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March 10, 2016

Notable headlines concerning diverse death penalty developments nationwide

My Google News feed this morning has an array of notable headlines concerning an array of notable death penalty reform and litigation developments around the country in recent days.  Here are some links, moving from states in the east to the west:

Delaware: "ACLU, others join in Delaware death penalty arguments"

Florida: "Florida death penalty officially revamped after Supreme Court struck it down"

Kentucky: "Bill To Abolish Kentucky Death Penalty Fails In House Committee"

Texas: "Texas executes Houston death row inmate for 1997 shooting rampage that killed 5 people including his ex-wife"

Utah: "In Deep-Red Utah, Lawmakers May Repeal the Death Penalty"

Nevada: "Group builds a case against the death penalty"

Washington: "Prosecutors beg, but legislators fail to act on death penalty"

Among this bunch, I find the final story here about developments in Washington state especially intriguing.  And, of course, I welcome input from readers as to which of these stories they think are most notable.

March 10, 2016 at 08:18 AM | Permalink


the Washington development is being mirrored in North Carolina. I've had a prosecutor tell me he is just not going to seek the death penalty any more because it has become highly unlikely that a jury will return a verdict of death. In Raleigh, the DA was quoted that out of the last seven capital cases tried , no verdict of death was returned. She was quoted saying she is going to consider not prosecuting murder cases capitally any more.


Posted by: bruce cunningham | Mar 10, 2016 8:29:23 AM

As I have written several times, the people increasingly recgognize that prosecutors suppress favorable evidence. They are reluctant to impose death when the prosecution may be cheating. As succinctley stated by a conservative jurist, “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” United States v. Olsen , 737 F.3d 625, 626 (9th Cir. 2013) (Kozinski, Chief Judge, dissenting from denial of pet. for rehearing en banc). Jurors see this cheating all around. For the latest example see Wearry v. Cain , No. 14 -10008, (March 7, 2016) (defendant’s conviction and death penalty vacated because of prosecutions’ failure to disclose (1) inconsistent statements in police reports that undercut key witness’s credibility; (2) evidence that the witness had twice sought a deal in exchange for his testimony contrary to prosecutor’s assertion in closing argument; and (3) medical reports showing a participant in the crime was physically unable to have performed as key witness testified). Beyond doubt the newly revealed evidence suffices to undermine confidence in Wearry’s conviction." )

Jurors cannot be expected to vote to kill the defendant when they perceive the prosecutors as not playing fair. See Shelton v. Marshall, 796 F.3d 1075 (C.A.9 (Cal.),2015) (Evidence that prosecution had required, as condition of key witness's plea bargain, that he agree not to be psychiatrically evaluated before testifying was material, and thus prosecution's suppression of that evidence violated Brady, in prosecution for first-degree murder; had witness's testimony against defendant been excluded as result of prosecution's secret efforts to preclude inquiry into his competency, there was reasonable probability that jury would not have found defendant guilty of deliberate and premeditated first-degree murder); ; Comstock v. Humphreys, 786 F.3d 701 (9th Cir. 2015 ) (theft conviction vacated because of Brady violation when prosecution suppressed victim’s prior statement) ; U.S. v. Sedaghaty 728 F.3d 885 (9th Cir. 2013) (conviction for tax evasion reversed because government suppressed evidence it paid key government witnesses); Aguilar v. Woodford, 725 F.3d 970 (9th Cir.2013) (murder conviction reversed because prosecutor suppressed evidence that the dog that supposedly alerted to the defendant’s scent in the car, had made errors in the past—and that the testimony had not been allowed in a previous case); Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013) (conviction and death sentence reversed where prosecutor committed Brady violation in state murder prosecution by suppressing evidence that interrogating officer, who asserted that the defendant had confessed to her, had been investigated and suspended for taking sexual liberties with a female motorist, as well as several court orders finding that the officer had lied under oath in order to secure a conviction or further a prosecution; such evidence was relevant to issue of officer's willingness to lie under oath, as well as his misogynistic attitude toward female civilians and his willingness to abuse his authority to get what he wanted, prosecutors were well aware of officer's pattern of misconduct in other criminal cases); In re Stenson, 174 Wash.2d 474, 276 P.3d 286 (Wash.,2012) (murder conviction and death sentence vacated because state suppressed FBI files relating to forensic evidence that was favorable to the defense); In re Bacigalupo, 55 Cal.4th 312 (2012) (death sentence vacated where prosecutor suppressed favorable evidence it received from informant that supported defendant’s claim that he committed murder because of threats against his family when “prosecution argued during penalty phase that there was “no evidence of duress whatsoever and that greed was defendant's sole motive”); Wolfe v. Clarke, 691 F.3d 410 (4th Cir. 2012) (murder conviction and death sentence vacated where state suppressed police report establishing motive not only for government witness to implicate someone else, but to point the finger specifically at petitioner) ; U.S. v. Mahaffy, 693 F.3d 113 (2d Cir. 2012) (vacating conviction for conspiracy to disclose confidential information relating to securities because “ government's failure to disclose portions of the transcripts [that contradicted the testimony of its key witnesses] violated Brady”); Phillips v. Ornoski, 673 F.3d 1168 (9th Cir. 2012) (death penalty vacated because the prosecutor’s deceit regarding the immunity given to a key witness violated Brady and Napue. ); State v. Hollin, 970 N.E.2d 147, 149 (Ind.,2012) (burglary conviction reversed because of state's Brady violation: failure to disclose pending criminal matters against alleged accomplice and fact that accomplice had changed his pretrial account of alleged burglary only after being charged with a new felony) ; Ex Parte Wyatt, 2012 WL 1647004, 1 (Tex.Crim.App., 2012) (rape conviction and 99-year sentence vacated because state suppressed evidence that would have supported the defense's theory of mis-identification. Those items were a police photograph and fingerprint card from a May 20, 1980, arrest, which depicted Applicant with facial hair and showed his weight as 135 pounds, a police report indicating that one of the complainants told police that her attacker weighed 200 pounds, and the fact that the same complainant had viewed a live lineup and had not identified Applicant in that lineup); Guzman v. Dept. of Corrections, 663 F.3d 1336 (11th Cir. 2011) (state violated Giglio when its key witness and its lead investigator testified falsely about the existence of a deal between the state and Cronin); U.S. v. Freeman, 650 F.3d 673 (7th Cir. 2011) (mistrial proper where government knew, or should have known witness presented false testimony); Texas v. Morton (Williamson County, Texas No. 86-452-K26) (2011) (just google “Michael Morton”) (Michael Morton exonerated by DNA evidence after 25 years in prison in case in which prosecutors hid Brady evidence);

Prosecutor's themselves have been the primary cause of the slow death of the death penalty.

Posted by: Michael R. Levine | Mar 10, 2016 11:23:09 AM

The recent developments in both Nebraska and Utah are quite encouraging.

Also, don't forget Virginia, where the General Assembly is on the verge of bringing back the electric chair if the director of the Department of Corrections decides, "for any reason," that lethal injection is unavailable.

Posted by: Rob | Mar 10, 2016 12:52:48 PM

Mr. Levine is correct. The few bad prosecutors (or is it more than a few?)--undermine the case for the death penalty. Even in cases where death should be the appropriate verdict, jurors (or one or two of them) say no. Are they thinking about the Michael Morton case out of Texas? Are they thinking of the newspaper accounts of DNA exonerations? Are they thinking of the prosecutors whose deception is exposed by all the cases cited by Mr. Levine in his post? The cheating prosecutors themselves are playing a significant part in killing the death penalty.

Posted by: observer | Mar 10, 2016 1:15:47 PM

Much as I hate to admit it, Levine is correct in part. I consider myself an ethical prosecutor. Yet, on occasion I admit to having had tunnel vision, blinding myself to what is Brady evidence, and withholding it from the defense. No more of that.

Posted by: prosecutoranon | Mar 10, 2016 1:19:30 PM

According to the following article, Louisiana prosecutors are particularly adept at suppressing favorable evidence--not doubt contributing to jurors' increasing wariness in imposing the death penalty:

LA: The U.S. Supreme Court Again Reverses the Louisiana Courts for Egregious Misapplication of Brady

by Bert | Mar 7, 2016 | Louisiana
LA: The U.S. Supreme Court Again Reverses the Louisiana Courts for Egregious Misapplication of Brady

On Monday, the U.S. Supreme Court handed down a per curiam opinion in Wearry v. Cain, a death penalty appeal from Louisiana. This latest decision is one in a long line that demonstrates Louisiana courts do not understand prosecutors’ obligations under Brady. Indeed, the Supreme Court noted in its opinion that Louisiana courts had “egregiously misapplied settled law” in ruling against the defendant.

Per curiam decisions from the Court are handed down without an oral argument or briefing from the parties on the merits and typically “signal that a case was uncontroversial, obvious, and did not require a substantial opinion.” (Occasionally, justices will dissent from per curiam rulings, as two did in Wearry.) In other words, these opinions often serve as a strong judicial rebuke of the losing side’s argument. Mr. Wearry prevailed on his allegation that prosecutors violated their Brady obligations, and the Supreme Court granted him a new trial; the State—and the Louisiana courts below that endorsed the State’s position—suffered the rebuke.

Contrary to Justice Alito’s dissent—which called for a full-blown merits review—the per curiam approach seemed appropriate here not only because the Louisiana courts’ denial of the claim below was out-of-line with well-established law, but also because the Louisiana courts have proven to be repeat offenders; they repeatedly fail to appropriately enforce prosecutors’ Brady obligations.

In Wearry, the defendant was convicted and sentenced to death for participating along with others in the armed robbery and killing of a teenager named Eric Walber. The State’s “star witness” at Wearry’s trial was Sam Scott, a self-identified witness—who, over two years after the crime, contacted the authorities for the first time while incarcerated, and whose account changed significantly multiple times before trial. Scott ultimately testified to the jury that he and Wearry had been playing dice when Wearry decided to rob Walber, who was driving past them at the time. Scott said that five men participated in the robbery, and three of them, including Wearry, had killed the victim. The State’s “other main witness” was Eric Brown. He testified that he had seen Wearry and others with the victim the night the crime occurred. Brown was incarcerated at the time of Wearry’s trial, admitted that he had made prior statements that were inconsistent with his testimony, and claimed that he was testifying not to curry prosecutorial favor on his own charges but out of compassion for the victim’s sister, whom he knew. In his defense, Wearry put forth an alibi, relying on witnesses who testified that he had been with them at a wedding 40 miles away during the crime.

After he was convicted, Wearry’s defense team discovered that the prosecution had withheld at least three categories of evidence. First, “previously undisclosed police records showed that two of Scott’s fellow inmates had made statements that cast doubt on Scott’s credibility.” Indeed, one of them suggested Scott may have had a vendetta against Wearry; the other indicated that Scott told him that testifying against Wearry could help that inmate in his efforts to get out of prison. Second, contrary to his trial testimony, Eric Brown had twice asked authorities to reduce his sentence if he took the stand against Wearry. And, third, the prosecution failed to turn over medical evidence about one of Wearry’s co-defendants that showed Sam Scott’s story of how the offense unfolded was unlikely if not implausible.

On these grounds, the Supreme Court “conclude[d] that the Louisiana courts’ denial of Wearry’s Brady claim runs up against settled constitutional principles, and [] a new trial is required as a result . . . .” Under Brady, a new trial is required when the prosecution suppresses evidence favorable to the defendant that is material to the question of the defendant’s guilt or punishment. Here, the Supreme Court held that it was “[b]eyond doubt” that the suppressed evidence undermines confidence in Wearry’s conviction: “The State’s trial evidence resembles a house of cards, built on the jury crediting Scott’s account rather than Wearry’s alibi.” Seeing the State’s evidence for what it was, the Supreme Court called the Louisiana courts out for their egregious misapplication of the law.
How Did the Louisiana Courts Get It So Wrong?

Given the clarity with which the Supreme Court viewed the evidence, how did the Louisiana courts reach the wrong result? That question requires looking deeper into the case than the Louisiana Supreme Court’s opinion because that opinion only consists of one word: “Denied.” See State ex rel. Wearry v. Cain, 2013-2422 (La. 2/27/15), 161 So. 3d 620.

The post-conviction court—a trial judge in Louisiana’s 21st judicial district named Wayne Chutz—denied the Brady claim because he deemed the State’s violations were not material to the outcome. Remarkably, the court’s opinion fails to even mention the evidence revealing that other inmates had provided State investigators with information that undermined Scott’s credibility. And, for the categories of Brady evidence it actually did consider, rather than assess the combined impact that this evidence could have had on the jury’s decision had it been disclosed, the court isolated each category and held that none of them individually was material “taken in the context of all of the evidence produced at trial to incriminate the defendant.” (To read Chutz’s opinion, check out Appendix B of this document.)

An analogy may help illustrate the problem with this faulty judicial reasoning. The postconviction court’s opinion looked at the State’s case like a Jenga tower, and it conducted its analysis by starting with the first violation and simply taking one block away to see if the tower fell. When it did not, the court reconstructed the complete tower and then looked at the next violation as if it were just another single block to be removed. But, the Supreme Court has long made clear that all of the Brady violations need be addressed in the cumulative. The judge should have taken as many blocks from the tower as the State withheld. (And, it should have taken those blocks from the base levels because the suppressed information struck at the foundation of the State’s case.) Had it done so, the tower would have collapsed just like “a house of cards.” In the Supreme Court’s words, “the state postconviction court improperly evaluated the materiality of each piece of evidence in isolation rather than cumulatively . . . .”
Wearry v. Cain Follows a Pattern that Reflects Louisiana Judicial Intransigence . . .

The Louisiana Supreme Court’s failure in Wearry was a failure to intervene and keep lower state courts in line. If this week’s case sounds familiar to SCOTUS-watchers, you may recall the 2012 Supreme Court opinion in Smith v. Cain. There, the US Supreme Court overturned a Louisiana defendant’s murder convictions because prosecutors suppressed evidence that revealed that the State’s star witness could not provide a description of the alleged perpetrators. That was another “easy case,” an 8-to-1 ruling in the defendant’s favor authored by Chief Justice Roberts. The Louisiana Supreme Court had also written a one-word opinion in that case: “Denied.” See State v. Smith, 2009-1164 (La. 9/24/10), 45 So. 3d 1065. What may be most spectacular about Smith was that not a single Louisiana judge who reviewed the matter ever even found that the State improperly withheld evidence from the defendant. Perhaps something is amiss in the Bayou state.

Even beyond Smith v. Cain, there is substantial evidence that Wearry represents an additional attempt to promote judicial compliance with Brady in Louisiana. Another pivotal U.S. Supreme Court case about Brady obligations came out of Louisiana in the mid-90s. In Kyles v. Whitley, the Supreme Court reviewed a case in which the state courts in Louisiana—as well as a federal district court and the Fifth Circuit Court of Appeals—had denied the defendant’s claim that evidence suppressed by the prosecution warranted a new trial. There, the Supreme Court granted Mr. Kyles a new trial and emphasized a point that it reiterated in Wearry—courts reviewing Brady violations must assess “the cumulative effect of the evidence.”

Brady was decided in 1963; Kyles was decided in 1995; Smith was decided in 2012. The precedents should by now be crystal clear. But, as the Louisiana courts apparently continue to disregard binding precedent, SCOTUS is taking the unusual step of performing straight up error-correction. As one law professor has noted, “The upside of the Supreme Court embracing an error-correction role is clear: not only are errors corrected, but lower courts – particularly state supreme courts and federal circuit courts – receive the important message that they should strive hard to get it right even in little cases.” Wearry vindicates this view but is no “little” case—until today’s decision, Mr. Wearry was facing execution. Indeed, as his lawyers have made clear, the ruling is a critical if long-overdue step in the process of proving their client’s innocence.

Posted by: onlooker | Mar 10, 2016 1:36:44 PM

Among the stories you note, Utah strikes me as the only one that is news in the sense that it is a departure from the status quo or expected outcome.

Posted by: john | Mar 10, 2016 2:06:40 PM

Bruce Cunningham writes: "I've had a prosecutor tell me he is just not going to seek the death penalty any more because it has become highly unlikely that a jury will return a verdict of death."
Michael Levine explains that jurors "are reluctant to impose death when the prosecution may be cheating....[and that] Prosecutor's themselves have been the primary cause of the slow death of the death penalty."

I agree with Levine's explanation.

Posted by: Dave from Texas | Mar 10, 2016 5:00:45 PM

Having tried criminal cases for over forty years, I concur that the State from time to time withholds favorable evidence, sometimes intentionally, sometimes inadvertently. For example, what I might consider mitigating evidence, an officer would not see it that way. So, the officer doesn't turn the information over to the DA , and the DA doesn't give it to me.

I have adopted the practice of filing a motion asking the judge to order the prosecutors to sign affidavits that they have made full inquiry of all officers involved in the case, and has turned over all Brady material to the Defense.

I did that in an adjoining county, and the DA posted a notice at the Sheriff's office asking all officers to check their files and make sure they had turned in everything they had about the case, in writing. I received an additional 256 pages of discovery.

people are beginning to realize that the death penalty may be theoretically justifiable in some cases, but it is a human venture and humans make mistakes or deliberately withhold . Imagine a sports coach being told to turn over information to the opposing coach that might help the other team win the game. Like the superstar has sprained his ankle or has had the flu. sadly, the sports analogy is apt. lawyers on both sides talk about 'winning" or "losing"

Posted by: bruce cunningham | Mar 10, 2016 6:50:26 PM

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