[Deathpenalty] death penalty news----GA., OHIO, USA

[Rick Halperin]

Oct. 7



GEORGIA:

Georgia: Court rules mean intellectually disabled murderer must die


Nearly 14 years ago the state of Georgia asked 2 psychologists and a 
psychiatrist to evaluate a convicted killer named Warren Lee Hill Jr., who had 
filed a legal challenge to his death sentence on the grounds that he lacked 
sufficient intellectual capacity to understand why Georgia wanted him dead..

The psychiatrist, Thomas H. Sachy, who had no background in that kind of 
evaluation - he worked with brain injuries and seizure disorders - spent an 
hour with Hill, read some files, then shared his findings with the 2 
psychologists, James Carter and Donald Harris, who together had spent 2 hours 
talking with Hill. They all concluded that Hill was malingering, understood 
what was happening and thus was eligible for execution.

"Should the Court review this decision, this case would, in its factual concept 
be a perfect and definitive decision in this area of the law." - Thomas H. 
Wilson, Georgia Superior Court judge

Why? Because fresh affidavits by the three experts withdrawing their initial 
opinions came too far along in the legal process to be considered in Hill's 
newest challenge. At the same time, the case spotlights Georgia's bizarre state 
requirement that to avoid the death penalty a defendant must prove intellectual 
disability "beyond reasonable doubt," the only state in the nation with such a 
stringent burden of proof (most others use the "preponderance of evidence" 
threshold, meaning the defendant is most likely intellectually disabled).

So, no, states like Texas and Oklahoma don't have a lock on absurdity when it 
comes to the death penalty.

Hill is not an embraceable petitioner. He was serving a life sentence for 
murder after shooting his girlfriend 11 times in 1986 when, four years later, 
he used a nail-studded board to beat a prison cellmate to death. He should be 
locked away from society and from fellow prisoners for the rest of his life.

But Hill should not be executed, and that has come close to happening before. 
Beyond the general problems with the death penalty - the manipulation of the 
system by police and prosecutors, the inconsistent application, the base 
immorality of killing - Hill stands apart because of his intellectual 
disability. His IQ is 70, the threshold for determining disability, though that 
comes with a margin of error and in current practice should be viewed in 
conjunction with other observations of "adaptive behavior, which covers many 
everyday social and practical skills," according to the American Assn. on 
Intellectual and Developmental Disabilities.

The Supreme Court agrees. Earlier this year it tossed out Florida's use of a 
"bright-line" 70-IQ threshold for determining eligibility for execution, 
ordering that, in essence, states must follow the most up-to-date professional 
standards in making such evaluations - which was the right call. That followed 
the 2002 ruling in Atkins vs. Virginia that executing those with intellectual 
disabilities violates the 8th Amendment's proscription against cruel and 
unusual punishment.

The initial evaluation of Hill by the three experts was hastily done. In 2000 
Hill had challenged his death sentence on grounds of intellectual disability 
(known as mental retardation at the time), and the experts were asked to assess 
him. They did so on Dec. 6 and Dec. 11, completed their report on Dec. 12 and 
testified on Dec. 14.

In affidavits signed in February 2013, all three men said that in reviewing 
their initial findings, other material about Hill's capacities that was 
unavailable to them at the time and advances in understanding how intellectual 
disabilities affect behavior, they now believe he suffers from an intellectual 
disability that would make him ineligible for the death penalty. Georgia's 
counter-argument is that the new affidavits are not credible because they are 
not based on fresh evaluations of Hill, and that the petition is invalid.

The problem is Hill already lost appeals on similar grounds - including the 
appeal that led to the three experts' initial evaluation of him. But that was 
before the experts changed their opinions. Still, Georgia Superior Court Judge 
Thomas H. Wilson ruled last month that Hill "has not cited any new law or any 
new evidence to overcome the procedural bar" to raising an appeals issue that 
had already been settled. He also ruled that the Supreme Court's Florida 
decision requiring an expansive definition of intellectual disability did not 
apply to Hill's case.

But then Wilson invited the state Supreme Court to take up the issue, 
essentially kicking the final decision upstairs.

"There is no public outcry calling for a change, but there exists the knowledge 
that this case involves the ultimate punishment and the defendant is at the end 
of his legal avenues of appeal," Wilson wrote in a 3-paragraph ruling. "Should 
the Georgia Supreme Court not grant an interlocutory appeal of this decision, 
it would be logical to assume that there is no doubt that the Court believes 
that Georgia law is constitutionally correct and justice will be served. Should 
the Court review this decision, this case would, in its factual concept be a 
perfect and definitive decision in this area of the law."

The upshot is that the three experts whose opinions initially cleared the way 
for the death sentence now say they were wrong (four expert defense witnesses 
testified that Hill was disabled). But procedural rules, as they've been upheld 
so far, mean that the revised opinion has no weight.

"Warren Hill is a man with documented, lifelong intellectual disability - a 
fact about him that has been confirmed by all seven doctors who have examined 
him, including three who previously testified in his case on behalf of the 
state," Hill's lawyer, Brian Kammer, said. "The fact that Mr. Hill has been 
unable to prove his intellectual disability, and ineligibility for the death 
penalty, is due to the flawed and unscientific standard required by the state 
of Georgia."

And by a state court system that seems to believe that, in deference to a 
rulebook on how lawyers must work, an intellectually disabled man should be 
executed in violation of the 8th Amendment.

As I've said before, this system is too screwed up to be relied on to determine 
who, ostensibly on our behalf, the government will kill.

(source: Opinion, Scott Martelle----Los Angeles Times)

****************

DA to seek the death penalty in Martinez church parking lot murder


The local District Attorney intends to seek the death penalty for a man accused 
of shooting and killing a Martinez man in a church parking lot, court documents 
show.

Daniel Robinson is also accused of hurting a woman and killing her husband who 
was trying to help in an attempted carjacking, officers said.

Robinson's been indicted on nine felony counts including murder, possession of 
a firearm during the commission of a crime, hijacking a motor vehicle, armed 
robbery, aggravated assault and possession of a firearm by a convicted felon.

For the murder charges alone, Robinson could have faced life in prison, life 
without parole or the death penalty if found guilty.

In Augusta, Bill and Jenny Davitte stopped by the Marvin United Methodist 
Church to turn on the sprinkler system, investigators said. Robinson approached 
Jenny, who was sitting alone in her car, and started beating her in the head.

Bill ran over to help his wife and Robinson shot him 3 times, officers said. 
Robinson took the car and was later caught by Florida Highway Patrol near 
Jacksonville.

(source: WRDW news)






OHIO:

Cleveland Serial Killer Of 11 Seeks New Trial


The Ohio Supreme Court is weighing arguments by attorneys for a Cleveland 
killer of 11 women that he deserves a new trial because a hearing about the 
suppression of evidence was closed to the public.

Lawyers for Anthony Sowell also say a new trial is warranted because the judge 
in the case shielded the individual questioning of potential jurors.

Prosecutors agree that Sowell deserves a new hearing over the suppression of 
statements made to the police, but not a new trial.

Both sides filed arguments last week as part of the court's consideration of 
Sowell's overall appeal of his conviction and death sentence.

The 55-year-old Sowell received the death penalty in 2011 for killing the women 
whose remains were found in and around his home.

(source: WOSU news)






USA:

The death penalty's 5 big race problems


The death penalty in the United States has a race problem. African Americans 
are vastly overrepresented on death row: 42 percent of death row inmates are 
African American, which is more than 3 times higher than their share of the US 
population. But it's not the racial disparities in the outcome that are most 
illustrative of the death penalty's race problem. It's the racial disparities 
throughout the entire process: African Americans are simultaneously the people 
most affected by death-penalty cases, and the people least likely to have a say 
in them.

A feature in the fall 2014 issue of the Virginia Quarterly Review tells the 
story of North Carolina's Racial Justice Act, a 2009 law that aimed to uncover 
some of these racial discrepancies - and allow death-row inmates to have their 
cases reconsidered if they found enough evidence that their initial trial was 
racially skewed. The law was repealed in 2013, and the only inmates who got off 
death row under the law are in danger of having their death sentences 
reinstated. But as a result of the legislation, researchers and the public now 
know more about the racial dynamics behind jury selection in death-penalty 
cases.

The article is a terrific read, but the issues it raises are much bigger than 
North Carolina. Here are 5 big problems that show how the death penalty sets up 
a vicious cycle when it comes to race.

1) Racial disparities in outcomes reinforce racial disparities in public 
opinion

A slim majority of Americans - 55 % - support the death penalty. But that 
majority is the result of white support alone, meaning political support for 
capital punishment comes from the group that's least likely to be sentenced to 
death. 63 % of whites support the death penalty, as opposed to 36 % of African 
Americans (and 40 % of Hispanics).

There's evidence that calling attention to the racial disparities doesn't make 
whites more wary of supporting the death penalty - it makes them more 
enthusiastic. One 2007 study looked at whether poll respondents were less 
likely to support the death penalty after hearing various arguments against it. 
It found that whites "actually become more supportive of the death penalty upon 
learning that it discriminates against blacks." (This is similar to other 
studies, which have shown white people are more likely to support harsh prison 
policies if they believe that black people are overrepresented in prisons.)

2) Racial disparities in public opinion affect who's allowed to get seated on 
juries

You can't get seated on a jury in a death-penalty case if you oppose the death 
penalty. Jurors have to be willing to consider every option in sentencing - and 
in cases where the death penalty is an option, that means they have to be 
willing to consider sending the defendant to death row. If a juror isn't "death 
qualified" because he or she opposes the death penalty, he or she automatically 
gets bounced from the jury pool.

As the Virginia Quarterly Review article shows, this means that a lot of 
potential black jurors get disqualified:

Death qualification is 1 reason behind racial disparities on juries. More than 
3 decades of research have shown that capital juries tend to be less 
representative of the general population because women and African Americans 
are more likely to disapprove of the death penalty than white men. In the early 
1980s, University of California, Berkeley, sociologist Robert Fitzgerald and 
Stanford (now University of Michigan) psychologist Phoebe Ellsworth found that, 
among 811 eligible jurors in Alameda County, California, about 25 % of blacks 
were automatically excluded from capital-jury pools because of their 
disapproval, compared to 15 % of whites.

3) No matter what they believe, blacks are much less likely to get seated on 
juries in death-penalty cases

When picking a jury, prosecutors and defense attorneys each get a certain 
number of peremptory challenges: free passes to veto people from serving on the 
jury without having to give a reason why. This is only after jurors have proved 
they're death qualified, which means the prosecutor has an advantage: If a 
potential juror seems overly enthusiastic about the death penalty, the defense 
attorney will have to spend a challenge to strike him, but a potential juror 
who is anti-death penalty will have already been bounced.

Even black potential jurors who do support the death penalty often end up 
getting bounced by prosecutors. When North Carolina passed its Racial Justice 
Act, as the VQR article narrates, researchers were asked to conduct a review of 
the racial compositions of the juries that had sent North Carolina's death-row 
inmates to die - and who'd been left off those juries. Here's what they found:

Over the 20-year period, prosecutors were more than twice as likely to strike 
qualified candidates who were black, and that the disparity persisted 
"statewide, by judicial division, by prosecutorial district." ...The factors 
often used to explain the dismissal of black (potential jurors) - reservations 
about the death penalty, economic hardships, past run-ins with the law - had no 
significant effect on the strike-rate disparity. That is: When these factors 
were accounted for and held constant, a black potential juror was still more 
than twice as likely to be struck. The researchers also found that more than 40 
% of the inmates on death row had been sentenced by juries that were either 
all-white or included only one person of color.

"prosecutors were more than twice as likely to strike qualified candidates who 
were black"

Of course, it's illegal to strike a potential juror just because of race. 
That's the result of a Supreme Court case from 1986 called Batson v. Kentucky. 
But when North Carolina started reconsidering the cases of some death-row 
inmates under its now-repealed law, attorneys for the inmates found out how 
prosecutors were trained to get around this:

A "cheat sheet" (was) acquired from one of the trainings overseen by the NCCDA. 
Formally titled "BATSON Justifications: Articulating Juror Negatives," the 
document lists nine specific race-neutral explanations - such as appearance, 
attitude, dress, and body language - and a 10th catchall - "any other sign of a 
defiance, sympathy with the defendant or antagonism to the State" - that 
"courts have approved as neutral explanations," according to Duke University 
law professor James Coleman.

The training document didn't instruct prosecutors to strike jurors based on 
race and then pretend there was another reason. But if prosecutors wanted to do 
that, the document showed them how to get away with it. And prosecutors who'd 
been trained in "articulating" nonracial objections would be able to strike 
jurors just based on gut feelings. They'd only have to give a reason at all if 
the defense attorney issued a "Batson challenge" alleging that the decision was 
race-based, and then prosecutors would be able to use one of the judicially 
approved "race-neutral explanations."

4) Black defendants are much more likely to get the death penalty - especially 
from nonblack juries

All of this means that a black defendant in a death-penalty case is unlikely to 
be tried by a jury of his racial peers. And the evidence shows that the absence 
of African Americans on death-penalty juries is a big factor in the 
overrepresentation of African Americans on death row.

One study highlighted in the VQR article finds that black defendants are more 
likely to get sentenced to death no matter who's on their jury. But that 
disparity is compounded by the racial disparity on the jury. So while diverse 
juries are more likely to send black defendants to death than white defendants, 
all-white juries with black defendants are the most likely to sentence to death 
of all:

In Philadelphia, juries, no matter their racial composition, sentenced black 
defendants to die at higher rates than nonblack defendants. Moreover, 
predominately non-black juries were significantly more punitive toward black 
defendants than were black-majority juries. In other words, the racial makeup 
of the jury and of the defendant heavily influenced the sentencing outcome.

But another study the VQR highlights (which focuses on whether a jury found 
someone guilty, not whether they sentenced him to death) shows that black 
defendants aren't disproportionately punished as long as they have diverse 
juries:

between 2000 and 2010 all-white juries in Florida were 16 % more likely to 
convict black defendants than white defendants, and that the conviction gap was 
"nearly eliminated" when the jury pool included at least 1 black member.

It's possible that both are true - a diverse jury might not be any more likely 
to find black defendants guilty, but once they're convicted, the jury might 
still be more likely to sentence black defendants to death. Research conducted 
by psychologist Jennifer Eberhardt, who won a 2014 Macarthur Fellowship for her 
work on race and the criminal justice system, shows how deep the implicit bias 
of blackness with criminality goes in death penalty cases. One study she 
conducted looked at the facial features of death penalty defendants, and found 
that "the more stereotypically black a person's physical features are perceived 
to be, the more that person is perceived as a criminal.... Even in death 
penalty cases, the perceived blackness of a defendant is related to sentencing: 
the more black, the more deathworthy."

There are 2 parallel processes going on here. First, both in the abstract and 
in a specific case, evidence suggests white support for the death penalty has 
some roots in implicit bias. Second, while black jurors could be a check on the 
implicit bias of white ones, African Americans are disproportionately excluded 
from the jury room.

5) Statistics are the only way to show these phenomena are widespread, but it's 
impossible to use statistics to challenge an individual ruling or case

The problem that North Carolina ran into in implementing its Racial Justice 
Act, as the VQR article shows, is that once statistics about jury selection 
were collected, the state had to figure out what those statistics meant for 
individual cases. And as one opponent of the law said, the Constitution has 
some pretty high standards for judging each case on the merits, making it very 
hard to set rules for an individual case based on a general phenomenon. From 
the VQR:

"The problem is, constitutionally, we can't use statistics when picking a 
jury," said Silver, one of the few black prosecutors in the state. "You're 
evaluating the jurors on the statistics. So in a very real sense the only way 
to remedy that is to have proper statistics. But to remedy by proper statistics 
is per se unconstitutional. Thus there is no way to comply with the statute."

This is a typical dilemma when it comes to systemic bias. Juries in death 
penalty cases aren't racially skewed because prosecutors are individually, 
deliberately racist - or if they are, as the training document shows, they've 
learned how to cover their tracks. The death penalty's race problem is that a 
bunch of overlapping phenomena, which look neutral in any particular case, add 
up to a general disparity in who's represented on juries and who is sentenced 
to death. It's only possible to see that disparity once you zoom out to the 
level of statistics or aggregate research. But those statistics don't say much 
about what to do in an individual case - where, again, bias isn't immediately 
apparent.

North Carolina's law was eventually watered down to require that defendants, in 
order to get off death row, prove racism had been at play in their individual 
cases. But even the watered-down version got repealed once Republicans took 
over the state legislature in 2013. But the law led to some important 
discoveries about the many ways race affects death-penalty cases - which, 
combined, mean the death penalty has a serious race problem.

(source: Vox.com)