Archive for

2017



Hard to Understand: The Execution of Ledell Lee

I can’t stop thinking about Ledell Lee.

Since his execution last Thursday in Arkansas, the state executed two other individuals on Monday back-to-back, a first for any state since 2000. Eight men were slated to die in Arkansas over 10 days, beginning the day after Easter. A few have gotten reprieves, though perhaps only temporary. Three others are now dead. There are still victims’ families who are waiting, enduring this legal morass that is the death penalty system. Corrections officers’ who have been through three executions in six days will be asked to carry out others, even with all the risk associated with the use of the problematic drugs. It is reported that Marcel Williams’s execution did not go off as planned on Monday as he gasped and arched his back before finally getting still.

What is hardest for me to get my head around though is the complete breakdown of the legal process for Mr. Lee.  Mr. Lee received a death sentence over twenty years ago for the murder of Debra Reese. It is unimaginable what her family has been through during the past two decades. But all those years in court mean little if the defendant’s attorneys didn’t do their jobs. Mr. Lee received inadequate and ineffective representation at every stage of his case.

His trial lawyers failed to conduct a thorough investigation into his background for the mitigation phase of his trial, not even speaking to many of his siblings. And, they didn’t bother to talk to his mother about testifying. Instead of  a mitigation specialist, trial counsel hired a former police officer with no training or mental health background to investigate the case.

Then there is the performance of his post-conviction attorney. According to a Fair Punishment Project report:

Lee’s first state post-conviction attorney had substance abuse problems that left him “impaired to the point of unavailability on one or more days of the Rule 37 hearing.”[120] The Arkansas Supreme Court noted several examples of his lawyer’s “troubling behavior,” including “being unable to locate the witness room;” “repeatedly being unable to understand questions posed by the trial court or objections raised by the prosecution;” “not being familiar with his own witnesses;” and “rambling incoherently, repeatedly interjecting ‘blah, blah, blah,’ into his statements.”[121] Unsurprisingly, Ledell lost his state-post conviction petition. Eventually, the Arkansas Supreme Court recognized that Lee received grossly inadequate representation and withdrew its opinion, giving him new counsel.[122]

These new counsel were not much better, missing an important filing deadline. At one point, they were referred by the Arkansas Supreme Court  to the Committee on Professional Conduct.

The Arkansas court finally appointed the Arkansas Federal Defender to represent Mr. Lee. That office tried to litigate a claim that Mr. Lee was intellectually disabled. The state argued that he had procedurally defaulted this claim by not bringing it up earlier, and before the issue could be litigated, the federal defender was removed from the case due to a conflict.

And if this wasn’t enough, as his execution approached, the Innocence Project volunteered to test untested DNA evidence in Mr. Lee’s case at no cost to the state. Mr. Lee had proclaimed his innocence for 24 years, since his arrest. The state refused.

After his execution, the Innocence Project issued a statement saying, “Ledell Lee proclaimed his innocence from the day of his arrest until the night of his execution twenty-four years later. During that time, hundreds of innocent people have been freed from our nation’s prisons and death rows by DNA evidence. It is hard to understand how the same government that uses DNA to prosecute crimes every day could execute Mr. Lee without allowing him a simple DNA test.”

Hard to understand indeed.

 

 

(Picture: Benjamin Krain/The Arkansas Democrat-Gazette via AP, File)

 

 

 

 

 

 

Act Now to Prevent Arkansas’ Planned 8 Executions in 10 Days

Arkansas is set to execute eight men in a 10-day period this month in order to use the state’s execution drugs before they expire. In Arkansas’s protocol, the drug midazolam is supposed to induce unconsciousness before the other drugs are administered to stop the inmate’s breathing and their heart. Midazolam slows brain activity and allows for relaxation and sleep, but according to the Food and Drug Administration, it is not approved for use as an anesthetic by itself.

Midazolam has been involved in several botched executions, including the case of Clayton Lockett from Oklahoma, who lived for about 45 minutes after he was administered lethal injection drugs. He was seen convulsing and writhing before dying of a heart attack. Other problematic executions involving midazolam include the execution Joseph Wood in Arizona (which took two hours) as well as the execution of Dennis McGuire in Ohio.

Beyond the problems with the drug protocol and the rush to execute in Arkansas, Harvard’s Fair Punishment Project recently released a report about the eight men scheduled to die there: “At least five of the eight cases involve a person who appears to suffer from a serious mental illness or intellectual impairment. One of these men was twenty at the time of the crime, suffered a serious head injury, and has a 70 IQ score. Another man suffers from paranoid schizophrenia and believes that he is on a mission from God. He sees both his deceased father and reincarnated dogs around the prison.”

The U.S. Supreme Court has ruled that executing individuals with intellectual disabilities is a violation of the Eighth Amendment of the Constitution. The Court has also ruled it unconstitutional to execute individuals who do not have a basic competency to understand why they are being put to death.

Director of the Fair Punishment Project Rob Smith writes, “The Supreme Court reaffirmed that the death penalty is supposed to be reserved for the most culpable offenders, and yet it is very clear that individuals facing execution in Arkansas suffer from a number of crippling impairments that show they do not even come close to meeting that bar.”

The report also notes that the lawyering in some of these Arkansas cases was just bad. Some of the trial lawyers failed to perform basic duties, neglected to hire mitigation specialists to evaluate their client’s mental health, and did not talk to the defendants’ family members about their clients’ mental health histories.

The issues with mental health and the death penalty currently on display in these Arkansas cases confirm the importance of the work of the Tennessee Alliance for the Severe Mental Illness Exclusion (TASMIE) coalition to exclude individuals with the most severe mental illnesses from the death penalty.

In this legislative session, Senators Richard Briggs and Janice Bowling sponsored SB 378 to excluded those with severe mental illness from the death penalty, not only providing a safeguard for these very sick individuals but also potentially sparing victims’ families decades of capital litigation while saving taxpayers millions. The bill did not come up for a vote, but instead, the Senate Judiciary will conduct a study before next legislative session to hear more testimony about the merits of this bill.  Without such an exclusion moving forward, Tennessee will face the same problems as Arkansas as the state continues to sentence those with severe mental illness to death.

ACT NOW to help stop the assembly line of execution planning by Arkansas Governor Asa Hutchinson, please click the link and take a few seconds to fill out this petition: http://act.ejusa.org/p/dia/action3/common/public/?action_KEY=24486&track=ActionAR8in10-EM

Reflection on Justice Day

Lately I have felt frustrated with politics, isolated, and not sure what to do about it. I believe that our nation is great because every voice and vote matter, but our lives are so busy and the problems so big that we sometimes neglect our role as citizens. On March 8th, TADP invited me, along with supporters from all across the state, to come to Nashville to speak with legislators face to face about our concerns with the death penalty.

That was the goal of TADP Justice Day on the Hill: to give legislators the facts about how the current death penalty system is failing Tennesseans. With 30 people dedicated enough to travel from their respective parts of the state to Nashville, we not only shared with lawmakers but with each other. We stood with those whose lives have been directly impacted—the wrongfully convicted and murder victims’ families—to make sure our voices were and are heard.

It is because I was given the opportunity to listen to the beliefs of so many Tennesseans about the death penalty from such a variety of perspectives that I am now convinced that repeal is achievable. And, from hearing the feedback given by Tennessee lawmakers, I have reason to believe that they are becoming increasingly concerned about the policy as well.

To all of the murder victims’ family members who joined us, the wrongfully convicted, the educators, clergy, members of law enforcement, and others, thank you. You are the proof that democracy can work and the reason there will be an end to the death penalty in this state. Without you, without your dedication, support, and your voices, we would not be where we are. I am blessed to be a part of a community whose members take their responsibility as citizens so seriously.

 

Emily N. Haas, TADP Intern

How Broken Can it Be? The Cases of Duane Buck and Andrew Thomas

I have been involved with working to end the death penalty in some capacity now for over twenty years now. One would think after all this time, I would cease to be surprised by the things I discover about just how flawed the system is. And just when I think I have heard it all, I am proven wrong again.

Take the case of Duane Buck. On February 22, the U.S. Supreme Court ruled in a 6 to 2 decision that the Texas death row inmate would receive a new sentencing hearing. It seems that in the sentencing phase of Mr. Buck’s original trial, a psychologist testified to the jury that black defendants were more dangerous than white ones. And ironically, the psychologist was testifying on behalf of the defense.

Mr. Buck’s lawyers presented a report from the psychologist, Walter Quijano, who said that race was a factor to consider in determining future dangerousness of a defendant. Mr. Buck’s lawyer asked Dr. Quijano to elaborate. Dr. Quijano testified, saying, “It’s a sad commentary that minorities, Hispanics and black people, are overrepresented in the criminal justice system.” A prosecutor then asked a follow up question: “The race factor, black, increases the future dangerousness for various complicated reasons — is that correct?” Dr. Quijano answered, “Yes.”

Chief Justice Roberts wrote in the opinion awarding Mr. Buck a new sentencing hearing,

“Our law punishes people for what they do, not who they are. Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle.

Then on Friday, February 24, Tennessee death row inmate Andrew Thomas was awarded a new trial on his state conviction by the U.S. Sixth Circuit Court of Appeals. Mr. Thomas, who was given a death sentence for the murder of armored truck guard James Day in Memphis (a man who died two year after the robbery), was awarded a new trial when the court found that Thomas’ prosecutor had a duty to disclose that an important witness had been paid prior to the trial.

According to the Commercial Appeal, the judges keyed in on part of the case in which now-Shelby County District Attorney General Amy Weirich, who prosecuted Thomas, questioned the witness, Thomas’ former girlfriend Angela Jackson. Jackson denied being paid.

“Have you collected one red cent for this?” Weirich asked Jackson, according to a trial transcript.

“No, ma’am,” Jackson replied. “I have not.”

The judges said in the ruling that the prosecutor’s failure to disclose the evidence was “egregious.”

“This is all made even worse by the fact that the prosecutor failed to correct the record even after Jackson squarely denied receiving any ‘reward’ money in exchange for her testimony against Thomas,” the court said.

The ruling in the Thomas case comes as Weirich is also facing professional ethics charges by the Tennessee Board of Professional responsibility alleging misconduct in a separate case — the 2009 prosecution of Noura Jackson in the death of her mother, Jennifer Jackson. A hearing on those charges is scheduled for March. Also of concern in the Jackson case is the prosecution’s failure to turn over a witness statement to Jackson’s attorneys until after the trial.

In another case in 2014, Weirich denied knowledge of an envelope in the murder trial of Vern Braswell. Defense attorney Lauren Fuchs alleged that another lawyer, who had worked on the case previously, found an envelope marked with Weirich’s initials and “Do not show defense.”

Both the Buck and Thomas cases demonstrate just why we cannot trust the death penalty system to fairly and accurately determine who lives and who dies. These cases highlight again that no matter how much we work to improve the system, fallible human beings are not capable of being fair and accurate 100% of the time. There are too many factors in play. Taking a person’s life, when we already have cheaper alternatives to protect society and hold offenders accountable, has no place is such a system.

Read more about Duane Buck’s case.

Read more about Andrew Thomas’ case.

Photo of Andrew Thomas from the Commercial Appeal

The Value Life

I am a Catholic and a conservative. As such, I believe in the dignity and  equality of every human life; a belief that the founders of our nation also claimed when they wrote that, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Though it has taken us years as a nation to live up to these ideals, and we are not there yet, our founders believed that such rights are rights to which our nation should aspire.

Pope John Paul II wrote in Solictude Rei Socialis, “At stake is the dignity of the human person, whose defense and promotion have been entrusted to us by the Creator.”

Pope Francis then expanded on his predecessor’s thoughts  saying, “There is neither real promotion of the common good nor real human development when there is ignorance of the fundamental pillars that govern a nation, its non-material goods: life, which is a gift of God, a value always to be protected and promoted; the family, the foundation of coexistence and a remedy against social fragmentation; integral education, which cannot be reduced to the mere transmission of information for purposes of generating profit; health, which must seek the integral well-being of the person, including the spiritual dimension, essential for human balance and healthy coexistence; security, in the conviction that violence can be overcome only by changing human hearts.”

The death penalty simply does not fit within the framework of human dignity and equality, both deeply held convictions of my faith and of our nation. The death penalty destroys life, harms surviving murder victims’ families by dragging them through the court system for decades with little hope of legal finality while traumatizing the families of the executed who broke no law themselves, never mind that it risks executing innocent people which can never, under any circumstances, be called justice. It wastes millions of dollars that could be used in the prevention of crime, compensation for victims’ families, and support of law enforcement, which would make our communities stronger and safer.

The right to life is not exclusive. It should not be determined based on where a person lives, a person’s skin color, or having money in the bank. Human dignity is something God gives each of us, whether we are deserving or not. With alternatives to the death penalty, we can keep our communities safe, support victims’ families, and save dollars that can be used for other needs in our state without taking a life. As a pro-life Christian, I am committed to a culture of life in our nation, and this includes the end of the death penalty.

 

Emily N. Haas, TADP Intern

# 157: Another Death Row Inmate Exonerated

On January 19, 2017, Isaiah McCoy, a former Delaware death row inmate, was exonerated when a judge acquitted him at a retrial. Mr. McCoy became the 157th person exonerated from death row in the U.S. in the modern era of the death penalty and the first in 2017.

Mr. McCoy was convicted and sentenced to death in 2012, but the Delaware Supreme Court overturned his conviction in 2015 as a result of prosecutorial misconduct and ordered a new trial. The Court suspended Deputy Attorney General R. David Favata from practice because of his misconduct at Mr. McCoy’s trial. Favata not only belittled Mr. McCoy for representing himself, but he also made intimidating comments to Mr. McCoy during a break in proceedings. Then, Favata lied to the judge about making the comments.

Because Mr. McCoy waived his right to a jury for his retrial, Kent County Superior Court Judge Robert B. Young made the decision to acquit based on the lack of physical evidence and that the two alleged accomplices had given contradictory testimony, including one accomplice who received a reduced sentence for his testimony against Mr. McCoy.

Upon his release, Mr. McCoy said, “I just want to say to all those out there going through the same thing I’m going through ‘keep faith, keep fighting. Two years ago, I was on death row. At 25, I was given a death sentence – and I am today alive and well and kicking and a free man.”

On February 1, 2017, Rhodes College and TADP will present a panel called A Broken System: Perspectives on the Death Penalty in Tennessee, featuring speakers including Sabrina Butler Porter. Mrs. Porter is one of only two women in the U.S. to be exonerated from death row.

In 1990, Sabrina Butler Porter, a 17 year-old mother from Mississippi, was convicted of murdering her nine-month-old son, Walter. She was later exonerated of all wrongdoing and is one of only two women in the United States exonerated from death row.

On April 12, 1989, Mrs. Porter rushed Walter, who had already been diagnosed with a heart murmur, to the hospital after he suddenly stopped breathing. Doctors attempted to resuscitate the baby, but failed. The day after her son’s death, Mrs. Porter was arrested for child abuse because of the bruises left by her resuscitation attempts. She was convicted of capital murder and sentenced to death.

Her conviction was overturned by the Mississippi Supreme Court in 1992 (Butler v. State, 608 So.2d 314 (Miss. 1992)). The court said that the prosecution had failed to prove that the incident was anything more than an accident. At re-trial, she was acquitted on Dec. 17, 1995 after a very brief jury deliberation. It is now believed that the baby may have died either of cystic kidney disease or from sudden infant death syndrome (SIDS). Mrs. Porter was spent more than five years in prison and 33 months on death row.

Sabrina Butler Porter now joins other exonerees in the Tennessee area, including Ray Krone, Paul House, Michael McCormick, Gussie Vann and Perry Cobb. Ndume Olatushani was released from death row in Tennessee in 2012 after spending 28 years in prison and 20 of those on death row. He took an Alford plea, allowing him to maintain his innocence while taking a plea for an immediate release.

The list of those sentenced to death for crimes that they did not commit continues to grow, and it is imperative that Tennesseans hear their stories. I hope you can join us in Memphis on Feb. 1 to hear Mrs. Porter’s story and to become educated on just how broken Tennessee’s death penalty system is.

Picture from http://www.delawareonline.com/story/news/crime/2017/01/09/dover-murder-retrial-begins-former-death-row-inmate/96199288/