June 11
TEXAS:
Complaint Alleges that Prosecutor in Alfred Dewayne Brown’s Case Knowingly Hid
Evidence of Innocence
A special prosecutor in Harris County, Texas, has filed a complaint with the
Texas State Bar Office of Chief Disciplinary Counsel against former Assistant
District Attorney Daniel Rizzo, alleging that Rizzo intentionally concealed
exculpatory evidence crucial to the exoneration of former death-row prisoner
Alfred Dewayne Brown (pictured). Brown was wrongfully convicted and sentenced
to death in 2005 for a robbery murder in which a store clerk and responding
police officer were shot to death. Brown claimed that phone records would show
he was at his girlfriend’s apartment at the time of the murder. Rizzo withheld
the records from the defense, then abused grand jury proceedings to jail
Brown’s girlfriend until she agreed to implicate Brown. Brown was exonerated in
2015 after the phone records came to light. An investigation by Special
Prosecutor John Raley later led to an official declaration that Brown is
“actually innocent.”
In early June 2019, Raley filed what the Houston Chronicle described as a
“scathing grievance” with the Texas state bar alleging that “Rizzo was aware of
exculpatory evidence and chose not to produce it to the defense and the court.“
He accused Rizzo of engaging in “significant misconduct” by “withhold[ing] from
the court and defense counsel evidence likely to acquit Brown and then
press[ing] forward in seeking the death penalty.” Raley said “Mr. Rizzo’s
misconduct in the Brown case raises substantial questions regarding his
honesty, trustworthiness, and fitness to be a lawyer. ... Mr. Brown, an
innocent man, spent nearly 12 years on death row because of the misconduct of
Daniel Rizzo.”
As Special Prosecutor, Raley issued a report — commissioned by the Harris
County District Attorney’s Office —advocating for Brown’s exoneration. The
report, issued in March 2019 after more than 1,000 hours of investigation into
Brown’s case, found “[b]y clear and convincing evidence, [that] no reasonable
juror would fail to have a reasonable doubt about whether Brown is guilty of
murder. Therefore his case meets the legal definition of ‘actual innocence.’”
Harris County District Attorney Kim Ogg and Harris County District Court Judge
George Powell subsequently made official declarations of Brown’s “actual
innocence,” paving the way for Brown to receive state compensation for the
years in which he was wrongfully imprisoned. Raley’s report documented that
Rizzo concealed “crucial evidence” of phone records that supported Brown’s
alibi that he had been at his girlfriend’s apartment at the time of his alleged
crime. A copy of the records were discovered by police officer Breck McDaniel
in his garage during Brown’s appeals.
In 2003, in preparation for Brown’s trial, Officer McDaniel obtained the phone
records for Brown’s girlfriend’s apartment in an effort to disprove Brown’s
alibi. Instead, the records showed that Brown had, as he claimed, called his
girlfriend at work at a time that made it impossible for him to have been
involved in the murder of Houston Police Officer Charles Clark. McDaniel sent
an email to Rizzo informing him of the phone records. When that email was
uncovered in 2018, District Attorney Kim Ogg filed a Bar complaint against
Rizzo. Rizzo claimed he never read the email and had not been aware of the
records. Raley’s complaint rejected Rizzo’s version of events, explaining that,
while Rizzo had not replied to the email, he made a change to a subpoena that
McDaniel had requested, demonstrating that he in fact read the email.
Rizzo has denied concealing the evidence. His lawyer, Chris Tritico, wrote,
“There is more credible evidence that supports that Breck McDaniel suppressed
what he clearly thought was exculpatory evidence, but did not understand was
inculpatory evidence, after all it was in HIS GARAGE. If the District Attorney
wants to set a cop killer free they can do so without laying it on the back of
a 27-year public servant.” “For Rizzo to call Brown a ‘cop killer’ at this
stage reveals both his desperation and his bias,” Raley replied. “Rizzo was
fully aware of the existence of the exculpatory evidence, decided not to
produce it, and pretended that it did not exist.”
In the complaint, Raley wrote that he “cannot imagine anything in the practice
of law more horrible than executing an innocent man.” “Rizzo’s unethical and
illegal actions resulted in an innocent man being sent to death row,” he said.
“Fortunately, an extra copy of the records was found and produced before Brown
was executed. If our justice system is to work properly, the State Bar of Texas
must hold prosecutors who hide evidence of innocence accountable for their
conduct.”
(source: Death Penalty Information Center)
FLORIDA:
Injustice of Central Park Five should give Florida pauseM
There are 340 people on Florida’s death row. Without a thorough investigation
into the state’s criminal justice system and a full review of every capital
conviction, the next execution could be of an innocent person. Many state
leaders seem OK with that.
Those leaders, like Gov. Ron DeSantis, should binge watch some television.
“When They See Us,” a 4-part series on Netflix dramatizing the infamous case of
the Central Park Five — 5 young black and Latino boys falsely accused and
wrongfully convicted of the brutal rape of a New York jogger in 1989 — vividly
demonstrates how badly flawed the justice system in America can be.
It took more than a decade for the boys’ unjust convictions to be overturned,
but the damage to their lives and reputations can never be repaired. It could
have been worse, though. The oldest boy was tried as an adult. He could have
received the death penalty — and he could have been executed before he was
exonerated.
One of the most compelling arguments against the death penalty is that an
execution cannot be undone if it turns out an inmate was wrongly convicted.
That potential should be especially concerning in Florida, where more death-row
inmates have been exonerated than in any other state.
In March, Clifford Williams Jr. became the 29th person exonerated from
Florida’s death row since the 1970s. Prosecutors now say he didn’t commit the
crime he was convicted of — after he spent 42 years in prison.
Florida has, almost certainly, executed innocent men. Leo Jones might have been
one of them. He was executed in 1998 for the murder of a police officer even
though one of the main witnesses against him had recanted and there were
allegations that his confession came only after a brutal beating by the police
officers who interrogated him.
Given that there appears to be no political will to end the death penalty in
Florida — one of only about five states that still regularly executes prisoners
— restoring confidence in the integrity of the system that puts people on death
row is paramount. Gov. DeSantis, a death penalty supporter who recently signed
a bill making it harder for ex-felons to vote, should order a review of
death-row exonerations and other wrongful convictions.
But instead of doing that, he has appointed three conservative justices to the
Florida Supreme Court who might lead the court in reversing a decision about
retroactively resentencing death row inmates. The issue arises from a 2016 U.S.
Supreme Court decision that found that allowing judges — not juries — to decide
if the facts warranted a death sentence violated the accused men’s right to
trial by jury. The state therefore began reviewing death sentences back to
2002, but that state Supreme Court justices seem poised to stop that.
When the state executes a convict, it is acting on behalf of every resident of
Florida, and if the state is wrong, it stains all of us. Such an act must rest
on a firm, unassailable foundation. There must be absolute confidence that the
system is fair, just and devoted to the truth.
There can be no such confidence in the current system.
(source: Editorial Board, Miami Herald)
ARIZONA:
Supreme Court to hear murder appeal that could affect 20 death-row cases
The Supreme Court said Monday it will hear the appeal of an Arizona death-row
inmate who claims state courts wrongly used old law to reaffirm his death
sentences for 2 1991 murders.
A ruling in James Erin McKinney’s case could affect as many as 19 other Arizona
death-row cases, said his attorneys. They argue that a Supreme Court ruling
since McKinney’s crimes were committed requires that he be resentenced by a
jury, not a judge.
But the Arizona Attorney General’s Office argued that McKinney’s case was final
when it was first affirmed in 1996 – long before the Supreme Court issued the
ruling in Ring v. Arizona that defense attorneys are invoking now.
“By any principled measure, petitioner’s convictions and sentences for killing
2 blameless and essentially incapacitated individuals became final years
before” the Ring ruling was handed down, the attorney general’s office argued.
Calls to the attorney general’s office were not immediately returned Monday,
while attorneys for McKinney declined to comment on the court’s decision to
hear the appeal.
McKinney and his half-brother, Charles Hedlund, were convicted by separate
juries for their parts in a string of burglaries in Maricopa County in early
1991, 2 of which ended in murders.
In the 1st case, the men had broken into the home of Christine Mertens on March
10, when she came home unexpectedly. They beat and stabbed her before holding
her on the floor and shooting her the back of head at point-blank range,
ultimately making off with about $120 in cash, according to court records.
On March 23, Hedlund and McKinney broke into the home of James McClain, 65,
where they found him asleep. McClain was shot in the head at close range with a
sawed-off rifle, before the 2 stole McClain’s watch, 3 handguns and his car.
In addition to burglary and theft charges, McKinney was convicted of 2 counts
of 1st-degree murder and Hedlund was convicted on 1 count each of 1st- and
2nd-degree murder. A judge in their cases sentenced both to death in 1993 and
the Arizona Supreme Court upheld McKinney’s sentence in 1996.
But the 9th U.S. Circuit Court of Appeals disagreed. In late 2015, it said the
sentencing judge had failed to consider evidence that McKinney suffered from
post-traumatic stress disorder as a result of a childhood in which he and his
siblings were routinely beaten and abused.
Such mitigating evidence, which could weigh against the death penalty, must be
considered under a 1982 Supreme Court ruling – something the 9th Circuit said
Arizona courts ignored for 15 years.
The case went back to Arizona. The state Supreme Court reviewed the case and
determined the sentencing judge had considered McKinney’s PTSD but determined
it did not outweigh other factors in the case. It again upheld his death
sentence.
McKinney argued that under the Supreme Court’s 2002 Ring ruling – which said
only juries, not judges, can determine a death sentence – he should have been
given a new sentencing hearing before a jury, not the Arizona Supreme Court.
McKinney has “never had a jury consider his mitigating evidence,” said an
attorney with Phillips Black Inc., a legal group that filed a brief with the
U.S. Supreme Court in support of McKinney. “The Arizona Supreme Court plainly
imposed a sentence of death without him having ever presented his case for life
to a jury.”
An attorney with the Arizona Capital Representation Project said McKinney is
not the only death-row inmate whose mitigating evidence was downplayed.
“Sometimes it’s PTSD, sometimes it’s childhood trauma,” she said, “but in every
case, it’s evidence that it refused to consider because it didn’t find it
causally connected to the crime.”
The state argued that McKinney’s “convictions and sentences were final on
August 14, 1996,” when the Arizona Supreme Court first upheld his sentence, 6
years before the Ring decision came down. That ruling cannot be applied after
the fact, the state argued.
But McKinney’s attorneys said a case does not become final as long as “the
defendant’s sentence remains open to correction,” as McKinney’s did. When
resentencing occurs, it must be done under the law at the time, they said,
which means McKinney should have a jury consider his sentence.
The Supreme Court’s current term ends this month. No date has been set for
McKinney’s case, which will likely be heard in the fall.
(source: Cronkite News)
USA:
USA----countdown to nation's 1500th execution
With the execution of Christopher Price in Alabama on May 30, the USA has now
executed 1,499 condemned individuals since the death penalty was re-legalized
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.
1500------June 20-------------Marion Wilson Jr.--------Georgia
1501------July 31-------------Ruben Gutierrez----------Texas
1502------Aug. 15-------------Dexter Johnson-----------Texas
1503-------Aug. 15------------Stephen West-------------Tennessee
1504-------Aug. 21------------Larry Swearingen---------Texas
1505-------Sept. 4------------Billy Crutsinger---------Texas
1506-------Sept. 10-----------Mark Anthony Soliz-------Texas
1507-------Sept. 12-----------Warren Henness-----------Ohio
1508-------Oct. 2-------------Stephen Barbee-----------Texas
Learn more about efforts to #StopThe1500th Execution and how you can be
involved at http://deathpenaltyaction.org/1500th [deathpenaltyaction.org]
(source: Rick Halperin)
**********************
Death-penalty trial panned in state that ended punishment
A perplexed prospective juror at the trial of a former graduate student charged
with kidnapping and killing a University of Illinois scholar from China said
during jury selection last week that she didn't understand how a conviction
could carry the death penalty in Illinois when the state struck capital
punishment from its statutes years ago.
The judge explained that Brendt Christensen's case is a rare instance of the
U.S. Department of Justice seeking the death penalty in one of the more than 20
states that doesn't have capital punishment, drawing on U.S. laws that allow
executions by federal authorities for exceptional crimes.
Christensen's is the first federal death-penalty trial in Illinois since it
abolished capital punishment in 2011, dismaying activists who fought to end
executions in the state. They fear it's the start of a trend under President
Donald Trump — a blunt death-penalty proponent — of more such trials, more
often in states with no death penalty on their books.
"It's pretty outrageous when the federal government is essentially imposing
capital punishment on a state that abolished it," Rob Warden, a leader in the
2000s of Illinois' anti-death penalty movement, said about the Christensen
trial. "It's absolutely morally offensive and indefensible."
Jury selection in Peoria is expected to wrap up Tuesday, with opening
statements slated for Wednesday.
Despite past success, anti-capital punishment activists in Illinois are no
longer positioned well to mount protests. Many shifted to other causes. And the
Coalition to Abolish the Death Penalty, a main umbrella group in the movement,
has been disbanded in Illinois.
Former Gov. George Ryan, who took the first step toward abolishing the state's
death penalty by placing a moratorium on executions in Illinois in 2000, a year
after the state's last execution, said the federal decision to hold a death
penalty trial in Illinois subverted the will of the majority of the residents.
"I think it's a bad idea, but there's nothing we can do about it," Ryan told
The Associated Press in a phone interview this week. "The only thing that we
can do is to get the federal government to abolish the death penalty."
He said he opposes the death penalty on the grounds it's impossible to ensure
innocent people will never be put to death.
In notifying the court last year of the decision to seek the death penalty, the
Justice Department cited evidence that Christensen, now 29, tortured Yingying
Zhang after taking advantage of the 26-year-old woman's small size and lack of
fluent English-speaking skills to lure her into his car as she headed to sign
an apartment lease off campus. Her body was never found.
Her disappearance in June 2017 in Urbana and the arrest weeks later of
Christensen, who studied physics, shocked Chinese students nationwide. U of I,
based in Champaign, has one of the largest populations of Chinese students in
the country, with over 5,000 enrolled.
Justice Department protocols call for victims' families to be consulted on
whether they think the death penalty should be pursued. It's not clear if
officials had such a conversation with Zhang's family.
"I cannot believe there is such an evil person among us in this world," her
father, Ronggao Zhang, said of Christensen in a recent interview with ABC News.
"I think he should definitely get the death penalty."
Chicago defense attorneys say they notice the U.S. attorney's office
considering the death penalty more for street gang members in racketeering
cases involving killings. The Justice Department is expected to decide soon
whether to seek it in the case of gang members from Chicago's Four Corner
Hustlers who are accused of carrying out killings to maintain an illegal drug
trade.
Federal death-penalty cases have risen under Trump following a near-moratorium
during President Barack Obama's last term. The Justice Department approved at
least a dozen death penalty prosecutions during Trump's 1st 2 years, according
to October data from the Federal Death Penalty Resource Counsel.
Recent data wasn't available. But Robert Dunham, the executive director of
Washington's Death Penalty Information Center, says all signs are the trend of
more federal death-penalty cases will continue even as cases are decreasing in
states with capital punishment. He added: "It's making the federal government
an outlier."
Homicide charges nearly always come from state authorities, except in a short
list of cases including killings during terrorist attacks, bank robberies and
kidnappings. Illinois could have charged Christensen under state murder and
kidnapping laws, which carry maximum life sentences.
Christensen's lawyers asked Judge James Shadid to declare the federal decision
to seek the death penalty for an Illinois resident unconstitutional, including
because it would force jurors from Illinois into "the painful duty of
determining whether another human being lives or dies." Shadid refused.
Federal death-penalty trials in states without capital punishment laws are rare
historically.
Boston Marathon bomber Dzhokhar Tsarnaev was sentenced to death at a 2015
federal trial in Massachusetts, which abolished capital punishment in 1984.
Marvin Gabrion was sentenced to death in a 2002 federal trial in Michigan for
killing a woman he was earlier charged with raping even though Michigan became
one of the first places in the English-speaking world to end death as a
punishment 173 years ago.
Federal death row currently has 62 inmates on it. 4 were tried in states
without the death penalty, according to the Death Penalty Information Center.
More than 2,500 inmates are on death row in states, the center said.
Just because a prisoner is on federal death row doesn't necessarily mean the
person will die, at least not soon. Appeals can delay executions by decades.
Tsarnaev and Gabrion also remain on death row.
Since 1988, there have only been 3 federal executions — all by lethal injection
in Terre Haute, Indiana, between 2001 and 2003. States have executed nearly
1,500 inmates since 1976.
Louis Jones was the last person on federal death row to be executed following
his conviction for kidnapping resulting in death — the same charge Christensen
has pleaded not guilty to.
(source: Miami Herald)
**********************
The Myth of Bipartisan Death Penalty Abolitionism
Did you know that Republicans are "quietly turning against the death penalty"?
So sayeth the Atlantic, in a lengthy story published Sunday in the wake of New
Hampshire's abolition of the death penalty.
Sunday's article is just the latest in "conservatives who oppose the death
penalty" coverage. Google some combination of "death penalty," "conservative,"
and "oppose" and you will find similar stories from outlets like the Guardian,
Wall Street Journal, and Washington Post.
The Atlantic piece neatly summarized the tenor of such stories: "death-penalty
reform has quietly broken through as a bipartisan issue—one that could portend
a shaky future for capital punishment in the U.S."
The basis of this argument is that a handful of Republican state legislators
have authored or signed on to legislative proposals to end the death penalty.
But the implication is that conservatives are slowly but steadily getting in
line behind the liberal consensus against the death penalty.
That's total nonsense. Let's look at the data.
The General Social Survey, a major survey of public opinion administered by the
National Opinion Research Center at the University of Chicago, has routinely
asked respondents about their views on the death penalty since 1974; it also
tracks respondents' political views. The results are pretty clear: Roughly
three in four conservatives support the death penalty, and have done so at at
least that rate since the 1970s. "Moderates" are slightly less favorable but
still overwhelmingly supportive; only liberals are opposed, and have only
fallen below majority support since about 2012.
Gallup
The picture is much the same looking at partisan affiliation, which Gallup
provides information on. About 3 in 4 self-described Republicans support the
death penalty, compared to about 1/2 of moderates and 1/3 of Democrats.
The Atlantic actually acknowledges these statistics in passing, noting that Pew
found similar outcomes in a 2018 survey, and that the majority of executions
take place in red states. The obvious implication—that GOP state legislators
are backing appeal against the will of their base—is never spelled out.
But let's take the Atlantic‘s claim at face value. Maybe there's a great revolt
going on among Republican state legislators? Indeed, New Hampshire's repeal
bill could not have passed without the six Republicans in the State Senate and
77 in the State House (minorities of each caucus) who joined with Democrats to
pass the bill over Gov. Chris Sununu's (R.) veto.
How widespread is abolitionism among actual state legislators? Conservatives
Concerned About the Death Penalty, a lobbying group that claims to speak for
conservative abolitionists, provided me with a list of state legislators
co-sponsoring abolition bills in 2019. Across 11 states, they list 31, although
that list probably slightly undercounts. The Atlantic piece points to a CCATDP
report which finds that the number of GOP legislators sponsoring death-penalty
repeal bills rose from four in 2000 to 40 in 2017.
The Atlantic doesn't report raw figures, preferring to bill it as an increase
"by more than a factor of 10." Here's another way to look at it: Ballotpedia
estimates that there are 3,860 Republicans in state legislatures currently. The
number of Republicans sponsoring repeal bills went from 0.1 % to 1 %—progress!
This deceptive use of numbers by the Atlantic is characteristic of the
abolitionist rhetorical strategy, which could be charitably called "selective"
and uncharitably called "lying." The article repeats a number of dishonest or
poorly contextualized claims, some of which were likely fed to its author by
the death penalty opponents she interviewed. Here are just a few:
"The slate of repeal bills being considered across the country reflect growing
opposition to the death penalty over the past 2 decades."
There is "growing opposition" to the death penalty insofar as it used to be
enormously popular, and is now merely popular. Here is the general trend in
support based on polling from Gallup, the GSS, and the Pew Research Center.
There's a very simple explanation for the decline: Support for the penalty
rises and falls more or less in tandem with the homicide rate. America has
grown safer over the past 25 years, and so people are less likely to see the
need for capital punishment. However, any abolitionist argument which turns on
this fact implicitly concedes that if crime begins to rise again—which it
likely will—people will begin to support the death penalty again.
And it is always important to remember that the question used in these polls
asks if people support the death penalty for homicide, not if they support
abolition. A Quinnipiac poll last year found that 2 in 3 Americans want to keep
the death penalty.
"A 2017 Gallup poll found that 55 % of Americans supported the death penalty, a
45-year low." The poll being cited can be found here. Net support for the death
penalty in the poll was +14, an approval rating most elected officials would
kill for.
But that's not the most recent data. The share supporting went back up in the
most recent survey, to 56 %. Gallup's most recent "moral acceptability" poll,
released at the end of May, found that 60 % of Americans think capital
punishment is morally acceptable, compared to 35 % who do not. Funny how
neither of these figures were reported instead of or in addition to the 2017
minimum for support.
Since 1999, there's been a 75 % decline in executions, and in the 30 states
that still have death-penalty laws, more than a third have not performed one in
more than a decade."
This is factually accurate, but wholly omits the context. The delay does not
represent some newfound reticence on the part of state governments. It is a
product of the shortage of execution drugs, driven by abolitionists lobbying
drug companies not to sell to state governments; and of the intolerably lengthy
death penalty appeal process, also driven largely by abolitionist lawyers
seeking to use every appeal possible to delay execution.
Governors in 4 of those states have also placed moratoriums on all executions."
The 4 governors are John Hickenlooper (D., Colo.), Tom Wolf (D., Penn.), John
Kitzhaber (D., Ore.), and Gavin Newsom (D., Calif.). Notice anything about
their party affiliation?
To be sure, there are self-identified conservatives who oppose the death
penalty, in much the same way that there are self-identified conservatives who
call themselves pro-choice or reject the right to keep and bear arms. But the
survey data show that abolition has been and remains a clear minority view,
among conservatives and indeed among Americans generally.
Why, then, does the mainstream media keep pushing the narrative that there is
some emerging conservative consensus against the death penalty? Why do they
keep regurgitating the talking points of the same few advocates? (The Atlantic
article conspicuously lacks a quote from any expert who represents the majority
of Americans who support the death penalty.)
On this we can only speculate. But one thing is clear: When it comes to the
death penalty, most of the media is on one side, and most conservatives—indeed
the majority of Americans—are on the other.
(source: freebeacon.com)
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