[Deathpenalty] death penalty news----N.C., IND., ARIZ.

[Rick Halperin]

August 7




NORTH CAROLINA:

Appeals Court Clears Path for Death-Row Exonerees’ Lawsuit Against North 
Carolina Police Officers to Go to Trial



A federal appeals court has cleared the way for a civil lawsuit by two North 
Carolina death-row exonerees to advance to trial, rejecting a claim that police 
officers who allegedly violated their constitutional rights were immune from 
liability. On July 31, 2019, the U.S. Court of Appeals for the Fourth Circuit 
upheld a trial court ruling allowing Henry McCollum and Leon Brown to sue North 
Carolina State Bureau of Investigation (SBI) agents Leroy Allen and Kenneth 
Snead and Robeson County detectives Joel Garth Locklear and Kenneth Sealey for 
false arrest, malicious prosecution, deprivation of due process, and municipal 
liability.

McCollum and Brown, who are half-brothers, were just 19 and 15, respectively, 
when they were arrested for the rape and murder of 11-year-old Sabrina Buie. 
Both men are intellectually disabled, which made them particularly vulnerable 
to coercion and manipulation by police. In the suit—which was filed on their 
behalf in 2015, one year after they were exonerated and released from 
prison—they allege that the officers "coerced and fabricated [their] 
confessions, and then, to cover up this wrongdoing, - withheld in bad faith 
exculpatory evidence that demonstrated [McCollum and Brown’s] innocence and 
buried pieces of specific evidence indicating that' another suspect, Roscoe 
Artis, had committed the crime. The case has not yet been heard by a jury 
because of the officers’ appeal.

Shortly after McCollum and Brown instituted suit, the officers filed a motion 
to dismiss it on the basis of qualified immunity, a principle that "protects 
government officials from liability for violations of constitutional rights so 
long as they could reasonably believe that their conduct did not violate 
clearly established law." The district court rejected that argument, holding 
that, if the facts alleged in their lawsuit were true, the exonerees would be 
entitled to recover damages from the law-enforcement defendants. The Fourth 
Circuit agreed, saying "It was beyond debate at the time of the events in this 
case that [McCollum’s and Brown’s] constitutional rights not to be imprisoned 
and convicted based on coerced, falsified, and fabricated evidence or 
confessions, or to have material exculpatory evidence suppressed, were clearly 
established." The exonerees, the appeals court said were entitled to a chance 
to prove any "disputed facts" at trial.

The suit claims that the officers coerced the two men into falsely confessing. 
McCollum says that the officers told him if he signed a form, they would let 
him go home. The form was, in fact, a form waiving McCollum’s Miranda rights. 
As described by the appeals court, the officers interrogating McCollum 
allegedly "got into his face, hollered at him, - threatened him," called him 
racial epithets, and told him they would send him to the gas chamber if he 
didn’t confess. "McCollum further alleged that the officers told him to sign a 
paper that said if he could help them in the case as a witness, they would let 
him go home. McCollum signed the paper - which was actually the confession 
written out by Snead - but he did not read it and it was not read to him."

Brown provided a similar account of his interrogation and coerced confession. 
Describing Brown’s testimony at trial, the circuit court recounted that 
"Detective Locklear did not advise him of his rights, that Brown asked for his 
mother when an officer grabbed Brown’s arm, and that Brown (like McCollum) was 
told he would be taken to the gas chamber if he did not sign the rights waiver. 
Then, Brown testified that when the officers gave him a piece of paper, he 
circled ‘no’ on it. According to Brown, that ‘no’ was supposed to indicate that 
he could not help the officers." Instead, it indicated that he waived his 
rights. Of the confession that he signed, Brown said, “Detective Locklear 
drafted it and told Brown to sign it, which Brown did after an officer told him 
doing so would ensure his release. Locklear then read the confession to Brown, 
and Brown told the officers that it was not true. Like his brother, Brown was 
then placed under arrest.” The officers dispute this account of the 
interrogations and confessions.

Brown and McCollum also allege that police violated their rights because they 
"failed to investigate and withheld exculpatory evidence regarding (1) the 
similarities between the rape and murder of Buie and Artis’s rape and murder of 
Brockhart; (2) a statement by a potential eyewitness, Mary McLean Richards, 
that she saw Artis attacking Buie; and (3) the alleged coerced testimony of 
Brown and McCollum’s friend L.P. Sinclair." They say that Artis was a suspect 
before Brown and McCollum were tried. "[O]n October 5, 1984, three days before 
[Brown and McCollum’s] first trial, investigators submitted Artis’s 
fingerprints to the SBI for comparison to the latent prints found on the beer 
can at the Buie crime scene. Artis was listed as a suspect on the fingerprint 
comparison request. However, the investigators canceled the request that same 
day, and the fingerprint comparison was never completed."

(source: The Death Penalty Information Center)

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

Racism Tainted Their Trials. Should They Still Be Executed? ----North Carolina 
Supreme Court hearings raise broad questions of systemic bias in the state 
judicial system.

7 years ago, a judge ruled that prosecutors improperly excluded black jurors in 
the murder trial that put Marcus Robinson on death row.

Now the North Carolina Supreme Court has to decide whether that evidence of 
racial bias—and similar findings of systemic bias in a handful of related 
cases—must be taken into account in death penalty appeals.

The hearings stem from the 2013 repeal of the Racial Justice Act, a law that 
briefly allowed death row inmates to seek life sentences without parole if they 
could prove that racial bias tainted jury selection in their trials.

After Democrats passed the law in 2009, Robinson and 3 others won life 
sentences without parole.

But when pressure from prosecutors and a campaign of fear-mongering led the 
Republican-controlled legislature to repeal the Racial Justice Act, Robinson 
and the other three prisoners returned to death row.

The impending hearings, scheduled for late August, raise broad questions about 
the equity of North Carolina’s judicial system, said Cassandra Stubbs, 
executive director of the ACLU’s Capital Punishment Project, which is 
representing Robinson. "The importance of fairness and the integrity of the 
court is really on the line."

And the hearings come at a time when the U.S. Supreme Court has been cracking 
down on racial discrimination in jury selection. In June, the court overturned 
the murder conviction of Curtis Flowers, a black man tried six times in 
Mississippi by a prosecutor who used all of his peremptory strikes against 
black jurors in each of the first 4 trials.

North Carolina Attorney General Josh Stein declined to comment on the hearings 
but stressed the importance of holding defendants accountable and providing 
justice for victims.

North Carolina didn’t include African-American citizens in jury pools in a 
meaningful way until the mid-20th century; prosecutors then often used 
peremptory challenges to eliminate black jurors, according to James E. Coleman, 
Jr., a professor at the Duke University School of Law.

? Taking black people off the jury lowers the standard of proof for the 
prosecutor, Coleman said, because white jurors will be more willing to accept 
any kind of evidence if the defendant is black.

In 1986, the Supreme Court ruled in Batson v. Kentucky that qualified jurors 
cannot be removed from jury pools because of their race or gender. But the 
North Carolina Supreme Court has never agreed with defendants who argued that’s 
what happened in their cases.

Marcus Robinson and a co-defendant went on trial in 1994, in Fayetteville, 
N.C., charged with robbing and murdering a white high-school student. The 
victim’s family declined to comment.

County prosecutors removed 50 % of black jurors and less than 15 % of white 
ones; the jury that convicted the 2 defendants had just 2 African-American 
members.

More than a decade later, the state legislature passed the Racial Justice Act, 
allowing death row inmates to receive commuted life sentences without parole if 
they could prove that racial bias influenced their death sentence.

Floyd McKissick, Jr., the bill’s sponsor, said it was fundamentally about 
procedural fairness—not an attempt to end capital punishment, as opponents 
claimed.

“It brought together people who all shared the common belief that if the death 
penalty was to be used in cases, then it should be free of racial bias,” he 
said.

Lawyers for Robinson and others on death row who had been prosecuted in 
Fayetteville by the Cumberland County District Attorney’s office began 
reviewing their jury selections.

They discovered that in numerous cases prosecutors asked potential black jurors 
targeted and inappropriate questions. For example, in one case they asked a man 
if he was familiar with Bob Marley and the former emperor of Ethiopia.

In the 2001 capital murder trial of Quintel Augustine, who was charged with 
shooting a police officer, a Cumberland County prosecutor dismissed every 
qualified black juror in the jury pool. In his notes, the prosecutor described 
one black man as a 'thug.' Another man was labelled a 'blk wino,' though a 
white juror with a DUI conviction was still selected ("country boy" ok"). One 
of Augustine’s prosecutors had also attended a seminar that taught North 
Carolina district attorneys how to give race-neutral explanations for striking 
black jurors, and had a handout of accepted reasons like 'hairstyle.'

A statistical analysis found that prosecutors across the state removed 
qualified black jurors at more than twice the rate of non-black jurors.

"It hurt my heart to hear that evidence of racism," Tawana Choate, mother of 
Quintel Augustine, said in an affidavit. (She declined to comment to The 
Marshall Project.) "I don’t understand why African Americans can’t serve on 
juries just like white people."

--

The Removal of Black Jurors in North Carolina

Researchers analyzed the jury selection process in 173 murder trials between 
1990 and 2010 in North Carolina where the defendant ended up on death row. They 
found that prosecutors used peremptory challenges to remove qualified black 
jurors at twice the rate that they removed non-black jurors.

1,210 Black jurors53% Removed

6,185 Non-black jurors26% Removed

[source: Michigan State University]

--

In defending the actions of Cumberland County prosecutors, the state has argued 
that past discrimination against African-Americans may affect their ability to 
serve as fair jurors. Supporters of the Racial Justice Act say this is a way to 
further justify and perpetuate discrimination.

Cumberland County prosecutors also denied any intentional prejudice, but Judge 
John Dickson, a former district attorney involved in Robinson’s case, admitted 
that implicit bias is a part of the legal system.

"And that's why as a district attorney selecting a jury, I worked very, very 
hard at not doing that," Dickson testified. "That doesn't mean I was perfect 
either."

The Cumberland County District Attorney’s office emphasized bringing justice to 
families of victims.

“There are dead cops and dead innocent folks and women and innocent children, 
all of whom grew up without family members because of what these guys did,” 
said Cumberland County Assistant District Attorney Robert Thompson, who 
declined to comment further about the pending cases.

Over 90 % of North Carolina’s 152 death row inmates filed Racial Justice Act 
challenges. Only 4 -all from Cumberland County - were heard by a judge in 2012. 
That judge initially granted relief to each of the 4 Cumberland County 
defendants, resentencing them to life imprisonment after ruling that race was 
an 'overwhelming' factor in their death sentences.

These rulings were later overturned by the state Supreme Court, which found the 
judge had not given the state enough time to respond to the defendants’ 
findings.

Meanwhile, the legislature repealed the Racial Justice Act, arguing that it 
turned “murderers into victims while the real victims lie in their graves," as 
former state Sen. Thom Goolsby said at the time.

A different judge put the Cumberland County defendants back on death row in 
2017, dismissing the racial bias evidence because the act was no longer on the 
books.

Robinson’s lawyers then appealed his case to the state Supreme Court. Two other 
defendants from Iredell County, just outside Charlotte, will also argue before 
the court that they should be given the opportunity to present evidence of 
intentional and systemic racial discrimination that has yet to be heard in 
court.

No matter how the Supreme Court rules, race and the death penalty will remain 
political lightning rods in the state.

No one knows that better than Hugh Holliman, the former Democratic House 
majority leader in North Carolina, who in 1998 attended the execution of the 
man who raped and murdered his teenage daughter.

11 years later, Holliman voted for the Racial Justice Act. He was defeated the 
next year by Republicans who portrayed him as soft on crime.

He has no regrets about his vote. “I supported the death penalty, but I wanted 
it to be fair," Holliman said.

(sourcew: The Marshall Project)








INDIANA:

Death Penalty Waning in Indiana, With Fewer Capital Prosecutions and No Death 
Sentences



Following the trends across most of the Midwest, the death penalty is waning in 
Indiana. Capital prosecutions are down, no jury has voted for death since 2013, 
and the state is closing in on its tenth consecutive year without an execution. 
An August 4, 2019 Fort Wayne Journal-Gazette review of the death penalty in the 
state reports that even high-profile murders that started out as death-penalty 
cases have recently been resolved with non-capital pleas.

Several factors have contributed to the decline, according to the 
Journal-Gazette report. Huntington County Prosecutor Amy Richison (pictured), 
who chairs the Indiana Prosecuting Attorneys Council’s capital litigation 
committee, told the newspaper that part of the move away from the death penalty 
stems from 1993 legislation that made a sentence of life without parole 
available as an alternative to the death penalty. Richison said cost and the 
length of the trial and appeal process has also played a role. Indianapolis 
defense lawyer Eric Koselke told the Journal-Gazette that victims’ families are 
also "a big factor in why death penalty filings have dropped." "People are 
aware of how long this process takes and they want closure and don’t want to go 
through it," he said.

Indiana currently has 8 prisoners under sentence of death, and a 9th whose 
death sentence was overturned in the courts is awaiting a resentencing trial. 
Since 2016, three death-row prisoners have exhausted their appeals. However, 
Attorney General Curtis Hill says, the Indiana Department of Correction can’t 
execute them because it hasn’t been able to obtain the drugs required under the 
state’s 3-drug execution protocol. “Inadequate supply chain has been a problem 
for two years,” Hill said. According to the Journal-Gazette, the Department of 
Correction “confirmed … that the state doesn’t have the necessary drugs to 
conduct an execution.”

A DPIC analysis of Indiana sentencing data shows that the state has sentenced 
99 defendants to death since enacting its death-penalty statute in 1973. In 
that time, it has executed 20 prisoners; 2 wrongly convicted death-row 
prisoners - Larry Hicks and Charles Smith - have been exonerated; and governors 
have commuted the death sentences of 3 others to life without parole. The other 
65 once death-sentenced prisoners have either been resentenced to life or less 
following the reversal of their convictions or death sentences or died in 
custody.

Indiana’s death-sentencing decline began in 1989, after nine years in which the 
state averaged more than 6 death sentences per year. Death sentences fell to 
2.6 per year in the 1990s and to 0.9 in the first decade of the 2000s, and 
Indiana juries have not imposed any death sentences in 7 of the last 9 years. 
The state’s experience is typical of death-penalty developments across the 
Midwest.

6 Midwestern states - Illinois, Iowa, Michigan, Minnesota, North Dakota, and 
Wisconsin - do not have the death penalty. Of the 6 0that do - Indiana, Kansas, 
Missouri, Nebraska, Ohio, and South Dakota - only Ohio has averaged more than 1 
death sentence per year since 2014. The other 5 death-penalty states have 
imposed a combined total of 9 death sentences during that period, only 3 of 
which were the product of unanimous jury votes for death. The three death 
sentences in Nebraska were imposed by 3-judge panels; the 2 death sentences in 
Missouri were imposed under the state’s controversial hung-jury provision that 
requires the trial to determine the sentence if the jury does not unanimously 
agree on life or death; and William Clyde Gibson was sentenced to death by his 
trial judge in Indiana in August 2014 after he waived his right to a jury. 
Earlier this year, Fort Wayne prosecutors agreed to a plea deal in which Marcus 
Dansby was spared the death penalty for a quadruple killing and Anthony 
Baumgardt reached a plea deal with Boone County prosecutors in which he would 
be sentenced to life without parole for killing a sheriff’s deputy.

Executions in the Midwest also reflect a regional death-penalty decline. There 
have been 24 executions in the Midwest since the start of 2014, an average of 
4.4 per year. However, all but 6 of those executions took place in Missouri, 
and executions in Nebraska and South Dakota both involved prisoners who had 
waived their appeals. In the preceding 10 years, there were 65 executions in 
the Midwest, including 44 in Ohio and 9 each in Missouri and Indiana. Indiana’s 
last execution was in 2009.

(source: Death Penalty Information Center)








ARIZONA:

Arizona high court denies appeal of Phoenix man convicted of killing 2



The Arizona Supreme Court has upheld the conviction and sentences - including 
the death penalty - of a Phoenix man sent to prison for killing 2 people and 
burying their bodies in his mother’s backyard.

The court filed its decision Wednesday morning.

Alan Champagne was sentenced to death 2 years ago for the 2011 murders of 
Philmon Tapaha and Brandi Nicole Hoffner.

The death penalty triggered an automatic appeal.

Champagne requested a change in counsel the bench summarily dismissed. He also 
argued the trial court "erred by telling the jury during voir dire and in the 
jury questionnaire that a life sentence could result in the possibility of 
Champagne’s release after 25 years," the court document read.

"Because Champagne did not object at trial, he has forfeited any right to 
appellate relief unless the purported error rises to the level of fundamental 
error," the opinion stated.

Investigators said Champagne fatally shot Tapaha and choked Hoffner to death. 
He then asked his neighbor to build him a plywood box.

Champagne put the couple inside the box, poured in lime to disguise the odor of 
decomposing corpses and buried it in his mother’s backyard.

A landscaper found the bodies nearly 2 years later.

Prosecutors wanted the death penalty against Champagne, who was already serving 
a 700-year sentence for attempted-murder convictions. He had barricaded himself 
at his mother’s home in March 2012 and opened fire on officers who went to 
arrest him on an aggravated assault warrant.

He surrendered after he ran out of bullets. No one was injured.

Champagne was sentenced to death for a 1st-degree murder conviction and to 
prison terms for convictions for 2nd-degree murder, kidnapping and concealing a 
dead body.

(source: KTAR news)