A South Carolina Criminal Defense Blog

Posts in category Death penalty

Maryland abolishes the death penalty

Maryland has become the 18th state to abolish the death penalty (17 + the District of Columbia).  Maryland’s legislature has passed the ban, and the governor has said he will sign the legislation.

Connecticut repeals the death penalty

Connecticut has become the 17th state to repeal the death penalty:

Connecticut has become the 17th state to repeal the death penalty, with lawmakers voting 86-62 on the measure after a marathon debate that stretched into the night and revived memories of some of the state’s most heinous crimes.

Gov. Dannel Malloy has said he will sign the bill, which passed the House on Wednesday night, six days after the Senate approved it. The bill replaces capital punishment with life in prison without the possibility of parole, but it only applies to future cases and has no effect on the 11 men on death row in Connecticut.

This is Gideon’s home state, and he says it best at A Public Defender:

We will take a different approach. A road that leads to mercy and forgiveness. A path that saves the best in us. A choice that allows us to hold our head high and be counted among the citizens of the world. We will show that while it is difficult to resist our base instincts of anger, revenge and hatred, it is possible. And we can move past that and emerge stronger. We will lead by example.

We will not assume the hubris to decide, as a people, whose life is worth living. We will not ask that of our friends, neighbors and our children. We will unburden our state from the heavy yoke of carrying the deaths of so many. We will wash the blood from our hands.

Nevermore in my name.

I want to believe that public opinion is gradually turning against state-sponsored murder.  I am proud of Connecticut’s lawmakers.  And hopeful that the rest of the United States will follow suit.

Will Connecticut abolish the death penalty?

Connecticut’s Senate has voted to abolish the death penalty – it still has to pass the House and the Governor must sign off on the bill, but Gideon at A Public Defender seems confident it will happen.  If he is right, Connecticut brings us a step closer as a nation to ending state sponsored murder.

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored–indeed, I have struggled–along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. – Justice Blackmun dissent, Callins v. Collins, 510 U.S. 1141 (1994)

In contrast, Gamso continues to chronicle Ohio’s machinery of death.

S.C. Supreme Court hears prosecutorial misconduct case

The S.C. Supreme heard oral arguments Wednesday in the appeal of Jerry Buck Inman, who pled guilty to murder and was sentenced to death in Spartanburg County. During the sentencing phase of the trial, Solicitor Bob Ariail threatened to prosecute the defense’s mitigation witness because she was not licensed in South Carolina, prompting her to refuse to testify.

The defense had hired a social worker to testify about Inman’s mental illness and troubled childhood. But during questioning about her credentials, Solicitor Bob Ariail told the social worker she was testifying without a proper license in South Carolina and suggested she could face charges for practicing without a license.
Toal said the court has made it clear South Carolina will accept out-of-state licenses and called Ariail’s questioning a bullying tactic and an attempt to “scare the very life out of this witness.”
“This court is deeply concerned with this win at all costs attitude among some of the state’s solicitors,” Toal said. “How can we get that message out?”

The trial judge ruled that what Ariail did was prosecutorial misconduct. The only way to send a message is 1) to overturn convictions where misconduct occurred; 2) to discipline prosecutors who commit misconduct; 3) to allow tort liability in appropriate cases; or 4) to allow criminal liability in appropriate cases. 3 and 4 are not going to happen. 2 is not likely to happen, although there are times when disciplinary counsel takes notice (for example the ethics trial against the Maricopa, Arizona, county attorney which is going on now). As a practical matter, the only sanction that is left is in the hands of the appellate courts.
Overturn the sentence. Inman is not going anywhere. If I read the news account correctly, he asked for the death penalty – he probably is going to get it. If he does not, he is still not going anywhere – he pled to capital murder and he will receive at a minimum a sentence of life without parole. Why a prosecutor feels that it is necessary to act the way that Ariail did is beyond me – there is no need to cheat or bully in order to win a case like Inman’s. Why not take the high ground, wear the white hat, prosecute the case honestly and ethically, and get a clean conviction and sentence?
The State article highlights some prior South Carolina cases where the death penalty has been overturned as a result of prosecutorial misconduct:

The state Supreme Court has dealt several times with prosecutors who crossed the lines of fairness in pursuit of a death sentence. In 2000, the court overturned the death sentence of David McClure for killing his father and his girlfriend in Barnwell County because then-Solicitor Barbara Morgan sat in the witness chair and suggested McClure had no remorse for the crime because he did not testify.
In 2003, the justices overturned a death penalty case for a man convicted of killing a Horry County police officer because investigators in Solicitor Greg Hembree’s office talked to the families of jurors as part of background checks the day before the trial started. They said jurors could have found the checks intimidating.
And in 2007, the justices overturned a death sentence for a Lexington County father for killing his infant daughter after Solicitor Donnie Myers cried during his closing argument and staged a mock funeral procession for the baby that included the girl’s crib draped in a black shroud.

Since the fiasco in Spartanburg, where the trial had to be halted until the Court could confirm that the witness was permitted to testify, other prosecutors, including in Horry County, have attempted to discredit this same witness by cross examining her on what Ariail did – if what Ariail did is prosecutorial misconduct, other prosecutors are now following in his footsteps and committing misconduct in their own cases on the same issue. This is one reason why the Supreme Court needs to send a message on this issue – so there is no question that what they are doing is improper. Prosecutors should not be able to point to this case and justify their own conduct with the fact that Inman’s case was not overturned or that it was held to be harmless error.

Troy Davis executed

Troy Davis was killed at 11:08 PM last night. He was murdered by justices of the United States Supreme Court, by state and federal judges, by prosecutors, by witnesses who claimed that he committed a murder only to later recant their testimony, by the employees of the State of Georgia who carried out the execution, and others – a vast conspiracy to commit murder when you pause to consider the scope of it. Many bloggers and opinion writers state that Troy Davis was murdered by the State of Georgia – you can say that if you like. But saying “the State of Georgia” committed a murder really just spreads the blame, giving them a shield of a non-living construct, a “state,” to use as a shield. He was murdered by people, and a lot of them.

Amnesty International condemned the execution in a statement. “The U.S. justice system was shaken to its core as Georgia executed a person who may well be innocent. Killing a man under this enormous cloud of doubt is horrific and amounts to a catastrophic failure of the justice system,” Amnesty said.

Seven out of nine witnesses from his trial have recanted, a federal judge has stated that the testimony of a jailhouse snitch, who testified that Davis confessed, was “patently false,” ballistics evidence that was used against him at trial has been called into question, and in his last days he was denied the opportunity to take a polygraph examination. He was accused of killing a police officer, and the pressure that law enforcement, prosecutors, and courts are under to bring someone to justice in such a case is undeniable.
The prosecutor who killed him, the victim’s family, and others still publicly support the conviction and the death penalty.
Maybe Davis was guilty, and seven out of nine witnesses are lying now as opposed to then. Maybe he is innocent. It appears that, as a society, we don’t really care.

Speaking out about injustice

When I see injustice, and especially when I see it happening in a courtroom, I feel alternately enraged, disappointed, saddened, and then inspired to do more and better to make a difference. I see a police detective who has no evidence but has a suspicion and feels the pressure to make an arrest, threaten potential witnesses, threaten them with life in prison and the loss of their family, and tell them word for word what to say if they want to stay out of prison. On video. I have seen this same scenario in more than one case.
I see the same detective make promises to help a jailhouse snitch, and look the other way as the jailhouse snitch collaborates with other snitches to put together a story that will fit the detective’s theory. The detective conceals exculpatory evidence, concealing it even from the prosecutor. The detective lies under oath at more than one hearing, about the evidence, about the testimony, about his conversations with the witnesses.
A prosecutor sees all of this, and somehow inexplicably believes that his duty is to take what the detective has given him and prosecute this case. If the system works, won’t a competent and effective defense lawyer prevail over injustice? A very competent and effective defense lawyer exposes all of this, in open court to a judge, and proves all of the above through impeachment with documents, audio, and video evidence.
Yet a judge ignores the injustice, sides with the detective, and allows the case to go forward. Why are we fighting to stop the government from lying, fighting to try to keep the government from prosecuting individuals based on lies? It occurs to me that we need only look to the developments in recent months in the Middle East to see why we keep fighting here, to see why it is important to keep our government in check and to keep our government honest.
Power feeds on itself. The power of government grows and will continue to grow if it goes unchecked. And at its worst it kills, it enslaves, and it abuses its citizens. There are horrendous examples across the world, throughout history, and here in the land of the free.
John Thompson spent 18 years in prison for a crime he did not commit, 14 years on death row, and was nearly executed before it was discovered that prosecutors hid evidence that proved his innocence, effectively conspiring to commit murder themselves. The United States Supreme Court then decided that the prosecutors, who were not and will never be prosecuted themselves, are also immune from lawsuit for what they did. The N.Y. Times printed his story, told in his own words.
Anthony Graves spent 18 years in prison before he was exonerated of rape by DNA evidence, then was denied compensation by the state that took his life away, and now the state has decided to garnish his wages for back child support for the years he was in prison.
The news is filled with stories of wrongful convictions and persons exonerated by DNA evidence after spending years or even decades behind bars – most from the handful of states that require law enforcement to preserve DNA evidence and allow defendants access to have it tested. The wrongfully convicted in other states will continue to live in prison.
Why is it important that we do not allow the government to prosecute with unreliable evidence, to stop law enforcement who lie on the stand, to shut down prosecutors who go forward with prosecutions despite a lack of real evidence? If it is not enough that innocent people are convicted and locked in cages across the country, that innocent people are abused, threatened, sometimes beaten, tazed, or shot by agents of our government, consider that it is a slippery slope, from America to China where the government stops Christians from congregating to celebrate Easter and where lawyers are arrested, detained, or simply disappear when they speak out about human rights abuses.
Or to the absolute extreme, as the Syrian government begins killing its own citizens indiscriminately and without pretense for speaking out about injustice, or the Bahraini government begins to attack and detain physicians for treating wounded protesters, who were attacked by their government because they were protesting.
We have the best government, and the best court system in the world, many Americans say. And in comparison to Gadhafi’s Libya it is certainly a miracle of freedom and democracy. But, why is it the best in the world? What are the principles that make it so amazing and what are we doing to make sure that the reality matches our ideals?

Easter, wrongful convictions, and the death penalty

Easter is very relevant to criminal justice – the Easter story is the story of a revolutionary who was persecuted, wrongfully convicted, and executed by an overpowering government which had no checks and balances. There were a few thought provoking Easter posts from around the blogosphere today:
Scott Henson at Grits for Breakfast writes about the criminal justice themes hidden in plain sight within the Easter story – Jesus, the Son of God, was killed for his beliefs, while living by the laws of men all the way to the bittersweet end, and “is the all-time poster child for the innocence movement.”

Christmas is a story about family. Easter is a story about a wrongful criminal conviction, the misapplication of the death penalty, the overweening power of the state, and the irrepressible urge of humanity to resist it.

Paul Kennedy at the Defense Rests writes about how “Jesus was a revolutionary who was killed because he represented a threat to the state.”

And that’s just what Jesus did. He stirred up the masses with his parables of the ways in which the people were being oppressed by the Romans. He inflamed passions with his parable of the ways in which the high priests collaborated with the Romans. He taught the masses the importance of being self-sufficient.
Blessed are the meek, for they shall inherit the earth. — Matthew 5:5
Those are the words of a revolutionary. . . These ideas were a threat to the status quo and to those who benefited from the way things were. Jesus had to die – his mere presence was a threat to the high priests.

Finally, at the risk of alienating all Christian readers of this blog, I share with you Ken Gibson’s zombie apocalyptic version of the Easter story over at the Windypundit Mark Draughn’s blog.
Edit: I edited this post after Mark Bennett pointed out in the comments that the original content was not originally from a listserve member as I had thought, but was in fact Grits for Breakfast’s post in it’s entirety.

Vasquez v. State – Horry County death sentence reversed on PCR

In Vasquez v. State, the S.C. Supreme Court granted post conviction relief, overturned Vasquez’s death sentence, and ordered that Vasquez be given a new sentencing hearing. Vasquez was convicted of murder, kidnapping, armed robbery, and criminal conspiracy for the deaths of two workers during a robbery at a Burger King in Myrtle Beach, and was sentenced to death.
Vasquez is Muslim, wore a traditional Muslim prayer cap during trial, and called a Muslim imam to testify in mitigation on his behalf. The prosecutor in his closing arguments talked extensively about the 9/11 attack, compared Vasquez’s conduct to the 9/11 attacks, and referred to Vasquez as a “domestic terrorist.” The Court found that the solicitor’s comments were inflammatory, were designed to invoke religious prejudices, and that it was not harmless error.

A solicitor’s closing argument must be carefully tailored so as not to appeal to the personal biases of the jury. State v. Copeland, 321 S.C. 318, 324, 468 S.E.2d 620, 624 (1996). The State’s closing arguments must be confined to evidence in the record and the reasonable inferences that may be drawn from the evidence. Id. “A solicitor has a right to state his version of the testimony and to comment on the weight to be given such testimony.” Randall v. State, 356 S.C. 639, 642, 591 S.E.2d 608, 610 (2004). However, “[s]olicitors are bound to rules of fairness in their closing arguments,” as we have explained:
While the solicitor should prosecute vigorously, his duty is not to convict a defendant but to see justice done. The solicitor’s closing argument must, of course, be based on this principle. The argument therefore must be carefully tailored so as not to appeal to the personal bias of the juror nor be calculated to arouse his passion or prejudice.

State v. Williams – death penalty affirmed

In State v. Williams, decided February 8, the S.C. Supreme Court upheld Williams’ death sentence following his convictions for murder, kidnapping, and possession of a firearm during the commission of a violent crime.
The Court held that 1) it was not error for the trial judge not to declare a mistrial where the jury sent out a note disclosing that they were split 9-3 for death (if the court had asked what the division was it may have been grounds to reverse); 2) it was not error for the trial judge not to declare a mistrial when the jury revealed that they were divided; 3) that the Allen charge given to the jury was not coercive; and 4) that it was not error for the trial judge not to declare a mistrial based on the testimony of the state’s psychiatrist who testified to bolster the state’s decision to seek the death penalty despite not being qualified as an expert (her testimony was as a lay witness).
Justice Pleicones’ concurrence highlights the difficulties of preserving the record for appeal – although he agreed with the result, he would have found that at least one of the issues on appeal was not preserved. Regarding the objections to the psychiatrist’s testimony, one of the defendant’s lawyers asked for a curative instruction, and the defendant’s second lawyer asked for a mistrial. The judge gave the curative instruction and denied the motion for mistrial; because the second lawyer did not object to the sufficiency of the curative instruction, Pleicones points out that the mistrial issue was not preserved for appeal.

The cycle of abuse

Raymondeze Rivera was sentenced to death this evening. His story, and the story of the victims in his case, is difficult to hear. Rivera was born a blank slate, an innocent child with no evil in his heart. This innocent child suffered horrors as he was abused by those who should have loved him the most, parents who were most likely subjected to similar abuse themselves as children:

The jurors also have heard experts, as well as Rivera’s family and friends, talk about how Rivera was abused by his alcoholic father as a child. His aunts talked of how Rivera’s father, Stanley, admitted to pushing his youngest son down a flight of stairs.
Social workers said they learned through interviews with Rivera’s family members that Rivera was locked in a basement as a boy where he was tied and held without food. Nicholas Cooper-Lewter, a social worker and a faculty member at the University of South Carolina, said Rivera was sexually abused by his father and was forced to watch violent pornography.
Two of Rivera’s aunts told jurors that extreme physical abuse has spanned at least two generations in their family.

In 1999 Rivera was jailed for assaulting Pheobe Kennedy:

He said it was when he sat in jail, awaiting trial on charges that he assaulted Kennedy, that his heart began to change.
“There was violence all around me in jail there,” Rivera said. “I stayed there almost eight months. That’s when I started to change, and I started to hate.”

Although there is likely some truth to this – jail is a violent place where hate breeds – I suspect that his condition began much earlier in his childhood, through no fault of his own. More recently, Rivera was charged with the violent murders of two women – Kwana Burns and Asha Wiley. According to testimony this week, “Wiley begged for her life, hoping to convince Rivera to let her go. Burns instead fought against Rivera, slapping him and screaming for her 2-year-old daughter, Kamille, as he strangled her.”
His path through life ultimately led him to this day, when he stood in front of a jury and, instead of pleading for his life, and despite the best efforts of his attorneys, asked the jury to allow the state to kill him:

“I have already decided my judgment,” Rivera said. “I wanted the death penalty. Since 2006, this is what I wanted, all along. I didn’t want any help. No, I am not mentally ill. I am just an insane person bent on evil. A cold-hearted, calculated killer.”. . .
“I made no excuses for what I did,” he said. “I couldn’t stand here, like my attorneys, and ask you for mercy. I don’t deserve mercy. I never gave mercy to Asha Wiley or Kwana Burns – not one time. I made them suffer. I wrapped them up and hog-tied them. Is that someone who deserves mercy?”

So the cycle of abuse continues, as society itself, in one more act of evil, because he is evil, snuffs the life of Raymondeze Rivera and completes the work that was begun by his parents and their parents long ago. There may be an appeal, but if he continues to ask for death at the hands of the state there is not much doubt that he will receive it.

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