CJ

CJ ....::t • ....::t 0 N r:: U

November 2 r,. 20 ( I Issue [0

1978, when he was 27, Manuel Valle killed a police officer in Coral Gables, Flori­ da. In September, when he was 61, Mr. Valle was put to death for his crimes. Shortly before his execution, the Supreme Court refused to stay his execution - with one dissent. Justice Stephen Breyer wrote that the 33 years Mr. Valle spent on amounted to cruel and unusual punishment.

"I have little doubt about the cruelty of so long a period of incarceration under sentence of death," Breyer wrote. "The commonly accepted justifications for the death penalty are close to nonexistent in a case such as this one. It is difficult to imagine how an execution following such a long period of incarceration could add significantly to that punishment's deterrent value."

His dissent then addressed the variety of reasons for Valle's unusual delay, raising questions about current legal procedures 'and the death penalty. "It might be ar­ gued that Valle, not the State, is responsible for the delays. But Valle replies that more than two decades of delay reflect the State's failure to provide the kind of trial and penalty procedures that the law requires .... It might also be argued that it is not so much the State as it is the numerous procedures that the law demands. But this kind of argument does not automatically justify execution in this case. Ra­ ther the argument may point to a more basic difficulty, namely the difficulty of rec­ onciling the imposition of the death penalty as is currently administered with pro- cedures necessary to assure that the wrong person is not executed."

Justice Breyer's dissent reflects valid concerns that the current procedures re­ quired in death penalty cases need reform. According to a study conducted by the U.S. Department of Justice, Bureau of Justice Statistics, approximately I 13 prison­ ers out of 3,173 have been under the sentence of death for more than 29 years. In Oklahoma, there are currently four death row inmates that have been for over 20 years and four others who are not far behind.

In 1983, Sammy VanWoundenberg was convicted of participating in the murder of fellow inmate, Mark Allen Berry, while he was serving a life sentence for another murder conviction. His conviction and sentence have repeatedly been affirmed by state, district, and federal courts. His last appeal was denied in 2000. Currently, he has no pending appeals and there is no scheduled execution date.

In 1984, Richard Rojem, Jr. was convicted of kidnapping, raping, and murdering seven-year-old Layla Cummings. He was resentenced to death twice. In 2009, the Oklahoma Court of Criminal Appeals affirmed his second death sentence. Continued on next page ...... Page 2 Capital Commentary

Currently, Rojem has an appeal pending in the United States Western District Court of Oklahoma.

In 1988, Kenneth Hogan was convicted of the murder of Lisa Stanley. In 1999, the 10th Circuit Court of Appeals sent his case back for retrial. In his subsequent trial, he was again reconvicted and sentenced to death. In 2006, the CCA affirmed his second conviction and sentence. Currently, Hogan has an appeal pending in the United States Western District Court of Oklahoma.

And finally, in 1988, Victor Hooks was convicted of the murder of his girlfriend, Virginia Plumley. His appeals have been repeatedly denied, his latest in 2010 by the Western District Court of Okla~ homa. Currently, he has an appeal pending in the 10th Circuit Court of Appeals.

So who is to blame for the delay in the imposition of these inmate's sentences? Perhaps it is the system that is dysfunctional. In a tug of war, in February, 20 I I the Obama administration quietly withdrew regulations by President George W. Bush's Justice Department that would have helped states put their death penalty cases on a fast track in federal courts. The change, authorized by Congress in 1996 but never implemented, was intended to compress a federal review process that can last anywhere from two years to a, decade or more. Fast-track rules would not have changed federal courts' standards for reviewing capital cases. It would have allowed states to speed up fed­ eral review of death sentences if they had adequate procedures for appointing and paying lawyers to represent condemned prisoners. Prisoners in those states would have had six months, half their current deadline, to file a federal appeal known as a writ of habeas corpus, which typically includes claims of incompetent legal representation, jury misconduct or newly discovered evidence. Federal judges then would have had 15 months to rule, and a federal appeals court would have had a four- month deadline after receiving all written arguments.

Obviously, these changes would have shortened the appeals time without lowering the standard of review. However, these time limitations have now been cast aside, leaving case like Manual Valle to languish in the judicial process. Additionally, the demise of the fast track regulations has left the system open to criticism by many, including the Supreme Court.

Strongly Don't Know No Reply - Against 4% Somewhat - __~ Against 4% Oklahotnans & Capital Punishtnent

2010 Crime Victimization Survey, Oklahoma Statistical Analysis Center, OS81, Released August 2011 Page 3

Texas Ends Last Meal Requests on Death Row On September 21, Lawrence Brewer ordered his last meal. It consisted of two chicken fried steaks smothered in gravy, a triple-meat bacon cheeseburg­ er, a cheese omelet, fried okra, three fajitas, a pint of ice cream, a pound of barbeque with half a loaf of white bread, a slab of peanut butter fudge, a pizza, and three root beers. And after the meal was served, Brewer refused to eat it.

Outraged, Senator john Whitmire said "enough is Over Meal Preparation enough" and asked the state to stop special last meal Columb.us, OH - A federal law·suit filed request. In response, the Department of Criminal 'by a Muslim , death row inma,te claims the justice, said in a statement, "effective immediately, ,Ohio prison system is d_ernyifilg " ~im meals no such accommodations will be made. Inmates will prepared according to Islam'ic law While now receive the same meal served to the other of­ a·t the same time pro~. iding kosher meals fenders on the unit." ,to j,ewish prisoners. Th,e lawsuit alleges FormerTexas Inmate the system's failur~ to provide hala,lmeals Offers to Cool< Last Meals is a civil right's vielat ion because it is a for Free restraint on his religious freedoms. A former inmate who cooked the final meals for hun­ Ohio has argued that given" the currerlt dreds of condemned prisoners has budget situation, it is not fin.ancially plau-, offered to start cooking last meals sible to prepare specia! meals. In Califor­ for no charge now that state officials have ended the nia, about 4, I 00 halal fTleals are served at' practice of allowing special last request. a cost of $'3.50 per day, compared' ;.vith r about $2.90 per day for regular meals. Brian Price, who wrote the cookbook "Meals to Die For," based on his former duties, said the move by officials was "cold-hearted." The Department of Criminal justice called Price's proposal a "kind offer" but rejected it stating that "it's not the cost but ra­ ther the concept they are trying to move away from." Page 4 Race and the Death Penalty African Americans Illegally Barred From Serving on Juries Sue Alabama Prosecutor Over' Racial Discrimination · -~~---'- The Equal Justice Initiative has filed a civil rights lawsuit contending that District Attorney Douglas Valeska has illegally excluded qualified African Americans from serving on juries in serious felony cases, especially capital cases, for decades. The plaintiffs are five African Americans .who state courts previously found were illegally excluded from jury service because they are black. The law- suit seeks declaratory and injunctive relief.

The complaint alleges that, from 2006-20 10, state prosecutors used peremptory strikes to exclude 82% of qualified black jurors in death penalty cases. As a result, the jury in every death penalty case in Houston county, Alabama, over this period has been all white or had only a Single black juror despite the fact that the circuit is nearly 25% African American. Houston County has the highest per capita death sentencing rate in Alabama. It is believed that this is the first-ever civil lawsuit di­ rected at a prosecutor's raCially discriminatory use of peremptory strikes and filed by actual victims of the discrimination. Retrieved October 24,20 II from Equal Justice Initiative, www.eji.org.

Supreme Court Declines Review of Racially Biased Testimony in Texas Death Row Inmate's Case

On November 7, the U.S. Supreme Court declined to grant re­ v,iew to Texas 'inmate Duane Buck. Buck'fatally shot bis girlfrielld and. ano~her man irt 1995. Buck's guilt wacs never challerilged, how­ ever, Buck sOlJlght a new sentencing trial because of testimony during his sentertcing phase that s~ggesting he posed a greater dali1- ger to sodety because he is black.

Durililg his trial, a psychologist told the court that Buck's race in­ creased the likelihood of futur;e dangerousness. Three of the Jus­ tice.s on the Court (Alito; Scalia and Breyer), which had granted Buck a stay just before his scheduled execution on September 15, said his case was different from other similar cases where relief was granted b~cause it was Buck's defense attorney who was responsible for eliciting the offensive testimony. Justices S.otomayor and Kagan dissented, stating, "Today the court denies review of a death senteoce marred by racial overtones .... ' Buck did not argue that his race made him less dangerous, and the prosecutor had no need to revisit the is·sue. But she did, in a question specifically deSigned to persuade the j~ry that Buck's race made him more dangerous and that, in part on this basis, he should be sentenced to death." Pa e 5

NEWS F~OM MOUND TUlE COUN'TRY

California

SAN FRANCISCO (Reuters) - A man convicted in the 1998 murder of a 9-year-old boy was found hanging in his death row prison cell on Thursday in an apparent suicide at a Northern California pris­ on, officials said. Brandon Wilson, 33, was pronounced dead at San Quentin State Prison, according to Terry Thornton, a spokeswoman for the California Department of Corrections and Rehabilitation.

A San Diego County jury sentenced Wilson to death in 1999 for murdering 9-year-old Matthew Cecchi the previous year in a park restroom in Oceanside, California.

Wilson is the 19th death row inmate to commit suicide since California reinstated in 1978, according to the Department of Corrections. That means more condemned inmates have died of suicide than the 13 prisoners who have been executed in the state since 1978, prison officials said. There are 719 inmates on death row in California. Retrieved from http://news.yahoo.com/ condemned-child-ki"er-hangs-self-california-death-row-0 14521 229.html

New Hampshire: Death Penalty Should Be an Option for All Murder Cases

Concord - Currently in New Hampshire the law limits capital punishment to killings of judges and law enforcement officers, those committed during rape, kidnappings and drug deals, and those com­ mitted by someone already serving a life sentence. The new bill proposed by the Criminal Justice and Public Safety Committee would read, "A person is guilty of capital murder if such person purposely causes the death of another."

North Carolina: Supreme Court lets State Council Set Execution Standards

The North Carolina Supreme Court has cleared the way for ten elected officials to continue setting execution protocol for death row inmates, affirming the state's lethal injection procedures.

The court said the Council of State has the authority to set execution standards, ruling against death row inmates who argued the Council did not follow state statutes when they established new pro­ cedures in 2007. The Council of State consists of elected officials, ranging from the lieutenant gover- nor to the attorney general to the commissioners of agriculture, insurance and labor.

The ruling is not likely to change the de facto moratorium on capital punishment in the state. The last time an execution was carried out in North Carolina was 2006. In 2005, death row inmates challenged the execution methods as cruel and unusual, which brought about the moratorium. Re­ trieved from the Wall Street Journal, October 10, 201 I. Page 6 Capital Commentary

NEWS F~OM MOUND THE COUNTRY

Pennsy~vania: Errors Reverse Dozens of PA Death Penalty Cases

The Philadelphia Inquirer says its review of death penalty appeals spanning three decades has found defense lawyers failing the client in large and small ways. State and federal appeals courts have re­ versed or sent back for new hearings more than 125 capital murder trials - more than half of them in Philadelphia - citing mistakes by defense lawyers that they said deprived the accused of a fair trial.

The paper reports problems involve attorneys spending little time preparing for their cases and put on only the barest defense, sometimes neglecting to interview defendants, seek out witnesses and investigate the background of a defendant. Ronald Greenblatt, chairman of the Philadelphia chapter of the Pennsylvania Association of Criminal Defense Lawyers cites low pay and case overloads to be a large contributor to systemic problems in indigent defense.

Texas: Death Row Inmate's DNA Dilemma

Houston - Texas Death Row inmate, Hank Skinner, asked a federal court in Amarillo, Texas, to force prosecutors to turn over knives and clothing that were never tested for DNA, claiming that the evidence could show that he did not kill his girlfriend and her sons nearly two decades ago. The request came after the U.S. Supreme Court ruled Skinner could ask for untested evidence, but left unresolved whether those items had to be surrendered by the District Attorney. On November 3, the federal court denied Skinner's request without comment. However, on November 7, the Texas Court of Criminal Appeals issued a reprieve for Skinner, saying it needs time to review changes to a state law that allows an offender to request DNA tests on evidence. Prosecutors contend that the new law, which took effect September I, 20 I I, doesn't apply to Skinner.

Oklahoma City - The Oklahoma Innocence Project (OIP) officially began work at Oklahoma City University in August. The project will work to identify and remedy wrongful conviction cases in Oklahoma.

The project has already received more than 100 requests from incarcerated individuals asking that their cases be reviewed. The project will only review cases where there is credible evidence of actual innocence.

OIP is part of the Innocence Network, an affiliation of similar projects throughout the nation. The head of the network is the Innocence Project at New York's Benja­ min Cardozo School of Law at Yeshiva University. Page 7 Capital Commentary Oklahollla Court of Crill1.inal Appeals

20 I I OK CR 26, Oklahoma County, First Degree Child Abuse Murder, Death Sentence, Death sentence modified to Life Without Parole

I Appellant raises several propositions. The court found merit in a claim raised regarding se­ cond stage issues. This claim argued that the trial court abused it's discretion in refus­ ing to accept the plea sentencing agreement reached by the State and the defense, thus forcing him to face the death penalty.

Several hours after the jury had reached a verdict, an agreement was reached wherein the state agreed to dismiss the bill of particulars and recommend life without parole in exchange for appellant

I pleading guilty and waiving his right to a jury sentencing and to appeal his convictions and sentences.

I When questioned by the trial 'judge, appellant indicated that he understood the nature and conse­ quences of the proceeding and the criminal charges filed against him. When asked if he committed the crimes he replied, "I didn't do it, I didn't do it." The trial judge then refused to accept the parties agreement, ended the proceedings, and moved forward with jury sentencing.

Reasoning: This should have been viewed as a sentencing agreement; not a guilty plea. The trial court misdirected its attention toward the principles governing guilty pleas rather than those' gov- ~ erning waivers of the right to jury sentencing and ·the right to appeal. Waivers must be knowing and voluntary. Because the court cut short the· proceedings, it is diffi~ult to determine if the waiver was knOWing and voluntary. Instead of stopping the proceedings, the judge should have inquired further ' to ensure that Appellant understood he could maintain his claim of innocence and at the same time agree to the State's sentencing offer. The trial judge's erroneous assumptions about the proceed­ ings before him should not result in the imposition of a death sentence the State was willing to aban­ don before the sentencing phase. The law should not require a defendant to defend himself against a ' .death sentence whiCh the State no longer seeks.

F-2009-1 181, Okmulgee County, Second Degree Felony Murder, 10 Years, Reversed and Remanded

, In his second proposition, appellant claimed that the district court's refusal to instruct on · his requested defense theory denied him a fair trial.

, Reasoning: The district court erred in declining to give the jury Appellant's requested instruction on · the lesser offense of second degree manslaughter. The district court: had a 'duty to instruct on all less­ er-included or lesser-related offense serving as the defendant's theory of defense when there is evi- · dence to suppo~t it. Because a j~ry might have reasonably believed Strong's evidence that he did not . leave the' child behind Or) purpose, the District Court's 'refusal to give Strong's requested instruction Page 8 Capital Commentary Oldahollla Court of Crilllinal Appeals Un-

St~te of Oklahoma v. Robert Lee Smallen Unpublished 5-20 I 1-105, Cherokee County, First Degree Murder, Motion in Limine Appeal, Trial Court's grating of the motion is overruled, case remanded

State appeals from the District Court's decision to grant appellee's motion in limine. The court now finds that the trial court abused it's discretion in granting the motion, which prohibited the State's use of previous testimony of a now unavailable witness, as it is contradictory to the govern- ing statutory provisions in O.S. 12 §2804.

'Barnett v. State 0 Oklahoma F-2009-698, Okmulgee County, Second Degree Felony Murder, 23 Years Affirmed

"In Proposition Five, Appellant argues that his conviction for second degree felony mur­ der violates the merger doctrine, or independent crime requirement, recognized by Quillen v. State, 2007 OK CR 22, 163 P.3d 587, and earlier cases.

Issue: Does the merger doctrine remain an appropriate limitation of the statutory definition of se­ cond degree felony murder?

Holding: No. Quillen is overruled.

I ; Reasoning: Policy concerns justifying' the merger doctrine are no longer present in Oklahoma law. The merger doctrine is a legal remnant than now frustrates, rather than advances, the proper en­ forcement of the statutes on felony murder. The Legislature, "clearly authorized a conviction for se- , cond-degree murder in a case like this, where a homicide is 'perpetrated by a person engaged in the commission of any felony'" not enumerated in the first-degree felony murder statutes. In addition to the merger doctrine, the Court has already placed significant limitations on the plain language of the second degree felony murder statute, including the require"ments of a "nexus between the underlying felony and the victim's death," and that the underlying felony "must be inherently or"potentially dan- gerous to human life."

The current legislative classification of criminal homicides by their respective degrees, defined by fac­ tual elements, obviates the need for the merger doctrine. The felony crimes of assault and battery, child neglect, caretaker abuse and neglect, operation of a motor vehicle while intoxicated, unlawful' possession and use of firearms and explosives, using a vehicle to facilitate intentional discharge of a firearm, and a host of other felonies can have deadly consequences. The Legislature is well within rea- " son to define killings during the commission of these dangerous felonies as murder, even when the felony is not "independent" of the act or act resulting in death. Continued adherence to the merger doctrine, and the remedy as esta~lished in Quillen, would, in many instances, nullify the proper exer- "cise of the Legislature's power to define and punish murder. Page 9 Capital Commentary o l{lahollla Court of Crilllinal Appeals

Nicco Travon Barnett v. State of Oklahoma Unpublished 8/25/20 II F-20 I 0-559, Oklahoma County, First Degree Felony Murder, Life, Affirmed

Laverie O. Franklin v. State of Oklahoma Unpublished 912/20 I I F-20 I 0-14, Oklahoma County, First Degree Felony Murder, Life Without Parole, Affirmed

Wendell Arden Grissom v. State of Oklahoma Unpublished 9/13/20 I I PCD-2008-928, Blaine County, First Degree Murder, Death Sentence, Post Conviction Relief . Denied

Tim Alex Forbes v. State of Oklahoma Unpublished 9/26/20 II F-2009-537, Oklahoma County, First Degree Murder, Life Without Parole, Affirmed

Tremane Wood v. State of Oklahoma Unpublished 9/30/20 I I

I PCD-20 I 1-590, Oklahoma County, First Degree Murder, Death Sentence, Post Conviction Relief Denied

. Tony Alton Hall v. State ofOklahoma Unpublished 10/4/20 I I F-20 I 0-15, Tulsa County, Two counts First Degree Malice Murder, Life, Affirmed

Quashay S. Waters v. State of Oklahoma Unpublished 1016/20 I L F-20 I 0-655, Oklahoma County, First Degree Felony Murder, Life,. Affirmed

Travis Shamier Wilson v. State, of Oklahoma tJ npublished I 0[19/201.1 , F-2009-1 0 14, Tulsa County, First Degree Murder, Life, Affirmed . '

Rico Don Green v. State. of Oklahoma Unpublished 10/24/20 II F-20 10-760, Tulsa County, FirstDegree Murder, Life, Affirmed '

Cox v. State of Oklahoma Unpublished I 1/8/20 f I· F-2009-589, Okmulgee County, Second Degree Felony Murder, 23 Years, Affirmed Page 10 Capital Commentary

United States SuprelTIe Court

.... - . -- Miscellaneous Order - 11-6391 Temporary Stay for Duane Edward Buck

,On September 16, the U.S. Supreme Court stayed the execution of Duane Buck. Buck was convicted of a double murder in Texas 16 years ago. Buck's attorneys claim that Buck should receive a new sen­ tencing hearing because a psychologist's testimony that black people were more likely to commit vio­ lence, unfairly influenced the jury in his original trial. With~ut extensive comment, the Supreme Court , said it would review an appeal related to that testimony. Buck's guilt is not being questioned.

Court Examines Eyewitness Identification

On November 2, the U.S. Supreme Court heard the case of Perry v. New Hampshire (10-8974). Barion Perry was detained at the crime scene, handcuffed after being suspected of breaking into cars. Without specifi­ cally being asked to identify the suspect, a neighbor pointed out Perry from a nearby window as the alleged thief.

The Court heard the case to decide whether that identifica­ tion was overly suggestive and therefore unreliable, violating the due process rights of the defend- ' ant. During an hour of intense oral arguments, several justices debated whether the narrow facts of this case might open the legal floodgates to a range of new exceptions of evidence jurors would be excluded from hearing at trial.

The appeal raises questions about the unique power of eyewitness identifications to sway jurors, and whether innocent people are unfairly being sent to prison, particularly to death row. The court has not taken hard look at the issue since 1977.

The unique facts of the Perry case could ,leave' a . clear rule on ~he boundaries of using unreliable identification evidence even more elusive and ,rriuddled, despite the ~ourt's c~rrent intervention. Several justices said Perry's lawyers presented strong evidence and that refprms may be necessary, but others on the bench wondered whether such changes are mandated under the Co~stitution, . , and if they would apply in other areas 'of criminal justice where evidence is problematic.

i Justice Ginsburg suggested a hard rule ~xcluding eyewitness testimony from trial may practical or necessary. "What about all the other safeguards you have?" she said. "You can ask the judge to tell the jury: Be careful --- eyewitness testimony is often unreliable. You can point that out in cross­ examination."

:. A ruling on the case is expected in the next few months. < Page I I Capital Commentary

United States Suprellle Court

Supreme Court to Decide Constitutionality of Sentencing Juveniles to Life in Prison Without Parole for Murder

Washington- Last year the Court heard Sullivan v. Florida, No. 08-7621 and Graham v. Florida, No. 08-7412 which raised the claim that life imprisonment in non-murder cases violated the Constitu­ tion's ban on cruel and unusual punishment under the Eighth Amendment. In his majority opinion, Justice Kennedy explained a categorical rule barring life imprisonment without parole sentences "gives all juvenile non-homicide offenders a chance to demonstrate maturity and reform. The juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potentiaL"

Discussing Graham's case, the majority wrote, "[t]he State has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a non-homicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit."

Now, the Court has agreed to hear a pair of Alabama cases and decide whether life imprisonment in murder cases violates the ban on cruel and unusual punishment under the Eighth Amendment. Evan Miller and Kuntrell Jackson are serving sentences of life in prison for murders committed at age 14. The Supreme Court will hear arguments in the cases early next year, with a decision likely by the end of June. The cases are Evan Miller v. Alabama, No. 10-9646, and Kuntrell Jackson v. Hobbs, No. 10-9647. Page 12 Capital Commentary

Important TAnks Oklahoma Supreme Court Network http://www.oscn.net/applications/oscn/ sta rt.as p?viewType= Oklahoma Court of Criminal Appeals http://www.okcca.net/online/home.jsp The Oklahoma I..egislatore http://www.lsb.state.ok.us/ Unii"M States Supreme Court http://www.supremecourtus.gov/

This project is supported by Award No. j09-1 0-023 and awarded by the Bureau of justice Assistance, Office of justice Programs, U.S. Department of justice to the State of Oklahoma. The opinions, findings, and conclusions or recommendations expressed in this publication are those of the author(s) and do not necessarily re~ect the views of the Department ofjustice.