Death Penalty

  • October 24, 2017
    Guest Post

    by Emily Olson-Gault, director, American Bar Association Death Penalty Representation Project and Misty C. Thomas, director, American Bar Association Death Penalty Due Process Review Project

    *Affiliations are listed for identification purposes only, as the opinions expressed in this post are the authors’ personal views.

    In one week, the U.S. Supreme Court will hear oral arguments in the case of Texas death row prisoner Carlos Ayestas to decide whether his federal appeals attorneys should be afforded basic resources to investigate their client’s background and mental health. This should seem obvious, as we know that these investigations are often the only way to uncover new evidence of wrongful convictions or other constitutional violations. However, the courts below have denied Mr. Ayestas investigative resources critical to developing his defense because he could not prove in advance the very claims he sought to investigate. If the lower court’s decision sounds confusing and circular, that’s because it is. It is also an outlier practice that effectively denies poor people access to justice in the most serious and complex cases.

  • September 18, 2017
    Guest Post

    by Lauren Sudeall Lucas, Associate Professor, Georgia State University College of Law

    In imposing the most severe of sentences—the death penalty—our legal system expects and requires jurors to be fair and impartial.That requires them to refrain from making decisions based on race. What then would we make of a capital juror who questions whether black people “have souls” and suggested that a black defendant wasn’t “in the ‘good’ black folks category” but instead told an attorney in a sworn affidavit that the defendant was a “ni**er”? Allowing that juror to decide whether a black defendant should be sentenced to death would directly contradict the principles on which our legal system is based, and yet that is precisely what happened in the case of Keith Tharpe, who is scheduled for execution in Georgia on September 26.

  • July 25, 2017
    Guest Post

    by John H. Blume, Samuel F. Leibowitz Professor of Trial Techniques; Director of Clinical, Advocacy and Skills Programs; Director, Cornell Death Penalty Project, Cornell Law School

    The Sixth Amendment provides that “in all criminal prosecutions, the accused shall … have the Assistance of Counsel for his defense.” The right to counsel encompasses the right to an attorney -- a qualified attorney. Not, for instance, one who has been disbarred and prohibited from practicing law. 

    And yet, that’s exactly what happened to TaiChin Preyor, who is scheduled for execution in Texas on July 27. Mr. Preyor was convicted and sentenced to death in 2005 for a murder in San Antonio. Mr. Preyor’s trial counsel, however, did not properly investigate known red flags regarding his background, including the violence and sexual abuse Mr. Preyor experienced as a child. These formative experiences are not an excuse, but this mitigation evidence, and other critical details about Mr. Preyor’s childhood, could have persuaded at least one juror to vote for a life sentence, rather than death.

  • June 29, 2017
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law

    Last week, the Supreme Court at long last ruled on the case of James McWilliams, a man sentenced to death thirty-one years ago in Alabama, without any assistance of a mental health expert, despite evidence that he was psychotic and had organic brain damage. His lawyers argued he had no way to show the jury he did not deserve the death penalty without his own medical expert. The Justices agreed.

    The ruling may impact death penalty cases around the country, where mental health evidence is often central. But the ripple effects may be felt across our entire criminal justice system, where as a shocking federal report highlighted last week, vast numbers of people in our jails and prisons have serious mental health issues.

    As a fundamental matter of due process, the Justices said in McWilliams’ case, the judge must give a defendant, who cannot afford one, a mental health expert to effectively “assist in evaluation, preparation, and presentation of the defense.” The Court also emphasized that the simplest way to be sure the defendant has a fair trial is to provide a qualified expert.  

    Instead, what McWilliams received was a “Lunacy Commission”---yes that was what it was called in Alabama---with three experts who readily concluded he was sane and had no relevant mental health problems worth telling the jury about. One government expert did note he had “genuine neuropsychological problems” and records showed he was being given several psychotropic medications in jail, including anti-psychotics. The defense lawyer asked repeatedly for an expert to examine those records and examine McWilliams. The trial judge always refused. 

  • June 12, 2017
    Guest Post

    by Virginia Sloan, President of the Constitution Project and Sarah Turberville, Director of Justice Programs, The Constitution Project

    Outside of the legal profession, judicial estoppel, or the doctrine that prevents a party to a lawsuit from taking inconsistent positions about the same issue at different phases of the legal proceeding, is not particularly well-known. However, it speaks to the core value of integrity in the judicial system, preventing misuse of the courts and promoting equity among litigants. Non-attorneys unfamiliar with the legal doctrine of judicial estoppel need look no further than pending lethal injection litigation in Ohio to understand its crucial importance in our system.

    In a remarkable series of losses and appeals, Ohio state officials are currently attempting to convince yet another federal court to allow them to use a lethal injection protocol which is in direct violation of representations state officials made eight years ago in order to prevail at an earlier phase of the ongoing litigation.  

    They have already lost twice, but state officials recently secured rehearing so their appeal will now be heard by the full U.S. Court of Appeals for the Sixth Circuit. That argument is scheduled for June 14, 2017 in Cincinnati.

    To understand the situation, it is necessary to go back and look at the lawsuit and landscape when the State originally made definitive statements about its lethal injection protocol. 

    From 1999-2009, Ohio conducted executions using a three-drug method that included sodium thiopental, a barbiturate, followed by pancuronium bromide, a paralytic agent and then potassium chloride to stop the heart. Over the years, various legal challenges questioned the constitutionality of that drug combination, given the intense pain caused by the second and third drugs. Multiple other states also used this drug combination; and criticism was mounting, in Ohio and elsewhere, as evidence accumulated calling the continued use of the method into question.