November 30, 2009

The Death Penalty: A Year in Review

A number of news stories about the death penalty garnered national media attention during 2008-2009.  From Texas to Georgia to Ohio, there were stories about exonerations, wrongful convictions, funding problems for defenders, and the cost of the death penalty.

Troy Anthony Davis 

Troy Davis is a Georgia Death Row prisoner who has been within hours of execution numerous times.  Mr. Davis’s conviction in 1991 was based solely on eyewitness testimony.  Since the trial, seven of the nine eyewitnesses have recanted, and one of the remaining two eyewitnesses has been implicated in the killing.  Despite this strong evidence of innocence, appeals courts refused to hear new evidence in the case, finding it procedurally barred.  Mr. Davis then sought help directly from the United States Supreme Court, filing an original petition for a writ of habeas corpus.  In a highly unusual move, the Supreme Court ordered the District Court to hear Mr. Davis’s claims of innocence and make a ruling on the merits.  The Court has not issued a similar order since the 1950s.

Cameron Todd Willingham 

Cameron Willingham was convicted of setting a fire to his home that killed his three young children.  In 2004 he was executed by the state of Texas.  Since his trial, the case has been independently reviewed by nine of the nation’s leading arson experts, all of whom concluded that the initial investigation was based on “junk” science and that there is no evidence that the fire was intentionally set.  After the latest review, ordered by the Texas Forensic Science Commission, The New Yorker published the results of its own in-depth investigation, detailing how the evidence against Mr. Willingham was flimsy at best and non-existent at worst.  Another Texas inmate, Ernest Willis, was also convicted of arson based on the same types of evidence from the same arson investigator.  Shortly after Mr. Willingham was executed, Mr. Willis was set free.  The New Yorker article suggests that the difference in outcomes was based largely on quality of representation: “Willis had eventually obtained what Willingham called, enviously, a ‘bad-ass lawyer.’  James Blank, a noted patent attorney in New York, was assigned Mr. Willis’s case as part of his firm’s pro-bono work.  Convinced that Mr. Willis was innocent, Blank devoted more than a dozen years to the case, and his firm hired fire consultants, private investigators, and forensic experts.  Willingham, meanwhile, relied on his court-appointed lawyer to handle his appeals.  Before being executed, Willingham often told his parents, ‘You don’t know what it’s like to have lawyers who won’t even believe you’re innocent.’”

Judge Sharon Keller 

Sharon Keller is currently the Chief Judge of the Texas Court of Criminal Appeals.  On September 25, 2007, Texas inmate Michael Richards was scheduled to be executed.  Earlier that same day, the US Supreme Court agreed to hear a case challenging the lethal injection protocol used by death penalty states, including Texas.  This grant of certiorari halted all executions nationwide until the case was decided.  Mr. Richards’ counsel sought to file an emergency petition to stay his execution until the Supreme Court could rule on the constitutionality of lethal injection. They called the court and asked for additional time to file because they were experiencing technical difficulties printing the petition.  Judge Keller refused, allegedly replying, “We close at 5.”  Mr. Richards was executed a few hours later.  This summer, Judge Keller was charged with ethical violations and judicial misconduct.  A ruling in the case is expected soon.

Economic Recession & the Death Penalty 

With the national economy in crisis, the debate over use of the death penalty has shifted to the costs of carrying out the death penalty and providing adequate funding for defense counsel.  New Mexico abolished the death penalty this year based in significant part on the relative costs of executing a prisoner instead of keeping him in prison for life.  In other states, defender organizations that are already overwhelmed and underfunded have seen budgets and staffs reduced further, even as case loads continue to increase. 

Romell Broom

Ohio tried and failed to execute Death Row prisoner Romell Broom by lethal injection in September 2009.  For over two hours the team of paramedical technicians tried without success to insert an IV.  Mr. Broom begged them to “get it over” as the team repeatedly hit muscle and bone.  Reports indicate the team made 18-20 attempts to insert the IV before giving up.  At the request of defense counsel to stop the execution attempt, the governor interceded, ordering the team to try again in a week.  A federal district court judge in Ohio recently issued a temporary restraining order to allow

Mr. Broom’s attorneys to argue that the 8th Amendment prohibits Ohio from making additional attempts to execute Mr. Broom.