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April, 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