Day: April 3, 2014

TEXAS – Willingham Won’t Get Posthumous Pardon

april 3. 2014

The Texas Board of Pardons and Paroles has voted not to recommend a posthumous full pardon for Cameron Todd Willingham, who was executed a decade ago after being convicted of setting a house fire that killed his three young daughters.

“This whole process is, unfortunately, typical of this board, where they don’t demonstrate that they’ve actually considered the substantial evidence that we’ve put before them,” said Barry Scheck, co-founder of the Innocence Project, which has led the charge to clearn Willingham’s name in the case.


(texas tribune)


Mississippi death row inmate Michelle Byrom to get new trial

April 1, 2014

(CNN) — A new trial has been ordered for Mississippi death row inmate Michelle Byrom, according to a state Supreme Court opinion issued Monday.

Byrom’s capital murder conviction was reversed, and the case has been remanded to the circuit court for a new trial, the opinion said.

“We are very grateful that the Mississippi Supreme Court has granted Michelle Byrom’s request for relief from her death sentence,” said Byrom’s attorney, David Calder. “This was a team effort on the part of the attorneys currently representing Michelle, and we believe that the court reached a just and fair result under the facts presented in this case.”

Byrom has been on death row since her 2000 conviction for capital murder. The 57-year-old woman was convicted of being the mastermind of a murder-for-hire plot to kill her allegedly abusive husband, a killing her son had admitted to committing in several jailhouse letters and, according to court documents, in an interview with a court-appointed psychologist.

He recanted when he was put on the stand, according to court records.

Attorney General Jim Hood, who had requested Byrom’s execution, said Monday his office would seek the court’s reasoning for the reversal.

“While we respect the Mississippi Supreme Court’s decision, it is important that the trial court know and understand the specific errors that were found by the justices so that the lower court knows the best way to proceed,” he said. “Our citizens can once again take comfort in the fact that we have a legal system that works for all parties involved.”

The Supreme Court opinion noted that the decision “is extraordinary and extremely rare in the context of a petition for leave to pursue post-conviction relief.”

Oliver Diaz, the former presiding justice of the Supreme Court, called the opinion “actually kinda amazing,” from the order for a new trial to the ruling’s release on a Monday instead of a Thursday, as usual.

“The lawyers filed a last ditch motion for additional post conviction relief. These are almost never granted. Defendants are limited to a single post conviction motion,” he wrote in an e-mail to CNN. “It is extremely rare to grant and send back for a new trial.”

The court further instructed that a different judge should be assigned to Byrom’s new trial.

Circuit Judge Thomas J. Gardner, who imposed the death sentence on Byrom after her conviction, declined to comment to CNN, saying, “The matter is ongoing.”

Diaz also said the order for a new judge was extraordinary.

“Also, taking the step of removing the original trial judge is very unusual as well,” he wrote.

Tara Booth, spokeswoman for the Mississippi Department of Corrections, said the department expects an order Tuesday to transfer Byrom from the Central Mississippi Correctional Facility to Tishomingo County, where the killing occurred.

Hood, the attorney general, had requested that Byrom be executed “on or before (the date of) March 27,” but the Mississippi Supreme Court, which has the final say on execution dates, denied Hood’s request.

During Michelle Byrom’s original trial, prosecutors said she plotted to kill her husband, who was fatally shot in his home in Iuka, Mississippi, in 1999 while Michelle was in the hospital receiving treatment for double pneumonia. A jury convicted her based on evidence and testimony alleging that she was the mastermind of the plot.

Byrom Jr. admitted in jailhouse letters that he had committed the crime on his own after growing tired of his father’s physical and verbal abuse, and a court-appointed psychologist has said that Byrom Jr. told him a similar story.

On the stand, Byrom Jr. pinned the slaying on one of his friends, whom he said his mother had hired for $15,000.

Following her attorney’s advice, Michelle Byrom waived her right to a jury sentencing, allowing the judge to decide her fate. He sentenced her to death.

Prior to Monday’s ruling, Michelle Byrom’s defense attorneys had filed a motion asking the court for additional discovery so the alleged confession to the court-appointed psychologist could be fully explored.

The defense attorneys also want to depose the prosecutor from her trial, Arch Bullard, regarding his knowledge of Byrom Jr.’s alleged confession to the psychologist.

Bullard has told CNN that he firmly believes Michelle Byrom was the mastermind of the murder-for-hire plot.

Ohio still adding to Death Row population

april 2, 2014

In the past decade, Ohio’s Death Row has shrunk by one-third, from 209 to 139.

But a new state report shows that the courts continue to sentence people to death at the same time the process of lethal injection is mired in legal controversy.

The 2013 Capital Crimes Report issued yesterday by Attorney General Mike DeWine says 12 executions are scheduled in the next two years, with four more awaiting the setting of death dates. Among those scheduled are three from Franklin County: Warren Henness (Jan. 7), Alva Campbell (July 7, 2015), and Kareem Jackson (Jan. 21, 2016).

Ohio has carried out 54 executions since 1999, including three last year, the same as in 2012.

The annual status report on capital punishment in Ohio, which covers calendar year 2013, does not mention the problems during the Jan. 16, 2014, execution of Dennis McGuire when he gasped, choked and struggled for more than 10 minutes before succumbing to a two-drug combination never before used in a U.S. execution.

A lawsuit has been filed by McGuire’s two children, and the drug issue prompted Gov. John Kasich to push back the scheduled March 19 execution of Gregory Lott until November.

The next scheduled execution is Arthur Tyler of Cuyahoga County on May 28.

DeWine’s report says 316 people have been sentenced to death in Ohio since 1981, when capital punishment was restored after being overturned as unconstitutional by the U.S. Supreme Court.

The report cites 18 gubernatorial commutations of death sentences: four by Kasich, five by Gov. Ted Strickland, one by Gov. Bob Taft and eight by Gov. Richard F. Celeste.

In all, 26 convicted killers have died in prison, including Billy Slagle of Cleveland, who committed suicide on Death Row on Aug. 4, 2013.

DeWine reported that 74 capital-punishment sentences were removed by the courts, and six, including Donna Roberts, the only woman currently sentenced to death in Ohio, are facing resentencing.

There have been 34 whites and 19 blacks executed, all males. They spent an average of 16.6 years in prison before being executed.

Of their 85 victims, 65 were adults and 19 were children. White victims outnumbered blacks 2-1.

For the first time this year, a group opposed to the death penalty issued its own report in response to the official state document. Ohioans to Stop Executions concludes, “While Ohio’s overall use of the death penalty is slowing, it has become clearer than ever before that the race of the victim and location of the crime are the most-accurate predictors of death sentences in the Buckeye State.”

The group said 40 percent of death sentences originate in Cuyahoga County. Ohio prosecutors filed 21 capital-murder indictments last year, a 28 percent drop from 2012, as sentences of life without the possibility of parole became more prevalent.

The full state report can be found online at

Sorry about your time on death row, pal. Nothing we can do.

april 2, 2014

There was an opinion from the U.S. Court of Appeals for the Sixth Circuit last week that demonstrates just how far Congress and the courts have shielded prosecutors from any possible consequences for misconduct.

Before we get to the case itself, here’s a quick review of the law:

If you’ve been wrongly convicted through prosecutorial misconduct, there are a few ways you can try to hold the government accountable. The most obvious way would be to sue the prosecutor himself. This is just short of impossible. Anything a prosecutor does in his official capacity is protected by absolute immunity — a mighty, nearly impenetrable shield created by the Supreme Court in the 1970s. Your best hope is if your prosecutor committed the misconduct while acting as an investigator — that is, while performing tasks more associated with policing than with prosecuting. If so, your prosecutor would then be protected “only” by the qualified immunity the courts have given to police. But even that is still a pretty high bar to clear.

You could also try to sue the municipality that employs your prosecutor. It’s called a Monell claim. But this, too, is difficult. You’ll have to show that not only did your prosecutor commit misconduct that violated your constitutional rights but there’s also a system-wide pattern or practice of misconduct in that particular jurisdiction. It isn’t enough merely to show that your prosecutor did this to you. You’ll likely to need to show that other prosecutors in the same office did similar things to other people.

Since judges and prosecutors probably aren’t going to open the files of other cases for you, winning a claim like this is likely to happen only once other people have already shown misconduct from the same office and, presumably, hadn’t yet found enough examples to establish a pattern. If the misconduct is bad and persistent enough, presumably at some point — a point that isn’t really clear but appears to be wholly up to the subjective interpretation of whatever federal judge happen to hear your case — enough people will have shown enough misconduct to establish a pattern. Provided you include them all in your claim. But no matter how many cases come after, those people who filed first, and lost, probably won’t get to have their cases heard again.

D’Ambrosio then sued. Because former Cuyahoga County prosecutor Carmen Marino is protected by absolute immunity, D’Ambrosio filed a Monell claim against Cuyahoga County, alleging that the county had an established pattern or practice of prosecutor misconduct. He also personally sued Cleveland Police Detective Leo Allen and filed another Monell claim against the city of Cleveland, Allen’s employer, again alleging a pattern of abuse.

He lost on all three claims. The decision explicitly acknowledged that “there is no question that the individual prosecutors involved in D’Ambrosio’s case violated rights secured to him by the Constitution.” But no one will be held accountable for it. And D’Ambrosio is just out of luck.

The judges first addressed the claim against Cuyahoga County. But before we get to that, remember that, under a Monell claim, D’Ambrosio would need to show that not only did Carmen Marino violate his rights but also that Marino’s doing so was part of a policy, explicitly or otherwise, in Cuyahoga County. As it turns out, Marino was the chief prosecutor in Cuyahoga County and worked there for three decades. He set the policies. And those policies were pretty awful.

Here’s Cleveland Plain Dealer columnist Regina Brett writing about Marino in 2006:

According to appeals court decisions, at least three men could be on death row because former star prosecutor Carmen Marino hid evidence.

Three others had murder convictions set aside, one because of what an appeals court called Marino’s “highly improper and highly prejudicial” conduct. The others, because he hid key evidence or lied about secret deals with jailed witnesses.

Marino won seven death sentences in the 1980s. He says he never lied or hid evidence. But Cuyahoga County Common Pleas Judge Daniel Gaul said Marino should be criminally prosecuted for the abuses.

“It’s nothing but one deceitful act after another,” Gaul said. “To permit anyone to be put to death after being prosecuted by Carmen Marino would be so ethically inappropriate you’d almost be culpable yourself.”

She wrote about Marino again in 2008:

Marino isn’t a prosecutor whose integrity you want to celebrate . . .

Marino once offered a witness immunity in exchange for testimony, then allowed the witness to lie about that offer under oath. Because of that, a judge recently granted a new trial to Robert Brown.

Rasheem Matthew will get a new trial because Marino struck plea deals with two key witnesses that the jury never got to hear about.

That column was about a “prosecutor of the year” award given out by Cuyahoga County. Up until 2008, the award had been named after Carmen Marino.

In a 2003 report, the Center for Public Integrity found five other cases in which Ohio courts overturned convictions due to Marino’s misconduct. In his 2008 book “The Legal Matrix,” William Dawson writes of other examples:

In 1982, the Ohio Supreme Court reversed Chester Liberatore’s arson conviction due to Marino’s “prosecutorial blunders.” In the Court’s opinion, Justice Clifford Brown said Marino “presented a textbook example of what a closing argument should not be.”

“That’s all interpretation,” Marino said. “You just get up and give a good closing argument—whoever argues best last wins.”

In another case, judges reversed George Kelly’s conviction because Marino “purposely” offered him a chance to plead guilty to murder “in order to avoid a possible successful appeal.”

In May 2002, the state’s Eight Circuit Appeals Court upheld Gregory Lott’s murder conviction, rejecting evidence suggesting that Marino withheld exculpatory evidence from the defense, namely the victim’s initial description of the attacker.

In another two cases, dissenting judges would have reversed the defendants’ convictions because of Marino’s behavior.

Marino said it’s not difficult to win convictions in Ohio, as jurors are predisposed to find defendants guilty because they trust police and prosecutors.

“If the person doesn’t take the stand, the jury knows he is guilty,” Marino said. “That’s my experience.”

More than a decade after Marino retired, the problems in the Cuyahoga County prosecutor’s office persist. Last year, an assistant prosecutor was fired for creating a fake Facebook identity to chat with defense witnesses online. In an editorial about the firing, the Plain Dealer argued that the office had never really cleaned up its act.

His actions have called into question, yet again, the culture of a Prosecutor’s Office that has often been accused — and sometimes convicted — of being more zealous about winning cases than about seeing justice done.

He has opened the door to questions about the conduct of previous cases in which he was involved, just as revelations of misconduct by Carmen Marino, the star of the Prosecutor’s Office in the 1980s and ’90s, led to a string of retrials and appeals.

This certainly seems like a culture and pattern of misconduct. If Cuyahoga County doesn’t qualify, it’s hard to imagine one would.

Yet all of that wasn’t enough for the Sixth Circuit. Here’s what the court said of D’Ambrosio’s claim:

D’Ambrosio claims that the county had sufficient notice of an office-wide practice of persistent unconstitutional conduct by virtue of only one other Brady violation and nine other non-Brady instances of prosecutorial misconduct — all of which were committed by Marino over two decades. Of these ten cited examples of misconduct, only three had been ruled as improper by the courts prior to D’Ambrosio’s conviction in 1989 . . .

D’Ambrosio’s complaint amounts to an attempt to hold the county liable for what Marino and his colleagues did wrong. And this is insufficient to state a claim under Monell. A municipality may not be held liable under § 1983 on a respondeat superior theory—in other words, “solely because it employs a tortfeasor.”

Instead, a municipality is liable under § 1983 only where, “through its deliberate conduct,” it was “the ‘moving force’ behind the injury alleged.” By focusing almost exclusively on the conduct of Marino, D’Ambrosio’s complaint is improperly attempting to impose liability upon the county “simply because the municipality hired one ‘bad apple.’”

Of course, that one “bad apple” was the county’s chief prosecutor. Again, the guy making the policy. And though the county may have known of only a few violations prior to D’Ambrosio’s conviction in 1989, as the county officials became aware of of many more incidents over the next 20 years, they still continued to fight to preserve D’Ambrosio’s conviction and to keep the man on death row.

Note, too, just how difficult a Monell claim can be. If you’re the first, third, fifth, or perhaps even tenth victim of misconduct, you’re probably out of luck. There is no “pattern” yet. You must show that there was a pattern and that the city or county had been made aware of the problem and refused to take steps to correct it. Oddly, this means that with long-serving prosecutors like Marino, the victims of misconduct who have spent the longest time in prison are also the victims least likely to get their lawsuits in front of a jury.

So what about the claim against Detective Allen, the cop who also withheld evidence pointing to D’Ambrosio’s innocence? The court ruled that the requirement to turn over exculpatory evidence, known as the Brady rule, applies differently to police than it does to prosecutors. (I have omitted the case citations for the sake of clarity.)

[W]hile a police officer’s concealment of material exculpatory information may ultimately result in a Brady violation, the role that a police officer plays in carrying out the prosecution’s Brady obligations is distinct from that of a prosecutor. Police officers do not disclose evidence to criminal defendants directly. Instead, police officers fulfill their Brady obligations as long as they “inform the prosecutor about evidence that undermine[s] the state’s preferred theory of the crime.”

The prosecutor, by contrast, is the member of the prosecution team that bears the responsibility for actually disclosing exculpatory information to the defense. The fact that Brady may require disclosure of evidence known only to the police and not to the prosecutor means only that it “imposes upon prosecutors a duty to learn of any favorable evidence known to the others acting on the government’s behalf[,] including the police.” It does not mean that a police officer must disclose any sort of information — even information known only to the officer — directly to the defense.

Because Brady obliges a police officer to disclose material exculpatory evidence only to the prosecutor rather than directly to the defense, “prosecutors and police officers are capable of breaching [the prosecution team’s Brady obligations] in factually different ways.” And here, that distinction matters. D’Ambrosio’s allegations that Detective Allen “was privy to” exculpatory evidence but withheld it “from the defense” and failed to disclose it “to D’Ambrosio” are beside the point. Detective Allen was never required to do otherwise.

D’Ambrosio is correct that Detective Allen bore a “‘Brady-derived’ responsibility to turn over potentially exculpatory evidence to the prosecutor’s office.” But this disclosure obligation is limited: Brady requires a police officer to disclose evidence to the prosecutor only when its exculpatory value is “apparent” to the officer; that is, when the officer is aware that the evidence “could form a basis for exonerating the defendant.” Because an officer’s “destruction or concealment” of obviously exculpatory evidence “can never be done in good faith and in accord with [the officer’s] normal practice,” this rule is “the functional equivalent” of a requirement that the officer act in bad faith.

Although D’Ambrosio argues that his complaint sufficiently alleges that Detective Allen failed to disclose to the prosecution evidence of an obviously exculpatory nature, that is not what his complaint says. Instead, the complaint alleges only that Detective Allen “was privy to” several pieces of evidence, including some that clearly were incompatible with the prosecution’s theory of the case. The complaint does not allege that Detective Allen withheld any of this information from the prosecutor, that the prosecutor was ignorant of any of this evidence, or anything other than that Detective Allen failed to disclose this evidence to D’Ambrosio himself. Again, for D’Ambrosio’s complaint to state a claim against Detective Allen, he must plausibly allege that Detective Allen failed to carry out his “Brady-derived responsibility to turn over potentially exculpatory evidence to the prosecutor’s office.”

Yet the complaint fails to do so: there is no allegation that Detective Allen knew about any obviously exculpatory evidence of which the prosecutors were ignorant and failed to apprise them of it. Instead, the complaint faults Detective Allen for being “privy to” exculpatory information that he did not pass along to D’Ambrosio. But disclosing this information to the defense was, as Moldowan made clear, the responsibility of the prosecutors, not Detective Allen.

See what they did there? If Allen knew the evidence was exculpatory and withheld it from the prosecutor, D’Ambrosio would have to show that Allen did so out of bad faith. That’s very, very difficult to prove. If Allen did turn over the evidence to the prosecutor, that’s where his obligation as a cop ends. He is under no obligation to be sure that the defense attorneys are aware of the evidence. If he sees the prosecutor proceeding with the case in a way that contradicts exculpatory evidence that he knows he has already given the prosecutor, he is under no obligation to tell the court or the defense what’s going on. The responsibility for turning over such evidence lies entirely with the prosecutor. And the prosecutor is protected by absolute immunity.

It works out rather handily that way. The person solely responsible for turning exculpatory evidence over to defense attorneys is also the person who has completely immunity from liability, should defense attorneys never actually see that evidence.

It’s also worth noting that it can be difficult for the wrongly convicted to establish where the obligation to disclose broke down — whether it was between the police and prosecutor, or between the prosecutor and the defense. If you’re dealing with parties who have already established that they’re willing to withholding evidence, they’re probably not going to be particularly helpful in helping you establish who did the actual withholding, especially if they know that keeping it all ambiguous will make it more difficult for you to win your case.

As for the Monell claim against Cleveland for Allen’s actions, the court found that because D’Ambrosio couldn’t establish that Allen had violated his rights, he certainly couldn’t show that the city had permitted a pattern or practice of such conduct.

The point here is not that the court got the law wrong. My impression is that, though there may be a few quibbles with the opinion, the court largely got it right. And that makes this all the worse. Police and prosecutors can break the rules to the point where they’ve committed grievous constitutional violations. They can do this in a death penalty case. They can do it over and over, in lots of cases, sending who knows how many people to prison for a decade or more — or possibly to their deaths. And even when the misconduct is abundantly clear, and the courts acknowledge as much, those same courts also say that under the law, no one is to be held accountable.

That’s the law. And that’s why, to borrow from Mr. Bumble, the law can be a real ass.




Texas execution to go ahead after court reverses judge’s order within hours – Tommy Sell

april 3, 2014

A federal appeals court on Wednesday threw out a ruling requiring the Texas prison system to disclose more information about where it gets lethal-injection drugs, reversing a judge who had halted an upcoming execution.

Only hours before the appellate decision, a lower-court judge issued a temporary injunction halting the execution of Tommy Lynn Sells, a convicted serial killer who was set to die Thursday.

The case originally included Ramiro Hernandez-Llanas, another inmate scheduled to be put to death next week. But the appellate ruling affected only Sells. The appeals court said it would take up Hernandez-Llanas’ case at a later date.

The case now is likely headed to the US supreme court.

District judge Vanessa Gilmore had issued a temporary injunction on Wednesday ordering Texas to provide the lawyers representing Sells and Hernandez-Llanas with information about the supplier and quality of a new batch of pentobarbital, a barbiturate that is to be used in the lethal injections.

Sells was scheduled to die in the Texas state penitentiary on Thursday, and Hernandez-Llanas six days later. Texas’s previous supply of compounded pentobarbital expired on 1 April, and the state has repeatedly refused to reveal the source of its new drugs, claiming that secrecy is needed in order to protect suppliers from threats of violence and intimidation.

Lawyers for the pair argue that Texas’s attorney general had previously ruled on several occasions that such information must be made public, and also said that failing to provide details about the origin, purity and efficiency of the drugs harmed the inmates’ ability to mount a legal challenge over the possibility that they could experience an excessively painful death in violation of their constitutional right not to suffer a “cruel and unusual” punishment.

In her ruling, Gilmore agreed, and instructed Texas not to execute the men until it has disclosed to the lawyers “all information regarding the procurement of the drugs defendants intend to use to carry out plaintiffs’ executions, including information about the supplier or suppliers, any testing that has been conducted, what kind, by whom, and the unredacted results of such testing.”

In recent years an EU-led boycott has made it harder for states to source their execution drugs of choice, resulting in some states turning to experimental drugs and procedures to replace the sequence of three substances that was commonly used before the boycott. In its executions, Texas now employs only pentobarbital, which is often used to euthanize animals. Last year, it bought a supply of the drug from a compounding pharmacy in suburban Houston.

Death penalty opponents argue that, because compounding pharmacies are not subject to federal oversight, there is a risk of impurities and inconsistencies that could make their products unreliable and cause undue, unconstitutional, of suffering.

Texas officials argued that prior executions using pentobarbital have taken place apparently without the inmates enduring obvious pain and cited a report which says that their latest supply has been “tested by an independent laboratory and found to be 108% potent and free from contaminants”.


Month State Inmate
3 TX Tommy Sells – executed
9 TX Ramiro Hernandez (Foreign National) – EXECUTED
16 TX Jose Jr Villegas EXECUTED
16 PA Stephen Edmiston – STAYED
22 TN Nikolaus Johnson STAYED
22 OK Clayton Lockett Updatestay was lifted and rescheduled for April 29.
23 FL Robert Hendrix EXECUTED
23 MO William Rousan EXECUTED
29 OK Charles Warner Update – stay was lifted