2017-04-25 13:56:27 UTC
Texas Prisons Violate Internationally Recognized Human Rights Standards: Report
Prisons in Texas are in violation of international human rights standards and
deny civil rights of its prisoners on death row kept in solitary confinement, a
report released Monday by the Human Rights Clinic of the University of Texas
School of Law concludes.
Titled "Designed to Break You: Human Rights Violations on Texas' Death Rows,"
the 48-page report calls for a sweeping array of changes in the operation of
the Texas Department of Criminal Justice centered on policies related to the
use of solitary confinement as a punitive measure and access to healthcare.
Texas death row inmates spend an average of more than 14 years awaiting
execution in solitary confinement, posited by UT-Austin researchers as akin to
torture, an assessment shared by several human rights organizations.
The study comes amid a backdrop of prolific capital punishment in Texas, a
state that executes more prisoners than any other state - by far. This year
alone, 4 people have been put to death through the use of the drug
Pentobarbital for various crimes: Christopher Wilkins, 48, executed Jan. 11;
Terry Darnell Edwards, 43, executed Jan. 26; Rolando Ruiz, 44, put to death on
March 7; and James Bigby, 61, executed March 14 (Source: Death Penalty
The 4 prisoners put to death this year all had been awaiting execution for
years, and in once case decades. Wilkins had the shortest wait at 8 years,
while Bigby sat on death row for 25 years, according to data collected by the
Death Penalty Information Center.
The prisoner with the longest time on death row is Raymond Riles, who has been
sitting on death row for more than 41 years after robbing and killing a Houston
used car salesman in 1974. Due to mental illness, he was previously considered
ineligible to be executed, but prison officials said he could become eligible
given continual testing of his mental state. In 1985, Riles attempted suicide
by setting his prison cell on fire.
The list of prisoners sitting on death row is so great, that even WikiPedia
doesn't attempt to list them all: "Due to the high number of Texas death row
inmates, only prisoners with Wikipedia pages are listed in this article,"
WikiPedia reads. "The full list is externally linked."
According to the Texas Department of Criminal Justice, the number of death row
inmates is nearly 250.
Among recommendations outlined in the University of Texas School of Law report
is an end of solitary confinement for prisoners suffering from mental illness
or physical disabilities, enhanced healthcare access, provision of religious
services and greater access to outdoor recreation.
"The State of Texas stands today as one of the most extensive utilizers of the
death penalty worldwide," the report's author's wrote. "Consequently, inmate
living conditions on Texas??? death row are ripe for review. This report
demonstrates that the mandatory conditions implemented for death row inmates by
the Texas Department of Criminal Justice (TDCJ) are harsh and inhumane."
The upshot: "Conditions on death row at TDCJ's Polunsky Unit must be remedied
posthaste," the report's authors concluded.
Texas re-introduced the practice of mandatory solitary confinement - total
segregation of individuals confined to their cells for 22 to 24 hours a day -
for all prisoners convicted of capital murder. The practice bans recreation or
eating with other inmates as death row inmates are confined to cells of average
size of 8 feet by 12 feet in size, the report's authors noted.
The cells consist only of a sink, toilet and 30-inch wide steel bunk with a
thin plastic mattress, according to the findings. Most include a small window,
but inmates are only able to see oudoors by rolling up their mattresses to
stand on them, according to the report.
"Every individual on Texas???'death row thus spends approximately 23 hours a
day in complete isolation for the entire duration of their sentence, which, on
average, lasts more than a decade," researchers found. "This prolonged solitary
confinement has overwhelmingly negative effects on inmates' mental health,
exacerbating existing mental health conditions and causing many prisoners to
develop mental illness for the 1st time."
Stays of execution, when execution dates are re-set for a variety of reasons,
also play havoc on prisoners' psychological state, according to the report: "In
addition to the detrimental effects of isolation, the practice of setting
multiple execution dates means that many prisoners are subjected to the
psychological stress of preparing to die several times during their sentence."
In 1999, Texas reintroduced the practice of mandatory solitary confinement for
every individual convicted of capital murder. Solitary confinement involves
total segregation of individuals who are confined to their cells for 22 to 24
hours per day, with a complete prohibition on recreating or eating with other
inmates. An average cell is no bigger than 8 feet by 12 feet, the authors of
the report found. Those cells contain only a sink, a toilet, and a 30-inch-wide
steel bunk with a thin plastic mattress.
The report also found death row inmates find access to health care challenging.
"Inmates on death row experience severe barriers to accessing medical care, in
part due to being housed in solitary confinement and being less able to
effectively self-advocate. Inmates are not offered regular physical or
psychological check-ups, and must rely on the guards to communicate and
facilitate any healthcare appointments. Such requests for care are, at best,
responded to within a few days, but can go several weeks without a response and
are often ignored or forgotten about," researchers found.
Prison conditions are exacerbated given a lack of access to psychological
healthcare, according to the report.
"In terms of psychological healthcare - an issue of great importance given that
a large majority of inmates on death row suffer from some form of psychological
illness - only inmates who were already taking psychiatric medication are able
to meet regularly with psychiatrists," the report reads. "Of those inmates who
are eventually given access to psychological care, they are generally only
prescribed some form of psychiatric medication, thus exacerbating the unmet
need for some form of counseling or non-pharmaceutical therapy. Inmates with
mental illness who do not necessarily want or need prescription drugs are
essentially provided with only 2 options: take unwanted medication, or forgo
psychological healthcare entirely."
One prisoner on death row, Andre Thomas, was convicted of stabbing his wife and
children to death. 5 days after the killings, he removed 1 of his eyeballs with
his bare hands, but his mental illness was deemed to be largely
substance-induced thus deeming him fit to stand trial. Originally placed in the
Polunsky Unit where the men's death row is located, he attempted suicide by
cutting his throat. On Dec. 9, 2008, he removed his remaining left eye and ate
The lack of access to religious services also is covered in the report.
Christian Bibles are the only religious materials available from the prison
chaplain in Texas, according to the report. But even for Christian inmates
needed theological counsel, access to ministers is rarely provided save for the
holiday season, according to the findings.
"For inmates of different faiths, such as Islam or Judaism, the situation is
more difficult as they must solely rely on outside sources for their religious
materials. They are provided with no access to practice their chosen faith, and
are often met with contempt when seeking such access," authors found. "This has
created a harsh environment for inmates who do not adhere to Christianity, and
has enabled a discriminatory system on the basis of religion on Texas' death
The report prepared by the Human Rights Clinic at the University of Texas
School of Law cites other sources echoing their findings, including the the
Inter-American Commission on Human Rights. The report's authors cite such
safeguards against inhumane conditions as outlined by the Universal Declaration
of Human Rights and the American Declaration on the Rights and Duties of Man.
"The Inter-American Commission on Human Rights and other human rights bodies
have repeatedly issued opinions decrying the inhumane conditions present at the
Polunsky Unit. Particularly, international human rights bodies had considered
that the prolonged and mandatory use of solitary confinement is
'disproportionate, illegitimate, and unnecessary,'" the report's authors wrote.
U.S. Supreme Court justices express caution, intrigue in death penalty
case----U.S. Supreme Court justices Monday expressed concerns about the
caseload federal appeals courts might see if they allow Texas death row inmate
Erick Davila another chance in a lower court because of an error his lawyer
made in the appeals process.
U.S. Supreme Court justices wrestled Monday with the possible implications of
siding with a Texas death row inmate who argues his case should have another
chance in federal court because his appellate attorney neglected to bring up a
The court appeared split along ideological lines during the hearing, with
Justice Anthony Kennedy - often a swing vote - sharing the same concerns as the
A ruling on the case is expected by the end of June, when the court's term
The origins of the case dates back to 2008, when Erick Davila fatally shot a
rival gang member's 5-year-old daughter and mother during another girl's
birthday party in Fort Worth. Davila, 30, claims he intended only to kill his
rival, Jerry Stevenson.
To find Davila guilty of capital murder, jurors had to determine that he
intended to kill multiple people, and Davila's main defense was that he only
intended to kill Stevenson. Tarrant County prosecutors countered by pointing to
Davila's confession to police: "I was trying to get the guys on the porch, and
I was trying to get [Jerry Stevenson]."
As jurors deliberated, they focused on the intent issue, asking the judge if
they should decide whether Davila intended to kill his 2 victims or if he
intended to kill someone and in the process fatally shot 2 others.
The judge instructed jurors that Davila would be responsible for a crime if the
only difference between what happened and what he wanted was that a different
person was hurt - without affirming to them that Davila must have intended to
kill more than 1 person.
Davila's lawyer objected to the judge's instruction but was overruled. It was
the right move by the lawyer, but it hurt Davila in the long run, according to
Seth Kretzer, who argued on Davila's behalf before the justices in Washington,
The judge's instruction wasn't brought up during Davila's automatic, direct
appeal,and another lawyer handling Davila's state habeas appeal - which focuses
on facts outside of the trial record - didn't claim the appeals lawyer should
have brought it up. 2 big mistakes, according to Kretzer.
Death penalty cases can also be appealed in the federal court system, but it is
generally ruled that issues that could be raised at the state level can't be
reviewed federally. So, when a federal lawyer tried to raise the claim that
Davila's lawyer in the direct appeal was ineffective for not faulting the
judge's instruction, federal courts said they couldn't rule on that because it
could have been brought up during the state habeas appeal.
There is an exception to this rule, created in the Supreme Court decision
Martinez v. Ryan, which says that if state habeas lawyers fail to raise the
issue of ineffective trial counsel, the federal courts can still hear it to
ensure that defendants are guaranteed their Sixth Amendment right to a fair
Justice Samuel Alito told Kretzer that applying Martinez to Davila's case would
burden federal appeals courts with numerous claims of errors from both trials
"If we accept your argument, it applies everywhere, and it's not limited to
ineffective assistance of counsel," Alito said, according to the court's
transcript. "... it applies to every single - every single type of error that
could occur at trial."
Kretzer disagreed, saying that if the Supreme Court sided with his client, it
would only apply to claims of bad lawyering during the appeals process.
"But the ineffective assistance of appellate counsel would be based on any type
of error that occurred at trial," Alito said. "So here you have a jury
instruction error. But if we agree with you, it would apply to the erroneous
introduction of evidence, to the - to improper statements made in closing, to
any type of trial error, any type of constitutional trial error you can dream
Justice Stephen Breyer, a noted death penalty critic, said it wouldn't be a
huge burden for federal appeals courts to hear more cases similar to Davila's
but added that he thought Alito made an interesting point. Breyer asked what
the difference was between raising the claim that a lawyer messed up during
trial and during the appeals process.
"I mean, I'm just probably missing it, but what - what is a case where - where
there's ineffective assistance of appellate counsel, but not ineffective
assistance of trial counsel?" Breyer said. "What is that case?"
Breyer expanded on what he saw as a conundrum in the rules of how and when
someone can raise the claim that they had a bad lawyer at trial and/or during
the direct appeal after trial.
"Suppose we said, yes, there is - it's the same situation, you know, you have
ineffective assistance - you have ineffective appellate counsel," he said.
"Well, obviously, you can't raise it because he was ineffective. So you never
had a shot at it. It's Catch-22. Same with the trial counsel."
Texas Solicitor General Scott Keller shared the same concern as Alito.
"Extending Martinez to appellate-IAC [ineffective assistance of counsel] claims
will have a huge systemic cost by opening up the entire trial and everything
that happened at trial to federal habeas review," he told the court.
Justice Sonia Sotomayor asked if that was enough of a reason to deny Davila.
She and other jurists had noted throughout oral arguments that even if more
claims were brought forward because the court sided with Davila, there would be
a "initial uptick of claims until people settle down and realize that it's a
small number that are viable," Sotomayor said.
If the high court rules in Davila's favor, the case would be sent back for
federal courts to review his ineffective counsel claim. If it sides with Texas,
Davila's appeal will be denied and he could become eligible for execution.
(source: Texas Tribune)
Former Mavericks ManiAAC acted out 'military delusion' the night he killed 4,
wounded 4, attorney says
Military service and repeated concussions playing football damaged Erbie Lee
Bowser's brain so severely he was in an altered mental state when he killed 4
women and seriously wounded 4 children, his defense attorney says.
Bowser pleaded not guilty by reason of insanity Monday during the 1st day of
his capital murder trial.
"Erbie Bowser had been at war with his brain a long, long, long time before the
abject horror of Aug. 7, 2013," attorney Andy Beach said, though it appears
Bowser embellished his military service by claiming he served overseas.
Military records show he wasn't in combat.
Bowser is accused of killing 4 women -- including his girlfriend and estranged
wife -- and wounding 4 children in 2 homes in 2013.
Authorities say Bowser fatally shot Toya Smith, 43, and her daughter,
17-year-old Tasmia Allen, in Dallas before driving to DeSoto and killing his
estranged wife, 47-year-old Zina Bowser, and her daughter, Neima Williams, 28.
Bowser also shot Smith's son, Storm Malone, and her daughter's friend Dasmine
Mitchell at the Dallas house. And he shot Zina Bowser's 2 young sons, according
to police records.
The 4 surviving victims testified Monday that Bowser was the person who shot
Bowser and Smith had been arguing before the shooting, said Mitchell, who had
been staying at the house in Allen's room for a few days. Mitchell, now 20,
said Allen left the bedroom and shouted for her to call 911.
Smith's son, Storm Malone, rushed into the bedroom and wedged himself against
the door while he tried to call for help.
They heard someone bang on the door and then gunshots. Smith's body fell into
Allen's body was found in the hallway, her feet near her mother's. Allen still
had a piece of pizza in her hand when officers found her body.
Bowser went into the bedroom and shot Mitchell twice in the abdomen and once in
the leg. Mitchell pulled up her shirt Monday to show the jury the scars on her
Malone said he doesn't remember much about the shooting. He was shot in the
shoulder and through the right side of his jaw, the bullet exiting the top of
his head. He suffered brain damage and some memory loss.
Mitchell said she heard the garage door open and loud music come on, the sound
of Bowser leaving the Dallas home.
In DeSoto, Chris and Myles White, Zina Bowser's sons, heard an alarm go off in
their house. They thought someone was breaking in. They ran into Chris' closet
with their 3-year-old nephew and hid the boy under a coat.
Their older sister, Neima Williams, turned out lights and shut doors.
"I heard my mom screaming, 'No Erbie, no' and then some gunshots," Chris White
While Bowser climbed the stairs, he called out to the others in the house. He
found them in the closet and shot all 3. He allegedly didn't see the
Myles White, now 14, remembers Bowser shooting his older sister. He remembers
seeing Bowser with the gun but doesn't recall much about when he was shot.
"I was wondering if he was going to shoot us because my brother and I, we were
just kids," Myles White said. "It's inhumane."
Chris White was shot in the shoulder, the bullet traveling through his body and
piercing his spinal cord. He couldn't feel or move his legs after the shooting.
Now, Chris uses crutches to get around. He is able to walk with his left leg,
but his right leg is atrophied. He hopes to be able to walk unassisted again.
"I've been working on it for a few years," he said.
Before the slayings, Bowser -- who is 6-foot-7 and weighs 400 pounds -- was
known as a "gentle giant" who danced with the Dallas Mavericks ManiAACs. He
once taught special-education classes in Mesquite ISD.
But he was also accused of threatening his wife, Zina Bowser, with a knife
after she filed for divorce in 2011.
The Dallas County district attorney's office is seeking the death penalty if
Bowser is convicted. Public defender Brad Lollar is the lead attorney
representing the 48-year-old man.
Lollar filed a motion to delay the case in December, saying former District
Attorney Susan Hawk's public statements on mental illness made her the wrong
person to decide whether to seek the death penalty against a man with a record
of mental problems, which his defense says can be blamed in part on brain
injuries he suffered playing high school and college football.
State District Judge Tracy Holmes allowed jury selection to continue as planned
Prosecutor Glen Fitzmartin told jurors during opening statements Monday that it
was up to them to determine the truth. To be found not guilty by reason of
insanity in Texas, the defense must prove the suspect suffered a mental illness
and did not know the difference between right and wrong at the time of the
Fitzmartin said that after Bowser shot the 4 people in the Dallas home, he
drove to DeSoto, where he kicked in the back door of his estranged wife's
house, shot her, set off a hand grenade and went upstairs.
After responding to the Dallas house, officers called DeSoto police to warn
them the shooter was missing and might be headed there. When DeSoto police got
to the house of Bowser's estranged wife, he was upstairs and could be heard
saying, "This floor's clear. This floor's clear," Fitzmartin said.
Beach said Bowser was acting out a "military delusion" and repeatedly recite
his Army identification number as though he were a prisoner of war.
Once Bowser's medications -- he was prescribed 14 before the night of the
killings -- were regulated, "the gentle giant returned," Beach said.
(source: Dallas Morning News)
State to seek death penalty in Polk County toddler's death
A Cedartown man charged in the murder of a Polk County toddler is facing the
Dustin Drew Putnal is accused of murdering Ella Grayce Pointer, who was just
21-months-old when she died. Monday morning in court, an attorney for Putnal
said the State intends to seek the death penalty.
"Ella Grayce was so precious, such a beautiful child. She was always laughing
and giggling and playing," said grandmother Dorothy Garner.
On October 28, 2016, Polk County Police and EMS personnel were dispatched to
Putnal's apartment at 45 Adamson Drive where they found the child not
breathing. She was taken to Polk Medical Center in critical condition and then
flown to Egleston, where she later died.
The girl's grandfather said the family was told by staff at the hospital that
the girl had been beaten and assaulted. According to police, she had possibly
been sexually assaulted and suffered severe head trauma.
The Georgia Bureau of Investigation was called in to assist the Polk County
Sheriff's Office with the investigation.
According to police, Putnal is facing a number of charges including murder,
felony murder, 2 counts of aggravated child molestation, aggravated sexual
battery and felony cruelty to children.
(source: Fox News)
Testimony begins in Juan Rosario's death-penalty trial
Every night, Elena Wilson would call her 83-year-old mother and go through a
checklist that eased her worries about letting her live alone: Did she lock the
door? Did she secure the chain? Did she leave a light on?
On Monday, more than 3 years after her mother, Elena Ortega, was found dead in
her home, Wilson broke into tears on the witness stand in the Orange County
Courthouse on the 1st day of testimony in the trial of 30-year-old Juan
Rosario, who could face the death penalty if convicted of her mother's murder.
"She just didn't want to leave the house where they had lived for many years,"
Rosario's is the 1st death-penalty case to go to trial since Orange-Osceola
State Attorney Aramis Ayala announced she will not seek the death penalty in
any case. It is 1 of 23 cases Gov. Rick Scott took away from her office,
reassigning it to Ocala-based State Attorney Brad King. Ayala has filed suit to
get the cases back, but Rosario???s trial has been allowed to go forward.
King sat in the courtroom Monday, though three Orange County prosecutors
handled the case from the state's table.
In his opening statement to the jury Monday morning, Assistant State Attorney
Ryan Williams described in detail what Rosario's ex-girlfriend has told
authorities - that Rosario came home with blood on his face and told her that
he had robbed a house and that the resident saw him, so he had to go back and
destroy the evidence. Prosecutors say he set 3 fires in an attempt to do that.
Defense attorney Roger Weeden contended that the girlfriend, Janet Gutierrez,
has a history of drug addiction, has changed her story, admitted to hiding
evidence in Ortega's killing and is not a reliable witness.
On Monday, first responders and investigators described how Ortega was found:
wearing a nightgown, kneeling on the floor and hunched over the bed. There were
3 gashes in her skull, and her white bed sheet was stained with blood and soot.
A medical examiner said soot around her nostrils and in her windpipe indicates
she was still breathing after the fire started.
Jurors also saw crime scene photos that showed the home in disarray. Someone
had pulled drawers out of dressers and thrown open cabinets, apparently looking
3 fires - set in a hall closet, a laundry room and a sewing room - produced
soot that covered the leather couch in the living room and the white floor
tiles in the kitchen. Firefighters, rushing in to extinguish the blaze, smashed
windows and ripped out insulation.
Prosecutors said they expect to put Gutierrez on the stand Tuesday. Gutierrez,
who was living with Rosario within walking distance of Ortega's home at the
time of the killing, contacted authorities after Rosario was sentenced to 18
years in prison for a separate home invasion months after the killing.
Gutierrez has told authorities she buried the things Rosario is accused of
stealing from Ortega in their back yard. He later made her dig them up, but she
forgot 1 clear plastic bag, Williams said. About 9 months later, investigators
dug up the yard and found Ortega's makeup bag, with her library card inside.
This is the 1st death-penalty case to go to trial in Orange County since
Bessman Okafor's in 2015. Florida???s death-penalty statute has since changed,
requiring all 12 jurors, not just a majority of them, to recommend the death
penalty in order for defendants to be put on death row.
Attorneys spent all of last week picking a jury of 18, including 6 alternates -
16 women and 2 men.
Ayala Gets Prominent Backers In Death Penalty Dispute
An issue that has long been argued inside and outside of Florida courtrooms is
again coming to a head.
Ex-prosecutors, former state Supreme Court justices, civil-rights organizations
and families of homicide victims from across the country have filed briefs
supporting embattled Central Florida State Attorney Aramis Ayala in her legal
battle with Gov. Rick Scott.
Lawyers representing the groups filed more than a half-dozen
friend-of-the-court briefs Friday in Ayala's Florida Supreme Court challenge
against the governor and Ocala-area State Attorney Brad King after Scott
reassigned 23 death-penalty cases being handled by Ayala's office to King.
The briefs came after the Florida House of Representatives, the Florida
Prosecuting Attorneys Association and other families of victims notified the
court they intend to also file briefs in the case backing Scott.
Scott removed Ayala, the state attorney in Orange and Osceola counties, from
the cases after she announced in March she did not intend to seek death for
accused cop-killer Markeith Loyd or any other defendants charged with capital
Scott stripped her of the cases "in the interest of justice," the governor said
in a statement at the time.
"State Attorney Ayala's complete refusal to consider capital punishment for the
entirety of her term sends an unacceptable message that she is not interested
in considering every available option in the fight for justice," he said.
But legal experts - including many death penalty opponents - and Ayala's
lawyers maintain that Scott lacked the authority to reassign the cases, because
prosecutors enjoy broad discretion in charging decisions, including whether to
seek capital punishment.
The entrance into the case last week of former justices, prosecutors and others
from across the country - including 2 former U.S. solicitor generals appointed
by President Bill Clinton - has sharpened a national spotlight on the
controversy, focused largely on the separation of powers between different
branches of government.
"When one state actor usurps the responsibilities allocated to another, the
balance is upset, and the legitimacy of the justice system itself is called
into question. This is especially concerning where a defendant's life is at
stake," lawyers for the group wrote in a brief filed Friday.
Ayala's lawyer, Roy Austin, told The News Service of Florida that the case has
drawn national attention because, for many in the legal and civil rights
communities, the independence of the judicial system is at stake.
"The justice system is supposed to be, and holds itself out to be independent
of political influence. This is one of the clearest cases of an attempt to
politicize our justice system. So I think people nationally who care about the
independence of the justice system care about what happens in this case,"
Ayala, who unseated former State Attorney Jeff Ashton last year, argued that
she based her decision on research that shows the death penalty is not a
deterrent to crime, is discriminatory, is costly, leaves the families of
victims in limbo for too long, and is imposed on innocent people too often.
Within hours of her March announcement, Scott reassigned the case of Loyd -
accused of killing his pregnant ex-girlfriend, Sade Dixon, and the
execution-style murder of Orlando Police Lt. Debra Clayton - to King, and later
reassigned nearly 2-dozen other cases to the Ocala-area prosecutor.
Scott's handling of Ayala, Florida's 1st black elected state attorney, sparked
outrage from African-American lawmakers, civil rights groups and others who
accused the governor of singling out the prosecutor for political reasons, and
heightened a racial divide centered on disparities in the administration of
In contrast, a handful of GOP House members, along with House Speaker Richard
Corcoran, applauded Scott's decision to reassign the cases, and have urged the
governor to oust Ayala from office.
Lawyers for the House of Representatives, which has until May 3 to file its
brief in support of Scott, argued that the governor was correct to reassign the
cases after she announced she would not uphold the policies established by the
"The House can provide the (Supreme) Court useful insight regarding
petitioner's position about the role of a state attorney as an arbiter of
public policy adopted by the Legislature," House General Counsel Adam Tanenbaum
and Assistant General Counsel J. Michael Maida wrote in a petition filed
earlier this month.
The House intends to "address the exclusive role assigned by the Constitution
to the Legislature in the setting of public policy for the state and the ill
effects that flow from the refusal of a state officer or agent to enforce a
duly enacted legislative policy based on his or her disagreement with the
rectitude or efficacy of that policy," the House lawyers wrote.
The Florida Prosecuting Attorneys Association and family members of victims -
including Clayton's husband and Dixon's mother - have also asked permission to
file amicus briefs supporting Scott.
Some other victims' families - along with a handful of House and Senate
Democratic lawmakers - have filed briefs supporting Ayala. Like other backers,
many of them maintain that allowing the governor to 2nd-guess an elected
prosecutor's decisions could set a dangerous and far-reaching precedent. The
arguments mirror those made by Ayala's attorneys in the state and federal
"The correct decision in this case may be an unpopular one in some political
circles. Yet, if the criminal justice system in Florida is to remain a fair,
equitable and decentralized system, as envisioned by the Florida Constitution,
it is up to this court to support and protect it," lawyers for the former
prosecutors, justices and others wrote.
And, in a brief also filed Friday, lawyers representing the ACLU, the NAACP
Legal Defense & Educational Fund, the Sentencing Project and Floridians for
Alternatives to the Death Penalty also implied that Ayala's race could have
played a factor in her being "singled out" by Scott, when other prosecutors
frequently choose to seek life sentences instead of death.
"Florida prisons are full of inmates eligible for the death penalty who are
instead serving life imprisonment without parole. No governor, current or past,
looked over the shoulder of the prosecutors - heretofore always white -
responsible for those many prosecutions ending in life imprisonment."
(source: CBS news)
New Polk jury deciding between life or death sentence for convicted murderer
Convicted murderer Benjamin Davis Smiley Jr. is back in court today, this time
so a new jury can decide whether he should receive life imprisonment or the
death penalty for fatally shooting Clifford Drake during a 2013 home invasion
Assistant State Attorney Kristie Ducharme told jurors the state would present
evidence supporting 6 reasons for them to recommend that Circuit Judge Jalal
Harb should sentence Smiley, 24, to death. Most of them involved violent crimes
committed during Drake's murder and a 2nd Lakeland killing less than a month
Separate juries have convicted Smiley in both murders and prosecutors are
seeking the death penalty in each case, but the sentencing phases in those
trials were delayed while the Florida Supreme Court and the state Legislature
worked out issues related to the death penalty process.
Ducharme said prosecutors also intend to argue that Drake, 58, was murdered for
financial gain and that his killing was heinous, atrocious and cruel.
Bartow lawyer David Carmichael, representing Smiley, said Smiley's physicians
will testify that he experienced 2 brain aneurisms about six months before
Drake was killed, and those conditions left him with brain damage.
"You'll hear testimony about how it affected his thinking and reasoning, and
understanding of consequences and impulsivity," Carmichael told the jurors.
He said Smiley's aunt, Samantha Lee, and his cousin, John McDonald, were the
architects of the crimes leading to the murders of Drake and 46-year-old Carmen
Riley of Lakeland. They knew of Smiley's mental issues, he said, and they
recruited him to commit the crimes.
"They were not charged with this crime," Carmichael said.
In her opening statement to jurors today, Ducharme told them that Drake's
stepson, Mark Wilkerson, saw Smiley and another man outside the house and was
forced inside at gunpoint, where Drake was sleeping. The men demanded to know
where the safe and money were, and when Drake said he had neither, Smiley shot
him in the chest, Ducharme said.
During the trial in October, Wilkerson identified Smiley as the assailant in
his house, and additional testimony identified a sweatshirt and backpack found
in and near the house that contained Smiley's DNA.
Carmichael said the other man in the house with Smiley never has been
This week's sentencing hearing is expected to continue through Friday. Under
the state's new sentencing process, all 12 jurors must agree that prosecutors
have proven the death penalty should be imposed. Ultimately, the final decision
will rest with Harb.
(source: The Ledger)
Back at the Supreme Court, After Garland----It's strange being back in this
place, and stranger still to hear them debate lunacy.
It has not gone unobserved, at least by me, that I have not spent a good deal
of time this term in the Supreme Court. Some part of that is because I am
growing fat and lazy. But the more truthful explanation is that while the great
joy of my professional life has been to poke fun at serious institutions, the
high court has seemed markedly unserious since, through no fault of its own,
former President Barack Obama's court nominee was never seated. For people who
held the court out as unique and at least nominally above raw politics, it's
now come to look more and more like the land of misfit jurisprudential toys.
Despite all that, it's fun to be back.
Oral argument this morning in McWilliams v. Dunn looks to be a fairly
predictable split between the 4 liberal justices and the 4 conservatives, with
Justice Anthony Kennedy performing his customary demi-Hamlet at the middle. The
appeal probes what kind of expert psychiatric assistance an indigent defendant
should be given at trial. The case dates back to a 1984 capital conviction of
James McWilliams, who raped and murdered Patricia Reynolds during a robbery at
the Tuscaloosa, Alabama, convenience store where she worked.
In a 1985 case, Ake v. Oklahoma, the Supreme Court established that when an
indigent defendant's sanity becomes a major issue at trial, "the State must, at
a minimum, assure the defendant access to a competent psychiatrist who will
conduct an appropriate examination and assist in evaluation, preparation, and
presentation of the defense." McWilliams was, before his trial in 1986,
assessed by 3 doctors on an Alabama "lunacy commission" (yes, it was called
that) who concluded he was fit to stand trial and that there were no mitigating
circumstances that should influence his case. At his trial, his court-appointed
counsel put both McWilliams and his mother on the stand to testify about mental
health issues related to a childhood head injury. But McWilliams had no expert
to testify on his behalf. The jury found him guilty and voted 10-2 for the
death penalty. (In Alabama, the judge can hold a separate sentencing hearing.)
Records McWilliams had subpoenaed from prison never showed up before his trial.
But just before the judge sentenced him, those records, plus a detailed report
from a court-appointed psychologist, Dr. John Goff, who assessed McWilliams
after trial, were handed over to the judge, prosecutor, and defense counsel.
Goff, straying from the findings of the "lunacy commission," had concluded that
McWilliams had "organic brain dysfunction," and his 1,200 pages of prison
records revealed that he was being treated with strong psychotropic
medications. This all seemed sort of new and important.
So, at McWilliams' judicial sentencing hearing, his defense counsel begged for
a mental health expert to help understand the voluminous records he'd been
provided only hours earlier, saying he couldn't offer up mitigating evidence,
because he didn't even understand the evidence. The judge gave him 3 hours to
look over the records at lunch. After the defense asked to withdraw the records
from the trial (refused) and asked for a continuance to study the material
(refused), the trial judge sentenced McWilliams to death. On the question of
McWilliams' mental health, he determined the defendant was "feigning, faking
For people who held the court out as unique and nominally above politics, it's
come to look more like the land of misfit jurisprudential toys.
The issue at the Supreme Court today is simply whether the right to the kind of
expert assistance granted in Ake - "to conduct a professional examination ...
to help determine whether that defense is viable, to present testimony, and to
assist in preparing the cross-examination of the State's psychiatric witnesses"
- demands something more than what McWilliams received, a neutral expert
dumping files on the counsel table right before trial. The Alabama courts and
some federal appeals courts have taken the position that the mental health
expert needn't be "independent" of the prosecution, and that indigent
defendants aren't entitled to have experts that side solely with them. The
trickier question is whether or not the requirement that your expert be truly
helpful is "clearly established" case law that can be used to set aside the
capital conviction. This whole issue took on greater urgency last week, when 2
Arkansas death-row inmates - Don Davis and Bruce Ward - saw the Arkansas and
U.S. Supreme Court block their executions, which had been scheduled for last
Monday, until McWilliams is decided in June.
Which means that back on the island, the misfit toys are quarreling.
Stephen Bright - representing McWilliams at oral argument - is immediately
confronted by Justice Anthony Kennedy, who isn't persuaded that the rule
McWilliams is seeking is a "clearly established right" sufficient to overcome
the procedural bars in death-penalty cases.
Justice Sonia Sotomayor, who has become ever more voluble and truly pissed off
in her work in the death-penalty space, notes that here, there was evidence "at
the last moment ... that certain signs of organic brain injury were present,
and once that was confirmed, what the expert was saying to the court is 'now I
Justice Samuel Alito presses Bright: "You seem to be arguing that what the
defendant is entitled to is an expert who will function, more or less, like the
kind of expert who would be retained by the defense, if the defense were simply
given funds to hire an expert." Bright replies that the system is imbalanced:
The prosecution can hire as many experts as it wanted. ... It can choose
experts that will come out the way it wants. If you're in Texas and you want to
prove future dangerousness, doctors will testify every single time they get a
chance that the defendant is a future danger.
Bright explains that the word "partisan" expert is a misnomer: "Of course,
parties, whether it be the prosecution, whether it be a wealthy criminal
defendant, whether it be a wealthy civil litigant, are all going to hire
partisan experts. They're going to hire the experts that they think will give
them the opinion that will help their side of the case." But here, Bright says,
his client is hardly asking for the moon: "He doesn't get a partisan expert. He
doesn't get to choose the expert, but he gets a competent expert to give
whatever advice that expert can give to him as he prepares his defense and as
he prepares to deal with the prosecution case."
Kennedy seems concerned that a neutral expert can't be effectively helping both
sides, and Bright agrees that mental health experts "can't work both sides of
Justice Neil Gorsuch asks Bright whether Ake implies that a neutral expert
would be acceptable, instead of one dedicated to helping the defense. Bright
replies "That was the old days. Those were the horse-and-buggy days, and this
is today. And today, mental health is hotly contested. It takes experts on both
sides." Bright notes that "experts widely disagree on mental health."
Gorsuch retorts: "Experts widely disagree on everything. That's why you hire
them ... And why they cost so very much."
This seems as good a time as any for the court to recognize that poor people in
prisons have exceedingly pressing mental health needs.
Alabama's Solicitor General Andrew Brasher has 30 minutes to argue for the
state, and it's immediately clear that the court???s 4 liberal justices aren't
comfortable with what happened to McWilliams. Justice Elena Kagan asks Brasher
to "focus on the money sentence in Ake." She notes that the case explicitly
says: "We hold that when the defendant makes this preliminary showing that
mental health is going to be at issue, the State must assure the defendant
access to a competent psychiatrist who will assist in evaluation, preparation
and presentation of the defense." "Assist!" she says. "Assist!"
Brasher replies that "neutral experts are capable of assisting the defense in a
way that an expert assists the defense." Kagan replies, "They're capable in the
sense that sometimes they might, but it's not somebody who sometimes might, and
is capable of, but who, in fact, will do so, to the best of his ability, assist
Brasher reiterates that Goff, the doctor who prepared the voluminous report
right before McWilliams' sentencing hearing, "was his expert." Neither Stephen
Breyer nor Kennedy appear persuaded that Goff behaved like one. Brasher urges
that McWilliams could have used him as one and chose not to. Justice Ruth Bader
Ginsburg notes that in virtually every jurisdiction today, it is understood
that ???Ake requires an expert who will be, essentially, part of the defense
team." This includes the Supreme Court of the state of Alabama, "which in 2005
ruled an indigent defendant is entitled to an independent expert devoted to
assisting his defense, not one providing the same information or advice to the
court and prosecution." Brasher replies that the lower courts and states have
adopted that rule over time, but it doesn't mean it was the "clearly
established" holding in Ake or that it compels the court to expand Ake to mean
that today. Remember last week when, at his first day at the high court,
Justice Gorsuch was slapped delicately on the nose with a newspaper by Elena
Kagan, and everyone went nuts? Again today, she bops him gently, this time when
he suggests we can limit the holding of Ake to the relief the party asked for
in their appeal. Gorsuch adds that in Ake, the defendant asked only for "a
partisan expert or a court-appointed expert. But would have been satisfied with
either one." So isn't it over right there?
Brasher starts to respond in the affirmative, but Kagan swoops in with her
rolled-up newspaper: "That would be quite something, I have to say, General. If
we say: 'Listen, when you read our opinions and when you try to figure out what
we're saying, what you have to do is go back to the [question presented] and
just narrow it to exactly what the QP said.' I think that that would be a
shocking way to interpret this court's opinions."
"Shocking." Ouch. Good thing that group dinner at the White House got
In his rebuttal Bright says at stake in this case "is the proper working of the
adversary system. And this certainly doesn't put the defense in an equal
position with the prosecutor, not by a long shot, but it at least gives the
defense a shot, at least gives them one competent mental health expert that
they can talk to, understand what the issues are, present them as best they
The high court has been slowly ruling in favor of limiting capital punishment
in some extreme death-penalty cases this term. Because the psychological
assistance that indigent defendants now get is so much more substantial than it
was 30 years ago, cases like McWilliams will become increasingly rare.
Correcting egregious errors from decades ago is hardly going to mean the end of
capital punishment, as is plain from the push for executions in Arkansas this
month. But this seems as good a time as any for the court to recognize that
poor people in prisons have exceedingly pressing mental health needs. A recent
Bureau of Justice Statistics report estimates that 64 % of local jail inmates,
56 % of state prisoners, and 45 % of federal prisoners have serious mental
health illnesses. That we had "lunacy commissions" only 30 years ago isn't the
only piece of lunacy in this case. It's that people who were poor and mentally
ill were afforded no assistance in proving it, and we're still fighting about
Even on this island of misfit jurisprudential toys, that level of absurdity
ought to mean something.
(source: Dahlia Lithwick, slate.com)
US Supreme Court refuses review of Alabama death row inmate Tommy Arthur appeal
The U.S. Supreme Court on Monday rejected the appeal of Alabama death row
inmate Tommy Arthur, who is scheduled to be executed next month.
Justices denied a request to re-hear Arthur's request for certiorari - or
review - of his appeal. Justice Sonia Sotomayor would have granted Arthur's
Arthur is set to be executed May 25 at Holman Correctional Facility for the
1982 murder-for-hire slaying of Troy Wicker, of Muscle Shoals. Arthur has had 7
previous executions over the past 15 years delayed by courts - the last one on
The U.S. Supreme Court on Feb. 21 had denied Arthur's request for a review of
his appeal claiming the state's lethal injection method of execution is
unconstitutional. But his attorneys in requesting a rehearing cited split
opinions regarding lethal injection since February among different circuit
courts of appeal around the nation.
"The presence of 2 split decisions with opposed holdings from 2 different
courts of appeals on an issue of national importance warrants review by this
court," Authur's attorney, Suhana Han argues. "This review is urgent in Mr.
Arthur's case: Mr. Arthur has proffered substantial evidence that his execution
... will be torturous, but because he is in Alabama instead of Ohio that
evidence will never be considered absent this court's intervention."
Arthur is set to be executed May 25 at Holman Correctional Facility for the
1982 murder-for-hire slaying of Troy Wicker, of Muscle Shoals. Arthur has had 7
previous executions delayed by courts - the last one on Nov. 3.
U.S. District Court Judge Keith Watkins also recently issued an opinion denying
Arthur's attorneys request to have access to cell or landline phones in the
witness room at the prison during the execution.
Arthur also has argued in another court filing that the Alabama Legislature,
not the Alabama Department of Corrections (ADOC), should be the one to decide
what lethal injection drugs should be used for executions, according to
Arthur's motion. Alabama death row inmate Robert Melson is set to be executed
Liberal U.S. justices lean toward death row inmate in mental health dispute
Liberal U.S. Supreme Court justices on Monday indicated support for a convicted
murderer held on Alabama's death row who argued he had a right to an
independent medical expert to assess his mental health and potentially help him
avoid the death penalty.
The legal fight involving Alabama inmate James McWilliams assumed greater
importance in the past week after 2 death row inmates who Arkansas plans to
execute, Don Davis and Bruce Ward, had their cases put on holding pending the
Supreme Court's decision regarding McWilliams, due by the end of June.
The 9 justices heard a 1-hour argument in an appeal brought by McWilliams,
sentenced to death for raping, murdering and robbing a convenience store clerk
in Tuscaloosa in 1984.
Based on questions asked by the justices, the four liberals could be joined by
conservative Anthony Kennedy, the court's frequent swing vote, in siding with
McWilliams. The court's other conservatives, including Donald Trump's newly
seated appointee Neil Gorsuch, appeared more likely to vote against McWilliams.
At issue in his appeal is whether an indigent defendant like McWilliams during
a trial in which his mental health is a pivotal matter is entitled to an expert
witness independent of the prosecution. Such an independent expert witness
possibly could offer mitigating evidence at his sentencing hearing as
prosecutors pursue the death penalty.
McWilliams' lawyers noted that during his trial the only expert analysis of his
mental health came from an expert witness provided by the state.
The Supreme Court ruled in 1985 that indigent defendants are entitled to expert
assistance but the ruling did not specifically say the expert had to be
assigned to assist the defense as opposed to a neutral expert who would help
both sides. The question before the justices is whether the 1985 decision
"clearly established" McWilliams' right to an expert who would assist only the
In the 1984 crime, McWilliams entered a convenience store, locked the doors,
took money from clerk Patricia Reynolds, forced her into a back room, raped
her, shot her 16 times with a pistol and left her to bleed to death.
McWilliams, later caught driving a stolen car in possession of the murder
weapon, was found guilty and sentenced to death in 1986.
Arkansas had planned to carry out 8 executions in a span of 11 days. So far
only 1, Ledell Lee, has been executed. 2 more executions were scheduled for
later on Monday. The state's original plan called for the most executions by
any state in the shortest period of time since the U.S. death penalty was
reinstated in 1976.
Gorusch sided with the court's conservative majority on Thursday when the
justices refused to block Lee's execution.
The ruling in McWilliams' case could affect non-capital cases as well as death
The Supreme Court has shown little appetite for reconsidering whether the death
penalty itself violates the U.S. Constitution's Eighth Amendment ban on cruel
and unusual punishment, but has faulted the way some states handle capital
The Supreme Court has rebuked Texas, the U.S. leader in executions, twice since
February. The justices on March 28 found that Texas used an obsolete standard
to assess whether a man convicted of murder was intellectually disabled and
thus exempt from capital punishment.
The justices on Feb. 22 court gave a Texas death row inmate a chance to avoid
execution because his trial was tainted by testimony from a psychologist who
stated the man was more likely to commit future crimes because he is black.
At least 9 execution dates loom for Tennessee death row inmates
As many as 9 execution dates for Tennessee death row inmates could set soon,
say experts who follow the cases.
This follows a ruling by the Tennessee Supreme Court late last month that
upheld the protocol for lethal injection, which is the state's primary method
Lawyers for death row inmates hope the U.S. Supreme Court will eventually take
up the lethal injection on appeal, but a spokesperson for the Tennessee
justices says he expects them to set those dates with "no idea when they will
Stacy Rector of the Tennessee Coalition to Abolish the Death Penalty is one of
those who thinks the justices could possibly act at any time.
"The court could set at least 9 execution dates" she told News 2 with cases
that for now have exhausted appeals.
There are currently 60 men and one woman on Tennessee's death row.
31 are white, according to the Tennessee Department of Correction, along with
28 who are black, 1 Hispanic, and 1 Asian.
(source: WKRN news)
Lawmakers to introduce bills to abolish death penalty in the state
A proposal to abolish the death penalty in Louisiana could help prevent a
crisis the state's public defenders say they are hurtling toward, unless
drastic changes are made in how the state handles defense for the indigent.
But because the bill does not apply to those already convicted or indicted of
capital offenses, the savings in money earmarked for such cases will come
slowly. And the state's district attorneys are taking a hardline stance against
the idea, arguing to local lawmakers the move would take away a vital tool in
obtaining plea bargains - hanging the possibility of the death penalty over
Sen. Dan Claitor, R-Baton Rouge, state Rep. Terry Landry, D-New Iberia, and
state Rep. Steve Pylant, R-Winnsboro, are authoring or co-authoring legislation
that would end the death penalty. Claitor's bill will get its 1st hearing on
Claitor has said the response to his bill is "gratifying," adding that if this
public reaction is indicative, there is a "real chance' he bill can become
reality in the current session of the Louisiana Legislature. A former criminal
prosecutor in Orleans Parish, Claitor denounces the death penalty as having
"failed" as a crime deterrent. Such cases are costly, he said, and rarely are
executions actually carried out.
"(Landry and I) are both from law enforcement," he said in a statement. "Having
both served in the criminal justice system, we understand the practical aspects
of this issue and, both being Catholics, share the same moral impetus."
Louisiana has had a fraught relationship with the death penalty. An analysis of
death penalty cases from 1976 to 2015 found 1 inmate has been exonerated for
every 3 executions.
A court last week added to the number of people whose death sentences were
reversed, announcing it would not retry Rodricus Crawford, who was previously
found guilty in the death of his 1-year-old son and sentenced to death.
The study also found stark racial disparities in how Louisiana uses the death
penalty with authors, Frank Baumgartner and Tim Lyman calling the state's
relationship with capital punishment "deeply dysfunctional." A black man is 30
times more likely to be sentenced to death for killing a white female than
another black male, and anyone who kills a white person is 6 times more likely
to be given the death penalty than someone who kills a black person, the
"The racial disparities even extend into the appeals process, where cases of
killers of white are clearly less likely to be reversed," the authors wrote in
the study, adding no white person has been executed in Louisiana for a crime
against a black victim since 1752.
Louisiana District Attorney Association Board President Reed Walters, the DA
for LaSalle Parish, counters that eliminating the death penalty takes away an
important incentive for defendants to agree to plea bargains and bringing
closure to the families of victims.
"I have a tool of negotiating to say, 'If you don't plead, you subject yourself
to the death penalty,'" Walters said.
DAs already are lobbying lawmakers to oppose the bill. Rep. Chris Broadwater,
R-Hammond, said last week his local DA met with him to voice opposition to the
move. Walters said he is unsure what appetite the GOP-dominated Legislature
will have for abolishing the death penalty, while Louisiana District Attorneys
Association Executive Director Pete Adams said in an email he has not yet
"Those egregious cases are few and far between," Broadwater said. "But there
are those isolated cases where it is a useful tool that can bring about some
finality on a plea deal."
Walters argues the move could end up costing more money in the long run.
Capital cases are far more expensive to litigate because of extra layers of
scrutiny involved - defendants are afforded the right to counsel throughout the
appeals process which those convicted of for non-capital crimes are not.
But Walters said there would be such a dramatic increase in the number of
people who would choose to go to trial because the death penalty is not hanging
over their head that the state would end up spending more on life in prison
"I'm not buying that one," said State Public Defender Jay Dixon. "There's no
amending a death penalty case ... there are layers and layers of protections to
ensure you don't execute an innocent person."
Often, capital cases traverse "up and down the legal food chain," Dixon said,
and costs rack up. Even if there was a flood of people who wanted to go to
trial because they were not facing the death penalty, he said, it would still
likely cost less than the state paying to defend capital cases.
For years, criminal justice reform advocates have lamented Louisiana???s unique
system of funding indigent defense. The state's budget is about $33 million per
year, but most of the funding for public defense comes from local sources like
traffic tickets and court fees.
In fact, public defenders in most cases are technically paid to lose; their
clients are only assessed fees if they plead or are found guilty. Defenders
have excoriated the optics of such a system, though they say it has no impact
on how they handle cases.
A lack of funding for defense for low-income people in the state is well
documented. In February, a study by the American Bar Association and
Postlethwaite and Netterville, a Baton Rouge accounting firm, found the public
defender system in Louisiana has the capacity to handle 21 % of its current
In other words, Dixon said, public defense has around 20 % of the funding it
Over the years, the state Public Defender Board has outsourced the vast
majority of capital defense cases to nonprofit agencies, citing a lack of
adequate resources for the districts to handle those cases themselves.
Currently, the state is handling 26 indicted capital cases, and these outside
agencies are handling 22. District defenders are handling four of those cases.
Last year, the Legislature enacted a law that kept the public defender funding
the same, but required 65 % of the money to go to each district. The move
effectively cut funding for the outside agencies working on death penalty
cases, which are infamous for being time-consuming and expensive.
There is little indication the Legislature will hand out more money to indigent
defense. When public defenders and attorneys working for the agencies handling
capital cases sat before a legislative panel earlier this year, lawmakers asked
if there were ways to find savings with the money they currently have.
Even with the extra money for districts, local funding sources have dried up in
some places, especially in Baton Rouge where August flooding led to a steep
downturn in the amount of tickets and court fees, a trend that has continued in
the months since.
And the cut to capital defense presents a host of other issues.
"We're already on cusp because we cut capital funding by 1/3," Dixon said.
"We're probably going to get sued by someone saying we're not funding capital
The roughly $10 million doled out by the state for capital defense before the
Legislature shifted the money around dropped to $6.2 million for the current
fiscal year. Before, the state would send out a team of people to handle
capital cases as soon as they were indicted. Now, a lack of resources has
caused public defenders or the nonprofit capital defense agencies to send out
only one lawyer in some cases to make sure evidence is kept intact until a full
team can take on the case.
"When we had the full array (of funding) this didn't happen," Dixon said. "When
someone was arrested for 1st-degree murder, we sent a full team in. It's not
really what's happening now."
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