. One prospective juror worked
at the same retail store as the defendant’s father, or “the world’s smallest
Walmart,” as the trial judge called it and Alito repeats in court.
“It’s a very small town where everybody knows everybody, apparently, or many
people know many people,” Justice Elena Kagan says to Johnson. “And it’s a
largely segregated town, where you might think that African Americans knew more
African Americans than they would whites or vice versa. So does that account
for some of the differential questioning?”
Yes, says Johnson, the Mississippi Supreme Court said that concern accounted
for some of the differential questioning.
“There are more African American jurors who report relationships with defense
witnesses or the defense family members,” Johnson says. “But there are five
white jurors who report such relationships and whom the prosecutor did not ask
questions about those relationships.”
Jason Davis, a special assistant attorney general of Mississippi defending the
state high court’s decision, begins his time at the lectern by conceding that
“the history in this case is troubling.”
Davis says that “if we disengage this troubling history … if we take that out
of the case, we don’t have any taints.”
Justice Brett Kavanaugh tells him, “We can’t take the history out of the case.
… It was 42 potential African American Americans and 41 are stricken, right?”
Davis accepts that description, which appears to apply to numbers from the
first 5 trials but not the 6th.
The chief justice tries at various times to move the discussion toward a
general principle.
“We’re sort of conducting this as if it were one case,” he tells Davis. “And in
terms of a broader rule, do you recognize or do we recognize in our precedent
any restriction on the prior history that can be brought up with respect to a
current case?”
When Davis says no, the chief justice asks the question in a slightly different
way, as if to make sure he is hearing the state’s lawyer correctly.
“My point is, is there anything in our precedent that suggests that there ought
to be a limitation on looking to the history of the prosecutor involved?” Davis
stands by his concession.
“There’s no limitation on the history,” he says. “I think certainly the
precedent says that you have to consider it.”
Sotomayor, a former assistant district attorney in Manhattan, tells Davis that
she tried to conduct some research on formalized principles for when a
particular prosecutor should no longer be the one to keep retrying a case.
“At least my former state prosecutor’s office would have substituted attorneys
long before the fifth, sixth trial,” she says. “[I]t does seem odd to me that
any prosecutor would continue to try a case with this history.”
Davis agrees with her that it is “an unusual circumstance, an unusual case with
these six trials having been all tried by the same prosecutor. But I would
resubmit, again, that the decision of the Mississippi Supreme Court in this
instance was not violative of Batson and its progeny.”
Roberts informs Johnson that she has four minutes for rebuttal. She rises and
says, “Unless this court has further questions, I will waive rebuttal.”
Not so fast. Someone has a further question. Thomas has been leaning forward as
if he were itching to ask a question, but he does that from time to time and it
is usually just a tease.
Today, he will ask his first questions at oral argument since his 2016
questions in Voisine v. United States, a case about firearms possession by
convicted felons. (The questions he asked that day were his first serious ones
in more than 10 years.)
“Ms. Johnson, did you — would you be kind enough to tell me whether or not you
exercised any peremptories?” he says.
She informs him she was not Flowers’s trial counsel, to which Thomas says,
“Well, … were any peremptories exercised by the defendant?”
Yes, she says.
“And what was the race of the jurors struck there?” continues Thomas, who was
the lone dissenter in Foster v. Chatman.
“She only exercised peremptories against white jurors,” Johnson says. “But I
would add that the motive — her motivation is not the question here. The
question is the motivation of Doug Evans.”
Sotomayor chimes in with some help, pointing out that the defendant’s lawyer
didn’t have much opportunity to strike black jurors.
Johnson decides that she will make a concluding statement after all.
“When all of the evidence in this case is considered, just as in Foster versus
Chatman, the conclusion that race was a substantial part of Evans’ motivation
is inescapable, and the Mississippi Supreme Court’s conclusion to the contrary
is clearly erroneous,” she says. And with that, the case is submitted.
(source: scotusblog.com)
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