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America’s Top 5 Deadliest Prosecutors

How Overzealous Personalities Drive
The Death Penalty

Harvard report highlights the lion-sized role in modern death penalty of just four men and a woman, and how capital punishment is a ‘personality-driven system’ Report (Download or Read PDF Here)

From The Guardian‘s article on this report:

One had a poster from the movie Tombstone on his office wall with “Justice is coming” emblazoned on it; another used a miniature model of an electric chair as a paperweight; a third, dubbed the “Queen of death”, said she was “passionate” about judicially killing people and described the emotion of watching an execution as a “non-event”.

What they all had in common was a vast appetite for putting men and women to death. What additionally made them special was that they all had the power to turn such unusual tastes into sentences.

As head prosecutors in their counties, just five individuals have been responsible for putting no fewer than 440 prisoners onto death row. If you compare that number to the 2,943 who are currently awaiting execution in the US, it is equivalent to one out of every seven.

Or express the figure another way: of the 8,038 death sentences handed down since the death penalty was restarted in the modern era 40 years ago this week, some one in 20 of them have been the responsibility of those five district attorneys alone.

The five are profiled in a new report from Harvard Law School’s Fair Punishment Project. Titled America’s Top Five Deadliest Prosecutors, the report highlights the lion-sized role in the modern death penalty of just four men and one woman.

They are: Joe Freeman Britt of Robeson County, North Carolina; Donnie Myers of Lexington, South Carolina; Bob Macy of Oklahoma County; Lynne Abraham of Philadelphia County; and Johnny Holmes of Harris County, Texas.

Just how extraordinary this elite club of lawyers is can be seen in the biography of Bob Macy. Until his death in 2011, he was known as Cowboy Bob because of his traditional frontier dress sense: he always wore cowboy boots, a large cowboy hat, a black string tie, a black suit and a white shirt.

Over the course of 21 years as the top prosecutor in Oklahoma County, Macy put 54 people on death row. That gave him the distinction of sending more people to their potential deaths than any other district attorney in the nation.

And many did actually go to their deaths. According to records compiled by the Fair Punishment Project, 30 of those prisoners were executed.

That might have presented an ethical burden to some, but not to Macy. As he sat beneath his Tombstone poster, he ruminated on the “patriotic duty” of prosecutors to aggressively pursue death sentences. He was proud of having sent a 16-year-old, Sean Sellers, to the death chamber before the US supreme court banned the execution of juveniles in 2005.

The problem is that Macy’s sense of legal propriety was not as honed as his sense of patriotic duty. The Harvard report notes that about a third of the 54 capital sentences he secured were later challenged and misconduct uncovered; three death-row prisoners were exonerated.

A similarly disturbing pattern of misconduct and error is recorded by the other deadliest prosecutors. Britt, who died in April, obtained 38 death sentences in the course of his 14-year career.

Click here to continue reading at The Guardian. Report (Download or Read PDF Here)

CT Supreme Court upholds banning executions

Source: Washington Post

The Connecticut Supreme Court on Thursday again said that it would be unconstitutional to execute inmates on the state’s death row, upholding a decision from the same court last year effectively banning the death penalty in the state.

CT Supreme_Court

In a decision in August, the state’s justices ruled that Connecticut could not execute death-row inmates for crimes committed before the state largely abolished capital punishment. Under a law signed in 2012, Connecticut agreed to abandon the death penalty going forward, while also retaining it as an option for crimes committed before that bill became law.

After an inmate named Eduardo Santiago — convicted of murdering someone in 2000 — challenged his death sentence, a divided Connecticut Supreme Court said last year that he could not be executed because the 2012 law “creates an impermissible and arbitrary distinction” between crimes committed before and after that measure went into effect. (Santiago was re-sentenced to life in prison without parole in December.)

[Connecticut Supreme Court says the death penalty is unconstitutional and bans executions for inmates on death row

The state’s high court upheld its earlier ruling in a 5-to-2 decision handed down Thursday in a case focusing on Russell Peeler, a man sentenced to death for his role in the 1999 killings of a woman and her 8-year-old son.

The justices ruled that Peeler must instead be sentenced to life in prison without the possibility of parole, because his earlier sentence “must be vacated as unconstitutional in light of” last year’s decision. Three justices wrote concurring opinions, while two authored dissents, one of which said the ruling last year “inflicted [damage] on the rule of law” that “must be repaired.”

Gov. Dannel P. Malloy (D), who signed the 2012 law abolishing the death penalty, reiterated his opposition to capital punishment on Thursday and focused on how the new ruling will keep the death-row inmates from ever seeking parole.

“Today’s decision reaffirms what the court has already said: those currently serving on death row will serve the rest of their life in prison with no possibility of ever obtaining freedom,” he said in a statement. He added: “Our focus today should not be on those currently sitting on death row, but with their victims and those surviving family members. My thoughts and prayers are with them on this difficult day.”

According to the state Department of Corrections, Connecticut has 11 inmates on death row. Kevin T. Kane, the chief state’s attorney, said his office would “move forward to re-sentence” the remaining death row inmates so that they are all given sentences of life imprisonment without parole.

“I appreciate having been granted the opportunity to present the state’s position on all of the issues the present court raised about Connecticut’s death penalty,” Kane said in a statement. “The court has now spoken and, as always, we respect its decision.”

[Justice Department will seek death penalty for accused Charleston church gunman Dylann Roof

The only state in New England that still has capital punishment on the books is New Hampshire, where legislators recently came within one vote of abolishing it. Since 2007, seven states have formally abandoned the death penalty. However, they have not agreed on what to do with the people on death row once this takes effect. In some cases, such as New Jersey and Illinois, death sentences were commuted to life sentences without parole. This is what Nebraska’s bill abolishing the death penalty also would do; while lawmakers there voted to get rid of capital punishment last year, that law remains on hold until voters decide in November.

In other cases, though, inmates have remained on death row and the effect on their sentences has been uncertain after their states abandoned the death penalty. Like Connecticut, Maryland — the last of the states to formally outlaw the death penalty— abolished the practice while exempting those already on death row. Before he left office, former governor Martin O’Malley (D) commuted the sentences of the remaining inmates to life terms.

Connecticut has executed only one inmate since the U.S. Supreme Court reinstated the death penalty in 1976. The state considered abolishing the death penalty in 2009, but Malloy’s predecessor, M. Jodi Rell, vetoed a bill that year that would have eliminated the practice.

Her decision came as the state was reeling after a horrifying home invasion there two years earlier. Two men broke into a family’s home before sexually assaulting a woman, Jennifer Hawke-Petit, and her 11-year-old daughter, Michaela. The two men also beat the girl’s father, William, before killing Jennifer, Michaela and the couple’s 17-year-old daughter, Hayley. Both men accused in the case — Joshua Komisarjevsky and Steven Hayes — were convicted, found guilty and sentenced to death. This crime was cited as the reason lawmakers compromised in 2012, getting rid of the death penalty while keeping it in place for people, like those two men, who had committed crimes beforehand.

[NHCADP Comment:] Relevance for NH: In no state where the death penalty has been abolished has any death row inmate subsequently been executed. This fact has been cited in the NH Senate to push back against our repeal efforts, making it a referendum on Michael Addison (NH’s sole death row inmate), even though any such law is always prospective and not retrospective. That said, we’re happy that no one is being executed, but our legislative efforts are never aimed at one person. We want to ban the death penalty for all, now and in the future.

Amnesty Releases 2015 Death Penalty Report

April 6 — Amnesty International has released its 2015 global report on the death penalty.

AI-2015 Global Map2015 saw 1634 executions, the highest number of  since 1989, most of which took place in Iran, Pakistan, and Saudi Arabia. Executions in Iran topped the list at 977, most of which were for drug-related crimes and included juvenile offenders, in contravention of international law. The Amnesty report excludes China, which does not reveal its statistics, but which is believed to executive thousands each year. (On 4/19/16, International Business Times reported that China has set the threshold for the death penalty in cases of fraud at three million yuan — $463,000.)

Balancing this news is that four countries moved to abolish the death penalty in 2015: Madagascar, Fiji, Suriname, and Congo. In addition, Mongolia has adopted a new criminal code that will end the death penalty in September of this year.

Here in the US, Pennsylvania Governor Tom Wolf placed a moratorium on executions in February 2015 pending review by a task force and in the process reprieving 5 death row prisoners during the year. In December the PA Supreme Court upheld Gov. Wolf’s authority to take this action, though the death penalty statute remains and the moratorium cannot go on indefinitely. Overall, however, the US is fifth on the list of world countries that executes its citizens, with 28 executions and 53 death sentences in 2015. Japan is the only other “first world” country that continues to use the death penalty, executing 4 people in 2015.

AI Report Cover 2015Overall, 102 countries — half of the world — have abolished the death penalty. If we include countries that no longer use it in practice but have yet to remove the statutes, that percentage rises to two-thirds of the world.

Read more and download the AI Report at this page.

1976: How SCOTUS Failed with the Death Penalty

It’s Been 40 Years Since the Supreme Court Tried to Fix the Death Penalty — Here’s How It Failed

03.30.2016 Published by The Marshall Project (link)

A close look at the grand compromise of 1976.

In early April 1976, Potter Stewart, Lewis Powell, and John Paul Stevens met for lunch at the Monocle, a venerable Washington steakhouse, and decided the future of the American death penalty. The three U.S. Supreme Court justices were in a bind. Each harbored substantial misgivings about capital punishment, but each man — Stewart especially — also felt constrained by the issue’s peculiar constitutional history and by the tidal wave of public support that returned the death penalty to the Supreme Court just four years after a splintered court had declared it dead.

1976 SCOTUSIn 1972, Stewart had brokered a 5-4 decision holding that the death penalty as then practiced violated the Eighth Amendment’s ban against cruel and unusual punishment. The court’s ruling — in Furman v. Georgia — was a spectacular long shot. Just one term earlier, in 1971, the justices had upheld the constitutionality of the death penalty under the due process clause of the Fourteenth Amendment. Furman seemed headed in the same direction until Stewart struck an eleventh-hour deal with Justice Byron White, who’d been on the fence for most of the term. Stewart would abandon the moral statement against the death penalty that he’d intended to make and would instead say that the problem with capital punishment was excessive arbitrariness.

Arbitrariness thus became the dominant theme in the most splintered decision in Supreme Court history. Each justice in the Furman majority wrote his own solo opinion — meaning that he spoke only for himself. Each emphasized a different aspect of arbitrariness. Some focused on racism. Some focused on the failure of states to condemn only the “worst” criminals. Some focused on the infrequency with which the death penalty was employed. No one said precisely how much arbitrariness violated the Constitution. Surely Stewart understood, as his colleagues must have, that the focus on arbitrariness — as opposed to deeming capital punishment unconstitutional per se — left the door open for states to rewrite their laws. Nevertheless, the justices believed that, as Stewart told his clerks, “The death penalty in the United States was finished.”

That intuition couldn’t have been more wrong. Between the Furman decision and 1976, 35 states passed new death penalty statutes. Seven made the death penalty mandatory for murder. Others, including Georgia, instead attempted to make the process less “arbitrary” by requiring capital jurors to find “aggravating” factors, by separating capital trials into the guilt/innocence and sentencing phases we see today and by guaranteeing appellate review of all death sentences.

The political and legal momentum against Furman forced the justices to reconsider their positions. So, over two days of oral argument beginning on March 30, 1976, the justices evaluated the constitutionality of the various new state approaches, with Georgia’s new statute as the test case. The hearing had the feeling of a heavyweight prize fight, pitting against one another two of the great lawyers of their generation: Solicitor General Robert Bork, who, a decade later, would be nominated to the Supreme Court, and Anthony Amsterdam, principal architect of the NAACP Legal Defense Fund’s victorious strategy in Furman and widely acknowledged as the greatest civil rights lawyer of the 20th Century.

Two days later, on April 2, the justices met in conference to consider the new death penalty laws. Justices William Brennan and Thurgood Marshall said they would reject both the statutes that made a death penalty mandatory for murder as well as statutes that gave jurors the discretion to sentence defendants to death. Justice White and three of the Nixon appointees—Justices William Rehnquist, Harry Blackmun and Chief Justice Warren Burger—said they’d uphold both approaches. The case came down to Justices Stewart and Stevens and Nixon’s fourth appointee, Justice Lewis Powell.

At that Washington steakhouse, the troika, as they’d come to be known, decided to split the baby. They would reject the mandatory statutes, which they regarded as barbaric, but uphold the guided discretion approach. Together with the four Nixon appointees, they formed a 7-2 majority in Gregg v. Georgia, upholding Georgia’s new discretionary law, and, with Marshall and Brennan, a separate 5-4 majority rejecting the mandatory statutes. This Solomonic compromise created the bedrock principles of modern death penalty jurisprudence: that a non-arbitrary death penalty satisfies the Constitution and that the requirement of non-arbitrariness could be satisfied by Georgia’s approach.

The Gregg decision revived the American death penalty. It also began a social experiment. Underlying Gregg is an empirical proposition: legal standards would make capital jury decisions more predictable. “Let’s have them be as guided and as rational as they can be,” Stewart told his law clerk Ron Stern in 1976. Yet in five years of archival research and interviews for my book A Wild Justice, I found not a shred of evidence that any of the justices considered social science data. Certainly none is cited in the opinion. The most striking features of the compromise Stewart, Stevens and Powell embraced was the speed with which it was reached, the absence of supporting empirical evidence, and the three men’s unquestioning faith in the power of law and the state and local officials sworn to carry it out.

Forty years later, the data are in on the court’s grand compromise. How one interprets the results may depend on what’s being asked. If the essential question today is whether the death penalty is still being applied arbitrarily, the answer couldn’t be clearer. Arbitrariness is rampant. But, on the occasion of Gregg’s ruby anniversary, let’s ask a more refined question, which more directly honors the case’s peculiar history: Is arbitrariness less of a problem than it was before the Supreme Court got involved in 1972? In other words, has Gregg worked?

The answer is a conclusive, resounding no. Whether one interprets the Furmandecision to have been about — individually or collectively — excessive racism, a failure to identify the “worst of the worst” among murderers, the death penalty’s sporadic use, or simple geographical randomness, the “guided discretion” statutes endorsed in Gregg haven’t remotely fulfilled their promise. Randomness has not been reduced and in many respects has grown substantially worse.

Almost all of the justices in Furman noted the low percentage of death-penalty eligible murders that resulted in death sentences. They estimated the rate to be between 15% and 20%. From this statistic, the justices drew different conclusions. Brennan and Marshall cited it as evidence that the death penalty had been rejected by contemporary standards of decency (though the truth is they would have opposed the death penalty regardless). White said an infrequently-used death penalty couldn’t adequately deter crime. His idiosyncratic opinion seemed to invite mandatory laws.

A third view seemed to get at something important about what a constitutional death penalty might look like. Not even the most ardent supporters of the death penalty believe that all murderers should be executed. Somewhere a line has to be drawn, and it should be drawn in such a way that juries regularly accept the penalty’s use. For example, if a state restricted its use of the death penalty to mass murderers it presumably would generate a high sentencing rate. As the state broadened its law to include less aggravated kinds of murder its sentencing rate would decline as jurors (or judges) rejected borderline capital charges.

Implicit in Furman was the premise that states had for decades defined the universe of death-eligible murders too widely. Implicit in Gregg was the premise that guiding jury discretion would create some balance between death-eligible cases and actual death penalties. But 40 years of statistics tell us that the death penalty is even rarer than it was before.

In gross terms, U.S. executions have been trending downward for some time. Annual executions peaked at 197 in 1935, hovered between 50 and 100 per year during the 1950s, fell further after the NAACP Legal Defense Fund took on the death penalty in the mid-1960s, and temporarily ended with Furman. Post-Gregg, executions peaked at 98 in 1999. They’ve been declining fairly steadily since. Thirty-five people were executed in 2014. Last year, states killed 28 people, the lowest total since 1991. Death sentences have been dropping too—from more than 300 annually in 1995 and 1996 to 73 last year.

Over this period, death-sentencing rates — meaning the percentage of murders eligible for the death penalty who are actually sentenced to death — have experienced a parallel decline. Almost every state-level study has identified a rate either at the low end of, or substantially below, Furman’s 15%-20% threshold. In California, the nation’s largest producer of death sentences, the most comprehensive statewide studies have identified a sentencing rate between 4.6% and 5.5%. In a review of 34 years of Connecticut death penalty cases, Yale’s John Donohue found a sentencing rate of 4.4%. A study of all Colorado murder convictions between 1999 and 2010 revealed a rate of 0.56%.

Read the rest of the article at The Marshall Project (link).

NH House Defeats Death Penalty Expansion Bill

(Concord NH) The New Hampshire House of Representatives tonight soundly agreed, without debate​ ​and with an overwhelming voice vote, to accept the House Criminal Justice Committee’s recommendation to reject HB 1552. HB 1552 proposed to expand the death penalty to include terrorists and those murdered in the exercise of their civil liberties. Here is the barely-30-second video record​ ​(from the House’s livestream feed)​:

Full House 1552 VidCap

“We are very pleased with the House’s loud rejection today of HB 1552. House members agreed that this bill is totally unnecessary since federal law clearly gives jurisdiction for prosecuting acts of terrorism to the federal government,” said Barbara Keshen, former prosecutor for the New Hampshire Attorney General’s Office and current chair of the New Hampshire Coalition to Abolish the Death Penalty.

“The bill is also overly broad and could potentially turn any murder case into a capital murder case,” added Keshen. “It would have made NH’s death penalty statute one the most far-reaching in the country.”

“Like other terrorism trials around the country, prosecuting each case under this bill would have cost the state tens of millions of dollars,” said Rep. Robert Cushing. “As terrible as murder is, killing the killer rarely brings healing and it fails to do the one thing victim families want: to have their loved ones back again,” Cushing added.

Many thanks to all those who reached out to their Reps to ​urge them to ​defeat the bill. They heard you loud and clear! Though we have not yet passed repeal, it’s clear that most folks agree that NH can live without the death penalty.

NH Senate Deadlocks on Death Penalty Suspension Measure

NH Senate Considers SB 463 on March 3, 2016
NH Senate Considers SB 463 on March 3, 2016

The New Hampshire Senate voted today to overturn the Senate Judiciary Committee recommendation of Ought to Pass on SB 463 which suspends the implementation of the death penalty until it can be ensured that it is not being imposed on innocent people. Following a 12-12 vote on an amendment offerd by Senator Pierce that would have fully repealed the death penalty, the original bill was tabled on a voice vote.

The Senate Judiciary Committee supported the bill on a bipartisan 3-1 vote after they heard overwhelming testimony in support of the bill from a death row exoneree, clergy, law enforcement, a former FBI Special Agent, a judge, and the New Hampshire Coalition to Abolish the Death Penalty.

“We are very disappointed that the Senate would ignore the committee vote. As a former prosecutor, I have seen first hand how innocent people can be convicted of crimes they did not commit. Since 1972, 156 death row inmates in the United States have been exonerated. It is unacceptable to have a system that kills innocent people,” said Barbara Keshen, NHCADP’s Board Chair.

For the time being, NH remains the only New England state that still has the death penalty on its books.

A notable development for our efforts this year was that two conservative Republicans, Senator Kevin Avard and Senator Gary Daniels, co-authored the bill and worked hard to move their Senate peers. This is the kind of progress that NHCADP can build on. Please take a moment today to send them thank you’s:

The full roll call vote (on the full repeal amendment) was as follows:

Avard, Kevin A. – Yea
Birdsell, Regina – Nay
Boutin, David R – Nay
Bradley, Jeb – Nay
Carson, Sharon M – Nay
Cataldo, Sam – Yea
D’Allesandro, Lou – Nay
Daniels, Gary L. – Yea
Feltes, Dan – Yea
Forrester, Jeanie L – Nay
Fuller Clark, Martha – Yea
Hosmer, Andrew J. – Yea
Kelly, Molly M – Yea
Lasky, Bette R – Yea
Little, Gerald H. – Nay
Morse, Chuck W – Nay
Pierce, David – Yea
Prescott, Russell E – Nay
Reagan, John – Nay
Sanborn, Andy – Nay
Soucy, Donna M. – Yea
Stiles, Nancy F – Nay
Watters, David H – Yea
Woodburn, Jeff – Yea

You may wish to write to your Senator with thanks (or encouragement to reconsider) using our online tool here.

A video of the just under 14-minute proceeding can be viewed here:


Update: Progress on SB 463 – Death Penalty Suspension bill

Update 2.22.16: The Senate floor debate and vote on SB 463 will be on Thursday, March 3! Please write a letter to the editor (LTE) of your local newspaper and to the Union Leader today! See our LTE tool here (sample talking points are provided on that page).

Update 2.16.16: On Tuesday, February 16, the Senate Judiciary held an executive session on SB 463. There was little debate or discussion, and as the members of that committee are mostly pro-repeal Senators, they voted 3-to-1 for an “OTP” or ought-to-pass recommendation on the bill. Voting for: Senators Daniels, Pierce, and Cataldo. Voting against: Senator Carson. (Sen. Lasky was absent but supports the bill). The bill will now move to the full Senate, perhaps as soon as the week Starting February 29. Stay tuned!

On Thursday, January 28, we held an effective hearing in front of the Senate Judiciary Committee on the proposed death penalty suspension bill. More than 20 people testified in favor of the bill, and only 2 against. Supporters included a death row exoneree, clergy, law enforcement, a former FBI Special Agent, a former NH Attorney General, a former NH Surpreme Court Justice, several attorneys, several murder victim family members, among others.

(Concord) – A broad group of people testified today in support of SB 463, which suspends the implementation of the death penalty until it can be ensured that it is not being imposed on innocent people. The bill is sponsored by Senator Kevin Avard and Senator Gary Daniels and was heard by the Senate Judiciary Committee.

Ray Krone, before his exoneration in 2002, spent more than 10 years in Arizona prisons, including nearly three years on death row, for a murder he did not commit.

“In 1991 my world was turned upside down when Kim Ancona was murdered in a Phoenix bar and I was arrested for the crime. The case against me was based largely on circumstantial evidence and the testimony of a supposed ‘expert’ witness, who claimed bite marks found on the victim matched my teeth. This testimony was later discredited but I was sentenced to death in 1992.

“In 2002 I became the 100th person to be exonerated from death row when DNA found at the murder scene indicated the guilt of another man. My situation is not unique, innocent people are being executed and it must stop,” said Krone.

Barbara Keshen, former prosecutor for the New Hampshire Attorney General’s Office and current chair of the New Hampshire Coalition to Abolish the Death Penalty, told the committee that despite New Hampshire having an excellent justice system, it isn’t perfect. She talked about a New Hampshire case she handled in which an innocent man came very close to being convicted.

“To date over 150 death row inmates have been exonerated after evidence surfaced that they were wrongly convicted,” said Keshen. “These exonerations resulted from mistaken eyewitness identifications, incompetent legal counsel, shoddy forensic results, jailhouse snitches and coerced confessions. Can we really say that it is impossible for an innocent person to be executed in this state?” asked Keshen.

Tom Parker is a 30-year law enforcement veteran who spent 24 years with the FBI and has conducted or supervised over 10,000 Federal and state criminal investigations.  For the past 20 years, he has served as an expert witness on police practices and investigative competency in homicide cases all across the country.

“In homicide investigations, I have seen countless instances of falsified investigative reports, witness tampering, erroneous or coached eye witness identifications, the destruction of exculpatory evidence, fictitious crime lab results including incompetent DNA testing, and perjured testimony. The most frightening part of all of this is the volume and frequency of these transgressions committed by police officers.  We arrest and convict innocent people almost every day in this country, and there is now a growing body of proof that we have convicted and executed innocent people for crimes they did not commit. As long as we have a death penalty in America, we will continue to execute innocent people,” said Parker.

Also testifying before the committee was Sam Millsap, a lawyer in practice for over 40 years and currently an Adjunct Professor of Law at St. Mary’s University Law School. “When I was the elected District Attorney in San Antonio, Texas, I oversaw the indictment, prosecution, and conviction of Ruben Cantu. I asked the jury to sentence him to die based on the eyewitness testimony of a single person and they did.  Years after his execution that key eyewitness recanted his testimony. There is no appeal after an execution takes place. Ruben Cantu is dead and I have to live with that every day,” said Millsap.

See also:

NH1 News: Wrongly convicted murderer comes to NH to push for repeal of state’s death penalty (video)