Tag Archives: Catholics

New York Times Columnist Says Kevin Cooper May Have Been Framed, Urges DNA Testing That Could Prove His Innocence

Citing extensive evidence that California death-row prisoner Kevin Cooper (pictured) may have been framed, New York Times Pulitzer Prize-winning columnist Nicholas Kristof has urged Governor Jerry Brown to permit advanced DNA testing of evidence that could potentially prove Cooper’s innocence. In a column electronically posted by the Times on May 17, 2018 and scheduled to appear in the paper’s May 20 Sunday print edition, Kristof joins a former FBI agent, the American Bar Association, and Judge William A. Fletcher of the U.S. Court of Appeals for the Ninth Circuit in calling for closer review of the case. In his column, Kristof calls Cooper’s case “a failure at every level,” and says that he believes Cooper was framed by the San Bernardino‘s sheriff’s office, which had a history of planting and mishandling evidence. Cooper, who is Black, became the lead suspect in the 1983 killings of Doug and Peggy Ryen, their 10-year-old daughter Jessica Ryen, and 11-year-old neighbor Chris Hughes, in spite of statements by 8-year-old Josh Ryen, the sole survivor of the attack, who twice told investigators that three White men had committed the murders. The four victims had been stabbed or slashed a combined 140 times with an ice pick, a hatchet, and at least one knife—an assault, Kristof said, that a single perpetrator, much less the 155-pound Cooper, was unlikely to have been able to carry out. Multiple witnesses saw three White men driving a vehicle fitting the description of the Ryens’ car—which had been stolen from their home—near the time of the murders. Other witnesses reported three White men in bloody clothes acting strangely at a nearby bar the night of the crime. When the car was found 30 miles away, Kristof writes, it “inconveniently had blood on the driver’s seat, the front passenger seat and the back seat—suggesting at least three killers.” Cooper came under suspicion because he had escaped from a local prison, where he had been incarcerated for robbery, and had hidden in an empty house near the Ryen family’s home. An initial police search of Cooper’s hideout turned up no evidence, but the day after they identified him as a suspect, police “found” the sheath of a hatchet and a bloody prison-uniform button in a room they claimed—falsely, Kristof says—to have not previously searched. The hatchet itself was found in a different direction, near the path the Ryens’ vehicle took the night of the murder, and the button later turned out to be a different color from the uniform Cooper had been wearing. Numerous leads pointed to an alternative suspect, a recently released convicted murderer whom Kristof identifies only as “Lee,” but police destroyed key evidence—a pair of bloody coveralls given to police by Lee’s girlfriend—before any testing took place. In 2004, Cooper was allowed to test a blood sample from a tan T-shirt that was found near the murder scene. The shirt was the same color, size, and brand as a T-shirt Lee’s girlfriend said she had recently bought for him and that he had been wearing earlier on the day of the murders. The testing found Cooper’s blood on the shirt, but his blood was contaminated with a chemical used in preserving blood samples, indicating that it had likely been planted on the shirt. The lab then tested the sample of Cooper’s blood held by the sheriff’s office and found multiple blood types, suggesting that Cooper’s sample had been topped off with someone else’s blood. Testing of other evidence, including the murder weapon and strands of hair found at the scene, could prove Cooper’s claim that he is innocent. Kristof said, “[I]f we execute a man in so flawed a case without even bothering to test the evidence rigorously, then a piece of our justice system dies along with Kevin Cooper.”

(Nicholas Kristof, Was Kevin Cooper Framed for Murder?, The New York Times, May 17, 2018.) See Innocence.

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ASIA/HOLY LAND – Catholic Bishops: the massacre in Gaza could have been avoided. Jerusalem can also be the capital of Palestine

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Jerusalem – The dozens of deaths and about 3 thousand people wounded during the Palestinian protests organized at the border fence between the Gaza Strip and Israel could have been avoided “if non-lethal tools had been used by the Israeli forces”. The Catholic Bishops of the Holy Land are pointing their finger at the Israeli army, who yesterday, Tuesday, May 15, issued a statement about the tragic events that bring bloodshed to the land where Jesus Christ was born, died and resurrected. In their message, released through the official channels of the Latin Patriarchate of Jerusalem and also sent to Agenzia Fides, the Ordinary Catholic Bishops’ Assembly of the Holy Land calls to end the siege imposed on about two million Palestinians in Gaza Strip as soon as possible.
The Catholic Bishops add that the relocation of the US Embassy in the State of Israel from Tel Aviv to Jerusalem, like any other unilateral moves and decisions about the Holy City of Jerusalem, “does not contribute to advancing the long awaited peace between Israelis and Palestinians”. And they also refer to the need, insistently referred to by the Holy See, to make Jerusalem “a city open to all peoples, the religious heart of the three monotheistic religions”, avoiding unilateral measures that could alter the profile of the Holy City. “We believe”, say the Catholic Bishops of the Holy Land, “that there is no reason that could prevent the City from being the capital of Israel and Palestine,”, adding that this should be done through “negotiation and mutual respect”.
The Assembly of ordinary Catholic Bishops of the Holy Land gathers all the Bishops of the Catholic Churches – Latin, Greek Melkite, Armenian, Maronite, Chaldean and Syrian Catholic – present in that region, together with the Franciscan Custodian of the Holy Land. On Tuesday, May 15, Archbishop Pierbattista Pizzaballa, Apostolic Administrator of the Latin Patriarchate of Jerusalem, also invited “all priests, religious men and women, seminarians, all the faithful of Jerusalem and those who wish “to take part in the prayer vigil for peace that will be celebrated in the afternoon of next Saturday, on the eve of Pentecost, in the church of Sant’Etienne.
Since March 30, when Palestinian demonstrations started along the Israeli border line, at least 110 Palestinian demonstrators have been killed and more than 3,000 have been wounded in the Gaza Strip.

Illinois Governor Uses Gun-Control Veto to Attempt to Re-Enact Death Penalty

What follows is the definition of a political A-hole trying to save his skin by “looking” tough and undermining the democratic process!

lllinois Governor Bruce Rauner has conditionally vetoed a gun-control initiative unless the legislature agrees to reinstate capital punishment in the state. Exercising an amendatory veto—a power some governors are granted that permits them to amend legislation in lieu of an outright veto—Rauner called for making the killing of a police officer or any murder in which more than one person was killed a new crime of “death penalty murder.” In a May 14, 2018 news conference at the Illinois State Police forensic laboratory in Chicago, Rauner said “individuals who commit mass murder, individuals who choose to murder a law enforcement officer, they deserve to have their life taken.” He attached his death-penalty plan and several other gun-control amendments to a bill that would have established a 72-hour waiting period for the purchase of assault rifles in Illinois. Legislative leaders and major Illinois newspapers blasted the action as diversionary political gamesmanship by a weakened governor facing a difficult re-election campaign, and said the death-penalty plan had little chance of enactment. Democratic state Rep. Jonathan Carroll, the gun-control bill’s sponsor, said the governor had not consulted him about possible changes and had “hijacked my bill and put politics ahead of policy.” Senate President John Cullerton said: “The death penalty should never be used as a political tool to advance one’s agenda. Doing so is in large part why we had so many problems and overturned convictions. That’s why we had bipartisan support to abolish capital punishment.” Thomas Sullivan, the co-chair of Commission on Capital Punishment in Illinois appointed by Republican Gov. George Ryan, said Rauner’s plan was a “lousy idea.” He called the death penalty expensive and time-consuming, and said, “It doesn’t reduce crime.” The Chicago Tribune editorial board characterized Rauner’s amendatory veto as “cynical” and a “death penalty ploy” that the paper said was intended “to re-establish [Rauner’s] bona fides with disgruntled conservative Republicans.” A Chicago Sun-Times editorial said the governor knew he was “load[ing] up the bill with so many major new provisions that there is no way” the state legislature would approve it, enabling Rauner to claim he “didn’t technically kill the cooling off period … without strictly telling a lie.” In 2000, after a series of death-row exonerations, Ryan declared a moratorium on executions in Illinois and appointed the commission, and in 2003 commuted the sentences of everyone on the state’s death row. Democratic Gov. Pat Quinn signed a bill to abolish the state’s death penalty in 2011. The Tribune editorial said: “The death penalty issue in Illinois was examined and debated for years in light of notorious incidents of wrongly convicted defendants sent to death row. In Illinois, the legitimate sentiment of many that certain heinous criminals should be put to death was weighed against the risk of errors, and the decision was made to end capital punishment. … [N]othing has changed to make Rauner’s [May 14] announcement worthy of consideration.”

Rauner’s plan would mandate the death penalty upon conviction of “death penalty murder.” A conviction would require proof “beyond all doubt” and appeals courts would conduct an independent review of the evidence without deferring to the jury’s judgment. Although the jury would be told a death sentence would be imposed upon conviction, there would be a separate hearing before a judge in which the defendant would present mitigating circumstances in an attempt to spare his or her life. Mandatory death sentences and falsely instructing juries about the law both violate the constitution, and the judicial factfinding provision may violate a capital defendant’s right to a jury trial. 

A Death Penalty Information Center analysis of U.S. murder data from 1987 through 2015 has found no evidence that the death penalty deters murder or protects police. Instead, the evidence shows that murder rates, including murders of police officers, are consistently higher in death-penalty states than in states that have abolished capital punishment. The data showed that 18 of the 20 states that have the highest rate of officer victimization are death-penalty states, while 8 of the 9 safest states for police officers do not have the death penalty. The study hypothesized that if the death penalty contributed to the safety of police officers, death penalty states would experience comparatively fewer killings of police officers as a percentage of all murders. But the data showed no such effects, and states without the death penalty—including Illinois—comprised 9 of the 10 states with the smallest percentage of homicides involving law-enforcement victims. 

(Kim Geiger, Monique Garcia, and Dan Hinkel, Rauner proposes reinstating death penalty in Illinois, which outlawed it earlier this decade, Chicago Tribune, May 14, 2018; John O’Connor, Gov. Rauner seeks to reinstate death penalty, Associated Press, May 14, 2018; Editorial: Rauner’s death penalty ploy, Chicago Tribune, May 14, 2018; EDITORIAL: Bruce Rauner plays pure politics with death penalty and guns, Chicago Sun-Times, May 14, 2018.) Read Governor Rauner’s amendatory veto message. See Editorials and Recent Legislative Activity.

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EDITORIAL: California Exoneration Shows Why Death Penalty Needs to End

In an April 27 editorial, the Los Angeles Times said the death penalty should come to an end and the recent exoneration of California death-row prisoner Vicente Benavides Figueroa illustrates why. Benavides — an intellectually disabled Mexican national who was working as a seasonal farm worker — spent more than 25 years on death row after being wrongfully convicted and sentenced to death on charges of raping, sodomizing, and murdering his girlfriend’s 21-month-old daughter. His conviction rested on extensive false forensic testimony provided by prosecution medical witnesses who had been given incomplete hospital records and who erroneously testified that the child had been sexually assaulted. One California Supreme Court justice described that testimony as “among the most hair-raising false evidence that I’ve encountered in all the time that I’ve been looking at criminal cases.” The Times called Benavides’s conviction “an egregious miscarriage of justice” and said “[h]is exoneration serves as a reminder of what ought to be abundantly clear by now: that despite jury trials, appellate reconsideration and years of motions and counter-motions, the justice system is not infallible, and it is possible (or perhaps inevitable) that innocent people will end up facing execution at the hands of the state.” Benavides’s case was prosecuted in Kern County during the administration of long-time District Attorney Ed Jagels. Elected multiple times to head the California District Attorneys Association, Jagels successfully pushed to remove three justices from the California Supreme Court whom he claimed were anti-death-penalty. His official Web page as district attorney touted that Kern had the highest per-capita imprisonment rate of any county in state, and as of January 1, 2013, the county had more people on its death row than were sentenced to death in more than 99% of U.S. counties. The county also has the highest per capita exoneration rate in the state. Benavides is reportedly the 26th innocent person wrongly convicted by Kern County prosecutors, most of whom were wrongly convicted as a result of official misconduct. As of March 2015, 22 of the 24 Kern County exonerations listed in the National Registry of Exonerations had involved official misconduct by police, prosecutors, or other government officials. Benavides’s exoneration, the Times said, is also a reminder “of the dangers inherent in California’s efforts to speed up the calendar for death penalty appeals under Proposition 66 …. Moving more quickly to execute convicted death row inmates increases the likelihood that due process will be given short shrift and the innocent will be put to death.” The records that showed 21-month-old Consuelo Verdugo had not been sexually assaulted — and that cast doubt on whether she had been murdered at all — were not discovered until 7 years after trial. The one year that Proposition 66 gives appellate lawyers to investigate cases and file appeals makes it less likely that they will discover such evidence “and thus more likely that innocent people will be put to death.” Washington Post columnist Radley Balko put it more starkly: “if Prop 66 had been in place when Mr. Benavides was convicted, he’d almost certainly be dead. He’d never have lived to see his exoneration.” Balko notes that “[t]his problem isn’t just limited to California. Even as we learn more about the extent of wrongful convictions, prosecutor misconduct and misuse of forensic evidence, states such as Texas, Alabama and Florida have also moved toward limiting appeals and speeding up executions.” He says “[i]t’s almost as if some lawmakers and law enforcement officials think that the problem with wrongful convictions isn’t that there are too many of them, but that they’re bad PR for the law-and-order cause. And that the best way to make them go away isn’t to fix the problems that allowed them to happen, but to execute people before we ever get the chance to learn that they’re innocent.” But the problems, the Times editors said, may be beyond repair. “The unfixable problem with the death penalty is that mistakes get made, witnesses lie, confessions get coerced — all factors that can lead to false convictions. It is abjectly immoral to speed things up by limiting due process. The better solution,” the editors conclude, “is to get rid of the death penalty altogether.”

(Editorial, The latest California death row exoneration shows why we need to end the death penalty, Los Angeles Times, April 27, 2018; Radley Balko, The Watch: As California moves to speed up executions, a man is exonerated after 25 years on death row, The Washington Post, April 30, 2018; CA: Prosecutor’s Fabrication is Tip of the Iceberg When It Comes to Government Misconduct in Kern County, The Open File, March 9, 2015.) See Editorials and Innocence.

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Utah Prosecutor Drops Death Penalty in Prison Killing After Corrections Officials Withheld Evidence

A Utah judge has excoriated the Utah Department of Corrections for practices he called “sneaky” and “deceitful” and a state prosecutor has dropped the death penalty after learning that state prison officials had withheld nearly 1,600 pages of prison records from a defendant facing capital charges in a prison killing. Despite a court order to produce all prison records, the department had failed to disclose medical and mental health records detailing psychiatric medication Steven Douglas Crutcher (pictured, right) had been receiving in the months before he killed his prison cellmate. On March 28, 2018, following disclosure of the records, Sanpete County Attorney Kevin Daniels (pictured, left) withdrew the state’s notice to seek the death penalty and Judge Wallace Lee sentenced Crutcher to life. Preparing for an April 9 capital sentencing hearing, the defense learned in mid-February that the department had withheld medical and mental health records that Crutcher’s lawyer, Edward Brass, said “went to the heart” of the defense’s case. Brass alerted Daniels to the prison’s violation of the court order and Daniels, saying he was “irate” about the prison’s misconduct, withdrew the death penalty from the case. “I hold myself to the highest ethical standard,” he said, “and any withholding of information is an affront to justice. The whole concept of justice is that you put all the evidence, all the cards on the table, and if you go where the evidence leads you, it’s a just result.” “This could have been a disaster,” Brass told reporters. “If it wasn’t for the integrity of the county attorney, it would have been a disaster.” Judge Lee said he was “beyond angry” over the department’s behavior. “This was totally wrong and makes me doubt the credibility of everything I hear about the Department of Corrections,” he said. In a statement, the department blamed its failure to produce the records on a “misinterpretation” of Judge Lee’s October order, but defense lawyers said medical doctors at the prison had been so difficult to work with that one doctor even refused to tell them what medical school he had attended. The judge questioned how the department could have misunderstood an order that had directed it to produce Crutcher’s “entire file,” including all mental health records. “That is something I would expect from Russia or North Korea, not a society like we have under the Constitution,” Lee said. “It’s got to stop. I’ve worried that if it’s happened in this case, it’s happening in other cases out there.” A prison spokesperson told the media that the department has retrained its clinical services records staff on responding to court orders and records requests and has started reviewing other cases to determine whether court orders had been responded to appropriately. Utah Association of Criminal Defense Lawyers executive director Stewart Gollan said the department also has been uncooperative in releasing prisoners’ medical records in civil rights cases.

(Jessica Miller, Judge ‘beyond angry’ after Corrections workers withheld evidence, allowing Utah killer to avoid death penalty, Salt Lake Tribune, March 28, 2018; Jessica Miller, Could there be more cases where Utah Department of Corrections withheld medical records despite court orders?, Salt Lake Tribune, March 31, 2018.) See Utah and Official Misconduct

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Ohio Parole Board Recommends Clemency for Death-Row Prisoner William Montgomery

Read this – don’t instantly discount or believe – read.

Faced with doubts about prosecutorial misconduct and the accuracy of forensic evidence, the Ohio Parole Board has recommended that Governor John Kasich grant executive clemency to William T. Montgomery (pictured), scheduled to be executed on April 11. Montgomery was convicted and sentence to death in 1986 for two murders he has long maintained he did not commit. An Ohio federal district court, affirmed by a federal appeals court panel, overturned his conviction in 2007 because prosecutors had suppressed evidence and witness statements that undermined its version of how the crime occurred, but with five judges dissenting, the full U.S. Court of Appeals for the Sixth Circuit reinstated the conviction. Montgomery’s supporters argued to the parole board that there was too much doubt about his guilt to risk executing a potentially innocent man. Prosecutors argued at trial that Montgomery murdered Debra Ogle and then killed her roommate, Cynthia Tincher to prevent her from testifying against him, then dumped Ms. Ogle’s body in the woods where it was not discovered for four days. However, prosecutors withheld from the defense evidence that multiple witnesses had seen Ms. Ogle alive four days after she supposedly had been killed and an independent review of the autopsy report showed that Ms. Ogle’s body likely had been discovered within hours of her death. The report noted that a body left in the woods for four days in above-freezing temperatures would have shown signs of decomposition, insect infestation, and animal predation, none of which were present, and the body’s state of lividity indicated death had occurred within twelve hours of its discovery. Adding to the doubt in the case, Montgomery’s co-defendant, Glover Heard told police five different stories before settling on a version of events that fit the prosecution’s theory and, instead of facing the death penalty, was sentenced to a term of years with eligibility for parole. Montgomery’s lawyers also presented the parole board with affidavits that undermined its confidence in the jury verdict, including one from a juror who was confused as to what the law required, another from a juror who had doubts about Montgomery’s guilt, and a third juror whose psychiatric behavior raised questions about her ability to serve. The Board majority cited both the State’s failure to disclose the witness reports that Ms. Ogle was alive after the State claimed she had been killed and the jurors’ affidavits as reasons for recommending commutation. Four Board members opposed commutation, arguing that the information presented was insufficient to overturn the jury verdict and finding no “manifest injustice” in the case that they believed warranted clemency. In an op-ed in the Toledo Blade, Phyllis Crocker, Dean of the University of Detroit Mercy School of Law and a former member of the Ohio Supreme Court Joint Task on the Administration of Ohio’s Death Penalty, wrote: “At best, Montgomery was convicted on a false set of facts and at worst, he may be actually innocent. In death penalty cases there must be no doubt whatsoever. There is too much doubt to allow this execution.” Montgomery’s lawyer, Jon Oebker, reiterated that his client’s assertion of innocence and said the defense plans to “explore every avenue we can.” Governor Kasich must issue a decision on the pardons board’s recommendation before the April 11 execution date.

(Jim Provance, Parole board recommends clemency for William T. Montgomery, Toledo Blade, March 16, 2018; Phyllis L. Crocker, Op-Ed: Next Ohio execution raises too much doubt, Toledo Blade, March 10, 2018; Jim Provance, Death row inmate William T. Montgomery seeks new trial, Toledo Blade, March 3, 2018; Jim Provance, Forensic experts question prosecution’s theories, Toledo Blade, March 8, 2018.) Read William Montgomery’s application for clemency here and the Ohio Parole Board’s clemency recommendation hereSee ClemencyInnocence, and Prosecutorial Misconduct

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California Supreme Court Grants New Trial to Man Sent to Death Row 25 Years Ago by False Forensic Evidence

The California Supreme Court has vacated the conviction of Vicente Figueroa Benavides (pictured), saying that the forensic evidence that sent the former Mexican farmworker to death row 25 years ago was “extensive,” “pervasive,” “impactful,” and “false.” Benavides, now 68, was sentenced to death in 1993 after being found guilty of brutally murdering Consuelo Verdugo, his girlfriend’s 21-month-old toddler, by raping and anally sodomizing her. However, the court said, medical evidence showed that the girl was never raped or sodomized and may not have been murdered at all. Instead, she may have died from complications from having been struck by a car. Benavides—whose lawyers have argued is developmentally disabled and possesses the mental ability of a 7-year-old—told the police and jury during the trial that he lost track of the toddler while he was preparing dinner on November 17, 1991 and he found her outdoors, vomiting. Consuelo’s mother took her to a local medical center that evening, where her condition worsened. After surgery and two hospital transfers, the child died a week later. At trial, forensic pathologist Dr. James Diblin testified that the toddler had died from “blunt force penetrating injury of the anus” and claimed that the major internal injuries she suffered were the result of rape. He further testified that arm injuries, internal trauma, dilated pupils, and compression rib fractures that Consuelo sustained had been “caused by tight squeezing during a sexual assault.” Dr. Jess Diamond, who evaluated the toddler at Kern Medical Center, also initially testified that the baby had been raped. However, medical records obtained by Benavides’s post-conviction lawyers showed that the examining physicians had not seen any signs of bleeding when Consuelo was brought to the hospital, and a nurse who helped treat the toddler said that neither she nor any of her colleagues saw evidence of anal or vaginal trauma when the child arrived. Instead, the court said, the injuries to Consuelo’s genitalia and anus were “attribut[able] to medical intervention,” including repeated failed efforts to insert a catheter and the improper use of an adult-sized catheter on the small child. “After reviewing the medical records and photographs that I should have been provided in 1993,” Dr. Diamond withdrew his assessment that Consuelo had been raped. “I am convinced that this case presents a tremendous failing of the criminal justice system,” he said. The defense also presented evidence from Dr. Astrid Heger, one of the country’s leading experts on child abuse, who described Dr. Didbin’s assertion that Consuelo’s injuries had been the product of sexual assault as “so unlikely to the point of being absurd. … No such mechanism of injury has ever been reported in any literature of child abuse or child assault.” She said the internal injuries the child sustained were commonly seen in victims of automobile accidents. During oral argument, Associate Justice Carol Corrigan, a former prosecutor, described Dibdin’s testimony as being “among the most hair-raising false evidence that I’ve encountered in all the time that I’ve been looking at criminal cases.” Chief Justice Tani Cantil-Sakauye compared the sexual assault allegations to “a bomb dropped on the jury” that prevented the jurors from considering the evidence that the toddler may have been hit by a car. Prosecutors admitted that the forensic evidence they used to convict Benavides was false, but asked the state court to sustain a conviction for second-degree murder. With its key evidence discredited, Kern County District Attorney Lisa Green said it was improbable that prosecutors would attempt to retry Benavides. If the charges are dismissed, Benavides would be the fourth California death-row prisoner to be exonerated since the state brought back the death penalty in 1974.

(Maura Dolan, California Supreme Court, citing false evidence, overturns murder conviction that put Delano man on death row, Los Angeles Times,  March 12, 2018; Chloe Carlson, BREAKING NEWS: Death penalty reversed; “false evidence” used in trial, court rules, Kern Golden Empire, March 12, 2018; Jose Gaspar, With ‘hair-raising false evidence’ exposed, Delano man get a second chance, The Bakersfield Californian, March 9, 2018; Olivia LaVoice, Did Kern send an innocent man to Death Row? High court considering the stunning possibility, Kern Golden Empire, undated.) Read the California Supreme Court ruling in In re Vicente Benavides Figueroa. See Innocence.

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Email Shows Texas DA Had Phone Records Showing Alfred Brown Was Innocent, But Prosecuted Him Anyway

According to newly disclosed records, the Harris County assistant district attorney who prosecuted Texas death-row exoneree Alfred DeWayne Brown was aware of phone records that corroborated Brown’s assertion of innocence long before the case went to trial, but withheld the records from the defense and intimidated a witness who original testimony was supported by the records into falsely testifying against Brown. Brown was convicted and sentenced to death in 2005 for the murders of a Houston police officer and a store clerk during a 2003 robbery. No physical evidence linked him to the murders and he consistently maintained that he had been at his girlfriend’s apartment when the murders occurred. Brown won a new trial in 2014 after police investigator Breck McDaniel discovered copies of the phone records in his garage. At the time, prosecutors said that the records had been inadvertently misplaced. However, an email that was released by the Harris County district attorney’s office on March 2 in response to a civil suit filed by Brown shows that McDaniel alerted former Harris County prosecutor Dan Rizzo to the existence of the records on April 22, 2003, the day after his girlfriend, Erica Dockery, had told the grand jury that Brown had called her from her apartment. McDaniel told Rizzo in the email that he had obtained Dockery’s phone records “hoping that it would clearly refute Erica’s claim that she received a call at work” from Brown. Instead, McDaniel said, “the call detail records from the apartment shows that the home phone dialed Erica’s place of employment” twice on the morning of the killing and that Dockery had called Brown back from work. A Pulitzer-Prize-winning Houston Chronicle investigation revealed in July 2014 that, after her testimony, a police officer who served as the grand jury foreman in the case threatened Dockery with perjury for supporting Brown’s alibi. Then—after Rizzo had received the email confirming the truthfulness of Dockery’s testimony—prosecutors jailed Dockery for seven weeks until she changed her testimony to implicate Brown. After Brown was exonerated, he applied for approximately $1.9 million in cash and annuity payments under Texas’ exoneration compensation law. Prosecutors claimed that the court proceedings leading to Brown’s release did not constitute a determination that he was “actually innocent,” and his application was rejected in April 2016. Cate Edwards, Brown’s lawyer in the civil case, called the email revelations “horrifying.” Brian Stolarz, who represented Brown in the appeals leading to his exoneration, called the disclosures “[v]indication.” He said he was “sickened and disheartened” that “[o]nly now, after a civil lawsuit, does the whole truth finally come out.’ But he said he he was “encouraged that Dewayne is vindicated and his long journey to justice is near the end.” Harris County District Attorney Kim Ogg, who took office in November 2016 on a platform of criminal justice reform, issued a statement saying that “The Texas Disciplinary Rules of Professional Conduct require that ‘the appropriate disciplinary authority’ shall be informed when a lawyer becomes aware that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in all other respects.” The statement said “the Harris County District Attorney’s Office will notify the State Bar of Texas of the newly discovered evidence so that it may investigate the prosecutor’s professional conduct while handling the Brown case.”

(Margaret Downing, DA Ogg Finds Email Evidence That Prosecutor Did Know About Phone Records in Alfred Brown Case, Houston Press, March 2, 2018; St. John Barned-Smith and Keri Blakinger, DA: Former prosecutor withheld key email in death row case, Houston Chronicle, March 3, 2018.) Read the email here. See Innocence, Prosecutorial Misconduct, and Texas.

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Missouri Executed 17 Prisoners With Drugs Secretly Obtained From ‘High-Risk’ Pharmacy Cited for Hazardous Practices

Tax dodging secret cash payments!

BuzzFeed News investigation has disclosed that Missouri carried out seventeen executions between 2014 and 2017 using supplies of the drug pentobarbital it secretly obtained from a pharmacy the Food and Drug Administration had classified as “high risk” because of repeated serious health violations. The February 20 exposé describes a complex system of clandestine meetings, code names, and undocumented cash payments that Missouri employed to conceal the identity of Foundation Care, a suburban St. Louis compounding pharmacy that reporter Chris McDaniel discovered “has been repeatedly found to engage in hazardous pharmaceutical procedures.” Foundation Care—which was reportedly paid more than $135,000 for execution drugs—is alleged to have engaged in illegal practices, medicare fraud, and numerous manufacturing improprieties and, McDaniel reports, its cofounder has been accused of “regularly ordering prescription medications for himself without a doctor’s prescription.” Two former senior employees of the company—including the head of pharmacy operations—have alleged in a lawsuit that Foundation Care violated government regulations by reselling drugs returned by patients, intentionally omitting the names of ingredients in drugs it prepared, and failing to notify other states about a $300,000 settlement with Kansas over allegations of Medicaid fraud. Another suit by a former employee alleges that she was fired after complaining to her supervisors and the Missouri Board of Pharmacy about “serious operational violations.” Missouri switched to Foundation Care after reporters discovered the identifty of the state’s prior secret supplier of execution drugs—an Oklahoma compounding pharmacy called The Apothecary Shoppe. Reporters learned that The Apothecary Shoppe was not licensed to sell drugs in Missouri and had admitted to nearly 2,000 health and safety violations. Foundation Care first came to the attention of FDA investigators after a doctor complained to the agency that a patient he was treating had developed “a ‘life threatening’ illness” after taking a drug that had been prepared by the pharmacy. At that time, the investigators found that the pharmacy had shipped drugs to patients without conducting tests for sterility and bacteria, and a lab sample revealed drugs that had been contaminated with bacteria. In 2013, the FDA designated Foundation Care as a “high-risk” compounding pharmacy, and cited it as an example as to why greater federal oversight of compounders was necessary. A second inspection of the company that year found “multiple examples” of practices that could lead to contamination, and that Foundation Care had failed to “assure that drug products conform to appropriate standards of identity, strength, quality and purity.” In a February 2014 letter to the Missouri Board of Pharmacy, the FDA warned that the pharmacy’s practices “could lead to contamination of drugs, potentially putting patients at risk.” The possibility of drug contamination is one of the centerpieces of prisoner challenges to Missouri’s execution process, and experts in the case have indicated that contamination could create a “substantial risk of pain and suffering.” However, in a deposition in the Missouri prisoners’ legal challenge, state officials refused to say whether they were aware of any problems with their drug manufacturer, and lawyers for the state have affirmatively used Missouri’s secrecy provisions to deny prisoners’ access to information about its drug supplier and the company’s safety record, while at the same time arguing the prisoners have not proven that the execution may be unconstitutionally cruel. Foundation Care was acquired by AcariaHealth, a subsidiary of health-care giant Centene Corporation, in October 2017. After McDaniel’s report was published, the company issued a statement that, “[u]nder Centene’s ownership, Foundation Care has never supplied, and will never supply any pharmaceutical product to any state for the purpose of effectuating executions.”

Compounding pharmacies are drug producers that mix small batches of medications to meet the specialized needs of patients for whom mass produced medicines are not available. Regulated primarily by states, their drugs are reported to have a significantly higher failure rate than drugs produced by FDA-regulated manufacturers. An estimated twenty percent of drugs created by Missouri compounding pharmacies failed to meet Missouri Board of Pharmacy standards.

(Chris McDaniel, Missouri Fought For Years To Hide Where It Got Its Execution Drugs. Now We Know What They Were Hiding.,” BuzzFeed News, February 20, 2018; Samantha Liss, Centene says subsidiary will no longer provide drugs for Missouri executions, St. Louis Post-Dispatch, February 20, 2018; Will Schmitt, The identity of Missouri’s execution drug dealer, long a state secret, reportedly unmasked, Springfield News-Leader, February 20, 2018). See Lethal Injection and Missouri.

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Pentagon Fires War Court Official Who Was Attempting to Negotiate End to Guantánamo Death-Penalty Trial

The sudden firing by U.S. Secretary of Defense Jim Mattis (left) of the Pentagon official who oversaw military commission trials at Guantánamo Bay has raised concerns of political interference in the already tumultuous legal proceedings in the death-penalty trials of the five men charged with plotting the 9/11 attacks on the United States. The New York Times reports that Mattis fired Harvey Rishikof (right), who served as the Convening Authority of the Guantánamo tribunals, as Rishikof was engaged in plea negotiations that would potentially have spared the Guantánamo defendants the death penalty in exchange for pleading guilty to the September 11 attacks. The Pentagon provided no explanation for the February 5 firing, and David Nevin—who represents accused attack-mastermind Khalid Shaikh Mohammed—told The Times that “[t]he firing fairly raises the question” of whether the Pentagon was attempting to unlawfully influence the convening authority. The Office of the Convening Authority is responsible for approving cases for trial, plea agreements, reviewing convictions and sentences, and providing resources to defense teams. Military law prohibits even the appearance of “unlawful command influence” over the handling of a case. Nevin said the defense has “an obligation to try to learn everything we can” about possible improper influence, and he has asked prosecutors to turn over information relating to Rishikof’s firing. At the same time Rishikof was dismissed, the Pentagon’s acting general counsel, William S. Castle discharged Rishikof’s legal advisor Gary Brown, also without explanation. Brown and Rishikof’s firings have focused renewed attention on the dysfunctional military tribunals at Guantánamo. The death-penalty trial of Abd al Rahim al Nashiri, accused of planning the bombing of the U.S.S. Cole in Yemen, was thrown into chaos in October 2017 when his entire civilian defense team resigned amid allegations that military officials had violated attorney-client privilege by eavesdropping on legal meetings at the Cuban facility. Rishikof intervened in that case after the judge, Air Force Colonel Vance Spath, held the chief defense counsel for the Military Commissions Defense Organization, Marine Brig. Gen. John Baker, in contempt for allowing the resignations. Spath has directed that proceedings in the U.S.S. Cole case continue without expert death-penalty counsel, even though the only remaining member of Nashiri’s defense team, Lieutenant Alaric Piette, graduated law school in 2012, does not meet the American Bar Association standards for death-penalty defense, and has never tried any murder case. During a January 2018 pretrial hearing in the case, Spath criticized Piette for seeking a continuance in the case until expert death-penalty counsel could be appointed, telling Piette to “engage in self help” by attending special training to become “more comfortable handling capital matters.” On February 5, Piette, who stayed on the case out of concern for his client’s rights, told The New York Times: “I don’t know if I’ve done the right thing, but I don’t think I really had a choice.” Piette “doesn’t come close to being qualified” to handle the case, according to Ellen Yaroshefsky, a professor of legal ethics at Hofstra University. “So a death penalty case is basically going forward without a lawyer. If that is what we think passes as a court system, we’re in big trouble,” she said. 

(Charlie Savage, Fired Official Was Exploring Resolution to 9/11 Case Precluding Death Penalty, New York Times, February 10, 2018; Carol Rosenberg, Secretary of Defense fires Guantánamo war court overseer, Miami Herald, February 5, 2018; Dave Philipps, Many Say He’s the Least Qualified Lawyer Ever to Lead a Guantánamo Case. He Agrees., New York Times, February 5, 2018; Carol Rosenberg, Military judge to lone USS Cole lawyer: ‘Engage in self-help’ to learn capital defense, Miami Herald, January 23, 2018.) See U.S. Military and Representation.

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