As the COVID-19 pandemic disrupts judicial proceedings, lawyers have been forced to adjust the way they practice law and zealously represent their clients. In many cases, courts and litigants have been attempting to navigate uncharted technological waters, with remote proceedings increasingly common. A steep learning curve has emerged in these proceedings, and litigants have had to cope with incidents such as a juror leaving during the video proceedings in a Texas civil case to take a phone call and Florida attorneys earning a judicial scolding for appearing on video hearings in overly casual attire.
These changes have had a direct impact on death penalty proceedings as well. State and federal courts have heard remote oral arguments in several capital cases. In May, the U.S. Supreme Court transitioned its argument calendar to a remote format, making audio live-streams of the arguments available to the public for the first time in Court history. As discussed in detail elsewhere in this newsletter edition, the Court heard remote arguments in McGirt v. Oklahoma on May 11, 2020. McGirt questions whether a portion of eastern Oklahoma technically still belongs to the Creek Nation Native American tribe, which could affect the State’s jurisdiction over numerous criminal proceedings, including that of Oklahoma death row prisoner Patrick Murphy
State courts also proceeded with remote oral arguments in capital cases, often over the objection of counsel who argue that remote proceedings are inadequate to resolve the life-or-death questions that arise in death penalty cases. In People v. Vargas, the California Supreme Court denied counsel’s request to postpone oral argument until it could be done in person. The court pointed to its prior orders setting cases for remote oral arguments and declined to make a “categorical exception” for capital appeals. Oral argument proceeded on May 5. On May 27, the Indiana Supreme Court heard oral argument via videoconference in Indiana Department of Correction v. A. Katherine Toomey, a case involving the Indiana Department of Corrections’ (IDOC) refusal to provide records regarding its lethal injection drug supply in response to a public records request. IDOC initially lost in the trial court, spurring the Indiana legislature to pass a “Secrecy Statute” providing confidentiality to lethal injection drug transactions. The May 27 argument followed IDOC’s second loss in the trial court, in which the court found the new law unconstitutional.
Whether at the trial, post-conviction, or execution warrant phases of litigation, the pandemic has imposed often insurmountable obstacles to adequate capital representation. In many death penalty cases, attorneys have asked courts for continuances, equitable tolling, and deadline postponements as the pandemic has made crucial casework and preparation such as field investigation and client visits impossible. In April, the Project’s Director Emily Olson-Gault authored Declarations about the ways that the pandemic has impaired or prevented effective representation at both the trial level and in post-conviction proceedings. These Declarations have been submitted in support of requests for COVID-related delays and stays of execution in several capital cases throughout the country. The Declarations draw upon the 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases and 2008 Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, emphasizing that counsel cannot complete fundamental tasks required for competent representation because of the need to maintain social distancing and due to various restrictions imposed by institutional offices and departments of corrections. This work includes extensive in-person witness interviews, client relationship-building during prison visits, and record-collection. These tasks are required at every stage of capital litigation, including at the stage where an execution warrant has been filed and an execution date is imminent. As a result, the Declarations urge courts and the Executive Branch to consider using equitable or clemency powers to grant time extensions or delay executions until safe and effective representation is possible.
In addition, the process of an execution itself raises exposure concerns for attorneys, execution witnesses and prison officials alike, as they must remain in close quarters for hours. With such concerns looming, Texas, Tennessee, and Ohio have stayed several executions that were originally scheduled to take place between March and August 2020. On March 13, 2020, Governor Greg Abbott declared a state of disaster in Texas in response to COVID-19, and the Texas Department of Criminal Justice (TDCJ) suspended visitation at all facilities citing “the importance of providing and maintaining a safe and healthy environment for all involved.” At that time, Texas had eight men with executions scheduled between March and the end of August: John Hummel, Tracy Beatty, Fabian Hernandez, Billy Wardlow, Edward Busby, Randall Mays, Carlos Trevino, and Ruben Gutierrez. By June 2020, all of these executions had been stayed or rescheduled, many on COVID-19-related grounds.
The same day as Governor Abbott’s declaration, John Hummel filed a motion for a stay of execution, citing COVID-19 and concerns that moving forward could endanger witnesses, prison staff, and prisoners and pose an increased risk of a botched execution should members of the execution team fall ill. Despite the disaster declaration and the TDCJ’s suspension of visitation, the State opposed Mr. Hummel’s motion. Tarrant County District Attorney Sharen Wilson argued that “COVID-19 has raised no roadblock to his execution,” and that “the possible cancellation” of Hummel’s visitation with his attorney was not unjustified, unconstitutional, or a ground to stay his execution. The Texas Court of Criminal Appeals (TCCA) disagreed with the DA’s analysis and granted Mr. Hummel a 60-day stay “in light of the current health crisis and the enormous resources needed to address that emergency.”
After the court stayed Mr. Hummel’s execution, Tracy Beatty, whose execution was originally scheduled for March 25, 2020, filed a similar motion to stay citing the “unprecedented proportions” of the COVID-19 pandemic. Prosecutors again opposed this motion, arguing that there was no evidence that the “enormous resources” cited by the TCCA in Hummel’s case “will also include the handful of TDCJ personnel who will carry out Beatty’s execution.” Regardless, the TCCA also granted Mr. Beatty a 60-day stay again citing the current health crisis and the resources needed to address it. Since then, the TCCA also granted 60-day stays for Fabian Hernandez and Edward Busby, who were scheduled for April and May executions respectively. Although the TCCA did not cite COVID-19 specifically in either decision, both stays followed defense motions that raised COVID-19 concerns.
Concerns about conducting an execution during the COVID-19 pandemic are not limited to the defense. When Billy Wardlow filed a motion to withdraw his April 29 execution date, citing COVID-19, the State filed its own motion to reschedule Mr. Wardlow’s execution in light of the COVID-19 pandemic. The trial court then moved the execution to July 8, 2020, which was carried out. The State similarly did not oppose Carlos Trevino’s motion to withdraw his June execution date due to COVID-19. Mr. Trevino’s execution was also rescheduled by his trial court. In some states, courts have agreed to toll statutory filing deadlines that defense counsel will be unable to meet due to COVID-19 concerns, sometimes in agreement with prosecutors.
Tennessee has followed Texas’ lead in granting stays of execution on the basis of COVID-19. Five days after Governor Bill Lee declared a state of emergency due to COVID-19 on March 12, 2020, Oscar Smith filed a motion for a six-month stay of his June 4, 2020 execution. Like the motions in Texas, Mr. Smith argued that the COVID-19 pandemic rendered the interviews, travel, and client meetings necessary to sufficiently pursue clemency and appeals irresponsible and a threat to his defense team’s personal safety. The Tennessee Supreme Court granted Mr. Smith a stay of execution “due to the COVID-19 pandemic” and rescheduled his execution for February 4, 2021. The court also granted a motion to stay Byron Black’s execution, postponing it from October 8, 2020 to April 8, 2021, citing the restrictions imposed by COVID-19 on Mr. Black’s access to experts and testing to dispute his competency to be executed. However, the court in June denied a COVID-19-based stay to Harold Nichols, who is scheduled for execution on August 4. One additional Tennessee prisoner, Pervis Payne, is scheduled for execution in December 2020.
As discussed in detail elsewhere in this newsletter edition, COVID-19 concerns regarding executions have also failed to convince states to postpone them. On May 19, 2020, Missouri executed Walter Barton despite Mr. Barton’s request to stay the execution in light of COVID-19. The motion argued that the pandemic prevented the collection of evidence that would undermine Mr. Barton’s conviction and demonstrate his innocence. However, the motion was denied, and after federal litigation was also dismissed, Missouri became the first state to carry out an execution during the COVID-19 pandemic. On July 8, Texas followed suit in executing Mr. Wardlow, despite the state’s surging number of COVID-19 infections following its May reopening.