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April 15, 2023

Rounding up some notable recent death penalty policy and practice stories

Most weeks bring a number of press pieces on a number of capital punishment topics.  But so many death penalty headlines and stories caught my eye in the last few days that I decided only this round-up allowed me to keep up with a bunch of notable stories:

From ABC11, "NC faith leaders ask Governor Cooper to commute sentences of death row inmates"

From Arizona Capitol Times, "Court reinstates death penalty for man who killed University of Arizona professor"

From Cleveland.com, "Ohio’s broken death-penalty system may be wasting hundreds of millions of dollars, AG warns"

From The Hill, "Pence calls for expedited death penalty for mass shooters during NRA speech"

From MassLive, "10 years on, Boston Marathon bomber at the center of death penalty debate"

From the National Catholic Reporter, "Catholic governor calls on Louisiana lawmakers to abolish the death penalty as 'a pro-life state'"

From the Pittsburgh Post-Gazette, "The sisters of two Tree of Life shooting victims want the death penalty: ‘We owe it to our brothers’"

From Reuters, "Florida to allow death penalty with 8-4 jury vote instead of unanimously"

April 15, 2023 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

April 14, 2023

"Why Can't I Have a Robot Lawyer? Limits on the Right to Appear Pro Se"

The title of this post is the title of this new paper authored by Jessica Gunder now available via SSRN. Here is its abstract:

Some rights are more favored — and some rights are more disfavored — than others.  The right to self-representation is a disfavored right.  Despite its historic roots, the right has been subjected to judicially imposed limits that have reduced its scope.  The limits on the right to self-representation include restrictions on the type of litigant that can avail themselves of the right, bars regarding the personal characteristics of litigants, barriers on the types of assistance a pro se litigant may receive, and procedural limitations on how a litigant may invoke the right.

This Article is the first to study these historic limitations on the right to appear pro se and consider how those limits will impact litigants who seek to use new artificial intelligence technology to assist them in their court proceedings.  I contend that a litigant who seeks to appear pro se with the assistance of artificial intelligence would implicate the same concerns that resulted in the implementation of these historically established parameters of the right to self-representation.  I then provide a framework for how courts should address this technology when it — inevitably — appears in courtrooms alongside pro se litigants.

April 14, 2023 in Who Sentences | Permalink | Comments (0)

April 13, 2023

Jury gives defendant (with significant criminal history) a 70-year prison sentence for spitting at cops

There is a lot more to this local sentencing story from Texas than the headline, but what a headline: "Man found guilty of spitting at Lubbock Police gets 70 years in prison."  Here are the details:

Larry Pearson, 36, was sentenced by a Lubbock jury on Wednesday to 70 years in prison after he was found guilty on two counts of harassment of a public servant for spitting at Lubbock Police officers. “You’re not going to get 70 years for something like this when you’ve never been in trouble before,” Prosecutor Jessica Gorman said.

Gorman told EverythingLubbock.com that Pearson was arrested in May of 2022 for domestic violence after a victim flagged down an officer in the 200 block of Zenith Avenue. The victim told police that Pearson hit her several times, and that he had a gun. Gorman said that firearm turned out to be an airsoft gun. A police report at the time stated the victim had “multiple visible injuries” on her face. Gorman said after Pearson was taken into custody, he was upset the victim was not arrested instead.

Gorman said Pearson started kicking at the doors in the officer’s vehicle. When the officers opened the door to tell him to stop, Gorman said he spit at both officers. Gorman said Pearson kept spitting after he arrived at the Lubbock County Detention Center.

During closing arguments of the sentencing phase of Pearson’s trial, Gorman asked the jury to consider a number that would “send a message” to Pearson and society. Gorman told EverythingLubbock.com that Pearson had prior convictions of aggravated robbery and continuous family violence. Due to those convictions, the minimum sentence Pearson could have received would’ve been 25 years.

“If you’re going to live the life of crime, you’re going to do that among other criminals [in prison],” Gorman said during closing arguments. Defense Attorney Jim Shaw told the jury the sentencing was for a “simple misdemeanor” in a circumstance that got “out of control.”

I tend to be a fan of jury sentencing, but this sounds like a lot.

April 13, 2023 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (14)

"Big Capital & the Carceral State"

The title of this post is the title of this new paper authored by Laura Appleman now available via SSRN.  Here is its abstract:

Who is accountable for the imposition of punishment in our carceral system?  The answer used to be much simpler, as we held local, state, and federal government actors responsible.  In recent decades, however, our correctional system has become increasingly privatized, with deeply troubling results.  All aspects of the carceral state — whether prisons, jails, juvenile detention, rehabilitation, forensic hospitals, bail, or electronic monitoring — have dramatically increased their use of privatized correctional services.

With this new world of privatized corrections, we frequently don’t know whom can be held accountable when wrongdoing occurs.  The bulk of our correctional services are now provided by complicated web of private entities, some of them large and publicly held, some owned by private equity.  I dub them “Big Capital.”

Big Capital has invaded the carceral universe.  Almost every aspect of correctional control has been outsourced to private companies somewhere.  The normalization of private equity firms and enormous correction corporations partnering with public carceral institutions has resulted in a failure of basic incarceration services.  Although private prisons, prison labor for private profit, and privatized services for inmates are nothing new, Big Capital’s recent infiltration into the carceral state has no historical parallel.

This Article seeks to uncover these companies’ incursion into the realm of public corrections and detail the disastrous results for those under correctional control.  In so doing, I also explais why allowing complicated private entities to control our carceral system has made matters far worse, violating fundamental U.S. philosophies about punishment and rehabilitation, creating conflicts of interest, undermining democratic legitimacy, and ultimately corrupting the administration of justice.

April 13, 2023 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

April 12, 2023

Florida complete its 100th modern execution ... of double murderer 34 years after crime

As reported in this AP article, "Florida executed a man known as the “ninja killer” on Wednesday for the 1989 slayings of a couple visiting the state from New Jersey." Here is more:

Louis Bernard Gaskin, 56, was pronounced dead at 6:15 p.m. after receiving a lethal injection, the governor’s office said. He was convicted of killing Robert Sturmfels, 56, and Georgette Sturmfels, 55, on Dec. 20, 1989, in their Flagler County winter home on Florida’s northeastern coast....

The execution, scheduled for 6 p.m., started without delay.  When asked if he had any final statement, Gaskin said: “Justice is not about the crime. It’s not about the criminal. It’s about the law.”  Gaskin then referred to the legal proceedings surrounding his case and the appeals and finished his statement saying, “Look at my case.”...

Republican Gov. Ron DeSantis has been signing death warrants at a rapid pace this year as he prepares his widely expected presidential campaign.  He oversaw only two executions in his first four years in office, both in 2019.

This execution came six weeks after Donald Dillbeck, 59, was put to death for the 1990 murder of Faye Vann, 44, in Tallahassee, and three weeks before the scheduled execution of Darryl B. Barwick for slaying Rebecca Wendt, 24, in 1986 in Panama City.  Barring any stays for Barwick, it will be the shortest period that three executions have been carried out in Florida since three were put to death within 36 days in 2014 under former Gov. Rick Scott, also a Republican.

Gaskin’s death marked the state’s 100th execution since the reinstatement of the death penalty in 1976. There are an additional 297 people on Florida’s death row, which is located at Florida State Prison, about 40 miles southwest of Jacksonville.

Gaskin, who was dubbed the “ninja killer” because he wore all-black ninja clothing during the crimes, shot his victims with a .22-caliber rifle, investigators said.  He was convicted of first-degree murder.  Property that he stole from the Sturmfels’ home — a clock, two lamps and a videocassette recorder — was found at his residence and were intended to be Christmas gifts for his girlfriend, according to investigators.  He was also convicted of armed robbery, burglary and the attempted murder that same night of another couple who lived nearby....

Jurors voted 8-4 in 1990 to recommend the death sentence, which the judge accepted.  Florida law now requires a unanimous jury vote for capital punishment, although the Legislature could send DeSantis a bill this week that would allow 8-4 jury recommendations for capital punishment.  The state and U.S. supreme courts have rejected appeals Gaskin filed since his death warrant was signed.  The latest denial came Tuesday.

April 12, 2023 in Death Penalty Reforms, Who Sentences | Permalink | Comments (9)

Two notable new legal commentaries from Slate on innocence and prison change-agents

Today I came across two notable new pieces at Slate, both of which justify their own posts but will end up combined here.  Specifically, here are headlines, links and openning paragraphs to whet appetites: 

From Austin Sarat, "Is Punishing Innocent People Unconstitutional?":

Last December, Christopher Dunn asked the United States Supreme Court to order his release from prison or at least grant him a new trial. He is serving a life sentence in Missouri for a crime he did not commit, and he is hoping the court will agree to take up his case this spring.

Dunn contends that the U.S. Constitution forbids punishing innocent people and is asking the justices to declare that it is unconstitutional for a state to keep an innocent man in prison. A court in Missouri now agrees that he is not guilty. But Dunn is caught up in a nightmarish legal thicket. It is time for the Supreme Court to end his nightmare and say that this country will not tolerate punishing the innocent.

From Seema Saifee, "One of the Best Ideas for Ending Mass Incarceration Was Thought Up in a Prison":

The United States locks up more people than almost every other nation. To dethrone us from that perch, scholars have crunched the numbers: Targeting only low-level, drug, and “non-violent” offenses will not meaningfully cut prison populations. Reckoning with mass incarceration demands reducing reliance on prisons for conduct that our criminal laws deem violent.  To produce such a significant dent in our prisons, political leaders and scholars turn to prosecutors, academics, policy wonks, and sometimes community groups for strategies. Underneath this hierarchy hides an unquestioned intuition: Those who benefit from freedom hold a monopoly on how to shrink prisons. So self-evident is this premise that it conceals a counterintuitive phenomenon: Promising strategies to reduce prison populations for violent crime have been incubated inside prison walls.

In a recent paper, I reveal how people behind bars have created concepts and strategies that have opened up new possibilities to reduce incarceration and reduce crime.  In fact, lawyers, researchers, policymakers, and abolitionists have harnessed these “inside moves” to do just that.

April 12, 2023 in Prisons and prisoners, Who Sentences | Permalink | Comments (2)

"Judicial Scarring"

The title of this post is the title of this new empirical paper authored by Karthik Srinivasan available via SSRN.  Here is its abstract:

I document that experienced decision makers can be influenced by irrelevant events in a high stakes setting, felony sentencing in Cook County.  Using a stacked difference-in-differences design, I estimate that judges hand down sentences that are 13% longer after sentencing a first degree murder.  The effect is twice as large for defendants who resemble the murderer along the dimensions of race and charge severity.  The bias affects 6% of defendants on an ongoing basis and temporarily increases the Black sentencing penalty by 91%.

April 12, 2023 in Data on sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (6)

April 11, 2023

Another federal judge finds Second Amendment violation in federal law criminalizing marijuana users from gun possession

Tihs new Marijuana Moment piece, headlined "Another Federal Court Rules That Banning Marijuana Consumers From Possessing Guns Is Unconstitutional," reports on another notable new post-Bruen ruling finding a provision of federal criminal gun control laws to be unconstitutional.  Here are the basics:

Another federal court has ruled that banning people who use marijuana from possessing firearms is unconstitutional—and it said that the same legal principle also applies to the sale and transfer of guns, too.

The Justice Department has recently found itself in several courts attempting to defend the cannabis firearms ban, and its arguments have faced increased scrutiny in light of broader precedent-setting Second Amendment cases that generally make it more difficult to impose gun restrictions.

Now the U.S. District Court for the Western District of Texas has weighed in, delivering a win to Paola Connelly, an El Paso resident who was convicted of separate charges for possessing and transferring a firearm in 2021 while admitting to being a cannabis consumer.

Judge Kathleen Cardone granted a motion for reconsideration of the case and ultimately dismissed the charges last week. While the court previously issued the conviction, it said that a more recent ruling in the U.S. Court of Appeals for the Fifth Circuit warranted a reevaluation. That case relied on U.S. Supreme Court precedent finding that any firearm restrictions must be consistent with the historical context of the Second Amendment’s original 1791 ratification.

The Supreme Court ruling has been central to several challenges against the gun ban for cannabis consumers. For this latest federal district court case, the Bush-appointed judge disputed the Justice Department’s attempts to assert historical analogues to the marijuana ban, including comparisons to laws against using guns while intoxicated from alcohol and possession by people deemed “unvirtuous.”

Further, the court said that because simple cannabis possession would only rise to a misdemeanor under federal law, “any historical tradition of disarming ‘unlawful’ individuals does not support disarming Connelly for her alleged marijuana use.” Notably, the judge also cited the fact that President Joe Biden issued a mass pardon last year for people who’ve committed federal marijuana possession offenses.

The full 32-page opinion in US v. Connelly, No. EP-22-CR-229(2)-KC (W.D. Tex. April 6, 2023), is available at this link.   Footnote 8 of the opinion highlights the split of authority within the Fifith Circuit on this topic:

District courts in the Fifth Circuit have upheld § 922(g)(3) against Second Amendment challenges post-Bruen, largely employing these broader traditions. See United States v. Black, --- F. Supp. 3d ----, 2023 WL 122920, at *34 (W.D. La. Jan. 6, 2023); United States v. Sanchez, --- F. Supp. 3d ----, 2022 WL 17815116, at *3 (W.D. Tex. Dec. 19, 2022); United States v. Daniels, 610 F. Supp. 3d 892, 89597 (S.D. Miss. 2022). The Court respectfully disagrees with these cases for the reasons detailed below.  Further, the Court notes that all three of these cases predated the Fifth Circuit's deciison in Rahimi, which cast doubt on the applicability of these broader historical traditions to § 922(g)(3).  See 61 F.4th at 45051, 453. 

Some (of many) prior recent related posts:

April 11, 2023 in Gun policy and sentencing, Second Amendment issues | Permalink | Comments (0)

"Is Expanding Eligibility Enough?: Improving Record Sealing Access and Transparency in Ohio Courts"

The title of this post is the title of this notable new report authored by Jana Hrdinova and now available via SSRN. (Through my work at the Drug Enforcement and Policy Center, I was able to review a prior draft of this important paper about record sealing data.)  Here is the paper's abstract:

The collateral consequences stemming from a criminal conviction are far reaching and long-lasting, affecting people’s ability to obtain housing, diminishing employment opportunities, and limiting educational attainment.  In the last decade, some research has shown that record sealing and record expungement can have significant benefits for individuals through increased economic prosperity and for communities through reduced recidivism.  Unfortunately, research also indicates that in states that require individuals to file a petition to get their record sealed, only a small percentage of eligible individuals take advantage of this remedy.

Over the last decade, the Ohio General Assembly significantly broadened eligibility criteria for record sealing and expungement.  But whether laws focused solely on broadening eligibility have a significant impact on record sealing utilization remains an understudied topic.  The data from our research indicates a 55% increase in the number of granted record sealing applications in the state of Ohio from 2011 to 2021, but also suggests a relatively low rate of uptake when compared to the potential pool of eligible residents.  Additionally, we report on the lack of jurisdiction specific data resulting in inability to compare utilization rate across jurisdictions, as well as lack of accurate and up to date information about eligibility criteria and record sealing forms on court websites. In conclusion we provide a set of recommendations for addressing identified challenges.

April 11, 2023 in Collateral consequences, Data on sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Federal judge denies Elizabeth Holmes motion to remain free pending her appeal of fraud convictions

As reported in this new Bloomberg piece, "Elizabeth Holmes must report to prison as scheduled later this month, a judge ruled, rejecting her request to remain free on bail as she appeals her fraud conviction."  Here is more:

The decision Monday by US District Judge Edward Davila in San Jose, California, is likely his last in the case which he’s handled since Holmes was indicted in 2018. Davila presided over the Theranos Inc. founder’s four-month trial in 2021 and sentenced her in November to serve 11 1/4 years of incarceration for deceiving investors in her blood-testing startup.

Legal experts said Holmes’s bid to remain free during an appeals process that might take two years was a long shot. She’s expected to make one final request for bail from the San Francisco-based federal appeals court, which she has also asked to overturn her conviction.

Davila ruled that even if Holmes won an appeals court ruling overturning his decisions to allow evidence challenging the accuracy and reliability of Theranos’s technology, she had deceived investors in so many different ways that such a decision isn’t likely to require a reversal or new trial on all the fraud counts she was convicted of. “Whether the jury heard more or less evidence that tended to show the accuracy and reliability of Theranos technology does not diminish the evidence the jury heard of other misrepresentations Ms. Holmes had made to investors,” he wrote.

To justify her request for bail, Holmes said she has two young children, continues to work on new inventions, and has raised “substantial questions” of law or facts in her appeal that could win her a new trial. At a hearing last month, Davila was most interested in an argument prosecutors made that there’s a risk Holmes might try to flee, based on a one-way plane ticket to Mexico that was purchased while she was on trial....

“Booking international travel plans for a criminal defendant in anticipation of a complete defense victory is a bold move, and the failure to promptly cancel those plans after a guilty verdict is a perilously careless oversight,” Davila said of the plane ticket. The incident invited “greater scrutiny” of Holmes, he wrote, adding that he concluded the purchase “while ill-advised, was not an attempt to flee the country.”...

Davila previously denied a request for bail pending appeal sought by Ramesh “Sunny” Balwani, the former president of Theranos and Holmes’s ex-boyfriend who was sentenced to 13 years in prison for his fraud conviction. The appeals court upheld Davila’s decision.

This latest ruling in US v. Holmes, which runs 11 pages, can be found at this link.

Some prior related posts:

April 11, 2023 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (14)

April 10, 2023

Reminders of upcoming events on Ohio SB 288 and "Frankel at 50"

The coming weeks bring two big events organized in part by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law.  I am very honored and excited to be involved in both events and I wanted to flag them again here (end encourage registrations):


Afternoon (online) on April 12: "Senate Bill 288: Implications for the Criminal Justice System in Ohio"

Lots of details on contents and speakers for two panels available here and and  simple registation form at this link.


All day (in NYC) on April 24: "Frankel at 50: A Half-Century’s Perspective on Criminal Sentences: Law Without Order"

Lots of details on contents and speakers for eight(!) panels in complete agenda here and and registation available at this link.


Though I am perhaps (inappropriately?) bragging about who DEPC has helped assembled for these events, I am eager to say the line up of speakers for both the these events are truly amazing (and I am truly grateful to all the persons who have helped put this all together).

April 10, 2023 in Who Sentences | Permalink | Comments (0)

"Sentencing in an Era of Plea Bargains"

The title of this post is the title of this notable new paper authored by Jeffrey Bellin and Jenia Iontcheva Turner now available via SSRN.  Here is its abstract:

The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge.  Yet, in a country where 95 percent of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors — who control plea terms — as the decider of punishment.  This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains.

After reviewing the empirical literature on sentence variation, state and federal plea-bargaining rules and doctrines, and conducting some empirical analysis of our own, we conclude that neither of the competing narratives is correct. Sentencing in the United States has become a dynamic process with substantial contributions from multiple actors, not a static event controlled by any single actor.

Zooming in on judges’ contributions, we find that, contrary to much modern commentary, judges can (and do) influence plea bargained sentences in even the most restrictive jurisdictions.  Yet this judicial imprint is often obscured by formal rules that purport to exclude judges from plea negotiations.  In addition, we identify a few scenarios where judges are prevented from influencing plea bargains and thus lose their traditional role as the ultimate arbiter of an individual’s sentence.  In response to these findings, we propose a reform that would make the already prevalent judicial influence over the substance of plea agreements more transparent.  In addition, we suggest a legal change that would eliminate scenarios where judges are legally authorized but practically unable to reject (unusually harsh) plea deals.

April 10, 2023 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (17)

April 9, 2023

Highlighting US Sentencing Commission's significant amendments to federal guidelines' criminal history rules

The highest profile amendment to the federal sentencing guidelines promulgated by the US Sentencing Commission last week (basics here) concerns a major revision of § 1B1.13 setting terms for a "Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A)" (discussed here).  But the most consequential amendment might prove to be new provisions altering how criminal history will impact guideline calculations.  USSC Chair Reeves discussed in his statement at last week's hearing (just some of) the particulars:

[W]e have proposed addressing two discrete ways in which the sentencing guidelines punish people for having a “criminal history.”  The first proposal aimed to reduce or eliminate the use of “status points,” which are sentencing enhancements given to people who committed a crime while on parole or probation.  As we heard from many commenters, status points often amount to a form of “double penalty.”...  Moreover, Commission research strongly suggests that status points’ ability to predict recidivism -- a core justification for their use -- may be extremely weak.

In light of all this, the Commission’s final policy eliminates status points in the vast majority of criminal cases. For a limited category of defendants with extensive criminal histories, we are cutting the effect of status points in half, reflecting the idea that this tool may sometimes achieve other goals beyond predicting recidivism.

The second “criminal history” proposal we issued sought to fulfill a core directive Congress gave the Commission at its inception.  That directive says that, in general, “a first offender who has not been convicted of a crime of violence or an otherwise serious offense” should not be incarcerated.  The Commission’s proposal sought to define who met this standard and what the consequences for meeting this standard should be.

Ultimately, we decided to answer both questions broadly.  Our final policy provides a larger reduction in sentence for a larger category of people than the status quo.  While we agreed to limit this reduction in a limited set of circumstances, we also agreed to give judges discretion to expand non-carceral options to more people.

These two items concerning "status points" and "zero-point-offenders" are the big ticket criminal history matters, though the Commission also adds to its examples of overrepresented criminal history cases involving criminal history points resulting from marijuana possession convictions. 

As detailed here, the Commission has officially sought comment on whether it should make the key parts of its new criminal history amendment "available for retroactive application."  The Commission states that a "retroactivity impact analysis will be made available to the public as soon as practicable."  I suspect that analysis will show these criminal histpry changes could impact many thousands, perhaps tens of thousands, of federal prisoners.  This June 2022 report from the Commission detailed that "over one-third of federal offenders (37.5%) received two 'status points' under §4A1.1(d) as part of their criminal history scores."  And this 2022 USSC Quick Facts accounting of federal prisoners noted that almost 30% "have little or no prior criminal history."  Though not all these populations would clearly benefit from retroactive application of the new criminal history rules, a sizeable number likely would.   

Retroactivity dynamics aside, it appears from Table 23 in the USSC's latest annual data on criminal history scores that over 60% of federal defendants sentences in fiscal year 2022 had either had zero criminal history points (33.9%) or received status points (26.7%).  In other words, the data suggest that more future federal defendants will be impacted by these criminal history amendments than won't be.  In short, these are relatively small criminal history changes sure to have a relatively big impact.

April 9, 2023 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (19)

Some notable headlines about various developments in various prosecutions related to Jan 6

Though a split DC Circuit ruling about obstruction charges received the most press attention, two addition headlines about sentencing developments in prosecutions related to Jan 6 also caught my eye this morning.  Here is a quick round-up of full headlines:

From NBC News, "Appeals court upholds 'obstruction' charge used against hundreds of Jan. 6 rioters, for now: A panel of appellate court judges upheld the use of the statute against Jan. 6 rioters, but the complex ruling means the issue likely isn't settled yet."

From Politico, "Prosecutors seek lengthiest Jan. 6 sentence yet for rioter who pinned officer in Capitol doorway: The sentence would be more than five years longer than the longest sentence handed down in any Jan. 6 case."

From Tampa Bay Times, "Ex-soldier with Jan. 6 ties gets 7 years prison in Tampa case: Jeremy Brown, a retired U.S. Army Special Forces master sergeant, was found guilty of having illegal weapons and a classified military document at his home."

April 9, 2023 in Offense Characteristics, Who Sentences | Permalink | Comments (1)

Texas Gov pledges to swiftly pardon man convicted of murder of BLM marcher day after jury conviction

As reported in this local article from Texas, "[l]ess than 24 hours after a jury in Austin found Daniel Perry guilty of shooting to death a protester, Gov. Greg Abbott announced on social media Saturday that he would pardon the convicted killer as soon as a request 'hits my desk'."  Here is more about a case and promise of clemency that seems likely to garner considerable attention:

The unprecedented effort, which Abbott announced to his 1 million followers on Twitter, came as Abbott faced growing calls from national conservative figures such as Fox News host Tucker Carlson and Kyle Rittenhouse, who was acquitted in the shooting deaths of two Wisconsin protesters in 2020, to act to urgently undo the conviction.

“Texas has one of the strongest ‘Stand your ground’ laws of self-defense that cannot be nullified by a jury or progressive district attorney,” Abbott said in a statement.  “I will work as swiftly as Texas law allows regarding the pardon of Sgt. Perry.”  Abbott’s office did not return calls from the American-Statesman on Saturday seeking additional comment.  The two-week trial, which included dozens of witnesses and much forensic evidence, was not broadcast. Abbott attended no portion of the trial.

Perry, an Army sergeant, was working as an Uber driver in Austin on the night of July 25, 2020, when he ran a red light at the intersection of Fourth Street and Congress Avenue and drove into a Black Lives Matter march before stopping. Garrett Foster, carrying an AK-47 rifle, was among a group of protesters who approached his car.  Perry told police that Foster threatened him by raising the barrel of his rifle at him, so he shot him five times with a .357 revolver through the window of his car before driving away.

Perry’s defense team argued that he acted in self-defense, but prosecutors contended that Perry instigated what happened.  They highlighted a series of social media posts and Facebook messages in which Perry made statements that they said indicated his state of mind, such as he might “kill a few people on my way to work.  They are rioting outside my apartment complex.”  A friend responded, “Can you legally do so?” Perry replied, “If they attack me or try to pull me out of my car then yes.”

A jury Friday unanimously convicted Perry.  State District Judge Clifford Brown is set to sentence him to prison in the coming days.  He faces up to life in prison.

David Wahlberg, a former Travis County criminal court judge, said he cannot think of another example in the state’s history when a governor sought a pardon before a verdict was formally appealed.  “I think it’s outrageously presumptuous for someone to make a judgment about the verdict of 12 unanimous jurors without actually hearing the evidence in person,” Wahlberg said.

Doug O’Connell, who represents Perry, told the Statesman in a statement Saturday: “Right now we are completely focused on preparing for Daniel’s sentencing hearing. I visited Daniel in jail this morning.  As you might expect he is devastated.  He spoke to me about his fears that he will never get to hug his mother again.  He’s also crushed that his conviction will end his Army service.  He loves being a soldier.”...

The jury deliberated 17 hours over two days before reaching the verdict Friday afternoon after an eight-day trial with dozens of witnesses.  Perry didn't testify during the trial....  After the judge read the verdict to the packed courtroom Friday, Perry, 35, buried his head into one of his lawyer's chests and erupted into loud sobs.  The jury also found Perry not guilty of an aggravated assault with a deadly weapon in connection to driving in front of another protester....

Fox's Carlson decried the conviction in a two-minute segment on his show, referring to the Austin protesters as a “mob of rioters” who surrounded Perry’s car and began pounding on it.  He said Perry fired when Foster raised his rifle.  “This is a legal atrocity,” Carlson said. “There is no right of self-defense in Texas.”...

Jennifer Laurin, a University of Texas law professor, addressed the portion of Abbott’s statement on Texas’ self-defense laws. She said that a jury is instructed to reject the defense when the person asserting it provoked the response, as prosecutors say Perry did when he drove his car into a crowd of protesters. “Painting the conviction as rogue nullification is uniformed or deceptive,” Laurin tweeted.

Abbott lacks authority under state law to issue a pardon without first getting a recommendation from the Board of Pardons and Paroles, whose members he appoints.  In his statement, Abbott said he already asked the board to review the verdict to determine if Perry should be granted a pardon.  “I have made that request and instructed the board to expedite its review,” Abbott said.  “I look forward to approving the board’s pardon recommendation as soon as it hits my desk.”...

Defense lawyer Rick Cofer, who was not involved in the trial, expressed astonishment over Abbott’s announcement. “It’s what happens in Uganda or El Salvador,” said Cofer, a former prosecutor. “Total abrogation of the rule of law.  And what’s even worse is that Abbott knows better. He was a smart Texas Supreme Court Justice.  He knows this is legally wrong.  Profoundly wrong.  Pure politics.”

Without speaking to the specifics of this case in any way, it seems worth noting that many acts of clemency (and even decisions not to grant or consider clemency) can often generally be described as "pure politics."  Put differently, what makes this case noteworthy is not that a governor's clemency decision-making may be influenced greatly by politics, rather it is here what the Texas Governor is saying and pledging to do in the name of politics.

April 9, 2023 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (70)