Dead Men Tell Many Tales

News Update 11.30.07

North Carolina

Alan Gell, who was freed from prison in 2004 after being sentenced to die for a crime he could not have committed, is back in prison. The News & Observer explores why. More information on Gell’s exoneration is available here.

In 2003, the North Carolina Supreme Court ruled that an attorney can be forced to reveal statements made to him in confidence by a now-deceased client, where that information would be useful in convicting a guilty person. In 2007, an attorney is facing disbarment for voluntarily revealing statements made to him in confidence by a now-deceased client, where that information would be useful in freeing an innocent person.

Elsewhere

As mentioned here, here, and here, the issue of the death penalty was raised in this week’s CNN-YouTube Republican presidential debate. A young man from Tennessee, directing his question to Christian conservatives, asked, “The death penalty – what would Jesus do?” Mike Huckabee, being the only person on the stage to ever greenlight an execution or obtain a divinity degree, took the question. (Huckabee is an ordained Southern Baptist minister, and approved the executions of fifteen men and one woman while serving as Governor of Arkansas.) Huckabee’s reply, “Jesus was too smart to ever run for public office,” is discussed in the above-linked blogs.

I was given pause by another part of Huckabee’s answer. In talking about denying clemency, the Governor said, “Let me tell you, it was the toughest decision I ever made as a human being. I read every page of every document of every case that ever came before me…” Presumably Huckabee meant that he read whatever was put in front of him, not the entire case file. It seems to me that reading the condemned man’s clemency petition is the least a governor can do, and that there is no reason to be patting yourself on the back for taking this duty seriously. Clemency is the last chance to right wrongs that the courts may have overlooked, ignored, or been powerless to correct. (Innocence is one example; innocence alone is not grounds for relief in federal court.) If bothering to consider materials prepared in the last-ditch effort to save a man’s life is exemplary behavior, our standards of justice have fallen very far indeed.

Amnesty International asks, “To DNA test or not to DNA test – why is this even a question?” Tommy Arthur, scheduled to die next week in Alabama, may or may not be guilty. Often in murder cases, the perpetrator leaves no DNA traces behind, so it is hard to be sure. In Arthur’s case, however, there is a rape kit, hair samples, and bloody clothing, any or all of which could conclusively identify the killer. Amnesty is asking people to contact Governor Riley and urge him to order DNA testing. You can learn more about the case here.

Charges Dropped Against Jerry Anderson

News Update 11.29.07

North Carolina

In July, Caldwell County prosecutors were asking a jury to sentence Jerry Anderson to die for the murder of his wife. This week, they dropped all charges against Anderson and declared their commitment to finding the real killer. Emily Anderson’s body was found in South Carolina ten days after her disappearance in December of 2005. Prior reporting on the Anderson trial here, here, here, and here.

In Cumberland County, Charles Triplin is standing trial for the 2003 robbery and suffocation of an elderly man. There is no forensic evidence that Triplin was at the scene, and the main witnesses against him are his co-defendants, who are linked to the scene by forensic evidence, and who have offered inconsistent testimony about what happened that night. Triplin has maintained his innocence and refused to plead guilty. His co-defendants have been rewarded for their testimony with reduced sentences. All of the defendants once faced the death penalty. If convicted, only Triplin will be ineligible for parole.

Elsewhere

The American Bar Association has named its top 100 law blogs. Big love to Capital Defense Weekly and Sentencing Law and Policy, both of whom are nominated in the “Crime Time” category.

In West Virginia, a federal court has postponed sentencing for two people convicted of a 2005 murder, pending the resolution of Baze. An attorney for one defendant has also expressed concern that the race and gender of the victim played an inordinate role in the jury’s decision to vote for death, particularly in light of his client’s limited criminal history as compared to other defendants sentenced to life in the federal system. The murder was prosecuted in federal court because there is no death penalty for state crimes in West Virginia. (c/o SLAP)

Fake Science Lands Man in Prison for Life

News Update 11.20.07

North Carolina

Lee Wayne Hunt narrowly avoided the death penalty 21 years ago when he was convicted and sentenced to life without parole for the execution-style killing of a Fayetteville couple. The only forensic evidence against Hunt and his co-defendant were bullets found at the scene, which an FBI agent testified matched a box of bullets belonging to Hunt’s co-defendant. In 2003, the co-defendant, Jerry Cashwell, committed suicide in prison. His lawyer then revealed Cashwell’s confession that he acted alone and Hunt was not involved. In 2004, the FBI’s method of bullet matching was declared scientifically invalid.

Prosecutors say other evidence justifies Hunt’s continued stay behind bars. Among the witnesses who connected Hunt to the scene are a man who was rewarded for his testimony by not being punished for crimes including accessory to murder, drug crimes, weapons offenses, and probation violations. At a 2007 hearing, the other main witness against Hunt was prepared to say what really happened, but was silenced when the prosecution threatened to charge him with perjury. The judge at the hearing threatened to file bar charges against Cashwell’s lawyer, held that the State’s fake science was irrelevant to Hunt’s conviction, and refused to consider the testimony of Cashwell’s attorney. Hunt’s conviction was upheld. Today, the lawyer is under investigation by the North Carolina State Bar, but the State is not investigating why Hunt may spend the rest of his life behind bars for a crime he did not commit. Hunt is appealing to the North Carolina Supreme Court, but the Court is not required to hear the case.

Elsewhere

The California Supreme Court has asked the state legislature to consider an amendment to its constitution, allowing the CASC to share the burden of reviewing death sentences with lower courts. California has the largest death row in the nation, in part because it takes so long to get through the appeals process. Observers note that the delay has as much to do with the shortage of lawyers as it does the backlog in the courts. Others question whether the ultimate punishment should be in the hands of anyone other than the state’s highest court.

Louisiana has filed its brief in Kennedy v. Louisiana, in which the U.S. Supreme Court will decide whether death is the appropriate punishment for child rape. Patrick Kennedy is currently the only person in the United States on death row for a non-homicide crime. Among others, Kennedy is supported by social workers, who fear that making the rape of a child a capital offense will encourage molesters to kill their victims. Click here for a review of what crimes are death-eligible in various U.S. jurisdictions.

Texas executed 180 people for murder between 2000 and 2006. In the same time period, 120 people were sentenced to probation for murder. Dallas County put twice as many murderers back on the streets as they did on death row. Often the question is not whether there is sufficient evidence to convict the killer, but how much society values the life of the victim. Equal justice, indeed. (c/o DPIC)

SCOTUSblog reports that Baze will be the very first case heard in the Supreme Court’s January term. Oral arguments will begin at 10 am on January 7, 2008.

The federal government has decided that a doctor banned from participating in lethal injections in Missouri – the only person in the entire country specifically prohibited from doing so – is the ideal person to administer lethal injections to federal inmates. Dr. Alan Doerhoff has been the target of more than 20 malpractice suits, is barred from practice in two hospitals, and was reprimanded by a state agency for lying to patients about his shady past. Good enough for government work.

Jerry Conner Video Released

In the summer of 1990, Minh and Linda Rogers were shot to death while working at their family-owned grocery in rural Gates County, North Carolina. Some money was taken. Sixteen year-old Linda was raped. The next year, Jerry Wayne Conner was tried and sentenced to death for the murders. His sentence was overturned on appeal, but after a re-sentencing hearing in 1995, Mr. Conner was again sentenced to die. In May of 2006, Conner came within 36 hours of execution before the North Carolina Supreme Court intervened. The Court didn’t want Jerry Conner to be killed until he had the chance to apply modern DNA technology to the semen found on Linda Rogers’ body. Unfortunately, the semen sample was too degraded to produce conclusive results.

We may never know if Jerry Conner killed Minh and Linda Rogers seventeen years ago. What we do know is that if and when lethal injection returns to North Carolina, Conner will be among the first scheduled to die. With that in mind, his attorneys have released a video on YouTube highlighting another major issue in the case: juror misconduct.

A local news reporter who covered Mr. Conner’s first trial sat on his re-sentencing jury. The reporter/juror learned confidential facts about the case before, during, and after the first trial through her contacts with the Sheriff’s Department and others involved in the investigation of the murders. When questioned directly about communications with people involved in the case, she did not tell the court what she knew. Her deceptions denied Mr. Conner his right to be tried by an impartial jury.

More information about Jerry Conner’s case is available here, here, and here.

During this brief respite from executions, it is important to remember that there are still thousands of men and women out there awaiting their final day. Daily we are adding to the queue – men and women afflicted by mental illness, represented by incompetent lawyers, convicted based on the false testimony of jailhouse snitches and crooked police officers. While Ralph Baze has taken center stage to tell the nation about the constitutional perils of lethal injection, Jerry Conner is waiting in the wings with an equally important story to tell about the broken system used to decide who is sentenced to die in the first place.

Like Being Struck By Lightning

News Update 11.15.07

North Carolina

In Cabarrus County, Lisa Greene was in court yesterday, facing the death penalty for allegedly burning her house down with her children inside. Meanwhile in neighboring Mecklenberg County, Gilberto Miranda Cuellar received a life sentence for burning his house down with his children inside. (In Cuellar’s case, the children were shot in the head before the fire was set.)

[For non-lawyers, in Furman v. Georgia, Justice Potter Stewart wrote that "death sentences are cruel and unusual in the way that being struck by lightning is cruel and unusual," which is to say that rather than consistently sentencing the worst offenders to death for the worst crimes, we impose capital punishment in a manner that seems almost random.]

Elsewhere

In Florida, a federal district court judge issued a stay of execution for Mark Dean Schwab yesterday. This morning, the 11th Circuit Court of Appeals vacated that stay. The execution is scheduled for 6 PM tonight. The ball is in SCOTUS’s court. (c/o SLAP)

This just in: The Supreme Court has stayed Schwab’s execution.

Capital Defense Weekly notes the latest voyage of Porcine Airlines: the Texas Court of Criminal Appeals has commuted Gregory Van Alstyne’s death sentence to life without parole after finding that Van Alstyne is mentally retarded. You can read the flight plan, er, decision here.

In the case of Nevada v. Skolnik, in which the ACLU is arguing that even though a person has volunteered for execution, it is still unconstitutional to execute him using a flawed protocol, the state Supreme Court has issued an order for supplemental briefing. The Court is seeking further information on whether the parties have standing to challenge another person’s execution, what the First Amendment violations are as to the media outlets involved, and the exact nature of the Eighth Amendment argument being made. You can read the ACLU’s opening brief here. (c/o Harmful Error)

Lethalinjection.org, a site run by Boalt (UC-Berkeley) Law School’s Death Penalty Clinic has posted all of the amicus briefs filed thus far in Baze v. Kentucky. Among those weighing in for Mr. Baze: inmates from four other states, doctors and medical ethicists, veterinarians, and human rights groups. Two groups, anesthesiologists and an anesthesia awareness organization, filed neutral briefs. The state of Kentucky’s brief, and briefs in support of their position, are due at a later date.

Slate asks, “If academics, doctors, and prisoners—as well as death-penalty supporters and the guy who invented the protocol—have been criticizing the three-drug protocol for years, why haven’t the states switched methods?”

Hoffman Prosecutors Seek Testimony of Dead Witness

News Update 11.12.07

North Carolina

Jonathan Gregory Hoffman was convicted and sentenced to death in Union County in 1996, based in part upon the testimony of a root doctor who claimed he sold Hoffman a magical charm that would keep him from getting arrested. (For those not from the Deep South, a root doctor or rootworker is a sort of folk healer/magician.) Hoffman was given a new trial in 2004 because prosecutors Kenneth Honeycutt and Scott Brewer failed to reveal that rewards were given to their star witness in exchange for his testimony. That witness has since recanted his testimony, so in retrying Hoffman, prosecutors want to use the old statements of the now-deceased root doctor. Trouble is, prosecutors didn’t turn over evidence that he, too, was seeking a reward.

Editorials on Glen Edward Chapman’s removal from death row here and here.

Upcoming events:

• Parade, a Tony award-winning musical about a man facing the death penalty in the early 1900s, will be performed tonight and tomorrow night at UNC-CH’s Memorial Hall at 7:30 PM.
• St. Francis of Assisi Church in Raleigh is hosting a panel discussion entitled Doctors in the Death Chamber on December 12 at 7:00 PM. The panel will include defense attorneys, prosecutors, medical ethicists, elected officials, and more.

Elsewhere

Florida‘s Mark Dean Schwab has filed his application for cert with the US Supreme Court. Schwab notes that Florida’s three-drug cocktail is identical to the one at issue in Baze, and that his objections to lethal injection have been brought before the Court well in advance of his execution date. The application was filed with Justice Clarence Thomas, and will likely be referred to the full court for review.

Last night, 60 Minutes examined the case of Greg Thompson in Tennessee and asked: if it is unconstitutional to execute the insane, is it constitutional to medicate a person to restore their sanity and eligibility for execution? (c/o CDW)

Death Avoided, Justice Sought

News Update 11.08.07

North Carolina

Defendants in Durham and Jacksonville, as well as two in Monroe, who once faced the death penalty resolved their cases this week. Eddie Whitson, Anthony Rankin, and Michael Neal Decarlo Clark will all spend the rest of their lives in prison. LaToya McGill pleaded guilty to involuntary manslaughter. She was originally charged with capital murder by Michael Parker, the same DA who handled Floyd Brown‘s case, but when a new prosecutor took over the McGill matter, he felt Parker had gone too far and offered to dismiss the murder charge.

A new website has been launched – ncprosecutorialmisconduct.com – to tell the stories of those victimized by prosecutorial incompetence, corruption, and bias. At present, the site is focused on Floyd Brown, Darryl Hunt, James Johnson, and Terrance Garner, who combined spent almost 40 years behind bars for crimes they did not commit.

Elsewhere

In Florida, the state Supreme Court has denied a stay of execution for Mark Dean Schwab. However, the Court did suggest that states should explore means of execution that are less likely to inflict pain than the current three-drug cocktail. The decision also implied that requests for stays of execution will continue to be passed to the US Supreme Court until that court makes clear its intention to declare a moratorium.

In Texas, a warden who presided over 89 executions reflects on the death penalty, and the widow of Michael Richard has sued the judge who blocked her husband’s access to the Texas Court of Criminal Appeals, resulting in the only execution since the Baze cert grant.

New Trial for Glen Chapman

In 1994, Glen Edward Chapman was convicted of killing Tenene Yvette Conley and Betty Jean Ramseur. He has spent every day of the last 14 years on death row, protesting his innocence. Yesterday, a judge ordered that Chapman should receive a new trial because police withheld evidence, lost or destroyed documents, and the lead investigator perjured himself on the stand. The judge also noted that the evidence against Chapman was circumstantial, that he received ineffective assistance of counsel, and that one of the women he is accused of killing was likely not murdered at all.

Tenene Yvette Conley

Ms. Conley was found dead in the closet of an abandoned house. Mr. Chapman’s sperm was found in her body. The State theorized that Chapman killed Ms. Conley shortly after they were seen together on August 13, 1992. Detectives did not reveal statements from numerous witnesses who saw Ms. Conley alive and with other people – including a man with a history of violence against her – the day after the State claimed she was murdered. A review of records by forensic pathologists hired by post-conviction counsel showed that Ms. Conley had no life-threatening injuries, that her time of death was consistent with that suggested by the hidden statements, and that she may well have died of a cocaine overdose.

Betty Jean Ramseur

Ms. Ramseur’s body was found in the crawl space of a home that had been set on fire twice. At trial, the State claimed that Chapman killed Ms. Ramseur and set the house on fire to hide the evidence. An investigation done by post-conviction counsel revealed that Hickory Police Department Detective Dennis Rhoney concealed evidence that a witness picked another suspect out of a lineup, that another person claimed responsibility for the killing, that the first fire was accidentally set by a vagrant, and that the second fire occurred after the body was removed from the home. Rhoney also failed to turn over information that pointed to other suspects. There was no physical evidence linking Chapman to Ramseur’s murder.

Robert Adams and Thomas Portwood

Despite the efforts of police and prosecutors to conceal the truth, Chapman might have been spared 14 years on death row had he been represented by competent counsel. Chapman was represented by Robert Adams and Thomas Portwood, both of whom struggled with alcohol abuse. The attorneys failed to hire an investigator to look into the Conley killing, and the investigator they hired for the Ramseur killing appears to have done nothing more than administer a lie detector test (which Chapman passed), visit the crime scene, and make one unsuccessful attempt to speak with a witness. There were multiple hints in the prosecutor and court files that Ms. Conley had been seen alive after Mr. Chapman was supposed to have killed her, but counsel either failed to look at the files or did not examine them closely.

Adams has been sanctioned by the bar multiple times and Portwood died of alcohol-related illness. Portwood represented several other men whose trials resulted in death sentences, including Ronald Frye, who was executed in 2001.

(News reports here and here. You can read the judge’s full order here.)

Edited 04.02.08 to add – All charges have been dropped and Glen Chapman has been released from death row. See here.

Another Military Death Case

News Update 11.06.07

North Carolina

The colonel in charge of the investigation has recommended that Staff Sgt. Alberto Martinez should face the death penalty if convicted of killing two superior officers in Iraq in 2005. Although all those involved were part of the New York National Guard, the case is being handled at Ft. Bragg because its commanding general was in charge of ground forces in Iraq at the time of the killings.

Coverage of the recent speaking tour of exonerated death row inmates is here (Chapel Hill), here (Greenville), here (Raleigh), here (Washington), and here (Raleigh).

Elsewhere

The petitioner’s brief in Baze v. Rees, the lethal injection challenge taken on by the Supreme Court, is available here. The brief begins with a history of capital punishment methods in the United States and Kentucky, and then reviews the lethal injection protocol and its pitfalls. At its core, the legal argument is that because the Eighth Amendment prohibits the unnecessary and wanton infliction of pain and the gratuitous infliction of suffering, states are required to avoid inflicting more pain than is necessary to cause death. Even if a method of execution could in theory be implemented in a humane manner, a constitutional line is crossed when the execution is carried out in an ill-conceived and haphazard manner which creates an intolerable risk of a torturous death. The brief suggests that lethal injection could be made constitutional if states changed the cocktail or took steps to ensure that inmates are properly anesthetized. The State’s brief is due December 3rd.

The Supreme Court has also granted cert in Arave v. Hoffman, an Idaho case which asks whether an attorney’s advice during plea negotiations can be so unreasonable as to constitute ineffective assistance of counsel, and what should be the remedy if it does. Maxwell Alton Hoffman faced the death penalty for killing a government informant. His court-appointed lawyer had never handled a murder case before and did not have current information on the state of death penalty jurisprudence. The lawyer advised Hoffman to reject a life-saving plea deal because he thought Idaho’s death penalty would soon be declared unconstitutional.

Amnesty International considers the state of capital punishment in the Middle East. To sum things up, Saudi Arabia executed a man over the weekend for witchcraft. Also, executions are on the rise in Iraq and Iran continues to execute children.

Executions – November 2007

1 – Jeffrey Timothy Landrigan (AZ – stayed)

6 – Allen Bridgers (TX – stayed)

8 – Don William Davis (AR – stayed)

15 – Ramon Sanchez (PA – stay likely)

15 – Mark Dean Schwab (FL)

27 – Dale Scheanette (TX – stayed)

No executions were carried out in the month of October.