DEATH ROW U.S.A.

Spring 2015

A quarterly report by the Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc.

Deborah Fins, Esq. Consultant to the Criminal Justice Project NAACP Legal Defense and Educational Fund, Inc.

Death Row U.S.A. Spring 2015 (As of April 1, 2015)

TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF:

3,002

Race of Defendant: White 1,284 (42.77%) Black 1,251 (41.67%) Latino/Latina 386 (12.86%) Native American 31 (1.03%) Asian 49 (1.63%) Unknown at this issue 1 (0.03%)

Gender: Male 2,948 (98.20%) Female 54 (1.80%)

JURISDICTIONS WITH CURRENT DEATH PENALTY STATUTES: 34

Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming, U.S. Government, U.S. Military.

JURISDICTIONS WITHOUT DEATH PENALTY STATUTES: 19

Alaska, Connecticut [see note below], District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico [see note below], New York, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin.

[NOTE: Connecticut and New Mexico repealed the death penalty prospectively. The men already sentenced in each state remain under sentence of death.]

Death Row U.S.A. Page 1

In the United States Supreme Court Update to Winter 2015 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases Decided or to Be Decided in October Term 2014

1. CASES RAISING CONSTITUTIONAL QUESTIONS

First Amendment

Elonis v. United States, No. 13-983 (First Amendment and conviction of threat) (decision below 730 F.3d 321 (3rd Cir. 2013)) Question Presented: Consistent with the 1st Amendment and Virginia v. Black, 538 U.S. 343 (2003), does conviction of threatening another person require proof of the defendant's subjective intent to threaten, as required by the 9th Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or is it enough to show that a "reasonable person" would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort? (See also Cases Raising Other Important Federal Questions, below)

Fourth Amendment

Rodriguez v. United States, No. 13-9972 (Extension of traffic stop for canine sniff) (decision below 741 F.3d 905 (8th Cir. 2014)) Question Presented: May an officer extend an already-completed lawful traffic stop for a canine sniff without reasonable suspicion or other lawful justification?

Sixth Amendment

Hurst v. Florida, No. 14-7505 (Constitutionality of Florida death-sentencing scheme) (decision below 147 So. 3d 435 (Fla. 2014)) Question Presented: Does Florida's death sentencing scheme violate the 6th or 8th Amendments in light of this Court's decision in Ring v. Arizona, 536 U. S. 584 (2002)? (See also cases under Eighth Amendment, below)

Ohio v. Clark, No. 13-1352 (Mandated reporters and Confrontation Clause) (decision below 999 N.E.2d 592 (Ohio 2013)) Questions Presented: (1) Does an individual's obligation to report suspected child abuse make that individual an agent of law enforcement for purposes of the Confrontation Clause? (2) Do a child's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as "testimonial" statements subject to the Confrontation Clause?

Eighth Amendment

Kansas v. Gleason, No. 14-452 (Jury instructions on burden of proof of mitigators) (decision below 329 P.3d 1102 (Kansas 2014)) Question Presented: Does the 8th Amendment require that a capital-sentencing jury be affirmatively instructed that mitigating circumstances "need not be proven beyond a reasonable doubt," as the Kansas Supreme Court held in this case, or instead whether the 8th Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances?

Death Row U.S.A. Page 2

Glossip v. Gross, No. 14-7955 (Lethal Injection standards) (decision below 2015 WL 137627 (10th Cir. 2015)) Questions Presented: (1) Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious? (2) Does the Baze-plurality stay standard apply when states are not using a protocol substantially similar to the one that this Court considered in Baze? (3) Must a prisoner establish the availability of an alternative drug formula even if the state's lethal-injection protocol, as properly administered, will violate the 8th Amendment?

Hurst v. Florida, No. 14-7505 (Constitutionality of Florida death-sentencing scheme) (decision below 147 So. 3d 435 (Fla. 2014)) Question Presented: Does Florida's death sentencing scheme violate the 6th or 8th Amendments in light of this Court's decision in Ring v. Arizona, 536 U. S. 584 (2002)? (See also cases under Sixth Amendment, above)

Kansas v. Jonathan Carr, No. 14-449 (Jury instructions on burden of proof of mitigators and severance) (decision below 329 P.3d 1195 (Kansas 2014)). Consolidated with Kansas v. Reginald Carr, No. 14-450 (decision below 331 P.3d 544 (Kansas 2014)) Questions Presented: (1) Does the 8th Amendment require that a capital-sentencing jury be affirmatively instructed that mitigating circumstances "need not be proven beyond a reasonable doubt," as the Kansas Supreme Court held here, or instead whether the 8th Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances? (2) Does the trial court's decision not to sever the sentencing phase of the co-defendant brothers' trial here -- a decision that comports with the traditional approach preferring joinder in circumstances like this -- violate an 8th Amendment right to an "individualized sentencing" determination and was not harmless in any event?

Toca v. Louisiana, No. 14-6381 (Retroactivity of Miller v. Alabama, banning mandatory LWOP for juveniles) (decision below 141 So. 3d 265 (La. 2014)) Question Presented (as limited by the Court): (1) Does the rule announced in Miller v. Alabama apply retroactively to this case? (See also Cases Raising Habeas Corpus Questions below)

2. CASES RAISING HABEAS CORPUS QUESTIONS

Brumfield v. Cain, No. 13-1433 (Intellectual disability, reasonableness of factual determination and right to funding) (decision below 744 F.3d 918 (5th Cir. 2014)) Questions Presented: (1) Has a state court that considers the evidence presented at a petitioner's penalty phase proceeding as determinative of the petitioner's claim of mental retardation under Atkins v. Virginia based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2)? (2) Has a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation denied petitioner his "opportunity to be heard," contrary to Atkins and Ford v. Wainwright, and his constitutional right to be provided with the "basic tools" for an adequate defense, contrary to Ake v. Oklahoma?

Death Row U.S.A. Page 3

Chappell v. Ayala, No. 13-1428 (Harmlessness as “adjudication on the merits” and application of Brecht) (decision below 756 F.3d 656 (9th Cir. 2014)) Questions Presented: (1) Is a state court's rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt an "adjudicat[ion] on the merits" within the meaning of 28 U.S.C. § 2254(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision? (2) (Added by the Court) Did the Court of Appeals properly apply the standard articulated in Brecht v. Abrahamson, 507 U.S. 619 (1993)?

Jennings v. Stephens, No. 13-7211 (Certificate of appealability for a rejected portion of a claim on which habeas relief was granted) (decision below 537 Fed.Appx. 326 (5th Cir. 2013)) Question Presented: Did the 5th Circuit err in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the 5th Circuit acquired jurisdiction over the entire claim as a result of the respondent's appeal?

Montgomery v. Louisiana, No. 14-280 (Retroactivity of decision prohibiting mandatory life sentences for juveniles) (decision below 141 So. 3d 264 (La. 2014)) Questions Presented: (1) Does Miller v. Alabama adopt a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison? (2) (Added by the Court) Does the Court have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to Miller?

Toca v. Louisiana, No. 14-6381 (Retroactivity of Miller v. Alabama, banning mandatory LWOP for juveniles) (decision below 141 So. 3d 265 (La. 2014)) Question Presented (as limited by the Court): (2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find a Teague exception? (See also Eighth Amendment cases above)

3. CASES RAISING OTHER IMPORTANT FEDERAL QUESTIONS

Coleman v. Tollefson, No. 13-1333 (Timing of dismissal of suit under Prison Litigation act) (decision below 733 F.3d 175 (6th Cir. 2013)) Question Presented: Does a district court's dismissal of a lawsuit count as a "strike" under the "three strikes" provision of the Prison Litigation Reform Act, 28 U.S.C. § 1915(g), while it is still pending on appeal or before the time for seeking appellate review has passed?

Elonis v. United States, No. 13-983 (First Amendment and conviction of threat) (decision below 730 F.3d 321 (3rd Cir. 2013)) Question Presented (Raised by the Court): (2) As a matter of statutory interpretation, does conviction of threatening another person under 18 U.S.C. § 875(c) require proof of the defendant’s subjective intent to threaten? (See also First Amendment cases, above)

Henderson v. United States, No. 13-1487 (Government sale of seized non-contraband weapons) (decision below 555 Fed.Appx. 851 (11th Cir. 2014)) Question Presented: 18 U.S.C. § 922(g) makes it "unlawful for any person … who has been convicted in any court of [] a crime punishable by imprisonment for a term exceeding one year … to … possess … any firearm." Does such a conviction prevent a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that

Death Row U.S.A. Page 4

the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests or (2) sell the firearms for the defendant’s benefit?

Holt v. Hobbs, No. 13-6827 (Prison beard policy and religious freedom statute) (decision below 509 Fed.Appx. 561 (8th Cir. 2013)) Question Presented: Does the Arkansas DOC’s grooming policy violate the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et sec., to the extent that it prohibits the petitioner from growing a ½ inch beard in accordance with his religious beliefs?

Johnson v. United States, No. 13-7120 (Definition of “violent felony”) (decision below 526 Fed.Appx. 708 (8th Cir. 2013)) Question Presented: Should mere possession of a short-barreled shotgun be treated as a violent felony under the armed career criminal act?

Kingsley v. Hendrickson, No. 14-6368 (Requirements of excessive force claim) (decision below 744 F.3d 443 (7th Cir. 2014)) Question Presented: Are the requirements of a 42 U.S.C. § 1983 excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable?

McFadden v. United States, No. 14-378 (Proof of knowledge of substance) (decision below 753 F.3d 432 (4th Cir. 2014)) Question Presented: To convict a defendant of distribution of a controlled substance analogue, must the government prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the 2nd, 7th, and 8th Circuits, but rejected by the 4th and 5th Circuits?

Ocasio v. United States, No. 14-361 (Requirements for extortion) (decision below 750 F.3d 399 (4th Cir. 2014)) Question Presented: Does a conspiracy to commit extortion require that the conspirators agree to obtain property from someone outside the conspiracy?

Whitfield v. United States No. 13-9026 (Interpretation of forced accompaniment) (decision below 695 F.3d 288 (4th Cir. 2013)) Question Presented: Does 18 U.S.C. § 2113(e)'s forced-accompaniment offense require proof of more than a de minimis movement of the victim?

Yates v. United States, No. 13-7451 (Construction of federal criminal statute) (decision below 733 F.3d 1059 (11th Cir. 2013)) Question Presented: Was the defendant deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, where the term "tangible object" is ambiguous and undefined in the statute, and unlike the nouns accompanying "tangible object" in section 1519, possesses no record-keeping, documentary, or informational content or purpose? Decision: Yes. Words in statutes take their meaning not just from dictionary definitions, but from the context in which they are found. The statute at issue (Sarbanes-Oxley) was passed in light of Enron’s accounting fraud and its auditor’s destruction of documents. The title of the statute, its section heads, and read in context with other statutes that would result in one being superfluous, all make clear the intent was to address the destruction of documentary evidence in connection with record-keeping, not any destruction of any physical evidence in any setting.

Death Row U.S.A. Page 5

As of April 1, 2015

Total number of executions since the 1976 reinstatement of capital punishment:

1404

Race of defendants executed Race of victims total number 1404 total number 2060 White 782 (55.70%) White 1562 (75.83%) Black 487 (34.69%) Black 313 (15.19%) Latino/a 112 (7.98%) Latin 140 (6.80%) Native American 16 (1.14%) Native American 5 (0.24%) Asian 7 (0.50%) Asian 40 (1.94%)

Gender of defendants executed Gender of victims Female 15 (1.07%) Female 1009 (48.98%) Male 1389 (98.93%) Male 1051 (51.02%)

Defendant-victim racial combinations

White Victim Black Victim Latino/a Victim Asian Victim Native American Victim White Defendant 725 51.64% 20 1.42% 17 1.21% 6 0.43% 0 0% Black Defendant 278 19.80% 162 11.54% 20 1.42% 15 1.07% 0 0% Latino/a Defendant 47 3.35% 3 0.21% 54 3.85% 2 0.14% 0 0% Asian Defendant 2 0.14% 0 0% 0 0% 5 0.36% 0 0% Native Amer. Def. 14 1.00% 0 0% 0 0% 0 0% 2 0.14% TOTAL: 1066 75.93% 185 13.18% 91 6.48% 28 1.99% 2 0.14%

Note: In addition, there were 32 defendants executed for the murders of multiple victims of different races. Of those, 16 defendants were white, 10 black and 6 Latino. (2.28%)

Death Row U.S.A. Page 6

Execution Breakdown by State

State # % of Racial Combinations (see codes Total below) 1. TX 522 37.18 210 W/W (40%); 104 B/W (20%); 61 B/B (12%); 48 L/L 26* 13# 6^ (9%); 39 L/W (7%); 18 B/L (3%); 12 W/L, 9 B/A ( 2% each); 3 W/B, 3 W/mix, 3 L/mix (.6% each); 2 L/B, 2 L/A, 2 A/A, 2 N/W, 2 W/A, 2 B/mix (.4% each) 2. OK 112 7.98 61 W/W (55%); 17 B/W (15%); 14 B/B (13%); 5 N/W (5%); 3 7* 2# 3^ W/A (3%); 2 W/B, 2 B/A, 2 A/A, 2 W/mix (2% each); 1 N/N, 1 W/L, 1 B/L, 1 L/L (.9% each) 3. VA 110 7.83 48 W/W (44%); 35 B/W (32%); 13 B/B (12%); 4 W/B (4%); 3 10* 3# 1^ W/mix (3%); 2 L/W (2%); 1 B/L, 1 B/A, 1 W/A, 1 A/W, 1 B/mix (.9% each) 4. FL 90 6.41 51 W/W (57%); 18 B/W (20%); 8 B/B (9%); 3 L/W (3%); 2 10* 2^ L/L, 2 W/mix, 2 B/mix, (2% each); 1 N/W, 1 L/B, 1 W/L, 1 L/mix (1% each) 5. MO 82 5.84 49 W/W (60%); 16 B/W (20%); 15 B/B (18%); 1 N/W, 1 W/B 5* 1# (1% each) 6. GA 57 4.06 37 W/W (65%); 14 B/W (25%); 6 B/B (11%) 2# 7. AL 56 3.99 30 W/W (54%); 17 B/W (30%); 8 B/B (14%); 1 W/B (2%) 6* 1^ 8. OH 53 3.77 31 W/W (58%); 8 B/W, 8 B/B (15% each); 2 W/mix, 2 B/mix 6* (4%); 1 B/A, 1 W/B (2% each) 9. NC 43 3.06 28 W/W (65%); 7 B/B (16%); 6 B/W (14%); 1 W/B, 1 N/N 4* 1^ (2% each) 10. SC 43 3.06 20 W/W (47%); 11 B/W (26%); 5 W/B (12%); 4 B/B (9%); 2 10* 1# W/mix (5%); 1 B/A (2%) 11. AZ 37 2.64 27 W/W (73%); 3 L/L (8%); 2 N/W (5%); 1 B/W, 1 L/W, 1 5* W/L, 1 W/mix, 1 L/mix (3% each) 12. LA 28 1.99 15 W/W (54%); 8 B/W (29%); 5 B/B (18%) 1* 1# 13. AR 27 1.92 19 W/W (70%); 4 B/W (15%); 3 B/B (11%); 1 L/W (4%) 4* 1^ 14. MS 21 1.50 14 W/W (67%); 3 B/W (14%); 2 B/B (10%); 1 B/A 1 W/B 1* (5% each) 15. IN 20 1.42 16 W/W (80%); 2 B/W (10%); 1 B/B, 1 W/L (5% each) 4* 16. DE 16 1.14 8 W/W (50%); 5 B/B (31%); 2 B/W (13%); 1 N/W (6%) 5* 17. CA 13 .93 7 W/W (54%); 2 N/W (15%); 1 B/W, 1 W/L, 1 A/A, 1 B/mix 2* (8% each) 18. IL 12 .85 7 W/W (58%); 2 B/W, 2 B/mix (17% each); 1 B/B (8%) 2* 19. NV 12 .85 9 W/W (75%); 1 B/W, 1 L/W, 1 A/W (8% each) 11*

Death Row U.S.A. Page 7

State # % of Racial Combinations (see codes Total below) 20. UT 7 .50 5 W/W (71%); 2 B/W (29%) 4* 21. TN 6 .43 5 W/W (83%); 1 B/B (17%) 1* 22. MD 5 .36 3 B/W (60%); 2 W/W (40%) 1* 23. WA 5 .36 5 W/W (100%) 3* 24. ID 3 .21 3 W/W (100%) 1* 25. KY 3 .21 3 W/W (100%) 2* 26. MT 3 .21 3 W/W (100%) 1* 27. NE 3 .21 2 B/W (67%); 1 W/W (33%) 28. PA 3 .21 2 W/W (67%); 1 W/B (33%) 3* 29. SD 3 .21 3 W/W (100%) 3* 30. US 3 .21 1 W/mix (33%); 1 L/mix (33%); 1 B/W (33%) 1* 31. OR 2 .14 2 W/W (100%) 2* 32. CO 1 .07 1 W/W (100%) 33. CT 1 .07 1 W/W (100%) 1* 34. NM 1 .07 1 W/W (100%) 1* 35. WY 1 .07 1 W/W (100%)

* Defendants who gave up their appeals (143; 10% of total) [see note to 1049 below] # Juveniles (under age 18 at the time of the offense) (23; 2% of total) [see note to 740, below] ^ Female (15; 1% of total)

ROSTER OF THE EXECUTED

DATE OF NAME OF DEFENDANT/ STATE RACE DEF / VICTIM EXECUTION NUMBER IF MULTIPLE VICTIMS VICTIM GENDER 01-17-77 1. Gary Gilmore [*] UT W/W M 05-25-79 2. John Spenkelink FL W/W M 10-22-79 3. Jesse Bishop [*] NV W/W M 03-09-81 4. Steven Judy [*] / 3 IN W/3W FFF 08-10-82 5. Frank Coppola [*] VA W/W F 12-07-82 6. Charlie Brooks TX B/W M 04-22-83 7. John Evans AL W/W M 09-02-83 8. Jimmy Lee Gray MS W/W F 11-30-83 9. Robert Sullivan FL W/W M 12-14-83 10. Robert W. Williams LA B/B M 12-15-83 11. John Eldon Smith / 2 GA W/2W MF

Death Row U.S.A. Page 8

01-26-84 12. Anthony Antone FL W/W M 02-29-84 13. John Taylor LA B/W M 03-14-84 14. James Autry TX W/W F 03-16-84 15. James Hutchins / 2 NC W/2W MM 03-31-84 16. Ronald O'Bryan TX W/W M 04-05-84 17. Arthur Goode FL W/W M 04-05-84 18. Elmo Sonnier / 2 LA W/2W MF 05-10-84 19. James Adams FL B/W M 06-20-84 20. Carl Shriner FL W/W M 07-12-84 21. Ivon Stanley GA B/W M 07-13-84 22. David Washington / 3 FL B/WBW MMF 09-07-84 23. Ernest Dobbert FL W/W F 09-10-84 24. Timothy Baldwin LA W/W F 09-20-84 25. James Dupree Henry FL B/B M 10-12-84 26. Linwood Briley VA B/W M 10-30-84 27. Thomas Barefoot TX W/W M 10-30-84 28. Ernest Knighton LA B/W M 11-02-84 29. Velma Barfield [^] NC W/W M 11-08-84 30. Timothy Palmes FL W/W M 12-12-84 31. Alpha Otis Stephens GA B/W M 12-28-84 32. Robert Lee Willie LA W/W F 01-04-85 33. David Martin / 4 LA W/4W MMFF 01-09-85 34. Roosevelt Green GA B/W F 01-11-85 35. Joseph Carl Shaw / 2 SC W/2W MF 01-16-85 36. Doyle Skillern TX W/W M 01-30-85 37. James Raulerson FL W/W M 02-20-85 38. Van R. Solomon GA B/W M 03-06-85 39. Johnny Paul Witt FL W/W M 03-13-85 40. Stephen P. Morin [*] TX W/W F 03-20-85 41. John Young / 3 GA B/3W MFF 04-18-85 42. James Briley / 2 VA B/2B MF 05-15-85 43. Jesse de la Rosa TX L/A M 05-29-85 44. Marvin Francois / 6 FL B/6B 6M 06-25-85 45. Charles Milton TX B/B F 06-25-85 46. Morris Mason VA B/W F 07-09-85 47. Henry M. Porter TX L/W M 09-11-85 48. Charles Rumbaugh [*] [#] TX W/W M 10-16-85 49. William Vandiver [*] IN W/W M 12-06-85 50. Carroll Cole [*] NV W/W F 01-10-86 51. James Terry Roach [#] SC W/ (see #35) (see #35) 03-12-86 52. Charles William Bass TX W/W M 03-21-86 53. Arthur Lee Jones AL B/W M 04-15-86 54. Daniel Thomas FL B/W M 04-16-86 55. Jeffrey A. Barney [*] TX W/W F 04-22-86 56. David Funchess / 2 FL B/2W MF 05-15-86 57. Jay Pinkerton [#] / 2 TX W/2W FF 05-20-86 58. Ronald Straight FL W/ (see # 30) (see # 30) 06-09-86 59. Rudy Esquivel TX L/W M 06-18-86 60. Kenneth Brock TX W/W M 06-24-86 61. Jerome Bowden GA B/W F 07-31-86 62. Michael Smith VA B/W F 08-20-86 63. Randy Woolls TX W/W F

Death Row U.S.A. Page 9

08-22-86 64. Larry Smith TX B/W M 08-26-86 65. Chester Wicker TX W/W F 09-19-86 66. John Rook NC W/W F 12-04-86 67. Michael Wayne Evans TX B/L F 12-18-86 68. Richard Andrade TX L/L F 01-30-87 69. Ramon Hernandez [*] TX L/L M 03-04-87 70. Elisio Moreno [*] TX L/W M 05-15-87 71. Joseph Mulligan GA B/B M 05-20-87 72. Edward Earl Johnson MS B/W M 05-22-87 73. Richard Tucker GA B/W F 05-28-87 74. Anthony Williams TX B/W F 05-29-87 75. William Boyd Tucker GA W/W F 06-07-87 76. Benjamin Berry LA W/W M 06-09-87 77. Alvin Moore LA B/W F 06-12-87 78. Jimmy Glass / 2 LA W/2W MF 06-16-87 79. Jimmy Wingo / 2 LA W/ (see # 78) (see # 78) 06-24-87 80. Elliott Johnson TX B/W M 07-06-87 81. Richard Whitley VA W/W F 07-08-87 82. John R. Thompson TX W/W F 07-08-87 83. Connie Ray Evans MS B/A M 07-20-87 84. Willie Celestine LA B/W F 07-24-87 85. Willie Watson LA B/W F 07-30-87 86. John Brogdon LA W/W F 08-24-87 87. Sterling Rault LA W/W F 08-28-87 88. Beauford White FL B/ (see #44) (see #44) 08-28-87 89. Wayne Ritter AL W/ (see # 7) (see # 7) 08-28-87 90. Dale Pierre Selby / 3 UT B/3W MFF 09-01-87 91. Billy Mitchell GA B/W M 09-10-87 92. Joseph Starvaggi TX W/W M 09-21-87 93. Timothy McCorquodale GA W/W F 01-07-88 94. Robert Streetman TX W/W F 03-15-88 95. Wayne Felde LA W/W M 03-15-88 96. Willie Darden FL B/W M 04-13-88 97. Leslie Lowenfield / 5 LA B/5B 2M3F 04-14-88 98. Earl Clanton VA B/B F 06-10-88 99. Arthur Bishop [*] / 5 UT W/5W 5M 06-14-88 100. Edward Byrne LA W/W M 07-28-88 101. James Messer GA W/W F 11-03-88 102. Donald Gene Franklin TX B/W F 11-07-88 103. Jeffrey Daugherty FL W/W F 12-13-88 104. Raymond Landry TX B/B M 01-06-89 105. George "Tiny" Mercer MO W/W F 01-24-89 106. Theodore Bundy FL W/W F 03-22-89 107. Leon Rutherford King TX B/W M 05-04-89 108. Aubrey Adams FL W/W F 05-18-89 109. Henry Willis GA B/W M 05-24-89 110. Stephen McCoy TX W/W F 05-26-89 111. Michael Lindsey AL B/W F 06-19-89 112. William Thompson [*] NV W/W M 06-21-89 113. Leo Edwards MS B/B M 06-23-89 114. Sean P. Flannagan [*] NV W/W M 07-14-89 115. Horace F. Dunkins AL B/W F

Death Row U.S.A. Page 10

08-18-89 116. Herbert Richardson AL B/B F 08-30-89 117. Alton Waye VA B/W F 09-20-89 118. James "Skip" Paster TX W/W M 11-17-89 119. Arthur Julius AL B/B F 12-07-89 120. Carlos DeLuna TX L/L F 01-18-90 121. Gerald Smith [*] MO W/W F 04-21-90 122. Jerome Butler [*] TX B/B M 04-27-90 123. Ronald R. Woomer SC W/W F 05-04-90 124. Jessie Tafero / 2 FL W/2W MM 05-11-90 125. Winford Stokes MO B/W F 05-17-90 126. Leonard Laws [*] / 2 MO W/2W MF 05-17-90 127. Johnny Ray Anderson TX W/W M 05-18-90 128. Dalton Prejean [#] LA B/W M 06-03-90 129. Thomas Baal [*] NV W/W F 06-18-90 130. John E. Swindler AR W/W M 06-25-90 131. Ronald G. Simmons [*] / 16 AR W/16W 7M9F 06-26-90 132. James Smith [*] TX B/W M 07-13-90 133. Wallace N. Thomas AL B/W F 07-18-90 134. Mikel Derrick TX W/W M 07-19-90 135. Ricky Boggs VA W/W F 07-27-90 136. Anthony Bertolotti FL B/W F 08-31-90 137. George C. Gilmore / 2 MO W/ (see #126) (see #126) 09-10-90 138. Charles T. Coleman OK W/W M 09-12-90 139. Charles Walker [*] / 2 IL W/2W MF 09-21-90 140. James W. Hamblen FL W/W F 10-17-90 141. Wilbert L. Evans VA B/B M 11-19-90 142. Raymond R. Clark FL W/W M 12-13-90 143. Buddy Earl Justus VA W/W F 02-26-91 144. Lawrence L. Buxton TX B/W M 04-24-91 145. Roy A. Harich FL W/W F 05-23-91 146. Ignacio Cuevas TX L/W F 06-17-91 147. Jerry Joe Bird TX W/W M 06-25-91 148. Bobby M. Francis FL B/B M 07-22-91 149. Andrew Lee Jones LA B/B F 07-24-91 150. Albert Clozza VA W/W F 08-22-91 151. Derick Peterson VA B/W M 08-23-91 152. Maurice Byrd / 4 MO B/4W MFFF 09-06-91 153. Donald Gaskins SC W/B M 09-19-91 154. James Russell TX B/W M 09-25-91 155. Warren McCleskey GA B/W M 10-18-91 156. Michael McDougall NC W/W F 11-12-91 157. G.W. Green TX W/ (see #92) (see #92) 01-22-92 158. Joe Angel Cordova TX L/W M 01-22-92 159. Mark Hopkinson WY W/W M 01-24-92 160. Ricky Ray Rector AR B/W M 02-11-92 161. Johnny Garrett [#] TX W/W F 02-28-92 162. David Clark / 2 TX W/2W MF 03-03-92 163. Edward Ellis TX W/W F 03-10-92 164. Robyn Parks OK B/A M 03-13-92 165. Olan Robison / 3 OK W/3W MFF 03-14-92 166. Steven Pennell [*] / 2 DE W/2W FF 03-20-92 167. Larry Heath AL W/W F

Death Row U.S.A. Page 11

04-06-92 168. Donald E. Harding / 2 AZ W/2W MM 04-21-92 169. Robert A. Harris / 2 CA W/2W MM 04-23-92 170. Billy Wayne White TX B/W F 05-07-92 171. Justin Lee May TX W/W F 05-07-92 172. Steven D. Hill AR W/W M 05-12-92 173. Nollie L. Martin FL W/W F 05-20-92 174. Jesus Romero, Jr. TX L/L F 05-20-92 175. Roger K. Coleman VA W/W F 05-22-92 176. Robert Black, Jr. TX W/W F 07-21-92 177. Edward D. Kennedy / 2 FL B/2W MM 07-23-92 178. Edward Fitzgerald VA W/W F 07-30-92 179. William Andrews UT B/ (see #90) (see #90) 08-11-92 180. Curtis L. Johnson TX B/W M 09-15-92 181. Willie L. Jones / 2 VA B/2B MF 09-22-92 182. James Demouchette / 2 TX B/2W MM 10-21-92 183. Ricky Lee Grubbs MO W/W M 10-23-92 184. John Gardner / 2 NC W/2W MF 11-19-92 185. Jeffery L. Griffin TX B/B M 11-20-92 186. Cornelius Singleton AL B/W F 12-10-92 187. Kavin G. Lincecum TX B/W F 12-10-92 188. Timothy Bunch VA W/A F 01-05-93 189. Westley A. Dodd [*] / 3 WA W/3W MMM 01-19-93 190. Charles Stamper / 3 VA B/3W MMF 01-27-93 191. Martsay Bolder MO B/B M 03-03-93 192. John Brewer [*] AZ W/W F 03-03-93 193. James Allen Red Dog [*] DE N/W M 03-05-93 194. Robert Sawyer LA W/W F 03-18-93 195. Syvasky Poyner / 5 VA B/4W1B 5F 03-23-93 196. Carlos Santana TX L/L M 03-25-93 197. Ramon Montoya TX L/W M 04-14-93 198. James D. Clark / 4 AZ W/4W MMMF 04-21-93 199. Robert D. Henderson / 3 FL W/3W MMF 05-04-93 200. Darryl Stewart TX B/W F 05-05-93 201. Larry Joe Johnson FL W/W M 05-12-93 202. Leonel Herrera TX L/L M 05-18-93 203. John Sawyers TX W/W F 06-17-93 204. Andrew Chabrol [*] VA W/W F 06-28-93 205. Thomas Dean Stevens GA W/W M 06-29-93 206. Markham Duff-Smith TX W/W F 07-01-93 207. Curtis Paul Harris [#] TX B/W M 07-21-93 208. Walter Blair MO B/W F 07-28-93 209. Frederick Lashley [#] MO B/B F 07-30-93 210. Danny Harris TX B/ (see #207) (see #207) 08-05-93 211. Joseph P. Jernigan TX W/W M 08-12-93 212. David Holland TX W/W F 08-20-93 213. Carl Kelly / 2 TX B/2W MM 08-24-93 214. Ruben Cantu [#] TX L/L M 08-24-93 215. David Mason [*] / 5 CA W/5W 2M3F 08-25-93 216. Michael Durocher [*] / 3 FL W/3W MFF 08-31-93 217. Richard Wilkerson TX B/A M 08-31-93 218. Kenneth DeShields DE B/W F 09-03-93 219. Johnny James TX W/W F

Death Row U.S.A. Page 12

09-14-93 220. Joe Louis Wise, Sr. VA B/W M 09-28-93 221. Antonio Bonham TX B/W F 10-06-93 222. Frank Guinan MO W/W M 11-10-93 223. Anthony Cook [*] TX W/W M 12-07-93 224. Christopher Burger [#] GA W/ (see #205) (see #205) 12-15-93 225. Clifford Phillips TX B/W F 12-16-93 226. David Pruett VA W/W F 01-06-94 227. Keith E. Wells [*] / 2 ID W/2W MF 02-02-94 228. Harold Barnard TX W/A M 03-03-94 229. Johnny Watkins VA B/W F 03-31-94 230. Freddie Webb, Sr. TX B/L M 03-31-94 231. William H. Hance GA B/B F 04-04-94 232. Richard Lee Beavers [*] TX W/W M 04-22-94 233. Roy Allen Stewart FL W/W F 04-26-94 234. Larry N. Anderson TX W/W F 04-27-94 235. Timothy Spencer VA B/W F 05-03-94 236. Paul Rougeau TX B/B M 05-10-94 237. John Wayne Gacy / 12 IL W/12W 12M 05-11-94 238. Edward Charles Pickens AR B/B M 05-11-94 239. Jonas Whitmore AR W/W F 05-17-94 240. John Thanos [*] MD W/W M 05-27-94 241. Stephen Nethery TX W/W M 05-27-94 242. Charles Campbell / 3 WA W/3W FFF 06-14-94 243. Denton Crank TX W/W M 06-15-94 244. David Lawson NC W/W M 06-23-94 245. Andre Deputy / 2 DE B/2B MF 08-02-94 246. Robert N. Drew, Sr. TX W/W M 08-03-94 247. Hoyt Clines AR W/W M 08-03-94 248. Darryl Richley AR W/ (see #247) (see #247) 08-03-94 249. James Holmes AR W/ (see #247) (see #247) 09-02-94 250. Harold Lamont Otey NE B/W F 09-16-94 251. Jesse Gutierrez TX L/W F 09-20-94 252. George Lott [*] TX W/W M 10-05-94 253. Walter Williams TX B/W M 11-22-94 254. Warren E. Bridge TX W/W M 12-06-94 255. Herman R. Clark, Jr. TX B/W M 12-08-94 256. Greg Resnover IN B/W M 12-11-94 257. Raymond Kinnamon TX W/W M 01-04-95 258. Jesse D. Jacobs TX W/W F 01-17-95 259. Mario S. Marquez TX L/L F 01-24-95 260. Dana Ray Edmonds VA B/W M 01-24-95 261. Kermit Smith, Jr. NC W/B F 01-31-95 262. Clifton C. Russell TX W/W M 01-31-95 263. Willie Ray Williams TX B/W M 02-07-95 264. Jeffrey D. Motley TX W/L F 02-16-95 265. Billy Gardner TX W/W F 02-21-95 266. Samuel Hawkins TX B/W F 03-17-95 267. Nelson Shelton [*] DE W/W M 03-20-95 268. Thomas Grasso [*] OK W/B F 03-22-95 269. Hernando Williams IL B/W F 03-22-95 270. James Free IL W/W M

Death Row U.S.A. Page 13

04-06-95 271. Noble D. Mays TX W/W M 04-07-95 272. Nicholas Ingram GA W/W M 04-19-95 273. Richard Snell AR W/W M 04-28-95 274. Willie Clisby AL B/B M 05-02-95 275. Keith Zettlemoyer [*] PA W/W M 05-03-95 276. Emmett Foster MO B/B M 05-10-95 277. Duncan McKenzie MT W/W M 05-12-95 278. Varnell Weeks AL B/B M 05-16-95 279. Thomas Lee Ward LA B/B M 05-17-95 280. Girvies Davis IL B/W M 05-17-95 281. Darrell Devier GA W/W F 05-25-95 282. Willie Lloyd Turner VA B/W M 06-01-95 283. Fletcher T. Mann TX W/W M 06-08-95 284. Ronald K. Allridge TX B/W F 06-20-95 285. John Fearance, Jr. TX B/W M 06-21-95 286. Karl Hammond TX B/W F 06-21-95 287. Larry Griffin MO B/B M 07-01-95 288. Roger Stafford / 3 OK W/3W MMF 07-18-95 289. Bernard Bolender / 4 FL W/1W3L MMMM 07-26-95 290. Anthony R.Murray / 2 MO B/2B MM 08-11-95 291. Robert Brecheen OK W/W F 08-15-95 292. Vernon Sattiewhite TX B/B F 08-15-95 293. Leon Moser [*] / 3 PA W/3W FFF 08-18-95 294. Sylvester Adams SC B/B M 08-31-95 295. Barry Lee Fairchild AR B/W F 09-13-95 296. Jimmie Jeffers AZ W/W F 09-19-95 297. Carl Johnson TX B/B M 09-20-95 298. Charles Albanese IL W/W F 09-22-95 299. Phillip Ingle [*] / 4 NC W/4W MMFF 09-27-95 300. Dennis Stockton VA W/W M 10-04-95 301. Harold J. Lane TX W/W F 10-19-95 302. Mickey Davison [*] / 3 VA W/3W FFF 11-13-95 303. Herman Barnes VA B/W M 11-15-95 304. Robert Sidebottom MO W/W F 11-22-95 305. George del Vecchio IL W/W M 11-29-95 306. Anthony LaRette MO W/W F 12-04-95 307. Jerry White FL B/W M 12-05-95 308. Phillip Atkins FL W/L M 12-06-95 309. Robert O'Neal MO W/B M 12-06-95 310. Bernard Amos TX B/W M 12-07-95 311. Hai Hai Vuong / 2 TX A/2A MM 12-11-95 312. Esequel Banda [*] TX L/W F 12-12-95 313. James M. Briddle TX W/W M 01-04-96 314. Walter Correll VA W/W M 01-23-96 315. Richard Townes VA B/W F 01-25-96 316. Billy Bailey / 2 DE W/2W MF 01-27-96 317. John Albert Taylor [*] UT W/W F 01-30-96 318. William Flamer / 2 DE B/2B MF 02-09-96 319. Leo Jenkins [*] / 2 TX W/2W MF 02-16-96 320. Edward Horsley, Jr. AL B/W F 02-21-96 321. Jeffrey Sloan MO W/W M 02-23-96 322. William Bonin / 4 CA W/4W MMMM

Death Row U.S.A. Page 14

02-27-96 323. Kenneth Granviel TX B/B F 03-01-96 324. Antonio James LA B/B M 03-30-96 325. Richard A. Moran / 2 NV W/2W MF 04-10-96 326. Doyle Williams MO W/W M 04-19-96 327. James Clark [*] / 2 DE W/2W MF 04-26-96 328. Benjamin Brewer OK W/W F 05-03-96 329. Keith Williams / 3 CA W/3L MMM 05-31-96 330. Robert South [*] SC W/W M 06-19-96 331. Daren Bolton [*] AZ W/W F 07-17-96 332. Joseph Savino VA W/W M 07-17-96 333. John Joubert / 2 NE W/2W MM 07-18-96 334. Tommie Smith IN B/W M 07-19-96 335. Fred Kornahrens / 3 SC W/3W MMF 07-31-96 336. Emmett Nave MO N/W F 08-07-96 337. Thomas Battle MO B/B F 08-08-96 338. William Frank Parker / 2 AR W/2W MF 08-09-96 339. Steven Hatch / 2 OK W/2W MF 08-21-96 340. Richard Oxford / 2 MO W/2W MF 08-22-96 341. Luis Mata AZ L/W F 09-06-96 342. Michael Torrence [*] SC W/W M 09-06-96 343. Douglas Wright [*] / 3 OR W/3W MMM 09-18-96 344. Ray Stewart / 3 IL B/1W2B MMM 09-18-96 345. Joe Gonzales [*] TX L/L M 10-04-96 346. Larry Gene Bell SC W/W F 10-21-96 347. John Earl Bush FL B/W M 11-14-96 348. Larry Lonchar / 3 GA W/3W MMF 11-15-96 349. Doyle Cecil Lucas [*] / 2 SC W/2W MF 11-15-96 350. Ellis Wayne Felker GA W/W F 11-21-96 351. Ronald Bennett VA B/W F 11-22-96 352. Frank Middleton SC B/B F 12-03-96 353. Gregory Beaver VA W/W M 12-06-96 354. John Mills, Jr. FL B/W M 12-10-96 355. Larry Stout VA B/W F 12-11-96 356. Richard Zeitvogel MO W/W M 12-12-96 357. Lem Tuggle VA W/W F 12-16-96 358. Ronald Hoke VA W/W F 01-08-97 359. Paul Ruiz / 2 AR L/2W MM 01-08-97 360. Earl Van Denton / 2 AR W/2W MM 01-08-97 361. Kirt Wainwright AR B/W F 01-10-97 362. Billy Waldop AL W/W M 01-23-97 363. Randy Greenawalt / 4 AZ W/4W MMFF 01-29-97 364. Eric Schneider / 2 MO W/2W MM 02-06-97 365. Michael Carl George VA W/W M 02-10-97 366. Richard Brimage, Jr. [*] TX W/W F 02-26-97 367. Coleman Wayne Gray VA B/W M 03-12-97 368. John Barefield TX B/W F 03-25-97 369. Pedro Medina FL L/B F 04-02-97 370. David Herman TX W/W F 04-03-97 371. David Spence TX W/W F 04-14-97 372. Billy Joe Woods TX W/W F 04-16-97 373. Kenneth Gentry TX W/W M 04-21-97 374. Benjamin Boyle TX W/W F

Death Row U.S.A. Page 15

04-24-97 375. John Brown LA W/W M 04-29-97 376. Ernest Baldree / 2 TX W/2W MF 05-02-97 377. Walter Hill / 3 AL B/3B MMF 05-06-97 378. Terry Washington TX B/W F 05-08-97 379. Scott Carpenter [*] OK N/W M 05-13-97 380. Anthony Westley TX B/W M 05-16-97 381. Harry C. Moore [*] / 2 OR W/2W MF 05-16-97 382. Clifton Belyeu TX W/W F 05-19-97 383. Richard Drinkard / 3 TX W/3W MFF 05-20-97 384. Clarence Lackey TX W/W F 05-21-97 385. Bruce Callins TX B/W M 05-22-97 386. Larry White TX W/W F 05-28-97 387. Robert Madden / 2 TX W/2W MM 06-02-97 388. Patrick Rogers TX B/W M 06-03-97 389. Kenneth Harris TX B/W F 06-04-97 390. Davis Losada TX L/ (see #174) (see # 174) 06-04-97 391. Dorsie Johnson TX B/W M 06-06-97 392. Henry Hays AL W/B M 06-11-97 393. Earl Behringer / 2 TX W/2W MF 06-13-97 394. Michael Elkins [*] SC W/W F 06-16-97 395. David Stoker TX W/W M 06-17-97 396. Eddie Johnson / 3 TX B/3W MFF 06-18-97 397. Irineo Montoya TX L/W M 06-25-97 398. William Lyle Woratzeck AZ W/W F 07-01-97 399. Harold McQueen KY W/W F 07-02-97 400. Flint Gregory Hunt MD B/W M 07-17-97 401. Roy Smith VA W/W M 07-23-97 402. Joseph O'Dell VA W/W F 07-29-97 403. Robert W. West, Jr. TX N/W F 08-06-97 404. Ralph C. Feltrop MO W/W F 08-06-97 405. Eugene Wallace Perry / 2 AR W/2W MF 08-13-97 406. Donald Eugene Reese / 4 MO W/4W MMMM 08-19-97 407. Carlton Jerome Pope VA B/W F 08-20-97 408. Andrew Six MO W/W F 09-09-97 409. James Carl Lee Davis / 3 TX B/3B MMF 09-17-97 410. Mario Benjamin Murphy VA L/W M 09-22-97 411. Jessel Turner TX B/B M 09-24-97 412. Samuel McDonald, Jr. MO B/B M 09-25-97 413. Benjamin Stone [*] / 2 TX W/2W FF 09-30-97 414. John W. Cockrum TX W/W F 10-01-97 415. Dwight D. Adanandus TX B/W M 10-08-97 416. Ricky Lee Green TX W/W M 10-13-97 417. Gary Lee Davis CO W/W F 10-22-97 418. Alan J. "AJ" Bannister MO W/W M 10-28-97 419. Kenneth Ray Ransom TX B/L M 11-04-97 420. Aua Lauti TX A/A F 11-06-97 421. Aaron Lee Fuller TX W/W F 11-07-97 422. Earl Matthews, Jr. SC B/W F 11-13-97 423. Dawud Majid Mu'Min VA B/W F 11-19-97 424. Durlyn Eddmonds IL B/B M 11-19-97 425. Walter Stewart / 2 IL B/WA MM 11-19-97 426. Michael E. Sharp TX W/W F

Death Row U.S.A. Page 16

11-20-97 427. Gary Burris IN B/B M 11-21-97 428. Charlie Livingston TX B/W F 12-02-97 429. Robert E. Williams / 2 NE B/2W FF 12-09-97 430. Michael L. Lockhart TX W/W M 12-09-97 431. Michael C. Satcher VA B/W F 12-11-97 432. Thomas Beavers VA W/B F 01-21-98 433. Lloyd Wayne Hampton [*] IL W/W M 01-21-98 434. Jose Jesus Ceja / 2 AZ L/LW MF 01-29-98 435. Robert A. Smith [*] IN W/W M 01-30-98 436. Ricky Lee Sanderson [*] NC W/W F 02-03-98 437. Karla Faye Tucker [^] TX W/W M 02-09-98 438. Steven Ceon Renfro [*] / 3 TX W/3W MFF 02-10-98 439. Tony A. Mackall VA B/W F 02-20-98 440. Michael E. Long [*] / 2 OK W/2W MF 02-24-98 441. Terry Allen Langford / 2 MT W/2W MM 02-25-98 442. Reginald Powell / 2 MO B/2B MM 03-06-98 443. John Arnold SC W/B F 03-11-98 444. Jerry Lee Hogue TX W/W F 03-18-98 445. Douglas Buchanan, Jr. / 4 VA W/4W MMMF 03-23-98 446. Gerald Stano FL W/W F 03-24-98 447. Leo Alexander Jones FL B/W M 03-25-98 448. Milton Griffin-El MO B/W M 03-25-98 449. Ronald Watkins VA B/W M 03-30-98 450. Judy Buenoano [^] FL W/W M 03-31-98 451. Daniel Remeta FL N/W M 04-14-98 452. Angel Francisco Breard VA L/W F 04-22-98 453. Glennon Sweet MO W/W F 04-22-98 454. Jose Villafuerte AZ L/L F 04-22-98 455. Joseph Cannon [#] TX W/W F 04-24-98 456. Lesley Lee Gosch TX W/W F 04-29-98 457. Arthur Martin Ross [*] AZ W/W M 04-29-98 458. Frank Basil McFarland TX W/W F 05-08-98 459. Steven A. Thompson AL W/W F 05-18-98 460. Robert A. Carter [#] TX B/L F 05-19-98 461. Pedro Cruz Muniz TX L/W F 06-03-98 462. Douglas E. Gretzler / 2 AZ W/2W MF 06-09-98 463. David Loomis Cargill / 2 GA W/2W MF 06-11-98 464. Clifford Holt Boggess TX W/W M 06-15-98 465. Johnny Pyles TX W/W M 06-18-98 466. Dennis Wayne Eaton VA W/W M 06-26-98 467. Leopoldo Narvaiz / 4 TX L/4W MFFF 07-08-98 468. Wilburn A. Henderson AR W/W F 07-10-98 469. John Plath SC W/ (see # 443) (see # 443) 07-14-98 470. Thomas Thompson CA W/W F 07-23-98 471. Danny Lee King VA W/W F 08-05-98 472. Stephen Edward Wood [*] OK W/W M 08-14-98 473. Zane Brown Hill NC W/W M 08-20-98 474. Lance Chandler VA B/W M 08-26-98 475. Genaro Ruiz Camacho, Jr. TX L/B M 08-31-98 476. Johnile DuBois VA B/W M 09-09-98 477. Delbert Teague, Jr. TX W/W M 09-23-98 478. David Castillo TX L/L M

Death Row U.S.A. Page 17

09-23-98 479. Kenneth Stewart VA W/W M 09-25-98 480. Sammy Roberts / 3 SC W/2W1B MMM 10-01-98 481. Javier Cruz / 2 TX L/2W MM 10-05-98 482. Roderick Abeyta [*] NV L/W F 10-07-98 483. Jonathan Nobles / 2 TX W/2W FF 10-13-98 484. Jeremy Sagastegui [*] / 3 WA W/3W MFF 10-14-98 485. Dwayne Allen Wright [#] VA B/B F 10-21-98 486. Ronald Lee Fitzgerald / 2 VA B/2B MM 11-16-98 487. Tyrone D. Gilliam MD B/W F 11-17-98 488. Kenneth McDuff TX W/W F 11-17-98 489. Kenneth Wilson VA B/B M 11-20-98 490. John Thomas Noland / 2 NC W/2W MF 12-03-98 491. Kevin Wayne Cardwell VA B/B M 12-04-98 492. Larry Gilbert SC B/W M 12-04-98 493. J.D. Gleaton SC B/ (see #492) (see #492) 12-07-98 494. Daniel Lee Corwin / 2 TX W/2W FF 12-08-98 495. Jeff Emery TX W/W F 12-10-98 496. Tuan Nguyen / 3 OK A/3A MFF 12-11-98 497. Louis Truesdale SC B/W F 12-15-98 498. James Ronald Meanes TX B/ (see # 196) (see # 196) 12-17-98 499. John Wayne Duvall OK W/W F 12-18-98 500. Andy Smith / 2 SC B/2B MF 01-05-99 501. John Glenn Moody TX W/W F 01-07-99 502. John Walter Castro OK N/W F 01-08-99 503. Ronnie Howard SC B/A F 01-08-99 504. Dobie Gillis Williams LA B/W M 01-13-99 505. Kelvin Malone MO B/W M 01-13-99 506. Jesse James Gillies AZ W/W F 01-13-99 507. Troy D. Farris TX W/W M 01-20-99 508. Mark Arlo Sheppard / 2 VA B/2W MF 01-25-99 509. Joseph Ernest Atkins / 2 SC W/WB MF 01-26-99 510. Martin Vega TX L/W M 02-03-99 511. Darrick Gerlaugh AZ N/W M 02-04-99 512. Sean Sellers [#] / 3 OK W/3W MMF 02-04-99 513. Tony Leslie Fry VA W/W M 02-09-99 514. Jaturun Siripongs / 2 CA A/2A MF 02-10-99 515. George Cordova TX L/L M 02-11-99 516. Danny Lee Barber TX W/W F 02-16-99 517. Andrew Cantu / 3 TX L/3W MMF 02-16-99 518. Johnie Michael Cox / 3 AR W/3W FFF 02-19-99 519. Wilford Berry [*] OH W/W M 02-24-99 520. James Rodden MO W/W F 02-24-99 521. Norman E. Green TX B/W M 02-24-99 522. Karl LaGrand AZ W/W M 03-03-99 523. Walter LaGrand AZ W/ (see # 522) (see # 522) 03-09-99 524. George A. Quesinberry, Jr. VA W/W M 03-10-99 525. Roy Michael Roberts MO W/W M 03-17-99 526. Andrew Kokoraleis IL W/W F 03-25-99 527. David Lee Fisher VA W/W M 03-26-99 528. Charles Rector TX B/W F 03-26-99 529. James Rich [*] NC W/W M 03-30-99 530. Robert Excell White TX W/W M

Death Row U.S.A. Page 18

04-05-99 531. Alvaro Calambro [*] / 2 NV A/2W MF 04-12-99 532. Marion Pruett AR W/W F 04-13-99 533. Carl Chichester VA B/W M 04-14-99 534. Roy Ramsey / 2 MO B/2W MF 04-20-99 535. Arthur Jenkins / 2 VA W/2W MM 04-23-99 536. David Lawrie / 3 DE W/3W MFF 04-28-99 537. Ralph Davis MO B/W F 04-28-99 538. Eric Payne [*] / 2 VA W/WB FF 04-28-99 539. Aaron Foust [*] TX W/W M 04-29-99 540. Ronald Yeatts VA W/W F 05-04-99 541. Manny Babbitt CA B/W F 05-04-99 542. Jose De La Cruz TX L/L M 05-05-99 543. Robert Vickers AZ W/W M 05-05-99 544. Clydell Coleman TX B/B F 05-25-99 545. Eddie Lee Harper [*] / 2 KY W/2W MF 05-26-99 546. Jessie Wise MO B/W F 06-01-99 547. William Little TX W/W F 06-03-99 548. Scotty Lee Moore OK W/A M 06-16-99 549. Bruce Kilgore MO B/B F 06-16-99 550. Michael Poland / 2 AZ W/2W MM 06-17-99 551. Joseph Stanley Faulder TX W/W F 06-18-99 552. Brian Baldwin AL B/W F 06-30-99 553. Robert Walls MO W/W M 07-01-99 554. Charles Tuttle TX W/W F 07-06-99 555. Gary Heidnik [*] / 2 PA W/2B FF 07-07-99 556. Tyrone Fuller TX B/W F 07-08-99 557. Norman Lee Newsted OK W/B M 07-08-99 558. Allen Davis / 3 FL W/3W FFF 07-21-99 559. Tommy Strickler VA W/B F 08-04-99 560. Ricky Blackmon TX W/W M 08-05-99 561. Charles Anthony Boyd TX B/W F 08-06-99 562. Victor Kennedy AL B/W F 08-10-99 563. Kenneth Dunn TX B/W F 08-11-99 564. James Earhart TX W/W F 08-17-99 565. Marlon Williams VA B/W F 08-18-99 566. Joe Trevino, Jr. TX L/W F 09-01-99 567. David R. Leisure MO W/W M 09-01-99 568. Raymond James Jones TX B/A M 09-08-99 569. Mark Gardner AR W/W F 09-08-99 570. Alan Willett [*] / 2 AR W/2W MM 09-10-99 571. Willis Barnes TX B/W F 09-14-99 572. William Prince Davis TX B/W M 09-16-99 573. Everett Lee Mueller VA W/W F 09-21-99 574. Ricky Wayne Smith [*] TX W/W F 09-24-99 575. Willie Sullivan DE B/W M 09-24-99 576. Harvey Lee Green / 2 NC B/2W MF 10-12-99 577. Alvin Wayne Crane TX W/W M 10-14-99 578. Jerry McFadden TX W/W F 10-15-99 579. Joseph Mitchell Parsons [*] UT W/W M 10-19-99 580. Jason Matthew Joseph VA B/B M 10-21-99 581. Arthur Martin Boyd NC W/W F 10-27-99 582. Ignacio Alberto Ortiz AZ L/L F

Death Row U.S.A. Page 19

10-28-99 583. Domingo Cantu, Jr. TX N/W F 11-09-99 584. Thomas Lee Royal, Jr. VA B/B M 11-12-99 585. Leroy Joseph Drayton SC B/W F 11-16-99 586. Desmond Jennings / 2 TX B/2B MF 11-17-99 587. John Michael Lamb TX W/W M 11-18-99 588. Jose Gutierrez TX L/ (see # 251) (see # 251) 11-19-99 589. David Junior Brown / 2 NC B/2W FF 12-02-99 590. Cornel Cooks OK B/W F 12-03-99 591. David Rocheville SC W/W M 12-08-99 592. David Martin Long TX W/W F 12-09-99 593. Bobby Lynn Ross OK B/W M 12-09-99 594. D.H. Fleenor / 2 IN W/2W MF 12-09-99 595. James Beathard / 3 TX W/3W MMF 12-09-99 596. Andre Graham VA B/W F 12-14-99 597. Robert Atworth [*] TX W/W M 12-15-99 598. Sammie Felder, Jr. TX B/W M 01-06-00 599. Malcolm Rent Johnson OK B/W F 01-07-00 600. David Ray Duren AL W/W F 01-10-00 601. Douglas C. Thomas [# ] VA W/W F 01-12-00 602. Earl Heiselbetz, Jr. / 2 TX W/2W FF 01-13-00 603. Gary Alan Walker OK W/W M 01-13-00 604. Steve Edward Roach [# ] VA W/W F 01-18-00 605. Spencer Goodman TX W/W F 01-20-00 606. David Hicks TX B/B F 01-21-00 607. Larry Keith Robison TX W/W M 01-24-00 608. Billy George Hughes, Jr. TX W/W M 01-25-00 609. Glen McGinnis [# ] TX B/W F 01-27-00 610. James Moreland TX W/W M 02-10-00 611. Michael D. Roberts OK B/B F 02-16-00 612. Anthony Lee Chaney AZ W/W M 02-23-00 613. Terry Melvin Sims FL W/W M 02-23-00 614. Cornelius Goss TX B/W M 02-24-00 615. Anthony Bryan FL W/W M 02-24-00 616. Bettie Lou Beets [^ ] TX W/W M 03-01-00 617. Odell Barnes, Jr. TX B/B F 03-03-00 618. Freddie Lee Wright / 2 AL B/2W MF 03-14-00 619. Ponchai Wilkerson TX B/A M 03-15-00 620. Darrell Keith Rich / 2 CA N/2W FF 03-15-00 621. Patrick Poland / 2 AZ W/ (see #550) (see #550) 03-15-00 622. Timothy Lane Gribble TX W/W F 03-16-00 623. Lonnie Weeks, Jr. VA B/L M 03-22-00 624. James Henry Hampton [* ] MO W/W F 03-23-00 625. Kelly Lamont Rogers OK B/W F 04-14-00 626. Robert Lee Tarver, Jr. AL B/W M 04-19-00 627. Robert Glen Coe TN W/W F 04-27-00 628. Ronald Keith Boyd OK B/W M 05-02-00 629. Christina Riggs [^] [*] / 2 AR W/2W MF 05-04-00 630. Tommy Ray Jackson TX B/W F 05-09-00 631. Williams Kitchens TX W/W F 05-11-00 632. Michael Lee McBride / 2 TX W/2W MF 05-23-00 633. James Richardson TX B/W M 05-24-00 634. Richard D. Foster TX W/W M

Death Row U.S.A. Page 20

05-25-00 635. Charles A. Foster OK B/B M 05-25-00 636. James E. Clayton TX B/W F 05-31-00 637. Robert E. Carter / 6 TX B/6B 1M5F 06-01-00 638. James Robedeaux OK N/W F 06-02-00 639. Pernell Ford [*] / 2 AL B/2W FF 06-06-00 640. Feltus Taylor / 2 LA B/2W MF 06-07-00 641. Bennie Demps FL B/B M 06-08-00 642. Roger James Berget OK W/W M 06-12-00 643. Thomas Wayne Mason / 2 TX W/2W FF 06-14-00 644. John Albert Burks TX B/L M 06-15-00 645. William Clifford Bryson OK B/W M 06-15-00 646. Paul Nuncio TX L/W F 06-21-00 647. Thomas Provenzano FL W/W M 06-22-00 648. Gary Graham [#] TX B/W M 06-28-00 649. Bert Hunter [*] / 2 MO W/2W MF 06-29-00 650. Jessy Carlos San Miguel TX L/W M 07-06-00 651. Michael D. Clagett / 4 VA W/3W1A MMMF 07-12-00 652. Orien C. Joiner / 2 TX W/2W FF 07-20-00 653. Gregg Braun OK W/W F 07-26-00 654. Juan Salvez Soria TX L/W M 08-09-00 655. Brian K. Roberson TX B/W M 08-09-00 656. Oliver D. Cruz TX L/W F 08-10-00 657. George Wallace / 2 OK W/2W MM 08-16-00 658. John T. Satterwhite TX B/L F 08-22-00 659. Richard W. Jones TX W/W F 08-23-00 660. David E. Gibbs / 2 TX W/2W FF 08-25-00 661. Dan Hauser [*] FL W/W F 08-30-00 662. Gary Lee Roll / 3 MO W/3W MMF 08-30-00 663. Jeffrey Caldwell / 3 TX B/3B MFF 08-30-00 664. Russel Burket / 2 VA W/2W FF 09-13-00 665. George Harris MO B/B M 09-14-00 666. Derek Barnabei VA W/W F 09-27-00 667. Ricky McGinn TX W/W F 10-10-00 668. Bobby Lee Ramdass VA B/A M 11-01-00 669. Jeffrey Dillingham TX W/W F 11-03-00 670. Kevin Dean Young SC B/W M 11-08-00 671. Donald Miller [*] AZ W/W F 11-09-00 672. Michael Sexton NC B/W F 11-09-00 673. Miguel Flores TX L/W F 11-14-00 674. Stacey L. Lawton TX B/W M 11-15-00 675. James Chambers MO W/W M 11-15-00 676. Tony Chambers TX B/B F 11-17-00 677. Dwayne Weeks / 2 DE B/2B MF 12-05-00 678. Garry Dean Miller TX W/W F 12-06-00 679. Daniel Hittle TX W/W M 12-06-00 680. Christopher Goins VA B/B M 12-07-00 681. Edward Castro [*] FL L/W M 12-07-00 682. Claude Jones TX W/W M 12-19-00 683. David Johnson AR B/B M 01-09-01 684. Jack Wade Clark TX W/L F 01-09-01 685. Eddie Trice OK B/B F 01-11-01 686. Robert Glock FL W/W F

Death Row U.S.A. Page 21

01-11-01 687. Wanda Jean Allen [^] OK B/B F 01-16-01 688. Floyd Medlock OK W/W F 01-18-01 689. Alvin Goodwin TX W/W M 01-18-01 690. Dion Smallwood OK N/W F 01-23-01 691. Mark Fowler / 3 OK W/2W1A MMM 01-25-01 692. Billy Ray Fox / 3 OK W/ (see # 691) (see # 691) 01-29-01 693. Caruthers Alexander TX B/W F 01-30-01 694. Loyd Lafevers OK W/W F 02-01-01 695. D.L. Jones OK W/W M 02-07-01 696. Stanley Lingar MO W/W M 02-08-01 697. Adolph Hernandez TX L/L F 03-01-01 698. Thomas Akers [*] VA W/W M 03-01-01 699. Robert Clayton OK W/W F 03-07-01 700. Dennis Dowthitt TX W/W F 03-09-01 701. Willie Fisher NC B/B F 03-14-01 702. Gerald Bivens [*] IN W/W M 03-27-01 703. Robert Massie [*] CA W/W M 03-27-01 704. Ronald Fluke [*] / 3 OK W/3W FFF 03-28-01 705. Tomas Ervin / 2 MO W/ (see # 649) (see # 649) 04-03-01 706. Jason Massey / 2 TX W/2W MF 04-21-01 707. Sebastian Bridges [*] NV W/W M 04-25-01 708. Mose Young / 3 MO B/3W MMM 04-25-01 709. David Goff TX B/B M 04-26-01 710. David Dawson DE W/W F 05-01-01 711. Marilyn Plantz [^] OK W/ (see # 645) (see # 645) 05-08-01 712. Clay King Smith [*] / 5 AR W/5W 1M4F 05-22-01 713. Terrance James OK N/W M 05-23-01 714. Samuel Smith MO B/B M 05-25-01 715. Abdullah Hameen DE B/B M 05-29-01 716. Vincent Johnson OK B/B F 06-11-01 717. Timothy McVeigh [*] / 168 US W/129W32B5L2N 75M93F 06-13-01 718. John Wheat / 3 TX W/3W MFF 06-14-01 719. Jay Scott OH B/B F 06-19-01 720. Juan Garza / 3 US L/1W2L MMM 06-26-01 721. Miguel Richardson TX B/W M 06-27-01 722. Jim Lowery / 2 IN W/2W MF 07-11-01 723. Jerome Mallett MO B/W M 07-11-01 724. James Jay Wilkens / 2 TX W/2W MM 07-17-01 725. Jerald Harjo OK N/N F 08-08-01 726. Mack O. Hill TX W/W M 08-16-01 727. Jeffery Doughtie / 2 TX W/2W MF 08-24-01 728. Clifton A. White NC W/W F 08-28-01 729. James Elledge [*] WA W/W F 08-28-01 730. Jack D. Walker OK W/W F 08-31-01 731. Ronald W. Frye NC W/W M 09-18-01 732. James Roy Knox TX W/L M 10-03-01 733. Michael Roberts MO W/W F 10-12-01 734. David Junior Ward NC B/B F 10-18-01 735. Christopher Beck / 3 VA W/3W MMF 10-18-01 736. Alvie Hale OK W/W M 10-22-01 737. Gerald Mitchell [#] TX B/W M 10-24-01 738. Stephen Johns MO W/W M

Death Row U.S.A. Page 22

10-25-01 739. Terry Mincey GA W/W F 11-06-01 740. Jose High [#] [see note below] GA B/W M 11-06-01 741. Terry Clark [*] NM W/W F 11-14-01 742. Fred Gilreath / 2 GA W/2W MF 11-14-01 743. Jeffrey Tucker TX W/W M 11-15-01 744. Emerson Rudd TX B/B M 11-30-01 745. John Hardy Rose NC W/W F 12-04-01 746. Lois Nadean Smith [^] OK W/W F 12-06-01 747. Sahib Al-Mosawi / 2 OK W/2W MF 12-11-01 748. Byron Parker GA W/W F 12-12-01 749. Vincent Cooks TX B/W M 01-09-02 750. James Johnson / 4 MO W/4W MMFF 01-09-02 751. Michael Moore TX W/W F 01-16-02 752. Jermarr Arnold TX B/L F 01-24-02 753. Ronald Spivey GA W/W M 01-29-02 754. Stephen Anderson CA W/W F 01-29-02 755. John Romano OK W/W M 01-30-02 756. Windell Broussard / 2 TX B/2B MF 01-31-02 757. Randall Wayne Hafdahl, Sr. TX W/W M 01-31-02 758. David Woodruff OK W/(see # 755) (see #755) 02-06-02 759. Michael Owsley MO B/B M 02-19-02 760. John Byrd OH W/W M 02-28-02 761. Monty Allen Delk TX W/W M 03-06-02 762. Jeffrey Tokar MO W/W M 03-07-02 763. Gerald W. Tigner / 2 TX B/2B MM 03-12-02 764. Tracy L. Housel GA W/W F 03-14-02 765. James Earl Patterson [*] VA W/W F 04-02-02 766. Daniel Lee Zirkle [*] / 2 VA W/2W FF 04-10-02 767. Paul Kreutzer MO W/W F 04-10-02 768. Jose Santellan, Sr. TX L/L F 04-11-02 769. William K. Burns TX B/W M 04-18-02 770. Gerald Casey TX W/W F 04-26-02 771. Alton Coleman OH B/W F 04-30-02 772. Rodolfo Hernandez TX L/L M 05-03-02 773. Richard Johnson SC W/B M 05-09-02 774. Reginald L. Reeves TX B/W F 05-10-02 775. Lynda Lyon Block [^][*] AL W/W M 05-10-02 776. Leslie Martin LA W/W F 05-16-02 777. Ronford Styron TX W/W M 05-22-02 778. Johnny Martinez TX L/W M 05-28-02 779. Napoleon Beazley [#] TX B/W M 05-30-02 780. Stanley Baker, Jr. TX W/W M 06-12-02 781. Walter Mickens VA B/W M 06-13-02 782. Daniel Reneau TX W/W M 06-25-02 783. Robert Coulson / 2 TX W/2W MF 06-26-02 784. Jeffrey L. Williams TX B/B F 07-17-02 785. Tracy Hansen MS W/W M 07-23-02 786. Randall Cannon OK W/ (see # 694) (see # 694) 07-30-02 787. Earl Frederick, Sr. [*] OK W/W M 08-07-02 788. Richard William Kutzner TX W/W F 08-08-02 789. T.J. Jones [#] TX B/W M 08-14-02 790. Javier Suarez Medina TX L/L M

Death Row U.S.A. Page 23

08-14-02 791. Daniel Basile MO W/W F 08-16-02 792. Wallace Fugate GA W/W F 08-20-02 793. Gary Etheridge TX W/W F 08-23-02 794. Anthony Green SC B/W F 08-28-02 795. Toronto Patterson [#] / 3 TX B/3B FFF 09-10-02 796. Tony Walker TX B/B F 09-13-02 797. Michael Passaro [*] SC W/W F 09-17-02 798. Jessie Patrick TX W/W F 09-18-02 799. Ronald Shamburger TX W/W F 09-24-02 800. Rex Mays / 2 TX W/2W FF 09-25-02 801. Robert Buell OH W/W F 09-25-02 802. Calvin King TX B/B M 10-01-02 803. James R. Powell TX W/W F 10-02-02 804. Rigoberto Sanchez-Velasco[*] FL L/L F 10-09-02 805. Aileen Wuornos [^] [*] FL W/W M 11-13-02 806. William Putman / 2 GA W/2W MF 11-14-02 807. Mir Aimal Kasi VA A/W M 11-19-02 808. Craig N. Ogan, Jr. TX W/W M 11-20-02 809. William Jones MO W/W M 11-20-02 810. William Chappell / 3 TX W/3W MFF 12-04-02 811. Leonard Rojas / 2 TX L/LW MF 12-06-02 812. Ernest Basden NC W/W M 12-09-02 813. Linroy Bottoson FL B/B F 12-10-02 814. Desmond K. Carter NC B/W F 12-10-02 815. Jerry McCracken / 4 OK W/4W MMMF 12-11-02 816. James P. Collier / 2 TX W/2W MF 12-11-02 817. Jessie Williams MS W/W F 12-12-02 818. Jay W. Neill / 4 OK W/4W MFFF 12-12-02 819. Anthony Keith Johnson AL W/W M 12-17-02 820. Ernest Carter, Jr. OK B/W M 01-14-03 821. Samuel Gallamore / 3 TX W/3W MFF 01-15-03 822. John Richard Baltazar TX L/L F 01-16-03 823. Daniel Revilla OK W/L M 01-22-03 824. Robert Lookingbill TX W/W F 01-28-03 825. Alva E. Curry TX B/L M 01-29-03 826. Richard Dinkins / 2 TX W/2W FF 01-30-03 827. Granville Riddle TX W/W M 02-04-03 828. John Elliott TX L/L F 02-05-03 829. Kenneth Kenley MO W/W M 02-06-03 830. Henry Dunn, Jr. TX B/L M 02-12-03 831. Richard Fox OH W/W F 02-13-03 832. Bobby Joe Fields OK B/W F 02-25-03 833. Richard Williams TX B/B F 02-26-03 834. Amos King FL B/W F 03-11-03 835. Bobby Cook TX W/W M 03-13-03 836. Michael Thompson AL W/W F 03-18-03 837. Louis Jones US B/W F 03-18-03 838. Walanzo Robinson OK B/B M 03-20-03 839. Keith Clay TX B/A M 03-25-03 840. John Hooker / 2 OK B/2B FF 03-25-03 841. Larry Moon GA W/W M 03-26-03 842. James Colburn TX W/W F

Death Row U.S.A. Page 24

04-03-03 843. Scott Allen Hain [#] / 2 OK W/2W MF 04-08-03 844. Don Wilson Hawkins, Jr. OK W/W F 04-09-03 845. Earl Bramblett VA W/W F 04-17-03 846. Larry Jackson OK B/B F 04-22-03 847. John R. Chavez TX L/L M 04-24-03 848. Gary Brown AL W/W M 04-29-03 849. David Brewer OH W/W F 05-02-03 850. Kevin Hough / 2 IN W/2W MM 05-06-03 851. Roger D. Vaughn TX W/W F 05-06-03 852. Carl Isaacs / 6 GA W/6W 5M1F 05-15-03 853. Bruce C. Jacobs TX W/W M 05-16-03 854. Newton Slawson [*] / 4 FL W/4W MMFF 05-27-03 855. Robert Knighton / 2 OK W/2W MF 06-05-03 856. Kenneth Charm OK B/B F 06-11-03 857. Kia Johnson TX B/W M 06-13-03 858. Joseph Trueblood / 3 IN W/3W MFF 06-18-03 859. Ernest Martin OH B/B M 07-01-03 860. Lewis E. Gilbert II OK W/W F 07-02-03 861. Hilton Lewis Crawford TX W/W M 07-08-03 862. Robert Duckett OK W/W M 07-09-03 863. Christopher Black, Sr. TX B/B F 07-09-03 864. Riley Dobi Noel / 3 AR B/3B MFF 07-22-03 865. Bryan Toles / 2 OK B/2L MM 07-22-03 866. Bobby Swisher VA W/W F 07-23-03 867. Cedric Ransom TX B/W M 07-24-03 868. Jackie Willingham OK W/W F 07-24-03 869. Allen W. Janecka TX W/W M 07-29-03 870. Harold McElmurry III [*] / 2 OK W/2W MF 08-07-03 871. Tommy Fortenberry / 4 AL W/4W MMMF 08-22-03 872. William Quentin Jones NC B/B M 09-03-03 873. Paul Hill [*] FL W/W M 09-10-03 874. Larry Hayes [*] / 2 TX W/WB FF 09-12-03 875. Henry Lee Hunt / 2 NC N/2N MM 09-26-03 876. Joseph E. Bates NC W/W M 10-03-03 877. Edward Hartman NC W/W M 10-29-03 878. John C. Smith [*] MO W/W F 11-04-03 879. James W. Brown GA W/W F 11-07-03 880. Joseph Keel NC W/W M 11-14-03 881. John D. Daniels NC B/B F 11-20-03 882. Robert Henry / 2 TX W/2W FF 12-03-03 883. Richard Duncan / 2 TX W/2W MF 12-04-03 884. Ivan Murphy, Jr. TX W/W F 12-05-03 885. Robbie Lyons NC B/W M 01-06-04 886. Ynobe Matthews TX B/W F 01-06-04 887. Charles Singleton AR B/W F 01-09-04 888. Raymond Rowsey NC W/W M 01-13-04 889. Tyrone Darks OK B/B F 01-14-04 890. Lewis Williams OH B/W F 01-14-04 891. Kenneth E. Bruce TX B/W F 01-21-04 892. Kevin Zimmerman TX W/W M 01-28-04 893. Billy Vickers TX W/W M 02-03-04 894. John Glenn Roe OH W/W F

Death Row U.S.A. Page 25

02-04-04 895. Johnny Robinson FL B/W F 02-11-04 896. Edward Lagrone / 3 TX B/3B FFF 02-12-04 897. Bobby Ray Hopkins / 2 TX B/2W FF 02-17-04 898. Norman Cleary OK W/W F 02-17-04 899. Cameron Todd Willingham /3 TX W/3W FFF 03-03-04 900. Marcus Bridger Cotton TX B/W M 03-09-04 901. David Brown OK W/W M 03-18-04 902. Brian Cherrix [*] VA W/W F 03-19-04 903. David Clayton Hill SC W/W M 03-23-04 904. Hung Thanh Le OK A/A M 03-26-04 905. Lawrence Colwell [*] NV W/W M 03-30-04 906. William Wickline, Jr. OH W/W F 03-31-04 907. Dennis W. Orbe VA W/W M 04-16-04 908. Jerry McWee SC W/W M 04-23-04 909. Jason Byram SC W/W F 05-18-04 910. Kelsey Patterson / 2 TX B/2W MF 05-26-04 911. John Blackwelder [*] FL W/W M 05-28-04 912. James Tucker SC W/W F 06-08-04 913. William Zuern OH W/W M 06-08-04 914. Robert Bryan OK W/W F 06-17-04 915. Steve Oken MD W/W F 06-30-04 916. David Harris TX W/W M 07-01-04 917. Robert Karl Hicks GA W/W F 07-14-04 918. Stephen Vrabel [*] / 2 OH W/2W FF 07-19-04 919. Eddie Crawford GA W/W F 07-20-04 920. Scott A. Mink [*] / 2 OH W/2W MF 07-22-04 921. Mark Bailey / 2 VA W/2W MF 08-05-04 922. J.B. Hubbard AL W/W F 08-12-04 923. Terry Jess Dennis [*] NV W/W M 08-18-04 924. James Bryant Hudson [*] / 2 VA W/2W MM 08-25-04 925. Jasen Busby / 2 TX W/2W FF 08-26-04 926. Windel Workman OK W/W F 08-26-04 927. James V. Allridge TX B/W M 09-09-04 928. James Reid VA B/B F 09-21-04 929. Andrew Flores TX L/L M 09-30-04 930. David Kevin Hocker [*] AL W/W M 10-05-04 931. Edward P. Green / 2 TX B/2W MF 10-06-04 932. Peter Miniel TX L/W M 10-09-04 933. Sammy C. Perkins NC B/B F 10-12-04 934. Donald L. Aldrich TX W/ (see # 830) (see # 830) 10-13-04 935. Adremy Dennis OH B/W M 10-20-04 936. Ricky E. Morrow TX W/W M 10-22-04 937. Charles Wesley Roache [*] / 2 NC W/2W FF 10-26-04 938. Dominique Green TX B/B M 11-02-04 939. Lorenzo Morris TX B/B M 11-04-04 940. Robert Morrow TX W/W F 11-09-04 941. Demarco M. McCullum TX B/W M 11-10-04 942. Frederick McWilliams TX B/L M 11-12-04 943. Frank Ray Chandler NC W/W F 11-17-04 944. Anthony Guy Fuentes TX L/W M 01-04-05 945. James Porter [*] TX W/L M 01-19-05 946. Donald J. Beardslee CA W/W F

Death Row U.S.A. Page 26

01-25-05 947. Timothy Carr GA W/W M 01-25-05 948. Troy A. Kunkle TX W/W M 02-17-05 949. Dennis Bagwell / 4 TX W/4W 4F 03-01-05 950. Stephen Mobley GA W/W M 03-08-05 951. William H. Smith OH B/B F 03-08-05 952. George Anderson Hopper TX W/W F 03-10-05 953. Donald Wallace / 4 IN W/4W MMFF 03-11-05 954. William Powell NC W/W F 03-15-05 955. Jimmie Ray Slaughter / 2 OK W/2W FF 03-16-05 956. Stanley Hall MO B/W F 04-05-05 957. Glenn Ocha [*] FL W/W F 04-15-05 958. Richard Longworth / 2 SC W/(see # 591) &W (see # 591) & M 04-20-05 959. Douglas Roberts TX W/L M 04-21-05 960. Bill Benefiel IN W/W F 04-27-05 961. Donald Jones MO B/B F 04-28-05 962. Mario Centobie [*] AL W/W M 05-03-05 963. Lonnie Pursley TX W/W M 05-06-05 964. Earl Richmond / 3 NC B/3B MFF 05-12-05 965. George Miller, Jr. OK B/W M 05-13-05 966. Michael Ross [*] / 4 CT W/4W FFFF 05-18-05 967. Bryan Wolfe TX B/B F 05-19-05 968. Vernon Brown MO B/B M 05-19-05 969. Richard Cartwright TX W/L M 05-25-05 970. Gregory S. Johnson IN W/W F 06-02-05 971. Jerry Henderson AL W/W M 06-07-05 972. Alexander Martinez [*] TX L/W F 07-12-05 973. Robert Conklin GA W/W M 07-19-05 974. Sharieff Sallahdin OK B/W M (FKA Michael Pennington) 07-27-05 975. Kevin Conner / 3 IN W/3W MMM 07-28-05 976. David Martinez TX L/W F 08-04-05 977. George Sibley AL W/ (see # 775) (see # 775) 08-10-05 978. Gary Sterling TX B/W M 08-11-05 979. Kenneth Turrentine OK B/B F 08-23-05 980. Robert Shields TX W/W F 08-31-05 981. Timothy Johnston MO W/W F 09-14-05 982. Frances E. Newton [^] / 3 TX B/3B MMF 09-23-05 983. John Peoples / 3 AL W/3W MMF 09-27-05 984. Herman Ashworth [*] OH W/W M 09-28-05 985. Alan Matheny IN W/W F 10-06-05 986. Ronald Ray Howard TX B/W M 10-20-05 987. Luis Ramirez TX L/L M 10-25-05 988. Willie Williams, Jr. / 4 OH B/4B MMMM 10-26-05 989. Marlin Gray / 2 MO B/2W FF 11-03-05 990. Melvin White TX W/W F 11-04-05 991. Brian Steckel DE W/W F 11-04-05 992. Arthur Hastings Wise [*] / 4 SC B/4W MMMF 11-09-05 993. Charles Daniel Thacker TX W/W F 11-11-05 994. Steve McHone / 2 NC W/2W MF 11-15-05 995. Robert Dale Rowell / 2 TX W/BL MM 11-16-05 996. Shannon Thomas / 3 TX B/3L MMF 11-18-05 997. Elias Syriani NC W/W F

Death Row U.S.A. Page 27

11-28-05 998. Eric Nance AR W/W F 11-29-05 999. John Hicks OH B/B F 12-02-05 1000. Kenneth Boyd / 2 NC W/2W MF 12-02-05 1001. Shawn Humphries SC W/W M 12-05-05 1002. Wesley Baker MD B/W F 12-13-05 1003. Stanley “Tookie” Williams / 4 CA B/1W3A MMFF 12-14-05 1004. John Nixon, Sr. MS W/W F 01-17-06 1005. Clarence Ray Allen / 3 CA N/3W MMF 01-20-06 1006. Perrie Dyon Simpson NC B/W M 01-25-06 1007. Marion Dudley / 3 TX B/3L MMF 01-27-06 1008. Marvin Bieghler / 2 IN W/2W MF 01-31-06 1009. Jaime Elizalde, Jr. / 2 TX L/2L MM 02-07-06 1010. Glenn Benner, II / 2 OH W/2W FF 02-08-06 1011. Robert Neville, Jr. TX W/W F 02-15-06 1012. Clyde Smith, Jr. TX B/W M 03-15-06 1013. Tommie Hughes TX B/B F 03-17-06 1014. Patrick Moody NC W/W M 03-22-06 1015. Robert Salazar, Jr. TX L/L F 03-29-06 1016. Kevin Kincy TX B/B M 04-18-06 1017. Richard Thornburg, Jr. / 3 OK W/3W MMM 04-21-06 1018. Willie Brown NC B/B F 04-26-06 1019. Daryl Linnie Mack [*] NV B/W F 04-27-06 1020. Dexter Lee Vinson VA B/W F 05-02-06 1021. Joseph Clark OH B/W M 05-04-06 1022. Jackie B. Wilson TX W/W F 05-17-06 1023. Jermaine Herron / 2 TX B/2W MF 05-24-06 1024. Jesus Aguilar / 2 TX L/2W MF 06-01-06 1025. John Boltz OK W/W M 06-06-06 1026. Timothy Titsworth TX W/W F 06-20-06 1027. Lamont Reese / 3 TX B/3B MMM 06-27-06 1028. Angel Maturino Resendiz TX L/L F 06-28-06 1029. Sedley Alley TN W/W F 07-11-06 1030. Derrick O’Brien TX B/W F 07-12-06 1031. Rocky Lee Barton OH W/W F 07-14-06 1032. William Earl Downs [*] SC W/B M 07-19-06 1033. Mauriceo Brown TX B/B M 07-20-06 1034. Robert Anderson [*] TX W/W F 07-20-06 1035. Brandon W. Hedrick VA W/B F 07-27-06 1036. Michael Lenz VA W/W M 08-03-06 1037. William E. Wyatt, Jr. TX B/B M 08-08-06 1038. Darrell W. Ferguson [*] / 3 OH W/3W MMF 08-11-06 1039. David T. Dawson [*] / 3 MT W/3W MMF 08-17-06 1040. Richard Hinojosa TX L/W F 08-18-06 1041. Samuel Flippen NC W/W F 08-24-06 1042. Justin Fuller TX B/W M 08-28-06 1043. Eric Patton OK B/W F 08-31-06 1044. James Malicoat OK W/W F 08-31-06 1045. Derrick Frazier / 2 TX B/(see # 1023) (see # 1023) 09-12-06 1046. Farley C. Matchett TX B/B F 09-20-06 1047. Clarence Hill FL B/W M 10-18-06 1048. Arthur Rutherford FL W/W F 10-18-06 1049. Bobby Wilcher [*] [see note] MS W/W F

Death Row U.S.A. Page 28

10-24-06 1050. Jeffrey Lundgren / 5 OH W/5W 1M4F 10-25-06 1051. Danny Rolling / 5 FL W/4W1L 5F 10-25-06 1052. Gregory Summers TX W/ (see # 517) (see # 517) 10-26-06 1053. Larry Hutcherson AL W/W F 11-01-06 1054. Donell Jackson TX B/B M 11-08-06 1055. Willie M. Shannon TX B/L M 11-09-06 1056. John Yancey Schmitt VA W/B M 12-13-06 1057. Angel Diaz FL L/W M 01-09-07 1058. Corey Hamilton / 4 OK B/4W MMMF 01-10-07 1059. Carlos Granados TX L/L M 01-17-07 1060. Jonathan Moore TX W/L M 01-30-07 1061. Christopher Swift [*] / 2 TX W/2W FF 02-07-07 1062. James Jackson / 2 TX B/2B FF 02-22-07 1063. Newton Anderson / 2 TX W/2W MF 02-27-07 1064. Donald A. Miller TX W/W M 03-06-07 1065. Robert Martinez Perez / 2 TX L/2L MM 03-07-07 1066. Joseph B. Nichols TX B/ (see # 263) (see # 263) 03-20-07 1067. Charles Nealy TX B/A M 03-28-07 1068. Vincent Gutierrez TX L/L M 03-29-07 1069. Roy Pippin / 2 TX W/2L MM 04-11-07 1070. James Lee Clark TX W/W F 04-24-07 1071. James Filiaggi OH W/W F 04-26-07 1072. Ryan Heath Dickson TX W/W M 05-03-07 1073. Aaron Jones / 2 AL B/2W MF 05-04-07 1074. David Woods IN W/L M 05-09-07 1075. Philip Workman TN W/W M 05-16-07 1076. Charles E. Smith TX W/W M 05-22-07 1077. Robert C. Comer [*] AZ W/W M 05-24-07 1078. Christopher Newton [*] OH W/W M 06-06-07 1079. Michael Griffith TX W/W F 06-15-07 1080. Michael Lambert IN W/W M 06-20-07 1081. Lionell Rodriguez TX L/A F 06-21-07 1082. Gilberto Guadalupe Reyes TX L/L F 06-22-07 1083. Calvin Shuler SC B/W M 06-26-07 1084. Jimmy Bland OK W/W M 06-26-07 1085. Patrick Knight / 2 TX W/2W MF 06-26-07 1086. John Hightower / 3 GA B/3B FFF 07-11-07 1087. Elijah Page [*] SD W/W M 07-24-07 1088. Lonnie Johnson / 2 TX B/2W MM 07-26-07 1089. Darrell Grayson AL B/ (see # 562) (see # 562) 08-15-07 1090. Kenneth Parr TX B/W F 08-21-07 1091. Frank Welch OK W/W F 08-22-07 1092. Johnny Conner TX B/A F 08-23-07 1093. Luther Williams AL B/W M 08-28-07 1094. DaRoyce Lamont Mosley TX B/W F 08-29-07 1095. John Amador TX L/W M 09-05-07 1096. Tony Roach TX W/W F 09-12-07 1097. Daryl Holton [*] / 4 TN W/4W MMMF 09-20-07 1098. Clifford Kimmel / 3 TX W/3W MFF 09-25-07 1099. Michael W. Richard TX B/W F 05-06-08 1100. William Lynd GA W/W F 05-21-08 1101. Earl Berry MS W/W F

Death Row U.S.A. Page 29

05-27-08 1102. Kevin Green VA B/W F 06-04-08 1103. Curtis Osborne / 2 GA B/2B MF 06-06-08 1104. David Hill [*] / 2 SC W/2W MM 06-11-08 1105. Karl Chamberlain TX W/W F 06-17-08 1106. Terry Short OK W/A M 06-20-08 1107. James Reed [*] / 2 SC B/2B MF 06-25-08 1108. Robert Yarbrough VA B/W M 07-01-08 1109. Mark Schwab FL W/W M 07-10-08 1110. Carlton Turner / 2 TX B/2B MF 07-10-08 1111. Kent Jackson VA B/W F 07-23-08 1112. Dale L. Bishop MS W/W M 07-23-08 1113. Derrick Sonnier / 2 TX B/2B MF 07-24-08 1114. Christopher Emmett VA W/W M 07-31-08 1115. Larry Davis TX B/W M 08-05-08 1116. Jose Medellin TX L/L F 08-07-08 1117. Heliberto Chi TX L/W M 08-12-08 1118. Leon Dorsey, IV / 2 TX B/2W MM 08-14-08 1119. Michael Rodriguez [*] TX L/W M 09-16-08 1120. Jack Alderman GA W/W F 09-17-08 1121. William Murray TX W/W F 09-23-08 1122. Richard Henyard / 2 FL B/2B FF 09-25-08 1123. Jesse Cummings, Jr. OK W/W F 10-14-08 1124. Richard Cooey / 2 OH W/2W FF 10-14-08 1125. Alvin A. Kelly TX W/W M 10-16-08 1126. Kevin Watts / 3 TX B/3A MFF 10-21-08 1127. Joseph Ries TX W/W M 10-28-08 1128. Eric Nenno TX W/W F 10-30-08 1129. Gregory Edward Wright TX W/W F 11-06-08 1130. Elkie Lee Taylor TX B/B M 11-12-08 1131. George Whittaker, III TX B/B F 11-13-08 1132. Denard Manns TX B/W F 11-19-08 1133. Gregory Bryant-Bey OH B/W M 11-20-08 1134. Robert Jean Hudson TX B/B F 11-21-08 1135. Marco Allen Chapman / 2 KY W/2W MF 12-05-08 1136. Joseph Gardner SC B/W F 01-14-09 1137. Curtis Moore / 3 TX B/3B MMF 01-15-09 1138. James Callahan AL W/W F 01-21-09 1139. Frank Moore / 2 TX B/2B MM 01-22-09 1140. Darwin Brown OK B/W M 01-22-09 1141. Reginald Perkins TX B/B F 01-28-09 1142. Virgil Martinez / 4 TX L/4L MMFF 01-29-09 1143. Ricardo Ortiz TX L/L M 02-04-09 1144. Steve Henley / 2 TN W/2W MF 02-04-09 1145. David Martinez / 2 TX L/2L MF 02-10-09 1146. Dale Scheanette TX B/B F 02-11-09 1147. Wayne Tompkins FL W/W F 02-12-09 1148. Danny Bradley AL W/W F 02-12-09 1149. Johnny Johnson TX B/B F 02-19-09 1150. Edward Nathaniel Bell VA B/W M 02-20-09 1151. Luke Williams, III / 2 SC W/2W MF 03-03-09 1152. Willie Pondexter TX B/W F 03-04-09 1153. Kenneth W. Morris TX B/W M

Death Row U.S.A. Page 30

03-10-09 1154. James Edward Martinez / 2 TX L/2W MF 03-10-09 1155. Robert Newland GA W/W F 03-11-09 1156. Luis Salazar TX L/L F 04-15-09 1157. Michael Rosales TX L/B F 04-16-09 1158. Jimmy Lee Dill AL B/B M 04-29-09 1159. William Mark Mize GA W/W M 04-30-09 1160. Derrick Johnson TX B/B F 05-08-09 1161. Thomas Treshawn Ivey SC B/W M 05-14-09 1162. Willie McNair AL B/W F 05-14-09 1163. Donald Gilson OK W/W M 05-19-09 1164. Michael Lynn Riley TX B/W F 05-20-09 1165. Dennis Skillicorn MO W/W M 06-02-09 1166. Terry Hankins / 2 TX W/2W MF 06-03-09 1167. Daniel Wilson OH W/W F 06-11-09 1168. Jack Trawick AL W/W F 07-09-09 1169. Micahel DeLozier / 2 OK W/2W MM 07-14-09 1170. John Fautenberry OH W/W M 07-21-09 1171. Marvellous Keene / 5 OH B/3W2B MMFFF 08-18-09 1172. Jason Getsy OH W/W F 08-19-09 1173. John R. Marek FL W/W F 09-16-09 1174. Stephen Moody TX W/W M 09-22-09 1175. Christopher Coleman / 3 TX B/3L MMM 10-08-09 1176. Max L. Payne AL W/W M 10-20-09 1177. Mark McClain GA W/W M 10-27-09 1178. Reginald W. Blanton TX B/L M 11-05-09 1179. Khristian Oliver TX B/W M 11-10-09 1180. Yosvanis Valle TX L/L M 11-10-09 1181. John Allen Muhammad VA B/W M 11-17-09 1182. Larry Bill Elliott VA W/W F 11-18-09 1183. Danielle Simpson TX B/W F 11-19-09 1184. Robert Thompson TX B/A M 12-02-09 1185. Cecil Johnson, Jr. / 3 TN B/3B MMM 12-03-09 1186. Bobby Woods TX W/W F 12-08-09 1187. Kenneth Biros OH W/W F 12-11-09 1188. Matthew E. Wrinkles / 3 IN W/3W MFF 01-07-10 1189. Vernon L. Smith OH B/W M 01-07-10 1190. Kenneth Mosley TX B/W M 01-07-10 1191. Gerald Bordelon [*] LA W/W F 01-12-10 1192. Gary J. Johnson / 2 TX W/2W MM 01-14-10 1193. Julius Young / 2 OK B/2B MF 02-04-10 1194. Mark A. Brown OH B/W M 02-16-10 1195. Martin Edward Grossman FL W/W F 03-02-10 1196. Michael Adam Sigala TX L/L M 03-11-10 1197. Joshua Maxwell TX W/L M 03-16-10 1198. Lawrence Reynolds, Jr. OH W/W F 03-18-10 1199. Paul Warner Powell VA W/W F 03-30-10 1200. Franklin Alix TX B/B M 04-20-10 1201. Darryl Durr OH B/W F 04-22-10 1202. William Josef Berkley TX W/L F 04-27-10 1203. Samuel Bustamante TX L/L M 05-12-10 1204. Kevin Varga TX W/W M 05-13-10 1205. Michael Beuke OH W/W M

Death Row U.S.A. Page 31

05-13-10 1206. Billy John Galloway TX W/(see #1204) (see #1204) 05-19-10 1207. Rogelio Cannady TX L/L M 05-19-10 1208. Paul Woodward MS W/W F 05-20-10 1209. Gerald Holland MS W/W F 05-20-10 1210. Darick Walker / 2 VA B/BB MM 05-25-10 1211. John A. Alba TX L/L F 05-27-10 1212. Thomas Whisenhant AL W/W F 06-02-10 1213. George Jones TX B/B M 06-09-10 1214. Melbert Ray Ford / 2 GA W/WW FF 06-10-10 1215. John Parker AL W/W F 06-15-10 1216. David L. Powell TX W/L M 06-18-10 1217. Ronnie Gardner UT W/W M 07-01-10 1218. Michael Perry TX W/W F 07-13-10 1219. William Garner / 5 OH B/5B MFFFF 07-20-10 1220. Derrick Jackson / 2 TX B/2W MM 07-21-10 1221. Joseph D. Burns MS W/W M 08-10-10 1222. Roderick Davie / 2 OH B/WB MF 08-12-10 1223. Michael J. Land AL W/W F 08-17-10 1224. Peter A. Cantu TX L/(see #1030) (see #1030) 09-09-10 1225. Holly Wood AL B/B F 09-10-10 1226. Calvin Coburn Brown WA W/W F 09-23-10 1227. Teresa Lewis [^] / 2 VA W/2W MM 09-27-10 1228. Brandon Rhode / 3 GA W/3W MMF 10-06-10 1229. Michael Benge OH W/W F 10-14-10 1230. Donald Ray Wackerly OK W/A M 10-21-10 1231. Larry Wooten / 2 TX B/2B MF 10-26-10 1232. Jeffrey Landrigan AZ N/W M 11-04-10 1233. Phillip Hallford AL W/W M 12-16-10 1234. John Duty OK W/W M 01-06-11 1235. Billy Alverson OK B/(see #1140) (see #1140) 01-11-11 1236. Jeffrey Matthews OK W/W M 01-13-11 1237. Leroy White AL B/B F 01-25-11 1238. Emmanuel Hammond GA B/W F 02-09-11 1239. Martin Link MO W/W F 02-15-11 1240. Michael Wayne Hall TX W/(see #1011) (see #1011) 02-17-11 1241. Frank Spisak, Jr. / 3 OH W/W2B MMM 02-22-11 1242. Timothy Adams TX B/B M 03-10-11 1243. Johnnie Baston OH B/A M 03-29-11 1244. Eric King / 2 AZ B/2W MM 03-31-11 1245. William Boyd / 2 AL W/2W MF 04-12-11 1246. Clarence Carter OH B/B M 05-03-11 1247. Cary Kerr TX W/W F 05-06-11 1248. Jeffery Brian Motts [*] SC W/W M 05-10-11 1249. Benny Joe Stevens / 4 MS W/4W MMMF 05-17-11 1250. Daniel Bedford / 2 OH W/2W MF 05-17-11 1251. Rodney Gray MS B/W F 05-19-11 1252. Jason Williams / 4 AL W/4W MMMF 05-25-11 1253. Donald E. Beaty AZ W/W F 06-01-11 1254. Gayland Bradford TX B/W M 06-16-11 1255. Lee Taylor TX W/B M 06-16-11 1256. Eddie Powell AL B/W F 06-21-11 1257. Milton Mathis / 2 TX B/WB MM

Death Row U.S.A. Page 32

06-23-11 1258. Roy Blankenship GA W/W F 06-30-11 1259. Richard L. Bible AZ W/W F 07-07-11 1260. Humberto Leal TX L/L F 07-19-11 1261. Thomas West AZ W/W M 07-20-11 1262. Mark Stroman TX W/A M 07-21-11 1263. Andrew DeYoung / 3 GA W/3W MFF 07-29-11 1264. Robert Jackson DE W/W F 08-10-11 1265. Martin Robles / 2 TX L/2L MM 08-18-11 1266. Jerry Terrell Jackson VA B/W F 09-13-11 1267. Steven Woods / 2 TX W/2W MF 09-21-11 1268. Lawrence Brewer TX W/B M 09-21-11 1269. Troy Davis GA B/W M 09-22-11 1270. Derrick Mason AL B/W F 09-28-11 1271. Manuel Valle FL L/L M 10-20-11 1272. Christopher Thomas Johnson [*] AL W/W M 10-27-11 1273. Frank Garcia TX L/L M 11-15-11 1274. Reginald Brooks, Sr. / 3 OH B/3B MMM 11-15-11 1275. Oba Chandler / 3 FL W/3W FFF 11-16-11 1276. Guadalupe Esparza TX L//L F 11-18-11 1277. Paul Ezra Rhoades / 2 ID W/2W FF 01-05-12 1278. Gary Welch OK W/W M 01-26-12 1279. Rodrigo Hernandez TX L/W F 02-08-12 1280. Edwin Hart Turner / 2 MS W/2B MM 02-15-12 1281. Robert Waterhouse FL W/W F 02-29-12 1282. Robert H. Moormann AZ W/W F 02-29-12 1283. George Rivas TX L/W M 03-07-12 1284. Keith Steven Thurmond / 2 TX W/2W MF 03-08-12 1285. Robert C. Towery AZ W/W M 03-15-12 1286. Timothy Stemple OK W/W F 03-20-12 1287. Larry Mathew Puckett MS W/W F 03-22-12 1288. William Mitchell MS B/W F 03-28-12 1289. Jesse Joe Hernandez TX L/L M 04-12-12 1290. David Gore FL W/W F 04-18-12 1291. Mark Wayne Wiles OH W/W M 04-20-12 1292. Shannon Johnson [*] DE B/B M 04-25-12 1293. Thomas Kemp AZ W/L M 04-26-12 1294. Beunka Adams TX B/W M 05-01-12 1295. Michael Selsor OK W/W M 06-05-12 1296. Henry C. Jackson / 4 MS B/4B MMFF 06-12-12 1297. Richard Albert Leavitt ID W/W F 06-12-12 1298. Jan Michael Brawner MS W/4W MFFF 06-20-12 1299. Gary Carl Simmons, Jr. MS W/W M 06-27-12 1300. Samuel V. Lopez AZ L/L F 07-18-12 1301. Yokamon Hearn TX B/W M 08-07-12 1302. Marvin Wilson TX B/B M 08-08-12 1303. Daniel Wayne Cook / 2 AZ W/WL MM 08-14-12 1304. Michael Hooper / 3 OK W/3W MFF 09-20-12 1305. Donald L. Palmer, Jr. / 2 OH W/2W MM 09-20-12 1306. Robert Wayne Harris / 2 TX B/WL FM 09-25-12 1307. Cleve Foster TX W/B F 10-10-12 1308. Jonathan Marcus Green TX B/W F 10-15-12 1309. Eric Donald Robert [*] SD W/W M

Death Row U.S.A. Page 33

10-24-12 1310. Bobby L. Hines TX W/W F 10-30-12 1311. Donald Moeller [*] SD W/W F 10-31-12 1312. Donnie Roberts TX W/W F 11-06-12 1313. Garry Allen OK B/B F 11-08-12 1314. Mario Rashad Swain TX B/W F 11-13-12 1315. Brett Hartman OH W/W F 11-14-12 1316. Ramon Hernandez TX L/L F 11-15-12 1317. Preston Hughes, III / 2 TX B/2B MF 12-04-12 1318. George Ochoa / 2 OK L/2L MF 12-05-12 1319. Richard D. Stokley / 2 AZ W/2W FF 12-11-12 1320. Manuel Pardo, Jr. / 9 FL L/1W8L 6M3F 01-16-13 1321. Charles Robert Flynn [*] / 2 VA W/WB MM (FKA Robert Gleason) 02-21-13 1322. Carl Blue TX B/B F 02-21-13 1323. Andrew Allen Cook / 2 GA W/2W MF 03-06-13 1324. Frederick Treesh OH W/B M 03-12-13 1325. Steven Ray Thacker OK W/W F 04-09-13 1326. Rickey Lynn Lewis TX B/W M 04-10-13 1327. Larry Mann FL W/W F 04-16-13 1328. Ronnie Threadgill TX B/B M 04-25-13 1329. Richard Cobb TX W/(see #1294) (see #1294) 05-01-13 1330. Steven T. Smith OH W/W F 05-07-13 1331. Carroll Parr TX B/L M 05-15-13 1332. Jeffrey D. Williams TX B/W M 05-29-13 1333. Elmer Carroll FL W/W F 06-12-13 1334. Elroy Chester TX B/W M 06-12-13 1335. William Van Poyck FL W/W M 06-18-13 1336. James L. DeRosa / 2 OK W/2W MF 06-25-13 1337. Brian Davis OK B/B F 06-26-13 1338. Kimberly McCarthy [^] TX B/W F 07-16-13 1339. John Quintanilla, Jr. TX L/W M 07-18-13 1340. Vaughn Ross / 2 TX B/2WB MF 07-25-13 1341. Andrew Lackey [*] AL W/W M 07-31-13 1342. Douglas Feldman / 2 TX W/WL MM 08-05-13 1343. John Ferguson / 8 FL B/(see #44) & 2W (see #44) & MF 09-10-13 1344. Anthony Rozelle Banks OK B/A F 09-19-13 1345. Robert Garza / 4 TX L/4L FFFF 09-25-13 1346. Harry Mitts, Jr. OH W/WB MM 09-26-13 1347. Arturo Diaz TX L/W M 10-01-13 1348. Marshall Gore FL W/W F 10-09-13 1349. Edward Schad AZ W/W M 10-09-13 1350. Michael Yowell / 2 TX W/2W MF 10-15-13 1351. William Happ [*] FL W/W F 10-23-13 1352. Robert Jones / 6 AZ W/6W MMMFFF 11-12-13 1353. Darius Kimbrough FL B/W F 11-12-13 1354. Jamie B. McCoskey TX W/W M 11-20-12 1355. Joseph P. Franklin MO W/W M 12-03-13 1356. Jerry Martin [*] TX W/W F 12-10-13 1357. Ronald Lott OK B/2W FF 12-11-13 1358. Allen Nicklasson MO W/(see #1165) (see #1165) 12-17-13 1359. Johnny Black OK W/W M

Death Row U.S.A. Page 34

01-07-14 1360. Askari Muhammad FL B/W M 01-09-14 1361. Michael Wilson OK B/ (see #1140) (see #1140) 01-16-14 1362. Dennis McGuire OH W/W F 01-22-14 1363. Edgar Tamayo TX L/W M 01-24-14 1364. Kenneth Hogan OK W/W F 01-29-14 1365. Herbert Smulls MO B/W M 02-05-14 1366. Suzanne Basso [^] TX W/W M 02-12-14 1367. Juan Chavez FL L/W M 02-26-14 1368. Michael A. Taylor MO B/W F 02-26-14 1369. Paul Howell FL B/W M 03-19-14 1370. Ray Jasper TX B/L M 03-20-14 1371. Robert Henry / 2 FL B/2WB FF 03-26-14 1372. Jeffrey Ferguson MO W/W F 03-27-14 1373. Anthony Doyle TX B/A F 04-03-14 1374. Tommy Lynn Sells TX W/W F 04-09-14 1375. Ramiro Hernandez TX L/W M 04-16-14 1376. Jose Luis Villegas / 3 TX L//3L MFF 04-23-14 1377. William Rousan MO W/W F 04-23-14 1378. Robert Hendrix FL W/2W MF 04-29-14 1379. Clayton Lockett [see note below] OK B/W F 06-17-14 1380. Marcus Wellons GA B/B F 06-18-14 1381. John E. Winfield / 2 MO B/2B FF 06-18-14 1382. John Henry FL B/W F 07-10-14 1383. Eddie Davis FL W/W F 07-16-14 1384. John Middleton MO W/W M 07-23-14 1385. Joseph R. Wood / 2 AZ W/2W MF 08-06-14 1386. Michael Worthington MO W/W F 09-10-14 1387. Earl Ringo, Jr. / 2 MO B/2W MF 09-10-14 1388. Willie T. Trottie / 2 TX B/2B MF 09-17-14 1389. Lisa Coleman [^] TX B/B M 10-28-14 1390. Miguel Paredes / 3 TX L/2L1W MFM 11-13-14 1391. Chadwick Banks FL B/B F 11-19-14 1392. Leon Taylor MO B/W M 12-09-14 1393. Robert Wayne Holsey GA B/W M 12-10-14 1394. Paul Goodwin MO W/W F 01-13-15 1395. Andrew Brannan GA W/W M 01-15-15 1396. Johnny Kormondy FL W/W M 01-15-15 1397. Charles Warner OK B/B F 01-21-15 1398. Arnold Prieto / 3 TX L/W2L FFM 01-27-15 1399. Warren Hill GA B/B M 01-29-15 1400. Robert Charles Ladd TX B/W F 02-04-15 1401. Donald Keith Newbury TX W/W M 02-11-15 1402. Walter Timothy Storey MO W/W F 03-11-15 1403. Manuel Vasquez TX L/L F 03-17-15 1404. Cecil Clayton MO W/W M

Note to 740. Jose High: records were in dispute concerning his age. He may have been 17 years of age at the time of the crime. F Note to 1049. Bobby Wilcher’s request to give up his appeals was granted. He then changed his mind and sought to reinstate his appeals. That request was denied, and he was executed without those appeals being heard. Note to 1379. The circumstances of Clayton Lockett’s death are being litigated. Initial reports suggested he died of a heart attack after lengthy attempts at lethal injection failed.

Death Row U.S.A. Page 35

CODES FOR EXECUTION ROSTER:

B Black N Native American W White A Asian L Latino/a M Male F Female

* Defendants who gave up their appeals (143; 10% of total) [see note to 1049, above] # Juveniles (under age 18 at the time of the offense) (23; 2% of total) [see note to 740, above] ^ Female (15; 1% of total

Summary of State Lists of Prisoners on Death Row

State Total Black White Latino/a Native Asian Unknown American AL 201 106 53% 91 45% 3 1% 0 — 1 .5% 0 — AZ 124 16 13% 75 60% 28 23% 3 2% 2 2% 0 — AR 35 20 57% 15 43% 0 — 0 — 0 — 0 — CA 746 270 36% 254 34% 183 25% 12 2% 27 4% 0 — CO 3 3 100% 0 — 0 — 0 — 0 — 0 — CT 12 6 50% 5 42% 1 8% 0 — 0 — 0 — DE 17 10 59% 4 24% 3 18% 0 — 0 — 0 — FL 401 154 38% 213 53% 31 8% 1 .2% 2 .5% 0 — GA 85 41 48% 41 48% 3 4% 0 — 0 — 0 — ID 11 0 — 11 100% 0 — 0 — 0 — 0 — IN 14 3 21% 11 79% 0 — 0 — 0 — 0 — KS 9 3 33% 6 67% 0 — 0 — 0 — 0 — KY 34 6 18% 28 82% 0 — 0 — 0 — 0 — LA 85 56 66% 25 29% 3 4% 0 — 1 1% 0 — MS 48 25 52% 22 46% 0 — 0 — 1 2% 0 — MO 33 13 39% 20 61% 0 — 0 — 0 — 0 — MT 2 0 — 2 100% 0 — 0 — 0 — 0 — NE 11 2 18% 4 36% 5 45% 0 — 0 — 0 — NV 78 29 37% 39 50% 8 10% 0 — 2 3% 0 — NH 1 1 100% 0 — 0 — 0 — 0 — 0 —

Death Row U.S.A. Page 36

State Total Black White Latino/a Native Asian Unknown American NM 2 0 — 2 100% 0 — 0 — 0 — 0 — NC 157 79 50% 64 41% 5 3% 8 5% 1 .6% 0 — OH 145 77 53% 63 43% 3 2% 0 — 2 1% 0 — OK 48 21 44% 22 46% 2 4% 3 6% 0 — 0 — OR 36 3 8% 28 78% 3 8% 1 3% 0 — 1 3% PA 184 100 54% 65 35% 17 9% 0 — 2 1% 0 — SC 44 23 52% 20 45% 1 2% 0 — 0 — 0 — SD 3 0 — 3 100% 0 — 0 — 0 — 0 — TN 73 33 45% 36 49% 1 1% 1 1% 2 3% 0 — TX 271 113 42% 76 28% 77 28% 0 — 5 2% 0 — UT 9 1 11% 5 56% 2 22% 1 11% 0 — 0 — VA 8 3 38% 4 50% 1 13% 0 — 0 — 0 — WA 9 4 44% 5 56% 0 — 0 — 0 — 0 — WY 1 0 — 1 100% 0 — 0 — 0 — 0 — US Gov. 61 28 46% 24 39% 7 11% 1 2% 1 2% 0 — Military 6 3 50% 3 50% 0 — 0 — 0 — 0 — TOTAL 3007 1252 42% 1287 43% 387 13% 31 1% 49 2% 1 .03%

Note: 5 prisoners were sentenced to death in more than one state. They are included in the chart above for each state in which they were sentenced to death, but the numbers on page 1 were adjusted to reflect the total number of prisoners under sentence of death.

Death Row U.S.A. Page 37

STATE LISTS OF PRISONERS ON DEATH ROW

CODES FOR STATE ROSTERS:

B Black A Asian W White N Native American L Latino/a U Unknown at this issue

^ Female & Sentenced to death in the state where listed, but incarcerated in another state [ ] Reversals: Defendants 1) awaiting a retrial or resentencing following a court reversal; or 2) whose court-ordered reversal is not yet final.

ALABAMA (Lethal Injection or Choice of Electrocution) Total = 201 B = 106 W = 91 L = 3 N = 0 A = 1 U = 0 Females = 3 (B = 1 W = 2)

1. ACKLIN, NICK (B ) 43. DAVIS, JIMMY (B ) 2. ALBARRAN, BENITO (L) 44. DAVIS, MELVIN (B ) 3. ARTHUR, THOMAS (W ) 45. DEARDORFF, DONALD (W ) 4. BAKER, JR., BOBBY (B ) 46. DEBLASE, JOHN (W ) 5. BARBER, JAMES EDWARD (W ) 47. [ DEBRUCE, DERRICK (B ) ] 6. BARBOUR, CHRISTOPHER (W ) 48. DOSTER, OSCAR (W) 7. BARKSDALE, TONY (B ) 49. DOTCH, GARRETT (B ) 8. BECKWORTH, REX ALLEN (W ) 50. [ DUNAWAY, LARRY (B ) ] 9. BELISLE, RICK (W ) 51. EATMON, DIONNE (B ) 10. BENJAMIN, BRANDYN (B ) 52. EGGERS, MICHAEL (W ) 11. BENN, MARCUS (B ) 53. FERGUSON, THOMAS (W ) 12. BILLUPS, KENNETH EUGENE (B ) 54. FLOWERS, RICHARD JEROME (B ) 13. BLACKMON, PATRICIA ^ (B ) 55. FLOWERS, TIMOTHY KEITH (W ) 14. BOHANNON, JERRY (W ) 56. FLOYD, CEDRIC (B ) 15. BORDEN, JEFFREY (W ) 57. FLOYD, CHRISTOPHER (W ) 16. BOYD, ANTHONY (B ) 58. FRAZIER, DEMETRIUS (B ) 17. BOYLE, TIMOTHY (W ) 59. FREEMAN, DAVID (W ) 18. BROADNAX, DONALD (B ) 60. GAVIN, KEITH (B ) 19. BROOKS, CHRISTOPHER (W ) 61. GEORGE, LARRY D. (B ) 20. BROOKS, JIMMY LEE (W ) 62. GILES, ARTHUR (B ) 21. BROWN, ANTHONY (B ) 63. GISSENDANNER, EMANUEL (B ) 22. BROWN, MICHAEL LEE (W ) 64. GOBBLE, TIERRA ^ (W ) 23. BROWN, WAKILII (B ) 65. GRAYSON, CAREY (W ) 24. BROWNFIELD, JAMES (W ) 66. [ HALL, STEVEN W. (W ) ] 25. BRYANT, JERRY DEVANE (B ) 67. HAMM, DOYLE LEE (W ) 26. BURGESS, ALONZO L. (B ) 68. HAMMONDS, ARTEZ (B ) 27. BURGESS, JR., WILLIE R. (B ) 69. HARDY, JOHN (B ) 28. BURTON, CHARLES (B ) 70. HARRIS, WESTLEY DEVONE (B ) 29. BUSH, WILLIAM (B ) 71. HENDERSON, GREGORY LANCE (W ) 30. BYRD, RODERICK (B ) 72. [ HINTON, ANTHONY (B ) ] 31. CALHOUN, JOHN RUSSELL (B ) 73. HODGES, MELVIN GENE (B ) 32. CALLEN, DONTAE (B ) 74. HOOKS, JOSEPH (W ) 33. CARROLL, TAURUS JERMAINE (B ) 75. HORTON, DEREK TYLER (B ) 34. CARRUTH, MICHAEL DAVID (W ) 76. HUNT, GREG (W ) 35. CLARK, GREGORY CHARLES (W ) 77. HYDE, CHRISTOPHER SHANE (W ) 36. CLEMONS, EUGENE (B ) 78. INGRAM, ROBERT S. (B ) 37. COLLINS, SHERMAN (B ) 79. IRVIN, MICHAEL (B ) 38. CREQUE, JORDAAN (B ) 80. JACKSON, SHONELLE (B ) 39. [ CROWE, THOMAS DOYLE (W ) ] 81. JAMES, JOE (B ) 40. DALLAS, DONALD (W ) 82. JENKINS, MARK (L ) 41. DANIEL, RENARD MARCEL (B ) 83. JOHNSON, BART WAYNE (W ) 42. DAVIS, DAVID EUGENE (W ) 84. JOHNSON, JAMES A. (B )

Death Row U.S.A. Page 38

85. JOHNSON, TOFOREST (B ) 144. ROBITAILLIE, WILSON EARL (W ) 86. JONES, ANTONIO (B ) 145. RUSSELL, JOSHUA (B ) 87. JONES, JEREMY (W ) 146. RUSSELL, RYAN GERALD (W ) 88. KELLEY, MICHAEL BRANDON (W ) 147. SALE, MICHAEL (W ) 89. KENNEDY, CARLOS (B ) 148. SAMRA, MICHAEL (W ) 90. KIRKSEY, RONNIE (B ) 149. SAUNDERS, TIMOTHY (W ) 91. KUENZEL, WILLIAM (W ) 150. SCHEUING, JESSE EARL (W ) 92. LANE, ANTHONY (B ) 151. SCOTT, CHRISTIE ^ (W ) 93. [ LANE, THOMAS ROBERT (W ) ] 152. SCOTT, WILLIE EARL (B ) 94. LARGIN, JAMES (W ) 153. SHANKLIN, CLAYTON (B ) 95. LEE, JEFFREY (B ) 154. SHARIFI, MOHAMMAD (W ) 96. LEWIS, MICHAEL JEROME (W ) 155. SHARP, JASON (W ) 97. LEWIS, RANDY (B ) 156. SHAW, AUBREY (W ) 98. LOCKHART, COURTNEY (B ) 157. SMITH, COREY (B ) 99. LUONG, LAM (A ) 158. SMITH, JERRY JEROME (B ) 100. MACK, ALBERT (B ) 159. SMITH, JOSEPH CLIFTON (W ) 101. MADISON, VERNON (B ) 160. SMITH, KENNETH (W ) 102. MAPLES, COREY (W ) 161. [ SMITH, MARQUEZE TARON (B ) ] 103. MARSHALL, AUNDRA (B ) 162. SMITH, NICHOLAS (B ) 104. MARSHALL, WILLIAM BRUCE (W ) 163. SMITH, RONALD B. (W ) 105. MARTIN, BRENT (B ) 164. SMITH, WILLIE B. (B ) 106. [ MARTIN, GEORGE (B ) ] 165. SNEED, ULYSEES (B ) 107. MASHBURN, ELLIS (W ) 166. SOCKWELL, MICHAEL (B ) 108. MAXWELL, MICHAEL (W) 167. SPENCER, KERRY (B ) 109. MCCRAY, HEATH (B ) 168. STALLWORTH, CALVIN (B ) 110. [ MCGAHEE, EARL (B ) ] 169. STANLEY, ANTHONY LEE (W ) 111. MCGOWAN, JAMES (W ) 170. STEWART, RANDY (W ) 112. [ MCKINNIS, KENNETH ADAM (B ) ] 171. TAYLOR, JARROD (B ) 113. MCMILLAN, CALVIN (B ) 172. TAYLOR, MICHAEL S. (W ) 114. MCNABB, TORREY (B ) 173. THOMPSON, DEVIN DARNELL (B ) 115. MCWHORTER, CASEY (W ) (AKA MOORE, DEVIN ) 116. MCWILLIAMS, JAMES (B ) 174. [ TOWLES, KEVIN (B ) ] 117. MELSON, ROBERT (B ) 175. [ TOWNES, TAWUAN (B ) ] 118. MILLER, ALAN EUGENE (W ) 176. TRAVIS, WAYNE (W ) 119. MILLS, JAMIE (W ) 177. TURNER, DARRYL (B ) 120. MINOR, WILLIE (B ) 178. [ TURNER, LAMECO (B ) ] 121. MITCHELL, BRANDON DEON (B ) 179. TYSON, ANTHONY (B ) 122. MOODY, WALTER (W ) 180. VANPELT, KIM (W ) 123. MORRIS, ALFONZO (B ) 181. WALDROP, BOBBY WAYNE (W ) 124. MUSGROVE, DONNIS (W ) 182. WALKER, JAMES EARL (W ) 125. MYERS, ROBIN DION (B ) 183. WARD, JOHN MICHAEL (W ) 126. NEWTON, CRAIG (B ) 184. WASHINGTON, CHARLIE (B ) 127. [ NICKS, HARRY (B ) ] 185. WEST, GEOFFREY TODD (W ) 128. OSGOOD, JAMES (W ) 186. WHATLEY, DONALD (W ) 129. [ PENN, DERRICK SHAWN (B ) ] 187. WHITE, JUSTIN (B ) 130. PERAITA, CUHUATEMOC (L) 188. WHITEHEAD, LARRY (W ) 131. PERKINS, ROY E. (W ) 189. WIGGINS, DAVID (W ) 132. PETRIC, STEVEN (W ) 190. WILLIAMS, MARCUS (B ) 133. PHILLIPS, BOBBY (W ) 191. WILSON, DAVID (W ) 134. PHILLIPS, JESSIE (B ) 192. WILSON, JOEY (W ) 135. PRICE, CHRISTOPHER (W ) 193. WIMBLEY, COREY (B ) 136. RAY, DOMINIQUE (B ) 194. WINDSOR, HARVEY (W ) 137. REEVES, MATTHEW (B ) 195. WOODS, FREDRICK D. (B ) 138. [ REVIS, CHRISTOPHER (W ) ] 196. WOODS, NATHANIEL (B ) 139. REYNOLDS, MICHAEL (W ) 197. WOODWARD, MARIO (B ) 140. RIEBER, JEFFREY (W ) 198. WOOLF, MICHAEL (W ) 141. [ RIGGS, JEFFREY (B ) ] 199. YANCEY, VERNON LAMAR (W ) 142. RILEY, DAVID DEWAYNE (W ) 200. YEOMANS, JAMES DONALD (W ) 143. ROBERTS, DAVID LEE (W ) 201. [ ZEIGLER, WILLIAM (W ) ]

Death Row U.S.A. Page 39

ARIZONA (Lethal Injection, or Choice of Gas Chamber If Sentenced Before 11/92) Total = 124 B = 16 W = 75 L = 28 N = 3 A = 2 U = 0 Females = 2 (W )

1. ANDERSON, FRANK (W ) 63. LEE, CHAD ALLEN (W ) 2. ANDRIANO, WENDI ^ (W ) 64. LEE, DARRELL (W ) 3. APELT, MICHAEL (W ) 65. LEHR, SCOTT (W ) 4. ARMSTRONG, SHAD (W ) 66. LETEVE, ANDRE (W ) 5. ATWOOD, FRANK J. (W ) 67. LOPEZ, GEORGE M. (L ) 6. BEARUP, PATRICK W. (W ) 68. LYNCH, SHAWN PATRICK (W ) 7. BENSON, TRENT CHRISTOPHER (A ) 69. [ MANN, ERIC O. (L ) ] 8. BOGGS, STEVEN (W ) 70. MANUEL, JAHMARI ALI (B ) 9. BOYSTON, ERIC (B ) 71. MARTINEZ, CODY (L ) 10. BURNS, JOHNATHAN IAN (W ) 72. MARTINEZ, ERNESTO SALGADO (L ) 11. BUSH, JASON (L ) 73. MARTINEZ, GILBERT (L ) 12. CARLSON, MICHAEL (W ) 74. MCCRAY, FRANK (W ) 13. CARREON, ALBERT M. (L ) 75. MCGILL, LEROY (W ) 14. CHAPPELL, DEREK D. (W ) 76. MCKINNEY, JAMES (W ) 15. CLABOURNE, SCOTT D. (B ) 77. MEDINA, EFREN (L ) 16. COTA, BENJAMIN (L ) 78. MILES, KEVIN A. (B ) 17. CROMWELL, ROBERT (W ) 79. MILLER, WILLIAM CRAIG (W ) 18. CROPPER, LEROY (W ) 80. MOORE, JULIUS J. (B ) 19. CRUZ, JOHN MONTENEGRO (L ) 81. MORRIS, CORY (B ) 20. DANN, BRIAN J. (W ) 82. [ MURDOUGH, MICHAEL (W ) ] 21. DELAHANTY, DONALD (W ) 83. MURRAY, ROGER W. (W ) 22. DETRICH, DAVID S. (W ) 84. NARANJO, ISRAEL (L ) 23. DIXON, CLARENCE (N ) 85. NELSON, BRAD (W ) 24. DJERF, RICHARD K. (W ) 86. NEWELL, STEVEN RAY (W ) 25. DOERR, EUGENE (W ) 87. NORDSTROM, SCOTT D. (W) 26. ELLISON, CHARLES DAVID (W ) 88. OVANTE, MANUEL (L ) 27. ESCALANTE-OROZCO, JOEL (L ) 89. [ PANDELI, DARRELL PETER (W ) ] 28. FITZGERALD, JOHN (W ) 90. PARKER, STEVEN (A ) 29. FORDE, SHAWNA ^ (W ) 91. PATTERSON, ISIAH (B ) 30. GALLARDO, MICHAEL (L ) 92. PAYNE, CHRISTOPHER (W ) 31. GALLEGOS, MICHAEL S. (L ) 93. POYSON, ROBERT (L) 32. GARCIA, ALFREDO L. (L ) 94. PRINCE, WAYNE BENOIT (W ) 33. GARZA, RUBEN (L ) 95. RAMIREZ, DAVID M. (L ) 34. GOMEZ, FABIO (L ) 96. REEVES, STEPHEN DOUGLAS (W ) 35. GONZALES, ERNEST V. (L ) 97. RIENHARDT, CHARLES B. (W ) 36. GOUDEAU, MARK (B ) 98. ROGOVICH, PETER C. (W ) 37. GREENE, BEAU JOHN (W ) 99. ROSE, EDWARD JAMES (L ) 38. GREENWAY, RICHARD H. (W ) 100. ROSEBERRY, HOMER RAY (W ) 39. GUARINO, VINCENT (W ) 101. RUNNING EAGLE, SEAN (N ) 40. GULBRANDSON, DAVID (W ) 102. SALAZAR, ALFONSO (L ) 41. GUNCHES, AARON B. (W ) 103. SANDERS, DAUNTORIAN (B ) 42. HAMPTON, TRACY ALLEN (W ) 104. SANSING, JOHN (W ) 43. HARDY, RODNEY EUGENE (B ) 105. SCHACKART, RONALD (W ) 44. HARGRAVE, CHRISTOPHER ALLEN (W ) 106. SCHURZ, ELDON M. (N ) 45. HARROD, JAMES C. (W ) 107. SCOTT, ROGER (W ) 46. HEDLUND, CHARLES (W ) 108. SMITH, JOE C. (W ) 47. HENRY, GRAHAM S. (W ) 109. SMITH, ROBERT D. (W ) 48. HERNANDEZ, ROBERT (L ) 110. SMITH, TODD LEE (W )S 49. HIDALGO, ABEL (L ) 111. SPEARS, ANTHONY M. (W ) 50. HOOPER, MURRAY (B ) & 112. SPEER, PAUL B. (W ) 51. HULSEY, BRYAN (W ) 113. SPREITZ, CHRISTOPHER J. (W ) 52. HURLES, RICHARD D. (W ) 114. STYERS, JAMES L. (W ) 53. [ JAMES, STEVEN C. (W ) ] 115. TUCKER, EUGENE (B ) 54. JOHNSON, RUBEN MYRAN (B ) 116. VAN WINKLE, PETE (W ) 55. JONES, BARRY L. (W ) 117. VALENZUELA, JOSE ACUNA (L ) 56. [ JONES, DANNY LEE (W ) ] 118. VELAZQUEZ, JUAN (L ) 57. JOSEPH, RONNIE (B ) 119. [ VILLALOBOS, JOSHUA (L ) ] 58. KAYER, GEORGE RUSSELL (W ) 120. WALDEN, JR., ROBERT L. (W ) 59. [ KETCHNER, DARRELL BRYANT (W ) ] 121. WASHINGTON, THEODORE (B ) 60. KILES, ALVIE C. (B ) 122. WHITE, MICHAEL R. (W ) 61. [ KUHS, RYAN W. (W ) ] 123. WILLIAMS, RONALD T. (W ) & 62. [ LAMBRIGHT, JOE (W ) ] 124. WOMBLE, BRIAN A. (W )

Death Row U.S.A. Page 40

ARKANSAS (Lethal Injection or Choice of Electrocution If Sentenced Before 7/4/83) Total = 35 B = 20 W = 15 L = 0 N = 0 A = 0 U = 0

1. ANDERSON, JUSTIN C. (B ) 19. LEE, LEDELLE (B ) 2. CLARK, ANTONIO (B ) & 20. MARCYNIUK, ZACHARIAH SCOTT (W ) 3. COULTER, ROGER LEWIS (W ) 21. MCGEHEE, JASON (W ) 4. DANSBY, RAY (B ) 22. [ NEWMAN, RICKY (W ) ] 5. DAVIS, DON WILLIAM (W ) 23. NOONER, TERRICK TERRELL (B ) 6. DECAY, GREGORY (B ) 24. RANKIN, RODERICK L. (B ) 7. GAY, RANDY (W ) 25. REAMS, KENNETH (B ) 8. GREENE, JACK GORDON (W ) 26. ROBERTS, KARL (W ) 9. HOLLAND, ROBERT (W ) 27. SALES, DEREK GIBSON (B ) 10. ISOM, KENNETH (B ) 28. SASSER, ANDREW (B ) 11. JACKSON, ALVIN BERNAL (B ) 29. SPRINGS, THOMAS LEO (B ) 12. JOHNSON, LATAVIOUS (B ) 30. THESSING, BILLY (W ) 13. JOHNSON, STACEY E. (B ) 31. THOMAS, MICKEY DAVID (B ) 14. JONES, JR., JACK HAROLD (W ) 32. WARD, BRUCE EARL (W ) 15. JONES, LARRY (B ) 33. WERTZ, STEVEN VICTOR (W ) 16. KEMP, TIMOTHY WAYNE (W ) 34. WILLIAMS, KENNETH (B ) 17. LACY, BRANDON EUGENE (B ) 35. WILLIAMS, MARCEL WAYNE (B ) 18. LARD, JERRY (W )

CALIFORNIA (Lethal Injection) Total = 746 B = 270 W = 254 L = 183 N = 12 A = 27 U = 0 Females = 20 (B = 2 W = 11 L = 5 A = 2)

1. ABBOTT, JOE HENRY (B ) 39. BARBAR, MICHAEL (W ) 2. ABEL, JOHN CLYDE (W ) 40. BARNETT, MAX LEE (W ) 3. ACREMANT, ROBERT JAMES (W ) 41. BARNWELL, LAMAR (B ) 4. ADAMS, MARCUS (B ) 42. BARRERA, MARCO (L ) 5. ADCOX, KEITH (W ) 43. BARRETT, JOSEPH (W ) 6. AGUAYO, JOSEPH MORENO (L ) 44. BATTLE, THOMAS (B ) 7. AGUILAR, JEFFREY (L ) 45. BEAMES, JOHN MICHAEL (W ) 8. AGUIRRE, JASON ALEJANDRO (L ) 46. BECERRA, FRANK KALIL (L ) 9. ALCALA, RODNEY (L ) 47. BECERRADA, RUBEN (L ) 10. ALDANA, ROMAN GABRIEL (L ) 48. BECK, JAMES DAVID (W ) 11. ALEXANDER, ANDRE STEPHEN (B ) 49. BEELER, RODNEY GENE (W ) 12. [ ALFARO, MARIA DEL ROSIO ^ (L ) ] 50. BELL, CIMARRON BERNARD (B ) 13. [ ALLEN, MICHAEL (B ) ] 51. BELL, MICHAEL LEON (B ) 14. ALVAREZ, ALBERTO (L ) 52. BELL, RONALD LEE (B ) 15. ALVAREZ, FRANCISCO JAY (L ) 53. BELL, STEVEN M. (B ) 16. ALVAREZ, MANUEL MACHADO (L ) 54. BELMONTES, FERNANDO (L ) 17. AMEZCUA, OSWALDO (L ) 55. BELTRAN, FRANCISCO (L ) 18. ANDERSON, ERIC STEVE (W ) 56. BELTRAN, JULIAN ARTURO (L ) 19. ANDERSON, JAMES (B ) 57. BEMORE, TERRY DOUGLAS (B ) 20. [ ANDREWS, JESSE JAMES (B ) ] 58. BENAVIDES,VICENTE FIGUEROA (L ) 21. ARGUETA, CARLOS (L ) 59. BENNETT, ERIC WAYNE (W ) 22. ARIAS, LORENZO INEZ (L ) 60. BENSON, RICHARD ALLEN (W ) 23. ARIAS, PEDRO (L ) 61. BERNOUDY, KEVIN (B ) 24. ARMSTRONG, CRAIGEN (B ) 62. BERRYMAN, RODNEY (B ) 25. ARMSTRONG, JAMELLE (B ) 63. BERTSCH, JOHN (W ) 26. ASHMUS, TROY ADAM (W ) 64. BITTAKER, LAWRENCE (W ) 27. AVALOS, EMILIO MANUEL (L ) 65. BIVERT, KENNETH RAY (W ) 28. AVENA, CARLOS (L ) 66. BLACKSHER, ERVEN RAY (B ) 29. AVILA, ALEJANDRO (L ) 67. BLAIR, JAMES NELSON (B ) 30. AVILA, JR., JOHNNY (L ) 68. BLOOM, JR., ROBERT M. (W ) 31. AVILA, JOSEPH (L ) 69. BOLDEN, CLIFFORD STANLEY (B ) 32. [ AYALA, HECTOR JUAN (L ) ] 70. BOLIN, PAUL CLARENCE (W ) 33. AYALA, RONALDO MEDRANO (L ) 71. BONILLA, STEVEN WAYNE (W ) 34. BACON, ROBERT ALLEN (W ) 72. BOOKER, RICHARD (B ) 35. BAKER, PAUL WESLEY (W ) 73. BOX, CHRISTOPHER CLARK (B ) 36. BALCOM, JASON MICHAEL (B ) 74. BOYCE, KEVIN DEWAYN (B ) 37. BANKS, KELVYN (B ) 75. BOYER, RICHARD DELMER (W ) 38. BANKSTON, ANTHONY GEORGE (B ) 76. BOYETTE, MAURICE D. (B )

Death Row U.S.A. Page 41

77. BRACAMONTES, MANUEL (L ) 144. COLBERT, TECUMSEH NEHEMAIAH (B ) 78. [ BRADFORD, MARK ALAN (W ) ] 145. COLE, STEPHEN (W ) 79. BRADY, ROGER HOAN (W ) 146. COLLINS, SCOTT FORREST (W ) 80. BRAMIT, MICHAEL LAMAR (B ) 147. COMBS, MICHAEL STEVEN (W ) 81. BRANNER, WILLIE (B ) 148. CONTRERAS, CARLOS (L ) 82. BRASURE, SPENCER R. (W ) 149. CONTRERAS, GEORGE LOPEZ (L ) 83. BREAUX, DAVID ANTHONY (W ) 150. COOK, JOSEPH LLOYD (W ) 84. BRIM, RONALD EARL (B ) 151. COOK, MICHAEL (B ) 85. BROOKS, DONALD LEWIS (W ) 152. COOPER, KEVIN (B ) 86. BROTHERS, VINCENT EDWARD (B ) 153. CORDOVA, JOSEPH SEFERINO (L ) 87. BROWN, JR., ALBERT G. (B ) 154. CORNWELL, GLEN (B ) 88. BROWN, ANDREW LAMONT (B ) 155. COVARRUBIAS, DANIEL S. (L ) 89. BROWN, JOHN G. (W ) 156. COWAN, ROBERT WESLEY (W ) 90. BROWN, LATECE MEGALE (B ) 157. COX, MICHAEL A. (W ) 91. BROWN, SHERHAUN KEROD (B ) 158. COX, TIEQUON ANDREW (B ) 92. BROWN, STEVEN (W) 159. CRAWFORD, CHARLES EDWARD (B ) 93. BRYANT, STANLEY (B ) 160. CREW, MARK C. (W ) 94. BUENROSTRO, DORA ^ (L ) 161. [ CRITTENDEN, STEVEN E. (B ) ] 95. BUETTNER, JEFFREE J. (W ) 162. CRUZ, GERALD DEAN (L ) 96. BUNYARD, JERRY (W ) 163. CRUZ, TOMAS VERANO (L ) 97. BURGENER, MICHAEL RAY (W ) 164. [ CUDJO, ARMENIA LEVI (B ) ] 98. BURNEY, SHAUN KAREEM (B ) 165. CUMMINGS, RAYNARD PAUL (B) 99. BURRIS, NATHAN (B ) 166. CUNNINGHAM, ALBERT (B ) 100. [ BURTON, ANDRE (B ) ] 167. CUNNINGHAM, JOHN (W ) 101. BUTLER, RAYMOND OSCAR (L ) 168. CURL, ROBERT ZANE (W ) 102. CABALLERO, ROBERT LOUIS (L ) 169. D'ARCY, JONATHAN DANIEL (W ) 103. CAIN, ANTHONY DEONDREA (B ) 170. DALTON, KERRY LYN ^ (W ) 104. CAIN, TRACY DEARL (B ) 171. DANIELS, DAVID SCOTT (B ) 105. CAGE, MICKEY (B ) 172. DANIELS, JACKSON C. (B ) 106. CAMACHO, ADRIAN GEORGE (L ) 173. DANKS, JOSEPH (W ) 107. CANALES, OSMAN (L ) 174. DAVEGGIO, JAMES (W ) 108. CAPERS, LEE SAMUEL (L ) 175. DAVENPORT, JOHN GALEN (W ) 109. CAPISTRANO, JOHN LEO (L ) 176. DAVIS, RICHARD ALLEN (N ) 110. CARASI, PAUL JOE (L ) 177. DAVIS, STANLEY BERNARD (B ) 111. CARDENAS, REFUGIO RUBEN (L ) 178. DE HOYOS, RICHARD (L ) 112. CAREY, DEWAYNE MICHAEL (B ) 179. DEBOSE, DONALD RAY (B ) 113. [ CARO, FERNANDO (N ) ] 180. DEEN, OMAR R. (W ) 114. CARO, SOCORRO ^ (L ) 181. DEERE, RONALD (N ) 115. CARPENTER, DAVID JOSEPH (W ) 182. DELEON, SKYLAR JULIUS (W ) 116. CARRASCO, ROBERT (L ) 183. DELGADO, ANTHONY GILBERT (L ) 117. [ CARRERA, CONSTANTINO (L ) 184. DEMENT, RONNIE D. (W ) 118. CARRINGTON, CELESTE ^ (B ) 185. DEMETRULIAS, GREGORY (W )\ 119. CARTER, DEAN PHILLIP (N ) 186. DEMOLLE, ALEX (B ) 120. CARTER, TRACEY LAVELLE (B ) 187. DENNIS, CALVIN JERMAINE (B ) 121. CASARES, JOSE LUPERSO (L ) 188. DENNIS, WILLIAM MICHAEL (W ) 122. CASE, CHARLES EDWARD (W ) 189. DENT, ANTHONY (B ) 123. CASTANEDA, GABRIEL (L ) 190. DEPRIEST, TIM LEE (W ) 124. CASTRO, ROBERT GONZALES (L ) 191. DICKEY, COLIN (W ) 125. CATLIN, STEVEN DAVID (W ) 192. DIXON, JAMES WINSLOW (B ) 126. CERVANTES, DANIEL (L ) 193. DONALDSON, JASARI (B ) 127. CHAMPION, STEVEN (B ) 194. DOOLIN, KEITH ZON (W ) 128. CHARLES, III, EDWARD (W ) 195. DREWS, MARTIN D. (W ) 129. CHATMAN, ERIK SANFORD (B ) 196. DUENAS, ENRIQUE PARRA (L ) 130. CHAVEZ, JUAN JOSE (L ) 197. DUFF, DEWEY JOE (W ) 131. CHEATHAM, STEVEN DEWAYNE (B ) 198. DUNKLE, JOHN SCOTT (W ) 132. CHHOUN, RUN PETER (W ) 199. DUNLAP, DEAN ERIC (W ) 133. CHISM, CALVIN DION (B ) 200. DUNN, AARON NORMAN (W ) 134. CHOYCE, WILLIAM JENNINGS (B ) 201. DUONG, ANH THE (A ) 135. CISNEROS, LEONARDO ALBERTO (L ) 202. DWORAK, DOUGLAS EDWARD (W ) 136. [ CLAIR, KENNETH (B ) ] 203. DYKES, ERNEST E. (B ) 137. CLARK, DOUGLAS (W ) 204. EARP, RICKY LEE (W )\ 138. CLARK, RICHARD DEAN (W ) 205. EDWARDS, ROBERT MARK (W ) 139. CLARK, ROYAL (B ) 206. ELLIOTT, MARCHAND (B ) 140. CLARK, WILLIAM CLINTON (B ) 207. ENRACA, SONNY (A ) 141. CLEVELAND, DELLANO LEROY (B ) 208. ERSKINE, SCOTT (W ) 142. CODDINGTON, HERBERT J. (W ) 209. ERVIN, CURTIS LEE (B ) 143. COFFMAN, CYNTHIA LYNN ^ (W ) 210. ERVINE, DENNIS NEWTON (W )

Death Row U.S.A. Page 42

211. ESPARZA, ANGEL ANTHONY (L ) 278. HARDY, WARREN (B ) 212. ESPINOZA, ANTONIO (L ) 279. HARRIS, KAI (B ) 213. ESPINOZA, JOHNNY (L ) 280. HARRIS, LANELL CRAIG (B ) 214. ESPINOZA, PEDRO (L ) 281. HARRIS, MAURICE LYDELL (B ) 215. EUBANKS, SUSAN ^ (W ) 282. HARRIS, WILLIE LEO (B ) 216. EVANS, CHRISTOPHER (B ) 283. HART, JOSEPH (W ) 217. EVANS, STEVEN CARL (W ) 284. HARTS, TYRONE L. (B ) 218. FAIRBANK, JR., ROBERT G. (W) 285. HARTSCH, CISCO (L ) 219. FAJARDO, JONATHAN (L ) 286. HAWKINS, JEFFREY (W ) 220. FAMALARO, JOHN JOSEPH (W ) 287. HAWTHORNE, ANDERSON (B ) 221. FARLEY, RICHARD WADE (W ) 288. HAWTHORNE, CARLOS A. (B ) 222. FARNAM, JACK GUS (W ) 289. HAYES, ROYAL (W ) 223. FAUBER, CURTIS LYNN (W ) 290. HAZLETT, JR., LARRY (B ) 224. FAYED, JAMES MICHAEL (W ) 291. HEARD, JAMES (B ) 225. FIELDS, STEVIE LAMAR (B ) 292. HEISHMAN, HARVEY (W ) 226. FIERROS, EUSEBIO (L ) 293. HELZER, GLEN (W ) 227. FLETCHER, MARCUS (B ) 294. HENDERSON, PAUL NATHAN (B ) 228. FLINNER, MICHAEL (W ) 295. HENRIQUEZ, CHRISTOPHER (B ) 229. FLORES, III, ALFRED (L ) 296. [ HENSLEY, PAUL LOYDE (W ) ] 230. FLORES, JOSEPH (L ) 297. [ HERNANDEZ, FRANCIS (L ) ] 231. FLORES, RALPH STEVEN (L ) 298. HERNANDEZ, GEORGE ANTHONY (L ) 232. FORD, WAYNE ADAM (W ) 299. HILL, IVAN JEROME (B ) 233. FORTE, MELVIN EARL (B ) 300. HILL, MICHAEL (B ) 234. FOSTER, RICHARD DON (W ) 301. HILLHOUSE, DANNIE RAY (N ) 235. FOWLER, RICKIE LEE (W ) 302. HIN, MAO (A ) 236. FRAZIER, ROBERT WARD (W ) 303. HINES, GARY (W ) 237. FRAZIER, TRAVIS (W ) 304. HINTON, ERIC L. (B ) 238. FREDERICKSON, DANIEL (W ) 305. HIRSCHFIELD, RICHARD JOSEPH (W ) 239. FRIEND, JACK WAYNE (W ) 306. HOLLOWAY, DUANE (B ) 240. FRYE, JERRY GRANT (W ) 307. HOLMES, KARL (B ) 241. FUDGE, KEITH TYRONE (B ) 308. HOLT, JOHN LEE (B ) 242. FUIAVA, FREDDIE (A ) 309. HORNING, DANNY RAY (W ) 243. FULLER, ROBERT DALE (W ) 310. HOUSTON, ERIC (W ) 244. GALVAN, ROBERT (L ) 311. HOVARTER, JACKIE R. (W ) 245. GAMACHE, RICHARD (W ) 312. HOWARD, ALPHONSO (B ) 246. GARCIA, RANDY E. (W ) 313. HOWARD, DEMETRIUS (B ) 247. GATES, OSCAR (B ) 314. HOYOS, JAIME ARMANDO (L ) 248. GARTON, TODD JESSE (W ) 315. HOYT, RYAN JAMES (W ) 249. [ GAY, KENNETH EARL (B ) ] 316. HRONIS, JEFFREY LEE (W ) 250. GEIER, CHRISTOPHER A. (W ) 317. HUGGINS, MICHAEL J. (B ) 251. GEORGE, JOHNATON S. (B ) 318. HUGHES, KRISTIN W. (W ) 252. [ GHENT, DAVID (W ) ] 319. HUGHES, MERVIN (B ) 253. GHOBRIAL, JOHN (W ) 320. HUGHES, MICHAEL (B ) 254. GIVENS, TODD (W ) 321. INGRAM, REYON TWAIN (B ) 255. GOMEZ, REUBEN PEREZ (L ) 322. JABLONSKI, PHILLIP CARL (W ) 256. GONZALES, IVAN (L ) 323. JACKSON, BAILEY (B ) 257. GONZALES, JOHN ANTHONY (L ) 324. JACKSON, EARL LLOYD (B ) 258. GONZALES, VERONICA ^ (L ) 325. JACKSON, JONATHON KEITH (B ) 259. GONZALEZ, FRANK CHRISTOPHER (L ) 326. JACKSON, MICHAEL A. (B ) 260. GONZALEZ, JESSE (L ) 327. JACKSON, NOEL (B ) 261. GORDON, PATRICK BRUCE (W ) 328. JASSO, CHRISTOPHER GUY (L ) 262. GOVIN, PRAVIN (A ) 329. JENKINS, DANIEL (B ) 263. GOVIN, VIRENDA (A ) 330. JENNINGS, GLENN WADE (B ) 264. GRAHAM, JAWAUN DEION (B ) 331. JENNINGS, MARTIN CARL (W ) 265. GREEN, ELLIS EARL (B ) 332. JOHN, EMRYS JUSTIN (B ) 266. GRIFFIN, DONALD (W ) 333. JOHNSEN, BRIAN (W ) 267. GRIMES, GARY LEE (W ) 334. JOHNSON, BILLY JOE (W ) 268. GUERRA, JOSE F. (L ) 335. JOHNSON, CEDRIC JEROME (B ) 269. GUERRERO, JOSE (L ) 336. [ JOHNSON, CLEAMON (B ) ] 270. GUTIERREZ, ALFRED ANTHONY (L ) 337. JOHNSON, JERROLD (W ) 271. HAJEK, STEPHEN (W ) 338. JOHNSON, JOE (B ) 272. HALEY, KEVIN (B ) 339. JOHNSON, LAVERNE (B ) 273. HALVORSEN, ARTHUR HANS (W ) 340. JOHNSON, LUMOND (B ) 274. HAMILTON, ALEXANDER RASHAD (B ) 341. JOHNSON, MICHAEL RAYMOND (W) 275. HAMILTON, BERNARD (B ) 342. JOHNSON, MILA (A ) 276. [ HAMILTON, MICHAEL (W ) ] 343. JOHNSON, WILLIE D. (B ) 277. HANN, JASON MICHAEL (W ) 344. JONES, ALBERT (B )

Death Row U.S.A. Page 43

345. JONES, BRYAN M. (B ) 412. MANIBUSAN, JOSEPH KEKO (A ) 346. [ JONES, ERNEST D. (B ) ] 413. MANRIQUEZ, ABELINO (L ) 347. JONES, GLEN JOSEPH (W ) 414. MANZO, JESSE (L ) 348. JONES, JEFFREY (B ) 415. MARENTES, DESI ANGEL (L ) 349. JONES, KIONGOZI (B ) 416. MARKS, DELANEY GERAL (B ) 350. JONES, MICHAEL (B ) 417. MARLOW, JAMES (W ) 351. JONES, RONALD (B ) 418. MARTIN, VALERIE DEE ^ (W ) 352. JONES, STEVEN ANTHONY (B ) 419. MARTINEZ, ALBERTO (L ) 353. JONES, JR., WILLIAM ALFRED (W ) 420. MARTINEZ, CARLOS (L ) 354. JURADO, JR., ROBERT (L ) 421. MARTINEZ, MICHAEL M. (L ) 355. KELLEY, JIMMY DALE (W ) 422. MARTINEZ, OMAR FUENTES (L ) 356. KELLY, DOUGLAS OLIVER (B ) 423. MARTINEZ, JR., SANTIAGO (L ) 357. KELLY, HORACE (B ) 424. MARTINEZ, JR., TOMMY JESSE (L ) 358. KEMP, DARRYL THOMAS (W ) 425. MASTERS, JARVIS (B ) 359. KENNEDY, JERRY (W ) 426. MATAELE, TUPOUTOE (A ) 360. KENNEDY, JOHN FITZGERALD (B ) 427. MAURY, ROBERT (W ) 361. KIMBLE, ERIC B. (B ) 428. MAYFIELD, DENNIS (B ) 362. KING, COREY LYNN (B ) 429. MCCLAIN, HERBERT (B ) 363. KIPP, MARTIN (N ) 430. MCCURDY, GENE ESTEL (W ) 364. KIRKPATRICK, JR., WILLIAM (B ) 431. MCDANIEL, DONTE LAMONT (B ) 365. KLING, RANDOLPH CLIFTON (W ) 432. MCDERMOTT, MAUREEN ^ (W ) 366. KOPATZ, KIM RAYMOND (W ) 433. MCDOWELL, CHARLES (W ) 367. KRAFT, RANDY (W ) 434. MCGHEE, TIMOTHY JOSEPH (L ) 368. KREBS, REX ALLEN (W ) 435. MCKINNON, CRANDEL (B ) 369. LAMB, MICHAEL (W ) 436. MCKINZIE, KENNETH (B ) 370. LANCASTER, ALEXANDER D. (B ) 437. MCKNIGHT, ANTHONY (B ) 371. LANDRY, DANIEL GARY (W ) 438. MCPETERS, RONALD (B ) 372. LANG, JR., KENNETH BURTON (N ) 439. MCWHORTER, RICHARD (W ) 373. LEDESMA, FERMIN (L ) 440. MEJORADO, JOSE SERGIO (L ) 374. LEE, PHILLIAN EUGENE (B ) 441. MELENDEZ, ANGELO M. (B ) 375. LENART, THOMAS H. (W ) 442. MEMRO, HAROLD RAY (W ) 376. LEON, JOSE LUIS (L ) 443. MENDEZ, JULIAN (L ) 377. LEON, RICHARD (N ) 444. MENDOZA, ANGEL (L ) 378. LEONARD, ERIC ROYCE (W ) 445. MENDOZA, HUBER JOEL (L ) 379. LETNER, RICHARD (W ) 446. MENDOZA, LUIS ALONZO (L ) 380. LEWIS, ALBERT (B ) 447. MENDOZA, MANUEL (L ) 381. LEWIS, JOHN IRVING (B ) 448. MENDOZA, MARTIN (L ) 382. LEWIS, KEITH ALLEN (B ) 449. MENDOZA, RONALD (L ) 383. LEWIS, MICHAEL BERNARD (B ) 450. MERRIMAN, JUSTIN (W ) 384. LEWIS, MILTON OTIS (B ) 451. MICHAELS, KURT (W ) 385. LEWIS, RAYMOND ANTHONY (B ) 452. MICHAUD, MICHELLE LYN ^ (W ) 386. LEWIS, JR., ROBERT (B ) 453. MICKEL, ANDREW (W ) 387. LEWIS, TRAVIS JEREMY (B ) 454. MICKEY, DOUGLAS (W ) 388. LIGHTSEY, CHRISTOPHER (W ) 455. MICKLE, DENNY (B ) 389. LINDBERG, GUNNER JAY (W ) 456. MILES, JOHNNY DUANE (B ) 390. LINTON, DANIEL ANDREW (W ) 457. MILLER, TYRONE (B ) 391. LIVADITIS, STEVEN (W ) 458. MILLS, DAVID (B ) 392. LIVINGSTON, DAVID (W ) 459. MILLS, JEFFREY JON (W ) 393. LIVINGSTON, WAYMON (B ) 460. MILLSAP, BRUCE (B ) 394. LOKER, KEITH (W ) 461. MILLWEE, DONALD (W ) 395. LOMAX, DARREL LEE (B ) 462. [ MINCEY, BRYAN (W ) ] 396. LOOT, KENDRICK (B ) 463. MIRACLE, JOSHUA MARTIN (W ) 397. LOPEZ, JR., BOBBY (L ) 464. MIRANDA-GUERRERO, VICTOR (L ) 398. LOPEZ, JUAN MANUEL (L ) 465. MITCHAM, STEPHAN LOUIS (B ) 399. LOPEZ, MICHAEL A. (L ) 466. MITCHELL, JR., LOUIS (B ) 400. LOY, ELOY (L ) 467. MOLANO, CARL EDWARD (L ) 401. LUCAS, DAVID A. (W ) 468. MONTERROSO, CHRISTIAN (L ) 402. LUCERO, PHILIP (L ) 469. MONTES, JOSEPH MANUEL (L ) 403. LUCKY, O. DARNELL (B ) 470. MONTIEL, RICHARD (L ) 404. LUTHER, JOHNATHAN ROSS (L ) 471. MOON, RICHARD (W ) 405. LYNCH, FRANKLIN (B ) 472. MOORE, JR., CHARLES EDWARD (B ) 406. MACIAS, ARMANDO (L ) 473. MOORE, RONALD (W ) 407. MACIEL, LUIS ROBERT (L ) 474. MOORE, RYAN T. (B ) 408. MADISON, RICKY RENE (B ) 475. MORA, JOSEPH ADAM (L ) 409. MAGALLON, MIGUEL ANGEL (L ) 476. MORALES, ALFONSO IGNACIO (L ) 410. MAI, HUNG THAHN (A ) 477. MORALES, JOHNNY (L ) 411. MAJORS, JAMES (W ) 478. MORALES, MICHAEL (L )

Death Row U.S.A. Page 44

479. MORELOS, VALDAMIR F. (L ) 546. RANGEL, JR., PEDRO (L ) 480. MORGAN, EDWARD PATRICK (W ) 547. RANGEL, RUBEN (L ) 481. MORRISON, ALLEN JESSE (B ) 548. RAY, JR., CLARENCE (W ) & 482. MOSLEY, BARRY (B ) 549. REDD, STEPHEN MORELAND (W ) 483. MUNGIA, JOHN (L ) 550. REED, DAVID JOHN (W ) 484. MURTAZA, IFTEKHAR (A ) 551. REED, ENNIS (B ) 485. MYLES, JOHN (B ) 552. REILLY, MARK (W ) 486. NADEY, JR., GILES ALBERT (W ) 553. RHOADES, ROBERT (W ) 487. NAKAHARA, EVAN TEEK (A ) 554. RICES, JEAN PIERRE (B ) 488. NASO, JOSEPH (W ) 555. RICHARDSON, JASON RUSSELL (W ) 489. NAVARETTE, MARTIN (L ) 556. RIEL, CHARLES D. (W ) 490. NAVARRO, ANTHONY (L ) 557. RIGGS, BILLY RAY (B ) 491. NELSON, BERNARD ALBERT (B ) 558. RIVERA, CUITLAHUAC (L ) 492. NELSON, SERGIO D. (L ) 559. RIVERA, SAMUEL RAMON (L ) 493. NELSON, TANYA JAIME ^ (A ) 560. ROBBINS, MALCOLM JOSEPH (W ) 494. NEWBORN, LORENZO (B ) 561. ROBERTS, LARRY (B ) 495. NG, CHARLES CHITAT (A ) 562. ROBINSON, JR., JAMES (B ) 496. NGUYEN, LAM THANH (A ) 563. RODRIGUEZ, ANGELINA ^ (L ) 497. NIEVES, SANDI DAWN ^ (W ) 564. RODRIGUEZ, ANTONIO (L ) 498. NISSENSOHN, JOSEPH MICHAEL (W ) 565. RODRIGUEZ, JERRY (L ) 499. NOGUERA, WILLIAM (L ) 566. ROGERS, DAVID (W ) 500. NOWLIN, KENNETH LEE (W ) 567. ROGERS, GLEN (W ) & 501. NUNEZ, DANIEL (L ) 568. ROGERS, RAMON JAY (L ) 502. O'MALLEY, JAMES (W ) 569. ROLDAN, RICARDO (L ) 503. OCHOA, ROBERT LESTER (L ) 570. ROMERO, GERARDO (L ) 504. OCHOA, SERGIO (L ) 571. ROMERO, ORLANDO (L ) 505. ODLE, JAMES (W ) 572. RONQUILLO, GABRIEL ALEXANDER (L ) 506. OLIVER, ANTHONY (B ) 573. ROSS, CRAIG ANTHONY (B ) 507. OROZCO, JOSE LUIS (L ) 574. ROTTIERS, BROOKE MARIE ^ (W ) 508. OSBAND, LANCE (B ) 575. ROUNTREE, CHARLES (W ) 509. OYLER, RAYMOND LEE (W ) 576. ROWLAND, GUY (W ) 510. PAN, SAMRETH SAM (A ) 577. ROYBAL, RUDOLPH J. (L ) 511. PANAH, HOOMAN A. (A ) 578. RUBIO, GILBERT RAUL (L ) 512. PANIAGUA, RODRIGO ORTIZ (L ) 579. RUIZ, RUDY ANTHONY (L ) 513. PARKER, CALVIN LAMONT (B ) 580. RUNDLE, DAVID (W ) 514. PARKER, GERALD (B ) 581. SALAZAR, MAGDALENO (L ) 515. PAYTON, WILLIAM CHARLES (W ) 582. SALCIDO, RAMON (L ) 516. PEARSON, KEVIN (B ) 583. SAMAYOA, RICHARD (L ) 517. PEARSON, MICHAEL (B ) 584. SAMUELS, MARY ELLEN ^ (W ) 518. [ PENSINGER, BRETT PATRICK (W) ] 585. SAN NICOLAS, RODNEY (A ) 519. PENUELAS, JESUS GUADALUPE (L ) 586. SANCHEZ, JUAN (L ) 520. PENUNURI, RICHARD (L ) 587. SANCHEZ, TEDDY (W ) 521. PEOPLES, LOUIS JAMES (W ) 588. SANCHEZ, VINCENT HENRY (L ) 522. PEREZ, CHRISTIAN (L ) 589. SANCHEZ-FUENTES EDGARDO (L ) 523. PEREZ, JOHN MICHAEL (L) 590. SANDERS, RICARDO RENE (B ) 524. PEREZ, JOSEPH ANDREW (L ) 591. SANDERS, RONALD LEE (W ) 525. PERRY, CLIFTON (B ) 592. SANDOVAL, JR., RAMON (L ) 526. PETERSON, SCOTT (W ) 593. SAPP, JOHN (W ) 527. PINEDA, SANTIAGO (L ) 594. SARINANA, RAUL RICARDO (L ) 528. PINHOLSTER, SCOTT (W ) 595. SARINANA, CATHY LYNN ^ (W ) 529. PLATA, NOEL JESSE (L ) 596. SATELE, WILLIAM (A ) 530. POLLOCK, MILTON (W ) 597. SATTIEWHITE, CHRISTOPHER (B ) 531. POORE, CHRISTOPHER ERIC (W ) 598. SCHMECK, MARK L. (W ) 532. POPS, ASWAD (B ) 599. SCOTT, III, DAVID LYNN (B ) 533. POTTS, TOMAS JAMES (B ) 600. SCOTT, JAMES (B ) 534. POWELL, CARL (B ) 601. SCOTT, ROYCE LYNN (B ) 535. POWELL, TROY LINCOLN (W ) 602. SCHULTZ, MICHAEL JOSEPH (W ) 536. POYNTON, RICHARD JAMES (W ) 603. SCULLY, ROBERT WALTER (W ) 537. PRICE, CURTIS (W ) 604. SEATON, RONALD H. (B ) 538. PRIETO, ALFREDO (L ) & 605. SELF, CHRISTOPHER (L ) 539. PRINCE, JR., CLEOPHUS (B ) 606. SERNA, HERMINIO (L ) 540. PROCTOR, WILLIAM ARNOLD (W ) 607. SEUMANU, ROPATI (A ) 541. RALEY, DAVID (W ) 608. SHELDON, JEFFREY (W ) 542. RAMIREZ, IRVING ALEXANDER (L ) 609. SHERMANTINE, JR., WESLEY (W ) 543. RAMIREZ, JUAN VILLA (L ) 610. SHORTS, DONALD (B ) 544. RAMIREZ, RICHARD (L ) 611. SHOVE, III, THEODORE CHURCHILL (W ) 545. RAMOS, JR., WILLIAM JAMES (W ) 612. SILVA, MAURICIO (L )

Death Row U.S.A. Page 45

613. SILVERIA, DANIEL TODD (W ) 680. VALLES, PEDRO CORTEZ (L ) 614. SIMON, RICHARD NATHAN (B ) 681. VANG, RONNIE (A ) 615. SIMS, MITCHELL (W ) & 682. VARGAS, EDUARDO DAVID (L ) 616. SIVONGXXAY, VAENE (A ) 683. VARNER, SCOTT PAUL (B ) 617. SLAUGHTER, MICHAEL (B ) 684. VEASLEY, CHAUNCEY (B ) 618. SMITH, CHARLES (B ) 685. VERDUGO, NATHAN (L ) 619. SMITH, JR., DONALD (B ) 686. VICTORIANNE, JAVIER WILLIAM (B ) 620. SMITH, FLOYD (B ) 687. VIEIRA, RICHARD (W ) 621. SMITH, GREGORY CALVIN (B ) 688. VILLA, RICARDO (L ) 622. SMITH, GREGORY SCOTT (W ) 689. VINES, SEAN VENYETTE (B ) 623. SMITH, PAUL GORDON (W ) 690. VIRGIL, LESTER (B ) 624. SMITH, JR., ROBERT LEE (B ) 691. VISCIOTTI, JOHN (W ) 625. SNOW, PRENTICE (B ) 692. VO, LOI TAN (A ) 626. SNYDER, JANEEN MARIE ^ (W ) 693. VOLARVICH, BRENDT ANTHONY (W ) 627. SOLIZ, MICHAEL (L ) 694. WADE, ANTHONY DARNELL (B ) 628. SOLOMON, JR., MORRIS (B ) 695. WAIDLA, TAUNO (W ) 629. SOUZA, MATTHEW ARIC (N ) 696. WALDON, BILLY (N ) 630. SPENCER, CHRISTOPHER (W) 697. WALKER, MARVIN (B ) 631. [ STANKEWITZ, DOUGLAS (N ) ] 698. WALL, RANDALL CLARK (W ) 632. STANLEY, DARREN (B ) 699. WALLACE, KEONE (B ) 633. STANLEY, GERALD (W ) 700. WALTERS, MICHAEL J. (L ) 634. STATEN, DEONDRE (B ) 701. WARD, CARMEN (B ) 635. STAYNER, CARY ANTHONY (W ) 702. WATKINS, RAUL SODOA (B ) 636. STEELE, RAYMOND (W ) 703. WATSON, PAUL (B ) 637. STESKAL, MAURICE (W ) 704. WATTA, BENJAMIN WAYNE (L ) 638. STEVENS, CHARLES (N ) 705. [ WEATHERTON, FRED (B ) ] 639. STITELY, RICHARD (W ) 706. WEAVER, LATWON REGENIAL (B ) 640. STREETER, HOWARD LARCELL (B ) 707. WEAVER, WARD FRANCIS (W ) 641. SUAREZ, ARTURO JUAREZ (L ) 708. WEBB, DENNIS (W ) 642. SUFF, WILLIAM L. (W ) 709. WELCH, DAVID E. (B ) 643. SULLY, ANTHONY J. (W ) 710. WESSON, MARCUS DELON (B ) 644. SYKES, KESAUN KEDRON (B ) 711. WEST, ERRAN LANE (B ) 645. TAFOYA, IGNACIO A (L ) 712. WESTERFIELD, DAVID ALAN (W ) 646. TATE, GREGORY (B ) 713. WHALEN, DANIEL LEE (W ) 647. TAYLOR, BRANDON ARNAE (B ) 714. WHARTON, GEORGE (B ) 648. TAYLOR, FREDDIE L. (B ) 715. WHEELER, LEROY (B ) 649. TAYLOR, KEITH DESMOND (B ) 716. WHISENHUNT, MICHAEL M. (W ) 650. TAYLOR, ROBERT (B ) 717. WHITESIDE, GREGORY C. (B ) 651. THOMAS, ALEX DALE (B ) 718. WILLIAMS, BARRY (B ) 652. THOMAS, CORRELL LAMONT (B ) 719. WILLIAMS, JR., BOB RUSSELL (W ) 653. THOMAS, HILBERT PINEIL (B ) 720. WILLIAMS, COREY LEIGH (B ) 654. THOMAS, JUSTIN HEATH (W ) 721. WILLIAMS, DAVID EARL (B ) 655. THOMAS, KEITH TYSON (B ) 722. WILLIAMS, DEXTER (B ) 656. THOMAS, REGIS D. (B ) 723. WILLIAMS, GEORGE (B ) 657. THOMPSON, CATHERINE ^ (B ) 724. WILLIAMS, GEORGE BRETT (B ) 658. THOMPSON, JAMES ALVIN (W ) 725. WILLIAMS, JR., JACK EMMIT (B ) 659. THOMSON, JOHN WAYNE (W ) 726. WILLIAMS, MANLING TSANG ^ (A ) 660. THORNTON, MARK (W ) 727. WILLIAMS, ROBERT LEE (B ) 661. THORNTON, MICHAEL FORREST (W ) 728. WILSON, ANDRE GERALD (B ) 662. THREATS, DERLYN RAY (B ) 729. WILSON, BYRON (B ) 663. TOBIN, CHRISTOPHER (W ) 730. WILSON, JAVANCE MICKEY (B ) 664. TOPETE, MARCO ANTONIO (L ) 731. WILSON, LESTER HARLAND (B ) 665. TOWNSEL, ANTHONY (B ) 732. WILSON, ROBERT (W ) 666. TRAN, RONALD TRI (A ) 733. WINBUSH, GRAYLAND (B ) 667. TRAVIS, JOHN RAYMOND (W) 734. WOODRUFF, STEVE (B ) 668. TRINH, DUNG DINH ANH (A ) 735. WREST, THEODORE (W ) 669. TRUJEQUE, JAMES (L ) 736. WRIGHT, JR., WILLIAM LEE (B ) 670. TRUJEQUE, TOMMY (L ) 737. WYCOFF, EDWARD MATTHEW (W ) 671. TUCKER, JAMAR (B ) 738. YONKO, TONY RICKY (W ) 672. TUILAEPA, PAUL (A ) 739. YOUNG, DONALD RAY (B ) 673. TULLY, RICHARD (W ) 740. YOUNG, JEFFREY SCOTT (W ) 674. TURNER, CHESTER DWAYNE (B ) 741. YOUNG, TIMOTHY JAMES (B ) 675. TURNER, MELVIN (B ) 742. ZAMBRANO, ENRIQUE (L ) 676. TURNER, RICHARD (W ) 743. ZAMUDIO, SAMUEL JIMINEZ (L ) 677. VALDEZ, ALFREDO (L ) 744. ZANON, DAVID CHARLES (W ) 678. VALDEZ, RICHARD ANTHONY (L ) 745. ZAPIEN, CONRAD J. (L ) 679. VALENCIA, ALFREDO (L ) 746. ZARAGOZA, LOUIS RANGEL (L )

Death Row U.S.A. Page 46

COLORADO (Lethal Injection) Total = 3 B = 3 W = 0 L = 0 N = 0 A = 0 U = 0

1. DUNLAP, NATHAN J. (B ) 3. RAY, ROBERT (B ) 2. OWENS, SIR MARIO (B )

CONNECTICUT (Lethal Injection) Total = 12 B = 6 W = 5 L = 1 N = 0 A = 0 U = 0

1. ASHBY, LAZALE (B ) 7. PEELER, RUSSELL (B ) 2. BRETON, ROBERT (W ) 8. REYNOLDS, RICHARD (B ) 3. CAMPBELL, JESSIE (B ) 9. RIZZO, TODD (W ) 4. COBB, SEDRICK (B ) 10. ROSZKOWSKI, RICHARD (W ) 5. HAYES, STEVEN (W ) 11. [ SANTIAGO, JR., EDUARDO (L ) ] 6. KOMISARJEVSKY, JOSHUA (W ) 12. WEBB, DANIEL (B )

DELAWARE (Lethal Injection or Choice of Hanging If Sentenced Before 6/13/86) Total = 17 B = 10 W = 4 L = 3 N = 0 A = 0 U = 0

1. CABRERA, ANGEL (L ) 10. STARLING, CHAUNCY (B ) 2. COOKE, JR., JAMES E. (B ) 11. STEVENSON, DAVID (B ) 3. MANLEY, MICHAEL (B ) 12. SWAN, RALPH (W ) 4. [ MCCOY, ISAIAH (B ) ] 13. SYKES, AMBROSE (B ) 5 NORCROSS, ADAM (W ) 14. TAYLOR, III, EMMETT (B ) 6. ORTIZ, JUAN J. (L ) 15. TAYLOR, MILTON (B ) 7. PLOOF, GARY (W ) 16. [ WRIGHT, JERMAINE (B ) ] 8. POWELL, DERRICK (B ) 17. ZEBROSKI, CRAIG (W ) 9. REYES, LUIS (L )

FLORIDA (Lethal Injection or Choice of Electrocution; or Any Constitutional Method) Total = 401 B = 154 W = 213 L = 31 N = 1 A = 2 U = 0 Females = 5 (B = 2 W = 1 L = 2)

1. ABDOOL, DANE (W ) 31. BLANCO, OMAR (L ) 2. AGUIRRE-JARQUIN CLEMENTE (L ) 32. BOGLE, BRETT (W ) 3. ALLEN, LLOYD (W ) 33. BOLIN, OSCAR (W ) 4. ALLEN, MARGARET ^ (B ) 34. BOOKER, STEPHEN (B ) 5. ALLRED, ANDREW (W ) 35. BOWLES, GARY (W ) 6. ALSTON, PRESSLEY (B ) 36. BOYD, LUCIOUS (B ) 7. ALTERSBERGER, JOSHUA LEE (B ) 37. BRADDY, HARREL (B ) 8. [ ANDERSON, ALLEN (W ) ] & 38. BRADLEY, BRANDON (B ) 9. ANDERSON, CHARLES (B ) 39. BRADLEY, DONALD L. (W ) 10. ANDERSON, FRED (B ) 40. BRANCH, ERIC (W ) 11. ANDERSON, RICHARD (W ) 41. BRANT, CHARLES (W ) 12. ARBELAEZ, GUILLERMO (L ) 42. [ BRIGHT, RAYMOND CURTIS (B ) ] 13. ARCHER, ROBIN (W ) 43. BROOKINS, ELIJAH (B ) 14. ARMSTRONG, LANCELOT (B ) 44. BROOKS, LAMAR (B ) 15. ASAY, MARC (W ) 45. BROWN, PAUL ALFRED (W ) 16. ATWATER, JEFFREY (W ) 46. BROWN, PAUL ANTHONY (W ) 17. AULT, HOWARD STEVEN (W ) 47. BROWN, THOMAS (B ) 18. BAILEY, ROBERT (W ) 48. BROWN, TINA ^ (B ) 19. BAKER, CORNELIUS (B ) 49. BURNS, DANIEL (B ) 20. BANKS, DONALD (B ) 50. BUTLER, HARRY LEE (B ) 21. BARGO, MICHAEL (W ) 51. BUZIA, JOHN MICHAEL (W ) 22. BARNES, JAMES (W ) 52. BYRD, MILFORD (W ) 23. BARNHILL, III, ARTHUR (B ) 53. CALHOUN, JOHNNY (W ) 24. BARWICK, DARRYL (W ) 54. CALLOWAY, TAVARES (B ) 25. BATES, KAYLE (B ) 55. CAMPBELL, JOHN WILLIAM (W ) 26. BEASLEY, CURTIS W. (W ) 56. CANNON, MARVIN (B ) 27. BELCHER, JAMES (B ) 57. [ CARABALLO, VICTOR (L ) ] 28. BELL, MICHAEL (B ) 58. CARD, JAMES (W ) 29. BEVEL, THOMAS (B ) 59. CARDONA, ANA ^ (L ) 30. [ BLAKE, HAROLD ALBERT (B ) ] 60. CARR, EMILIA ^ (L )

Death Row U.S.A. Page 47

61. CARTER, PINKNEY “CHIP” (W ) 128. GASKIN, LOUIS (B ) 62. CAVE, ALFONSO (B ) 129. GERALDS, MARK (W ) 63. CAYLOR, MATTHEW (W ) 130. GILL, RICARDO (W ) 64. CHERRY, ROGER L. (B ) 131. GONZALEZ, LEONARD (L ) 65. CLARK, RONALD (W ) 132. GONZALEZ, RICARDO (L ) 66. COLE, LORAN (W ) 133. GORDON, ROBERT (B ) 67. COLE, TIFFANY ^ (W ) 134. GOSCIMINSKI, ANDREW MICHAEL (W ) 68. CONAHAN, JR., DANIEL O. (W ) 135. GREGORY, WILLIAM (W ) 69. CONDE, RORY E. (L ) 136. GRIFFIN, MICHAEL A. (W ) 70. CONNOR, SEBURT N. (L ) 137. GRIM, NORMAN (W ) 71. CONSALVO, ROBERT (W ) 138. GUARDADO, JESSE (W ) 72. CORRELL, JERRY (W ) 139. GUDINAS, THOMAS (W ) 73. COX, ALLEN (W ) 140. [ GUZMAN, JAMES (L ) ] 74. COZZIE, STEVEN ANTHONY (W ) 141. GUZMAN, VICTOR (L ) 75. CRAIN, WILLIE (W ) 142. [ HAKIM, YAQUB (B ) ] 76. CUMMING-EL, FREDERICK W. (B ) 143. HALIBURTON, JERRY (B ) 77. DAILEY, JAMES (W ) 144. HALL, DONTE (B ) 78. DAMREN, FLOYD (W ) 145. HALL, ENOCH (B ) 79. DAVIS, ADAM (W ) 146. HALL, FREDDIE (B ) 80. DAVIS, JR., LEON (B ) 147. HAMILTON, RICHARD (W ) 81. DAVIS, MARK (W ) 148. HAMPTON, JOHN (B ) 82. DAVIS, TONEY (B ) 149. HANNON, PATRICK (W ) 83. DAVIS, III, WILLIAM (W ) 150. [ HARDWICK, JOHN G. (W ) ] 84. DELGADO, HUMBERTO (L ) 151. HARTLEY, KENNETH (B ) 85. [ DELHALL, WADADA (B ) ] 152. HARVEY, HAROLD (W ) 86. DENNIS, LABRANT DESHAWN (B ) 153. HAYWARD, STEVEN (B ) 87. DEPARVINE, WILLIAM (W ) 154. HEATH, RONALD (W ) 88. DERRICK, SAMUEL (W ) 155. HERARD, JAMES (B ) 89. DESSAURE, JR., KENNETH L. (B ) 156. HERNANDEZ, MICHAEL (W ) 90. [ DEVINEY, RANDALL (W ) ] 157. HERNANDEZ-ALBERTO, PEDRO (L ) 91. DIAZ, JOEL (L ) 158. HERRING, TED (B ) 92. DILLBECK, DONALD (W ) 159. HERTZ, GUERRY (W ) 93. DOORBAL, NOEL (A ) 160. HEYNE, JUSTIN (W ) 94. DOTY, WAYNE (W ) 161. [ HILDWIN, PAUL (W ) ] 95. DOUGLAS, LUTHER (B ) 162. HILTON, GARY (W ) 96. DOWNS, ERNEST (W ) 163. HITCHCOCK, JAMES (W ) 97. DOYLE, DANIEL (W ) 164. HOBART, ROBERT (W ) 98. DUBOSE, RASHEEM (B ) 165. HODGES, GEORGE M. (W ) 99. DUCKETT, JAMES (W ) 166. HODGES, WILLIE (B ) 100. DUROUSSEAU, PAUL (B ) 167. HODGKINS, DERRAL WAYNE (W ) 101. EAGLIN, DWIGHT (W ) 168. HOJAN, GERHARD (B ) 102. ELLERBEE, JR. TERRY M. (W ) 169. HOLLAND, ALBERT (B ) 103. ENGLAND, RICHARD (L ) 170. HOSKINS, JOHNNY (B ) 104. EVANS, PATRICK (W ) 171. HUGGINS, JOHN (W ) 105. EVANS, PAUL (W ) 172. HUNTER, JAMES (B ) 106. EVANS, STEVEN (W ) 173. HUNTER, JERONE (B ) 107. EVANS, WYDELL (B ) 174. HURST, TIMOTHY (B ) 108. EVERETT, PAUL (W ) 175. HUTCHINSON, JEFFREY (W ) 109. [ FARINA, ANTHONY (W ) ] 176. IBAR, PABLO (L ) 110. FENNIE, ALFRED (B ) 177. ISRAEL, CONNIE (B ) 111. FINNEY, CHARLES (B ) 178. JACKSON, ETHERIA (B ) 112. [ FITZPATRICK, MICHAEL (W ) ] 179. JACKSON, KENNETH RAY (W ) 113. FLETCHER, TIMOTHY WAYNE (W ) 180. JACKSON, KIM (B ) 114. FLOYD, FRANKLIN (W ) 181. JACKSON, MICHAEL (W ) 115. FLOYD, MAURICE (B ) 182. [ JACKSON, MICHAEL R. (B ) ] 116. FORD, JAMES (B ) 183. JACKSON, RAY (B ) 117. FOSTER, CHARLES K. (W ) 184. JAMES, EDWARD (W ) 118. FOSTER, JERMAINE (B ) 185. JEAN-PHILIPPE, LESLY (B ) 119. FOSTER, KEVIN D. (W ) 186. JEFFRIES, KEVIN GENE (W ) 120. FOTOPOULOS, KOSTANTINOS (W ) 187. JEFFRIES, SONNY (W ) 121. FRANCES, DAVID SYLVESTER (B ) 188. JENNINGS, BRANDY (N ) 122. FRANCIS, CARLTON (B ) 189. JENNINGS, BRYAN (W ) 123. FRANKLIN, QUAWN MOSES (B ) 190. JIMENEZ, JOSE (L ) 124. FRANKLIN, RICHARD (B ) 191. JOHNSON, EMANUEL (B ) 125. FRANQUI, LEONARDO (L ) 192. JOHNSON, KENTRELL (B ) 126. FREEMAN, JOHN (W ) 193. JOHNSON, PAUL BEASLEY (W ) 127. GAMBLE, GUY (W ) 194. JOHNSON, RICHARD (W )

Death Row U.S.A. Page 48

195. JOHNSON, RONNIE (B ) 262. MOSLEY, JR., JOHN (B ) 196. JOHNSTON, RAY (W) 263. MUEHLEMAN, JEFFRY A. (W ) 197. JONES, CLARENCE J. (B ) 264. MULLENS, KHADAFY (B ) 198. JONES, DAVID (W ) 265. MUNGIN, ANTHONY (B ) 199. JONES, HARRY (B ) 266. MURRAY, GERALD (W ) 200. JONES, HENRY LEE (B ) & 267. NELSON, JOSHUA (W ) 201. JONES, MARVIN (B ) 268. NELSON, MICAH (B ) 202. JONES, RANDALL (W ) 269. NEWBERRY, RODNEY (B ) 203. JONES, VICTOR (B ) 270. NIXON, JOE E. (B ) 204. JORDAN, JOSEPH (W ) 271. [ NOWELL, WILLIE (B ) ] 205. KACZMAR, III, LEO L. (W ) 272. OATS, SONNY BOY (B ) 206. KALISZ, JOHN WILLIAM (W ) 273. OCCHICONE, DOMINICK (W ) 207. KEARSE, BILLY (B ) 274. OLIVER, TERENCE TABIUS (B ) 208. KELLEY, WILLIAM (W ) 275. ORME, RODERICK (W ) 209. KILGORE, DEAN (B ) 276. OVERTON, THOMAS (W ) 210. KING, CECIL (B ) 277. OWEN, DUANE (W ) 211. KING, MICHAEL (W ) 278. OYOLA, MIGUEL (L ) 212. KNIGHT, RICHARD (B ) 279. PACE, BRUCE (B ) 213. KNIGHT, RONALD (W ) 280. PAGAN, ALEX (L ) 214. KOCAKER, GENGHIS N. (W ) 281. PARKER, J.B. (B ) 215. KOKAL, GREGORY (W ) 282. PARTIN, PHILLUP (W ) 216. KOPSHO, WILLIAM (W ) 283. PASHA, KHALID (B ) 217. KRAWCZUK, ANTON (W ) 284. PATRICK, ERIC (W ) 218. LAMARCA, ANTHONY (W ) 285. PEEDE, ROBERT (W ) 219. LAMBRIX, CARY (W ) 286. PETERKA, DANIEL (W ) 220. LARKIN, GREGORY DAVID (W ) 287. PETERSON, CHARLES (B ) 221. LAWRENCE, GARY (W ) 288. PETERSON, ROBERT (W ) 222. LAWRENCE, JONATHAN (W ) 289. PHAM, TAI (A ) 223. LEBRON, JERMAINE (B ) 290. PHILLIPS, GALANTE (B ) 224. LEBRON, JOEL (B ) 291. PHILLIPS, HARRY (B ) 225. LIGHTBOURNE, IAN (B ) 292. PHILLIPS, TERRANCE (B ) 226. LONG, ROBERT (W) 293. PHILMORE, LENARD (W ) 227. LOONEY, JASON (W ) 294. PIETRI, NORBERTO (L ) 228. LOTT, KEN (W ) 295. PITTMAN, DAVID (W ) 229. LOWE, RODNEY (B ) 296. PONTICELLI, ANTHONY (W ) 230. LUCAS, HAROLD (W ) 297. POOLE, MARK ANTHONY (B ) 231. LUGO, DANIEL (L ) 298. POOLER, LEROY (B ) 232. LUKEHART, ANDREW (W ) 299. POPE, THOMAS DEWEY (W ) 233. LYNCH, RICHARD (W ) 300. PRESTON, ROBERT (W ) 234. MANSFIELD, SCOTT (W ) 301. PUIATTI, CARL (W ) 235. MARQUARD, JOHN (W ) 302. QUINCE, KENNETH (B ) 236. MARQUARDT, BILL (W ) 303. RALEIGH, BOBBY (W ) 237. MARSHALL, MATTHEW (B ) 304. RANDOLPH, RICHARD (B ) 238. MARTIN, ARTHUR (B ) 305. RASHID, JAMIL (B ) 239. MARTIN, DAVID (W ) 306. [ REAVES, WILLIAM (B ) ] 240. MATTHEWS, DOUGLAS (B ) 307. REED, GROVER (W ) 241. MCCLOUD, ROBERT (B ) 308. REESE, JOHN (B ) 242. MCCOY, THOMAS (W ) 309. REYNOLDS, MICHAEL (W ) 243. MCCRAY, GARY (B ) 310. RHODES, RICHARD (W ) 244. MCDONALD, MERYL (B ) 311. RIGTERINK, THOMAS (W ) 245. MCGIRTH, RENALDO (B ) 312. RIMMER, ROBERT (B ) 246. MCKENZIE, NORMAN (W ) 313. RIVERA, MICHAEL (L ) 247. MCLEAN, DERRICK (B ) 314. ROBARDS, RICHARD (W ) 248. MCMILLIAN, JUSTIN (B ) 315. [ ROBERTS, RICKEY (B ) ] 249. [ MCWATTERS, EUGENE (W ) ] 316. ROBERTSON, JAMES (W ) 250. MEEKS, DOUGLAS (B ) 317. ROBINSON, MICHAEL (W ) 251. MELTON, ANTONIO (B ) 318. RODGERS, JEREMIAH (W ) 252. MENDOZA, MARBEL (L ) 319. RODGERS, THEODORE (B ) 253. MERCK, TROY (W ) 320. RODRIGUEZ, JUAN (L ) 254. MIDDLETON, DALE (W ) 321. RODRIGUEZ, MANOLO (L ) 255. MILLER, JR., DAVID (B ) 322. ROGERS, GLEN (W ) 256. MILLER, LIONEL (W ) 323. ROSE, JAMES (W ) 257. MOORE, THOMAS (B ) 324. ROSE, MILO A. (W ) 258. MORRIS, DONTAE (B ) 325. RUSS, DAVID BYRON (W ) 259. MORRIS, ROBERT (B ) 326. SALAZAR, NEIL (B ) 260. MORRISON, RAYMOND (B ) 327. SAN MARTIN, PABLO (L ) 261. MORTON, ALVIN (W ) 328. SANCHEZ-TORREZ, HECTOR (L )

Death Row U.S.A. Page 49

329. SCHOENWETTER, RANDY (W ) 366. THOMPSON, WILLIAM (W ) 330. SCOTT, PAUL (W ) 367. TREASE, ROBERT (W ) 331. SEIBERT, MICHAEL (W ) 368. TREPAL, GEORGE (W ) 332. SERRANO, NELSON (W ) 369. TROTTER, MELVIN (B ) 333. SEXTON, JR., JOHN (W ) 370. TROY, JOHN (W ) 334. [ SHELLITO, MICHAEL (L ) ] 371. TRUEHILL, QUENTIN (B ) 335. SHEPPARD, BILLY (B ) 372. TUNDIDOR, RANDY W. (W ) 336. SHERE, RICHARD E. (W ) 373. TURNER, JAMES (W ) 337. SILVIA, JR., WILLIAM (W ) 374. TWILEGAR, MARK (W ) 338. SIMMONS, ERIC (W ) 375. VALENTINE, TERANCE (B ) 339. SIMPSON, JASON (W ) 376. VICTORINO, TROY (L ) 340. SIRECI, HENRY (W ) 377. WADE, ALAN (W ) 341. SLINEY, JACK (W ) 378. WAINWRIGHT, ANTHONY (W ) 342. SMITH, COREY (B ) 379. WALLS, FRANK (W ) 343. SMITH, III, DELMER (W ) 380. WALTON, JASON DIRK (W ) 344. SMITH, DERRICK (B ) 381. WATTS, TONY R. (B ) 345. SMITH, JOSEPH (W ) 382. [ WELCH, ANTHONY (W ) ] 346. SMITH, SEAN HECTOR (B ) 383. WHEELER, JASON (W ) 347. SMITH, STEPHEN (W ) 384. WHITE, DWAYNE (B ) 348. SMITH, TERRY (B ) 385. WHITE, WILLIAM (W ) 349. SMITHERS, SAMUEL (W ) 386. WHITFIELD, ERNEST (B ) 350. SNELGROVE, DAVID B. (W ) 387. WHITTON, GARY (W ) 351. SOCHOR, DENNIS (W ) 388. WILCOX, DARIOUS (B ) 352. SPANN, ANTHONY (B ) 389. WILLACY, CHADWICK (B ) 353. SPARRE, DAVID (W ) 390. WILLIAMS, DONALD (W ) 354. SPENCER, DUSTY RAY (W ) 391. WILLIAMS, RONNIE K. (B ) 355. STEIN, STEVEN (W ) 392. WILLIAMSON, DANA (W ) 356. STEPHENS, JASON D. (B ) 393. WINDOM, CURTIS (B ) 357. STEWART, KENNETH (W ) 394. WOODEL, THOMAS (B ) 358. SUGGS, ERNEST (W ) 395. WRIGHT, JOEL (W ) 359. SWEET, WILLIAM (B ) 396. WRIGHT, RALPH (B ) 360. TANZI, MICHAEL (W ) 397. WRIGHT, TAVARES (B ) 361. TAYLOR, JOHN (W ) 398. ZACK, III, MICHAEL D. (W ) 362. TAYLOR, PERRY A. (B ) 399. ZAKRZEWSKI, EDWARD (W ) 363. TAYLOR, STEVEN (W ) 400. ZEIGLER, WILLIAM (W ) 364. TAYLOR, WILLIAM (W ) 401. ZOMMER, TODD (W ) 365. THOMAS, WILLIAM (W )

GEORGIA (Lethal Injection) Total = 85 B = 41 W = 41 L = 3 N = 0 A = 0 U = 0 Females = 1 (W )

1. ARRINGTON, ROBERT O. (W ) 25. HITTSON, TRAVIS (W ) 2. BARRETT, WINSTON CLAY (W ) 26. HOLIDAY, DALLAS (B ) 3. BISHOP, JOSHUA D. (W ) 27. HULETT, JR., DONNIE ALLEN (W ) 4. BROCKMAN, ANTHONY W. (W ) 28. HUMPHREYS, STACEY IAN (W ) 5. BROOKINS, BRIAN DUANE (W ) 29. JARRELLS, JONATHEN (W ) 6. [ BRYANT, NICHOLAS JASON (W ) ] 30. JEFFERSON, LAWRENCE (B ) 7. BUTTS, EARL (B ) 31. JOHNSON, MARCUS RAY (W ) 8. CLARK, CLEVELAND (B ) 32. JONES, ASHLEY (B ) 9. COLLINS, ROGER (B ) 33. JONES, BRANDON (B ) 10. CONNOR, JOHN WAYNE (W ) 34. JONES, JERRY (W ) 11. CROMARTIE, RAY JEFFERSON (B ) 35. KING, WARREN (B ) 12. [ DOBBS, WILEY (B ) ] 36. LANCE, DONNIE (W ) 13. DRANE, LEONARD (W ) 37. LAWLER, GREGORY (W ) 14. DRUCKER, JOSHUA KEVIN (W ) 38. LEDFORD, J.D. "BOY" (W ) 15. EDENFIELD, DAVID (W ) 39. LEDFORD, MICHAEL WILLIAM (W ) 16. [ ELLINGTON, CLAYTON JERROD (B ) ] 40. LEE, JAMES ALLYSON (W ) 17. ESPOSITO, JOHN ANTHONY (W ) 41. [ LEE, LARRY (W ) ] 18. FOSTER, TIMOTHY (B ) 42. [ LEWIS, CHRISTOPHER (B ) ] 19. FRANKS, DAVID (W ) 43. LUCAS, DANIEL (W ) 20. FULTS, KENNETH EUGENE (B ) 44. MALDONADO, PABLO FERNANDEZ (L ) 21. GARY, CARLTON (B ) 45. MARTIN, DEKELVIN R. (B ) 22. GISSENDANER, KELLY ^ (W ) 46. MEDERS, JIMMY F. (W ) 23. HARGROVE, ADRIAN (B ) 47. MILLER, MICHAEL (B ) 24. HEIDLER, JERRY SCOTT (W ) 48. MITCHELL, NELSON E (B )

Death Row U.S.A. Page 50

49. MOODY, JEREMY (B ) 68. SPEARS, STEVEN FREDERICK (W ) 50. [ MORRISON, ERNEST (W ) ] 69. [ SPEED, NORRIS (B ) ] 51. MORROW, SCOTTY (B ) 70. STINSKI, DARRYL SCOTT (W ) 52. NANCE, MICHAEL WAYNE (L ) 71. TATE, NICHOLAS (W ) 53. O’KELLEY, DORIAN FRANK (W ) 72. TERRELL, BRIAN (W ) 54. PACE, LYNDON (B ) 73. THARPE, KEITH (B ) 55. PALMER, WILLIE WILLIAMS (B ) 74. [ THOMASON, GARY (W ) ] 56. [ PERKINS, DAVID AARON (W ) ] 75. TOLLETTE, LEON (B ) 57. PERKINSON, ERIC (B ) 76. [ WALKER, ARTEMUS RICK (B ) ] 58. PRESNELL, VIRGIL (W ) 77. [ WALKER, JR., GREGORY (B ) ] 59. PYE, WILLIE JAMES (B ) 78. [ WARD, JAMIE (W ) ] 60. RAHEEM, MUSTAFA (B ) 79. WHATLEY, FREDERICK (B ) 61. RAULERSON, BILLY D. (W ) 80. WILLIAMS, JOSEPH (B ) 62. RICE, LAWRENCE (B ) 81. WILLIS, DEMETRIUS G. (B ) 63. RIVERA, REINALDO (L ) 82. WILSON, JR., MARION (B ) 64. ROGERS, JAMES (W ) 83. WILSON, WILLIE (B ) 65. SALLIE, WILLIAM (W ) 84. WORSLEY, JOHNNIE ALFRED (B ) 66. SEALEY, RICHARD LESTER (B ) 85. YOUNG, RODNEY RENIA (B ) 67. SEARS, DEMARCUS (B )

IDAHO (Lethal Injection) Total = 11 B = 0 W = 11 L = 0 N = 0 A = 0 U = 0 Females = 1 (W )

1. ABDULLAH, AZAD HAJI (W ) 7. HALL, ERICK VIRGIL (W ) 2. CARD, DAVID LESLIE (W ) 8. PAYNE, DARRELL EDWARD (W ) 3. CREECH, THOMAS EUGENE (W ) 9. PIZZUTO, GERALD ROSS (W ) 4. DUNLAP, TIMOTHY ALAN (W ) 10. ROW, ROBIN LEE ^ (W ) 5. FIELDS, ZANE JACK (W ) 11. STUART, GENE FRANCIS (W ) 6. HAIRSTON, JAMES HARVEY (W )

INDIANA (Lethal Injection) Total = 14 B = 3 W = 11 L = 0 N = 0 A = 0 U = 0 Females = 1 (B )

1. BAER, FREDERICK MICHAEL (W ) 8. [ MCMANUS, PAUL (W ) ] 2. BROWN, DEBRA ^ (B ) & 9. OVERSTREET, MICHAEL DEAN (W ) 3. CORCORAN, JOSEPH (W ) 10. PRUITT, TOMMY R. (W ) 4. GIBSON, WILLIAM CLYDE (W ) 11. RITCHIE, BENJAMIN (W ) 5. HOLMES, ERIC D. (B ) 12. [ STEPHENSON, JOHN (W ) ] 6. ISOM, KEVIN (B ) 13. WARD, ROY LEE (W ) 7. KUBSCH, WAYNE (W ) 14. WEISHEIT, JEFFREY (W )

KANSAS (Lethal Injection) Total = 9 B = 3 W = 6 L = 0 N = 0 A = 0 U = 0

1. BELT, DOUGLAS (W ) 6. KAHLER, JAMES CRAIG (W ) 2. [ CARR, JONATHAN (B ) ] 7. KLEYPAS, GARY WAYNE (W ) 3. [ CARR, REGINALD (B ) ] 8. ROBINSON, SR., JOHN EDWARD (W ) 4. CHEEVER, SCOTT (W ) 9. THURBER, JUSTIN EUGENE (W ) 5. [ GLEASON, SIDNEY JOHN (B ) ]

KENTUCKY (Lethal Injection or Choice of Electrocution If Sentenced Before 6/1/98; or Electrocution if Lethal Injection Held Facially Unconstitutional) Total = 34 B = 6 W = 28 L = 0 N = 0 A = 0 U = 0 Females = 1 (W )

1. BAZE, RALPH (W ) 6. FIELDS, SAMUEL STEVEN (W ) 2. BOWLING, RONNIE LEE (W ) 7. FOLEY, ROBERT (W ) 3. CAUDILL, VIRGINIA ^ (W ) 8. FURNISH, FRED (W ) 4. DUNLAP, KEVIN (W ) 9. GARLAND, JOHN ROSCOE (W ) 5. EPPERSON, ROGER DALE (W ) 10. GOFORTH, JONATHAN WAYNE (W )

Death Row U.S.A. Page 51

11. HAIGHT, RANDY (W ) 23. SANBORN, PARRAMORE LEE (W ) 12. HALVORSEN, LEIF (W ) 24. SANDERS, DAVID LEE (W ) 13. HODGE, BENNY LEE (W ) 25. STOPHER, VINCENT (W ) 14. HUNT, JAMES (W ) 26. TAYLOR, VICTOR D. (B ) 15. JOHNSON, DONALD (W ) 27. THOMPSON, WILLIAM EUGENE (W ) 16. MATTHEWS, DAVID EUGENE (W ) 28. [ WHEELER, ROGER (B ) ] 17. MEECE, WILLIAM HARRY (W ) 29. WHITE, KARU GENE (W ) 18. [ MILLS, JOHN (W ) ] 30. WHITE, LARRY LAMONT (B ) 19. MOORE, BRIAN KEITH (W ) 31. WILLOUGHBY, MITCHELL (W ) 20. [ ORDWAY, CARLOS (B ) ] 32. WILSON, GREGORY L. (B ) 21. PARRISH, MELVIN LEE (B ) 33. WINDSOR, SHAWN (W ) 22. ST. CLAIR, MICHAEL (W ) 34. WOODALL, ROBERT KEITH (W )

LOUISIANA (Lethal Injection) Total = 85 B = 56 W = 25 L = 3 N = 0 A = 1 U = 0 Females = 2 (B = 1 W = 1)

1. ALLEN, JOHN DALE (B ) 44. HAMPTON, BOBBY (B ) 2. [ ALLEN, WILLARD (W ) ] 45. HARRIS, CLARENCE (B ) 3. ANDERSON, HENRY (B ) 46. HOFFMAN, JESSIE (B ) 4. ANTHONY, PHILLIP (B ) 47. HOLLIDAY, DACARIOUS (B ) 5. BALDWIN, IV, JAMES (W ) 48. HOLMES, BRANDY ^ (W ) 6. BALL, ELZIE (B ) 49. HORN, BRIAN (W ) 7. BELL, ANTHONY (B ) 50. IRISH, DANIEL (W ) 8. BLANK, DANIEL (W ) 51. JUNIORS, GLYNN (B ) 9. BOURQUE, SCOTT (W ) 52. LACAZE, ROGERS (B ) 10. BOWIE, DAVID (B ) 53. LAM, THAO TAN (A ) 11. BROADEN, QUINCY (B ) 54. LEE, DERRICK TODD (B ) 12. BROADWAY, HENRI (B ) 55. LEE, TRACY (B ) 13. [ BROWN, DAVID (B ) ] 56. LEGER, DONALD (W ) 14. BROWN, GREGORY (B ) 57. LEGRAND, MICHAEL (W ) 15. BRUMFIELD, KEVAN (B ) 58. LOUVIERE, CHAD (W ) 16. CAMPBELL, LADERICK (B ) 59. LUCKY, JULIUS (B ) 17. CARTER, TERRANCE (B ) 60. MAGEE, JAMES (W ) 18. CASEY, JAMES M. (W ) 61. MANNING, JEREMIAH (B ) 19. CHESTER, TEDDY (B ) 62. MCCOY, ROBERT (B ) 20. CLARK, JEFFREY CAMERON (W ) 63. [ MICKELSON, ERIC (W ) ] 21. CLARK, SEDWRIC (B ) 64. MILLER, ROBERT CRAIG (B ) 22. CODE, NATHANIEL (B ) 65. MONTEJO, JESSIE (W ) 23. COLEMAN, ROBERT (B ) 66. NEAL, JARRELL (B ) 24. COOKS, MICHAEL (B ) 67. ODENBAUGH, LEE ROY (W ) 25. COPELAND, JAMES (W ) 68. ORTIZ, MANUEL (L ) 26. COSEY, FRANK FORD (B ) 69. PERRY, MICHAEL OWEN (W ) 27. CRAWFORD, RODRICUS (B ) 70. REED, MARCUS (B ) 28. DAVIS, PERCY (B ) 71. REEVES, JASON (W ) 29. DEAL, CURTIS (W ) 72. ROBERTSON, ALLEN (B ) 30. DERUISE, CLIFFORD (B ) 73. ROBINSON, DARREL (W ) 31. DORSEY, FELTON (B ) 74. ROY, LARRY (B ) 32. DOYLE, ISAIAH (B ) 75. SEPULVADO, CHRISTOPHER (L ) 33. DRAUGHN, DARRYL (B ) 76. TART, WILLIE (B ) 34. DRESSNER, DUSTIN (W ) 77. TATE, ANTOINE (B ) 35. DUNCAN, JIMMY CHRISTIAN (W ) 78. TAYLOR, EMMETT (B ) 36. DUNN, JAMES (B ) 79. TAYLOR, MICHAEL (W ) 37. EATON, WINTHROP (B ) 80. TUCKER, LAMONDRE (B ) 38. EDWARDS, CEDRIC (B ) 81. TYLER, JAMES S. (B ) 39. EL-MUMIT, ABDULLAH HAKIM (B ) 82. WEARRY, MICHAEL (B ) 40. FRANK, ANTOINETTE ^ (B ) 83. WESSINGER, TODD (B ) 41. GARCIA, MICHAEL (L ) 84. WILLIAMS, SHEDRAN (B ) 42. GRADLEY, FREDRICK (B ) 85. WRIGHT, DONALD (W ) 43. HAMILTON, MARCUS (B )

Death Row U.S.A. Page 52

MISSISSIPPI (Lethal Injection) Total = 48 B = 25 W = 22 L = 0 N = 0 A = 1 U = 0 Females = 2 (W )

1. BATISTE, JR., BOBBY (B ) 25. HOLLIE, ERIK (W ) 2. BENNETT, DEVIN ALLEN (W ) 26. HOWARD, EDDIE LEE (B ) 3. BILLIOT, JAMES (W ) 27. HOWELL, MARLON (B ) 4. BLAKENEY, JUSTIN (W ) 28. HUTTO, III, JAMES COBB (W ) 5. BROWN, JOSEPH P. (B ) 29. JORDAN, KELVIN (B ) 6. BROWN, SHERWOOD D. (B ) 30. JORDAN, RICHARD (W ) 7. BROWN, XAVIER (B ) 31. KELLER, JASON (W ) 8. [ BYROM, MICHELLE ^ (W ) ] 32. KNOX, STEVE (B ) 9. CARR, ANTHONY (B ) 33. LE, THONG (A ) 10. CARROTHERS, CALEB (B ) 34. LODEN, THOMAS (W ) 11. CHAMBERLIN, LISA ^ (W ) 35. MANNING, WILLIE J. (B ) 12. CHASE, RICKY (B ) 36. MOFFETT, ERIC (B ) 13. CONNER, RONNIE L. (B ) 37. PITCHFORD, TERRY (B ) 14. COX, SR., DAVID (W ) 38. POWERS, STEVEN (B ) 15. CRAWFORD, CHARLES (W ) 39. RONK, TIMOTHY (W ) 16. DICKERSON, DAVID (W ) 40. RUSSELL, WILLIE (B ) 17. EVANS, TIMOTHY (W ) 41. SCOTT, KEVIN (B ) 18. FLOWERS, CURTIS GIOVANNI (B ) 42. SIMON, ROBERT (B ) 19. GALLOWAY, LESLIE (B ) 43. SMITH, CLYDE (B ) 20. [ GILLETT, ROGER (W ) ] 44. THORSON, ROGER (W ) 21. GOFF, JOSEPH (W ) 45. UNDERWOOD, JUSTIN (B ) 22. GRAYSON, BLAYDE N (W ) 46. WALKER, ALAN (W ) 23. HAVARD, JEFFREY (W ) 47. WALKER, DERRICK (B ) 24. [ HODGES, QUINTEZ (B ) ] 48. WILSON, WILLIAM (W )

MISSOURI (Lethal Injection or Gas Chamber) Total = 33 B = 13 W = 20 L = 0 N = 0 A = 0 U = 0

1. ANDERSON, TERRANCE L. (B ) 18. [ GILL, MARK ANTHONY (B ) ] 2. BARNETT, DAVID (W ) 19. HOSIER, DAVID (W ) 3. BARTON, WALTER (W ) 20. JOHNSON, ERNEST (B ) 4. BLURTON, ROBERT (W ) 21. JOHNSON, JOHNNY (W ) 5. BOLIEK, WILLIAM (W ) 22. JOHNSON, KEVIN (B ) 6. [ BOWMAN, GREGORY (W ) ] 23. MATHENIA, CHARLES L. (W ) 7. BUCKLEW, RUSSELL E. (W ) 24. MCFADDEN, VINCENT (B ) 8. CHRISTESON, MARK (W ) 25. MCLAUGHLIN, SCOTT (W ) 9. CLEMONS, REGINALD (B ) 26. NUNLEY, RODERICK (B ) 10. COLE, ANDRE (B ) 27. POLLARD, ROOSEVELT (B ) 11. COLLINGS, CHRISTOPHER (W ) 28. SHOCKLEY, LANCE (W ) 12. DAVIS, RICHARD (W ) 29. STRONG, RICHARD (B ) 13. DECK, CARMAN (W ) 30. TAYLOR, LEONARD (B ) 14. DORSEY, BRIAN (W ) 31. TISIUS, MICHAEL (W ) 15. DRISKELL, JESSIE DEAN (W ) 32. WILLIAMS, MARCELLUS (B ) 16. EDWARDS, KIMBER (B ) 33. ZINK, DAVID (W ) 17. FORREST, II, EARL M. (W )

MONTANA (Lethal Injection) Total = 2 B = 0 W = 2 L = 0 N = 0 A = 0 U = 0

1. GOLLEHON, WILLIAM (W ) 2. SMITH, RONALD (W )

NEBRASKA (Lethal Injection) Total = 11 B = 2 W = 4 L = 5 N = 0 A = 0 U = 0

1. ELLIS, ROY (B ) 6. MATA, RAYMOND (L ) 2. GALES, JR., ARTHUR LEE (B ) 7. MOORE, CAREY (W ) 3. GALINDO, JORGE (L ) 8. RYAN, MICHAEL (W ) 4. HESSLER, JEFFREY (W ) 9. SANDOVAL, JOSE (L ) 5. LOTTER, JOHN (W ) 10. TORRES, MARCO (L )

Death Row U.S.A. Page 53

11. VELA, ERICK (L )

NEVADA (Lethal Injection) Total = 78 B = 29 W = 39 L = 8 N = 0 A = 2 U = 0

1. ADAMS, LARRY EDWARD (W ) 40. LISLE, KEVIN JAMES (W ) 2. ARCHANIAN, AVETIS (W ) 41. LOPEZ, MANUEL SAUCEDO (L ) 3. ATKINS, STERLING "BUBBA" (B ) 42. MAESTAS, BEAU (W ) 4. BEJARANO, JOHN (L ) 43. MCCARTY, JASON DUVAL (B ) 5. BIELA, JAMES MICHAEL (W ) 44. MCCONNELL, ROBERT LEE (W ) 6. BLAKE, ALFONSO (B ) 45. MCKENNA, PATRICK (W ) 7. BOLIN, GREGORY (B ) 46. MCNELTON, CHARLES D. (B ) 8. BOLLINGER, DAVID (W ) 47. MENDOZA, FREDERICK (W ) 9. BRADFORD, JULIUS (B ) 48. MIDDLETON, DAVID S. (B ) 10. BROWNING, PAUL (B ) 49. MOORE, RANDOLPH (W ) 11. BURNSIDE, TIMOTHY RAMON (B ) 50. MULDER, MICHAEL (W ) 12. BYFORD, ROBERT (W ) 51. NIKA, AVRAM VINETO (W ) 13. CANAPE, RICHARD (B ) 52. NUNNERY, EUGENE (B ) 14. CASTILLO, WILLIAM (W ) 53. PETROCELLI, TRACY (W ) 15. CHAPPELL, JAMES (B ) 54. POWELL, KITRICH (W ) 16. COLLMAN, THOMAS JOHN (W ) 55. RANDOLPH, CHARLES (B ) 17. [ CONNER, CHARLES REESE (W ) ] 56. RICHARDSON, THOMAS (W ) 18. CRUMP, THOMAS W. (W ) 57. RILEY, BILLY RAY (B ) 19. DOYLE, ANTONIO LAVON (B ) 58. RIPPO, MICHAEL (W ) 20. DOZIER, SCOTT (W ) 59. ROBINS, CHARLES L. (B ) 21. [ ECHAVARRIA, JOSE LORRENTE (L ) ] 60. RODRIGUEZ, PEDRO (L ) 22. EMIL, RODNEY (W ) 61. [ ROGERS, MARK J. (W ) ] 23. FLANAGAN, DALE (W ) 62. [ SECHREST, RICKY D. (W ) ] 24. FLOYD, ZANE (W ) 63. SHERMAN, DONALD WILLIAM (W ) 25. GREENE, TRAVERS A. (B ) 64. SMITH, JOSEPH W. (B ) 26. GUTIERREZ, CARLOS (L ) 65. SNOW, JOHN OLIVER (B ) 27. GUY, CURTIS (B ) 66. SONNER, MICHAEL H. (W ) 28. HABERSTROH, RICHARD (W ) 67. THOMAS, MARLO (B ) 29. HALL, BRYAN L. (W ) 68. [ VALERIO, JOHN E. (W ) ] 30. HAMILTON, TAMIR (B ) 69. VANISI, SIAOSI (A ) 31. HERNANDEZ, FERNANDO (L ) 70. WALKER, JAMES (B ) 32. HOGAN, MICHAEL (W ) 71. WATSON, III, JOHN MATTHIAS (W ) 33. HOVER, GREGORY LEE (W ) 72. WEBER, TIMMY “T.J.” (W ) 34. HOWARD, SAMUEL (B ) 73. [ WESLEY, HERBERT DWAYNE (B ) ] 35. JEREMIAS, RALPH SIMON (A ) 74. [ WILLIAMS, ANTOINE L. (B ) ] 36. JOHNSON, DONTE (B ) 75. WILLIAMS, CARY (B ) 37. KECK, WILLIAM JOHN (W ) 76. WILSON, EDWARD T. (W ) 38. LEONARD, GREGORY (B ) 77. WITTER, WILLIAM L. (L ) 39. LEONARD, WILLIAM B. (W ) 78. YBARRA, JR., ROBERT (L )

NEW HAMPSHIRE (Lethal Injection) Total = 1 B = 1 W = 0 L = 0 N = 0 A = 0 U = 0

1. ADDISON, MICHAEL (B )

NEW MEXICO (Lethal Injection) Total = 2 B = 0 W = 2 L = 0 N = 0 A = 0 U = 0

1. ALLEN, TIMOTHY (W ) 2. FRY, ROBERT RAY (W )

NORTH CAROLINA (Lethal Injection) Total = 157 B = 79 W = 64 L = 5 N = 8 A = 1 U = 0 Females = 3 (B = 1 W = 1 N = 1)

1. AL-BAYYINAH, JATHIYAH (B ) 4. ATKINS, RANDY L. (W ) 2. ALLEN, SCOTT (W ) 5. [ AUGUSTINE, QUINTEZ MARTINEZ (L ) ] 3. ANTHONY, WILLIAM “TODD” (W ) 6. BACOTE, HASSON (B )

Death Row U.S.A. Page 54

7. BADGETT, JOHN SCOTT (W ) 74. HYDE, JOHNNY (N ) 8. BALL, TERRY (W ) 75. JAYNES, JAMES (W ) 9. BARDEN, IZIAH (B ) 76. KANDIES, JEFFREY (W ) 10. BARNES, WILLIAM (B ) 77. LAMP, BERNARD (W ) 11. BARRETT, JEFFREY LEE (B ) 78. LANE, ERIC (W ) 12. BELL, BRYAN CHRISTOPHER (B ) 79. LARRY, THOMAS M. (B ) 13. BEST, NORFOLK JUNIOR (B ) 80. LAWRENCE, JIMMIE (B ) 14. BILLINGS, ARCHIE (W ) 81. LAWS, WAYNE A. (W ) 15. BLAKENEY, ROGER (B ) 82. LEGRANDE, GUY (B ) 16. BOND, CHARLES (B ) 83. LITTLE, III, JAMES RAY (B ) 17. BOWIE, NATHAN (B ) 84. LOCKLEAR, ROBBIE (N ) 18. BOWIE, WILLIAM (B ) 85. LYNCH, DAVID (W ) 19. BOWMAN, TERRANCE (B ) 86. MANESS, DARRELL (W ) 20. BRAXTON, MICHAEL JEROME (B ) 87. MANN, LEROY ELWOOD (B ) 21. BREWINGTON, ROBERT (N ) 88. MAY, LYLE (W ) 22. BROWN, PAUL A. (B ) 89. MCCARVER, ERNEST PAUL (W ) 23. BUCKNER, GEORGE C. (W ) 90. MCNEILL, JOHN (B ) 24. BUCKNER, STEPHEN MONROE (W ) 91. MCNEILL, MARIO (B ) 25. BURKE, RAEFORD LEWIS (B ) 92. MEYER, JEFFREY (W ) 26. BURR, JOHN EDWARD (W ) 93. MILLER, CLIFFORD RAY (A ) 27. CAGLE, RICHARD (W ) 94. MITCHELL, MARCUS DECARLOS (B ) 28. CAMPBELL, JAMES A. (W ) 95. MOORE, BLANCHE T. ^ (W ) 29. CAMPBELL, TERRANCE (B ) 96. MORGAN, JAMES LEWIS (B ) 30. CARTER, SHAN E. (B ) 97. MORGANHERRING, WILLIAM (B ) 31. CHAMBERS, FRANK (B ) 98. MOSELEY, CARL STEPHEN (W ) 32. COLE, WADE L. (B ) 99. MOSES, ERROL DUKE (B ) 33. CONNOR, JERRY W. (W ) 100. MURILLO, ERIC (W ) 34. CUMMINGS, JR., DANIEL (N ) 101. MURRELL, JEREMY (B ) 35. CUMMINGS, JERRY RAY (N ) 102. PARKER, CARLETTE ^ (B ) 36. CUMMINGS, PAUL (N ) 103. PARKER, JOHNNY (W ) 37. DAUGHTRY, JOHNNY R. (W ) 104. PETERSON, LAWRENCE (B ) 38. DAVIS, EDWARD E. (W ) 105. PHILLIPS, MARIO LYNN (B ) 39. DAVIS, JAMES (W ) 106. POLKE, ALEXANDER (N ) 40. DAVIS, PHILLIP (B ) 107. PREVATTE, TED (W ) 41. DECASTRO, EUGENE (B ) 108. RAINES, WILLIAM (W ) 42. DUKE, JEFFREY N. (W ) 109. RAMSEUR, ANDREW DARRIN (B ) 43. EAST, KEITH (B ) 110. REEVES, MICHAEL (W ) 44. ELLIOTT, JOHN (W ) 111. RICHARDSON, JONATHAN (W ) 45. ELLIOTT, TERRENCE RODRICUS (B ) 112. RICHARDSON, MARTIN A. (B ) 46. FAIR, NATHANIEL (B ) 113. RICHARDSON, TIMOTHY (B ) 47. FLETCHER, ANDRE (B ) 114. ROBINSON, EDDIE (B ) 48. FORTE, LINWOOD (B ) 115. [ ROBINSON, MARCUS (B ) ] 49. FOWLER, ELRICO (B ) 116. ROBINSON, TERRY LAMONT (B ) 50. FROGGE, DANNY (W ) 117. ROBINSON, WILLIAM E. (B ) 51. [ GAINEY, DAVID (B ) ] 118. RODRIGUEZ, JUAN CARLOS (L ) 52. GARCELL, RYAN (L ) 119. ROSE, CLINTON (W ) 53. GARCIA, FERNANDO (L ) 120. ROSEBORO, CHRISTOPHER (B ) 54. GARNER, DANIEL T. (W ) 121. ROUSE, KENNETH (B ) 55. GEDDIE, JR., MALCOLM (B ) 122. RYAN, MICHAEL PATRICK (W ) 56. [ GOLPHIN, TILMON (B ) ] 123. SHERRILL, MICHAEL WAYNE (W ) 57. GOSS, CHRISTOPHER (W ) 124. SIDDEN, TONY (W ) 58. [ GRAY, JR., WILLIAM (W ) ] 125. SMITH, JAMIE (B ) 59. GREGORY, WARREN (B ) 126. SMITH, RECHE (B ) 60. GREGORY, WILLIAM (B ) 127. SMITH, JR., WESLEY TOBE (W ) 61. GROOMS, TIMMY EUVONNE (W ) 128. SQUIRES, MARK L. (B ) 62. GUEVARA, ANGEL (L ) 129. STEEN, PATRICK JOSEPH (W ) 63. HARDEN, ALDEN (B ) 130. STEPHENS, DAVY (W ) 64. HARTFORD, TIMOTHY (W ) 131. STRICKLAND, DARRELL (N ) 65. HASELDON, JIM E. (W ) 132. SUMMERS, TONY (B ) 66. HEDGEPETH, ROWLAND (W ) 133. TAYLOR, EDDIE (B ) 67. HEMBREE, DANNY (W ) 134. TAYLOR, RODNEY (B ) 68. HILL, JERRY (W ) 135. THIBODEAUX, THOMAS R. (W ) 69. HOLMAN, ALLEN RICHARD (W ) 136. THOMAS, JAMES EDWARD (B ) 70. HOLMES, MITCHELL D. (B ) 137. THOMAS, WALIC CHRISTOPHER (B ) 71. HOOKS, CERRON THOMAS (B ) 138. THOMPSON, JOHN HENRY (B ) 72. HURST, JASON (W ) 139. TRULL, GARY ALLEN (W ) 73. HYATT, TERRY ALVIN (W ) 140. TUCKER, RUSSELL (B )

Death Row U.S.A. Page 55

141. TYLER, STACEY (B ) 150. WILKERSON, GEORGE (W ) 142. WALLACE, HENRY LOUIS (B ) 151. WILKINSON, PHILLIP E. (W ) 143. [ WALTERS, CHRISTINA S. ^ (N ) ] 152. WILLIAMS, DAVID KENT (B ) 144. WARING, BYRON LAMAR (B ) 153. WILLIAMS, EUGENE JOHNNY (B ) 145. WARREN, LESLIE (W ) 154. WILLIAMS, JAMES E. (W ) 146. WATTS, JAMES HOLLIS (W ) 155. WILLIAMS, JOHN (B ) 147. WHITE, MELVIN (B ) 156. WOODS, DARRELL (B ) 148. WHITE, TIMOTHY L. (W ) 157. WOOTEN, VINCENT (B ) 149. WILEY, JR., KEITH DEDRICK (B )

OHIO (Lethal Injection) Total = 145 B = 77 W = 63 L = 3 N = 0 A = 2 U = 0 Females = 1 (W )

1. ADAMS, BENNIE (B ) 53. HILL, DANNY (B ) 2. ADAMS, STANLEY (W ) 54. HILL, GENESIS (B ) 3. AHMED, NAWAZ (A ) 55. HOFFNER, TIMOTHY (W ) 4. ALLEN, DAVID (W ) 56. HUGHBANKS, GARY (W ) 5. [ APANOVITCH, ANTHONY (W ) ] 57. HUNTER, LAMONT (B ) 6. AWKAL, ABDUL H. (W ) 58. HUTTON, PERCY (B ) 7. BALLEW, TYRONE (B ) 59. ISSA, AHMAD FAWZI (A ) 8. BAYS, RICHARD R. (W ) 60. JACKSON, ANDRE (B ) 9. BEASLEY, RICHARD (W ) 61. JACKSON, CLEVELAND (B ) 10. BELTON, ANTHONY (B ) 62. JACKSON, JEREMIAH (B ) 11. BETHEL, ROBERT W. (W ) 63. JACKSON, KAREEM (B ) 12. BONNELL, MELVIN (W ) 64. JACKSON, NATHANIEL (B ) 13. BRADEN, DAVID (W ) 65. JALOWIEC, STANLEY (W ) 14. BRINKLEY, GRADY (B ) 66. JOHNSON, MARVIN G. (B ) 15. BROOM, ROMELL (B ) 67. JOHNSON, RAYSHAWN (B ) 16. BRYAN, QUISI (B ) 68. JONES, ELWOOD (B ) 17. CAMPBELL, JR., ALVA (W ) 69. JONES, ODRAYE (B ) 18. CARTER, CEDRIC (B ) 70. JONES, PHILLIP L. (B ) 19. CARTER, SEAN (B ) 71. [ KEENAN, THOMAS (W ) ] 20. CASSANO, AUGUST (W ) 72. KETTERER, DONALD (W ) 21. CEPEC, STEVEN (W ) 73. KINLEY, JUAN (B ) 22. CHINN, DAVEL (B ) 74. KIRKLAND, ANTHONY (B ) 23. CLINTON, CURTIS (B ) 75. LAMAR, KEITH (B ) 24. COLEMAN, TIMOTHY (B ) 76. LANDRUM, LAWRENCE (W ) 25. COLEY, DOUGLAS (B ) 77. LANG, III, EDWARD (B ) 26. CONWAY, III, JAMES T. (W ) 78. [ LAWSON, JERRY (W ) ] 27. COOK, DERRICK L. (B ) 79. LEONARD, PATRICK (W ) 28. CUNNINGHAM, JERONIQUE (B ) 80. LINDSEY, CARL (W ) 29. DAVIS, ROLAND T. (B ) 81. LORRAINE, CHARLES (W ) 30. DAVIS, VON CLARK (B ) 82. LOTT, GREGORY (B ) 31. DEAN, JASON (W ) 83. LOZA, JOSE T. (L ) 32. DIXON, ARCHIE (W ) 84. LYNCH, RALPH (W ) 33. DRUMMOND, JR., JOHN (B ) 85. MACK, CLARENCE (W ) 34. DUNLAP, TIMOTHY (W ) & 86. MAMMONE, III, JAMES (W ) 35. ELMORE, PHILLIP L. (B ) 87. MARTIN, DAVID (B ) 36. ESPARZA, GREGORY (L ) 88. [ MASON, MAURICE (B ) ] 37. FEARS, ANGELO (B ) 89. MAXWELL, CHARLES (B ) 38. FITZPATRICK, STANLEY (B ) 90. MCKELTON, CALVIN (B ) 39. [ FOUST, KELLY (W ) ] 91. MCKNIGHT, GREGORY (B ) 40. FRANKLIN, ANTONIO SANCHEZ (B ) 92. MCNEILL, JR., FREDDIE (B ) 41. FRAZIER, JAMES (B ) 93. MONROE, JONATHAN D. (B ) 42. FRY, JR., CLARENCE (B ) 94. MONTGOMERY, CARON (B ) 43. GAPEN, LARRY JAMES (W ) 95. MONTGOMERY, WILLIAM (B ) 44. GILLARD, JOHN (W ) 96. MOORE, JR., LEE EDWARD (B ) 45. [ GOFF, JAMES (W ) ] 97. MORELAND, SAMUEL (B ) 46. GROUP, SCOTT (W ) 98. MUNDT, JR., FRED (W ) 47. HALE, JR., DELANO (B ) 99. MYERS, AUSTIN (W ) 48. HAND, GERALD (W ) 100. MYERS, DAVID LEE (W ) 49. HANNA, JAMES (W ) 101. NEYLAND, JR., CALVIN (B ) 50. HENDERSON, JEROME (B ) 102. NOLING, TYRONE L. (W ) 51. HENNESS, WARREN K. (W ) 103. OBERMILLER, DENNY (W ) 52. [ HERRING, WILLIE (B ) ] 104. O'NEAL, JAMES D. (B )

Death Row U.S.A. Page 56

105. OSIE, GREGORY (W ) 126. SPIVEY, WARREN (B ) 106. OTTE, GARY (W ) 127. [ STEFFEN, DAVID (W ) ] 107. PEREZ, KERRY (L ) 128. STOJETZ, JOHN (W ) 108. PHILLIPS, RONALD (W ) 129. STUMPF, JOHN (W ) 109. PICKENS, MARK (B ) 130. THOMAS, JOSEPH (W ) 110. POWELL, WAYNE (B ) 131. THOMPSON, ASHFORD (B ) 111. RAGLIN, WALTER (B ) 132. TIBBETTS, RAYMOND (W ) 112. ROBB, JASON (W ) 133. [ TRIMBLE, JAMES EARL (W ) ] 113. ROBERTS, DONNA ^ (W ) 134. TURNER, MICHAEL RAY (W ) 114. ROJAS, MARTIN (W ) 135. TWYFORD, III, RAYMOND (W ) 115. SANDERS, CARLOS (B ) 136. VAN HOOK, ROBERT (W ) 116. SAPP, WILLIAM K. (W ) 137. WADDY, WARREN (B ) 117. SCOTT, JR., MICHAEL DEAN (B ) 138. WEBB, MICHAEL (W ) 118. SCUDDER, KEVIN (B ) 139. WERE, JAMES (B ) 119. SHEPPARD, BOBBY T. (B ) 140. WESSON, HERSIE (B ) 120. SHORT, DUANE A. (W ) 141. WILKS, WILLIE (B ) 121. SKATZES, GEORGE (W ) 142. WILLIAMS, ANDRE (B ) 122. SMITH, KENNY (W ) 143. WILLIAMS, CLIFFORD (B ) 123. SNEED, DAVID (B ) 144. WILLIAMS, JR., ROBERT (B ) 124. SOWELL, ANTHONY (B ) 145. WOGENSTAHL, JEFFREY (W ) 125. SPAULDING, DAWUD (B )

OKLAHOMA (Lethal Injection Unless Held Unconstitutional; then Electrocution Unless Held Unconstitutional; then Firing Squad) Total = 48 B = 21 W = 22 L = 2 N = 3 A = 0 U = 0 Females = 1 (W )

1. ANDREW, BRENDA ^ (W ) 25. JOHNSON, RAYMOND EUGENE (B ) 2. BOSSE, SHAUN MICHAEL (W ) 26. JONES, JARED (W ) 3. BROWN, FABION (B ) 27. JONES, JULIUS DARIUS (B ) 4. [ BROWNING, MICHAEL (W ) ] 28. LAY, WADE (W ) 5. BUSH, RONSON KYLE (W ) 29. LITTLEJOHN, EMMANUEL (B ) 6. CANNON, JERMAINE (B ) 30. MALONE, RICKY RAY (W ) 7. CODDINGTON, JAMES ALLEN (W ) 31. MARTINEZ, MICA ALEXANDER (N ) 8. COLE, BENJAMIN (W ) 32. [ MILLER, VICTOR CORNELL (B) ] 9. CUESTA-RODRIGUEZ, CARLOS (L ) 33. MITCHELL, ALFRED (B ) 10. DAVIS, NICHOLAS (B ) 34. MURPHY, PATRICK DWAINE (N ) 11. EIZEMBER, SCOTT (W ) 35. PAVATT, JAMES (W ) 12. FAIRCHILD, RICHARD (W ) 36. POSTELLE, GILBERT (W ) 13. FREDERICK, DARRELL WAYNE (B ) 37. ROJEM, JR., RICHARD (W ) 14. GLOSSIP, RICHARD (W ) 38. RYDER, JAMES C. ( W ) 15. GOODE, CLARENCE (B ) 39. SANCHEZ, ANTHONY CASTILLO (L ) 16. GRANT, DONALD (B ) 40. SIMPSON, KENDRICK (B ) 17. GRANT, JOHN MARION (B ) 41. SMITH, MICHAEL DEWAYNE (B ) 18. GRISSOM, WENDELL ARDEN (W ) 42. SMITH, RODERICK (B ) 19. HANCOCK, PHILLIP (W ) 43. STOUFFER, II, BIGLER (W ) 20. HANSON, JOHN G. (W ) 44. UNDERWOOD, KEVIN RAY (W ) 21. HARMON, MARLON (B ) 45. VAN WOUDENBERG, SAMMY (N ) 22. HARRIS, JR., DONNIE LEE (B ) 46. WILLIAMS, JEREMY (B ) 23. HARRIS, JIMMY DEAN (W ) 47. [ WILLIAMS, STERLING (B ) ] 24. JACKSON, SHELTON (B ) 48. WOOD, TERMANE (B )

OREGON (Lethal Injection) Total = 36 B = 3 W = 28 L = 3 N = 1 A = 0 U = 1 Females = 1 (W )

1. AGEE, ISAAC CREED (W ) 9. GUZEK, RANDY (W ) 2. BOWEN, GREGORY (W ) 10. HALE, CONAN WAYNE (W ) 3. BRUMWELL, JASON (W ) 11. HAUGEN, GARY (W ) 4. COMPTON, JESSE CELEB (W ) 12. HAYWARD, MICHAEL JAMES (W ) 5. COX, DAVID LEE (W ) 13. JOHNSON, JESSE LEE (B ) 6. CUNNIGHAM, CLINTON (W ) 14. [ JOHNSON, MARTIN ALLEN (W ) ] 7. DAVIS, MICHAEL ANDRE (B ) 15. LANGLEY, ROBERT (W ) 8. [ FANUS, JESSE (W ) ] 16. LONGO, CHRISTIAN (W )

Death Row U.S.A. Page 57

17. LOTCHES, ERNEST (N ) 27. SIMONSEN, DAVID (W ) 18. MCANULTY, ANGELA D. ^ (W ) 28. [ SPARKS, JEFFREY (W ) ] 19. MCDONNELL, MICHAEL (W ) 29. TAYLOR, DAVID (W ) 20. MONTEZ, MARCO (L ) 30. TERRY, KARL ANTHONY (W ) 21. OATNEY, JR., BILLY LEE (W ) 31. THOMPSON, MATTHE.75W DWIGHT (W ) 22. PINNELL, MARK (W ) 32. [ TINER, JEFFREY DALE (W ) ] 23. REYES-CAMARENA, HORACIO A. (L ) 33. TURNIDGE, BRUCE (W ) 24. [ ROGERS, DAYTON (W ) ] 34. TURNIDGE, JOSHUA (W ) 25. RUNNING, ERIC WALTER (U ) 35. WASHINGTON, MICHAEL (B ) 26. SERRANO, RICARDO (L ) 36. WILLIAMS, JEFFREY (W )

PENNSYLVANIA (Lethal Injection) Total = 184 B = 100 W = 65 L = 17 N = 0 A = 2 U = 0 Females = 2 (B = 1 W = 1)

1. ABDUL-SALAAM, SEIFULLAH (B ) 52. [ FAHY, HENRY (W ) ] 2. ARRINGTON, LANCE (B ) 53. FEARS, LEROY (B ) 3. BAEZ, ORLANDO (L ) 54. FIEBIGER, ANTHONY JAMES (W ) 4. BALLARD, MICHAEL ERIC (W ) 55. FISHER, ROBERT (B ) 5. BANKS, GEORGE (B ) 56. FLETCHER, ANTHONY (B ) 6. [ BARDO, MICHAEL (W ) ] 57. FLOR, ROBERT (W ) 7. BAUMHAMMERS, RICHARD (W ) 58. FREY, JR., JAMES (W ) 8. BIRDSONG, RALPH (B ) 59. [ GALVIN, BRYAN S. (W ) ] 9. BLAKENEY, HERBERT (B ) 60. GIBSON, RONALD (B ) 10. [ BLYSTONE, SCOTT (W ) ] 61. GWYNN, DANIEL (B ) 11. BOMAR, ARTHUR JEROME (B ) 62. HAAG, RANDY (W ) 12. [ BOND, AQUIL (B ) ] 63. HACKETT, RICHARD (W ) 13. BOXLEY, RICHARD (B ) 64. HAIRSTON, KENNETH (B ) 14. [ BRACEY, EDWARD (B ) ] 65. [ HALL, DARRICK U. (B ) ] 15. [ BREAKIRON, MARK (W ) ] 66. HANEY, PATRICK RAY (W ) 16. [ BRIDGES, SHAWNFATEE M. (B ) ] 67. HANNIBAL, SHELDON (B ) 17. BRIGGS, DUSTIN (W ) 68. HARRIS, FRANCIS BAUER (W ) 18. [ BRONSHTEIN, ANTUAN (W ) ] 69. HAWKINS, THOMAS (B ) 19. BROWN, JOHN W. (B ) 70. HICKS, CHARLES (B ) 20. BROWN, KENNETH (B ) 71. HITCHO, JR., GEORGE (W ) 21. BROWN, LAVAR (B ) 72. HOUSER, DARIEN (B ) 22. BRYANT, LAQUAILLE (B ) 73. HOUSMAN, WILLIAM HOWARD (W ) 23. BURNO, JUNIUS (B ) 74. HUGHES, ROBERT (W ) 24. BUSANET, JOSE (L ) 75. [ JACOBS, DANIEL (B ) ] 25. CASH, OMAR (B ) 76. JACOBY, TIMOTHY MATTHEW (W ) 26. CHAMBERLAIN, TERRY RAY (W ) 77. JOHNSON, CHRISTOPHER (W ) 27. CHAMBERS, JERRY (B ) 78. JOHNSON, HARVE LAMAR (B ) 28. [ CHAMPNEY, RONALD (W ) ] 79. JOHNSON, KAREEM (B ) 29. CHAPMAN, LAQUANTA (B ) 80. JOHNSON, RODERICK ANDRE (B ) 30. [ CHESTER, FRANK (W ) ] 81. [ JOHNSON, WILLIAM (B ) ] 31. CHMIEL, DAVID (W ) 82. JONES, AARON C. (B ) 32. CONFORTI, MICHAEL (W ) 83. JORDAN, LEWIS (B ) 33. [ COOK, ROBERT (B ) ] (AKA LEWIS, JOHN) 34. [ COUSAR, BERNARD (B ) ] 84. [ JUDGE, ROGER (B ) & ] 35. COX, JERMONT (B ) 85. KENNEDY, CHRISTOPHER (B ) 36. COX, RUSSELL (B ) 86. [ KINDLER, JOSEPH (W ) ] 37. CRAWLEY, DEWITT (B ) 87. KNIGHT, MELVIN (B ) 38. CRISPELL, DANIEL (W ) 88. KOEHLER, JOHN J. (W ) 39. DANIELS, HENRY (B ) 89. LAIRD, RICHARD (W ) 40. DAVIDO, III, TEDOR (W ) 90. [ LAMBERT, JAMES (B ) ] 41. DEJESUS, JOSE (L ) 91. [ LARK, ROBERT (B ) ] 42. [ DENNIS, JAMES A. (B ) ] 92. LESKO, JOHN (W ) 43. DIAMOND, ROBERT (W ) 93. LESTER, EMANUAL (B ) 44. DICK, ANTHONY JAMES (W ) 94. LIGONS, ANTIONE (B ) 45. DOWLING, KEVIN (W ) 95. LOPEZ, GEORGE (L ) 46. DRUMHELLER, TROY (W ) 96. LYONS, GLENN (B ) 47. DUFFEY, STEVEN (W ) 97. MAISONET, ORLANDO (L ) 48. EDMISTON, STEPHEN (W ) 98. MARINELLI, KEVIN (W ) 49. [ EDWARDS, JR., MARK DUANE (B ) ] 99. MARSHALL, JEROME (B ) 50. EICHINGER, JOHN (W ) 100. MARTIN, JEFFREY (W ) 51. ELLIOTT, JOSEPH (B ) 101. MASON, LENWOOD (B )

Death Row U.S.A. Page 58

102. MATTISON, KEVIN EDWARD (B ) 143. SANCHEZ, ABRAHAM (L ) 103. MAY, LANDON (W ) 144. SANCHEZ, ALFONSO (L ) 104. MEADOWS, THOMAS (B ) 145. SARANCHAK, DANIEL (W ) 105. MICHAEL, JR., HUBERT L. (W ) 146. [ SATTAZAHN, DAVID ALLEN (W ) ] 106. MILLER, DENNIS (W ) 147. SEPULVEDA, MANUEL M. (L ) 107. MITCHELL, WAYNE (B ) 148. SHERWOOD, BRENTT (W ) 108. MONTALVO, MILTON (L ) 149. SIMPSON, RASHEEN L. (B ) 109. MONTALVO, NOEL (L ) 150. SINGLEY, MICHAEL (W ) 110. MOORE, MIKAL (B ) 151. SMALL, JOHN AMOS (W ) 111. MORALES, HECTOR MANUEL (L ) 152. SMITH, CHRISTOPHER (B ) 112. MURPHY, CRAIG (B ) 153. SMITH, WAYNE (B ) 113. MURPHY, KEVIN (W ) 154. SMYRNES, RICKY (W ) 114. [ MURRAY, IV, HAROLD (B ) ] 155. [ SOLANO, RAYMOND (L ) ] 115. NATIVIDAD, RICARDO (B ) 156. SPEIGHT, MELVIN (B ) 116. OGROD, WALTER (W ) 157. SPOTZ, MARK NEWTON (W ) 117. PADDY, DONYELL (B ) 158. STATON, ANDRE (B ) 118. PADILLA, MIGUEL (L ) 159. [ STEELE, ROLAND (B ) ] 119. PARRISH, MICHAEL (W ) 160. STOKES, RALPH (B ) 120. PATTERSON, MAURICE (B ) 161. STOLLAR, PATRICK JASON (W ) 121. [ PELZER, KEVIN (B ) ] 162. TAYLOR, PAUL (B ) 122. PEREZ, ALBERT (L ) 163. TAYLOR, RONALD (B ) 123. PHILISTEN, BORTELLA (B ) 164. TEDFORD, DONALD (W ) 124. PIERCE, MICHAEL (W ) 165. [ THARP, MICHELLE SUE ^ (W ) ] 125. POPLAWSKI, RICHARD (W ) 166. THOMAS, DONTE (B ) 126. [ PORTER, ERNEST (B ) ] 167. TOWLES, JAKEEM LYDELL (B ) 127. POWELL, GREGORY (B ) 168. TRAVAGLIA, MICHAEL (W ) 128. PRUITT, MICHAEL (B ) 169. TREIBER, STEPHEN (W ) 129. RAGAN, DERRICK (B ) 170. UDERRA, JOSE (L ) 130. RANDOLPH, IV, SAMUEL B. (B ) 171. VANDIVNER, JAMES W. (W ) 131. REED, DENNIS (B ) 172. WALTER, SHONDA ^ (B ) 132. REGA, ROBERT (W ) 173. [ WASHINGTON, ANTHONY (B ) ] 133. REID, ALBERT E. (B ) 174. WATKINS, GERALD (B ) 134. REID, ANTHONY (B ) 175. WATSON, HERBERT (B ) 135. RIVERA, CLETUS (B ) 176. WHARTON, ROBERT (B ) 136. RIVERA, WILLIAM (L ) 177. WHOLAVER, JR., ERNEST (W ) 137. ROBINSON, ANTYANE (B ) 178. [ WILLIAMS, CHRISTOPHER (B ) ] 138. ROBINSON, HARVEY (W ) 179. WILLIAMS, JAMES T. (B ) & 139. ROMERO, EDWIN R. (L ) 180. WILLIAMS, ROY L. (B ) 140. RONEY, CHRISTOPHER (B ) 181. WILLIAMS, TERRANCE (B ) 141. RUSH, LARRY (B ) 182. WOODARD, ARIC (B ) (AKA THOMAS, LEROY) 183. WRIGHT, WILLIAM (W ) 142. SAM, THAVIRAK (A ) 184. YANDAMURI, RAGHUNANDAN (A )

SOUTH CAROLINA (Lethal Injection or Choice of Electrocution If Sentenced After 6/8/95; Electrocution or Choice of Lethal Injection If Sentenced Before 6/8/95) Total = 44 B = 23 W = 20 L = 1 N = 0 A = 0 U = 0

1. ALEKSEY, BAYAN (W ) 20. JONES, DONALD ALLEN (B ) 2. ALLEN, QUINCY (B ) 21. LINDSEY, MARION (W ) 3. [ BARNES, STEVEN (B ) ] 22. MAHDI, MIKAL D. (B ) 4. BELL, WILLIAM H. (B ) 23. MOORE, RICHARD BERNARD (B ) 5. BENNETT, JOHNNY (B ) 24. NORTHCUTT, CLINTON ROBERT (W ) 6. [ BINNEY, JONATHAN KYLE (W ) ] 25. OWENS, FREDDIE (B ) 7. BIXBY, STEVEN VERNON (W ) 26. ROBERTS, TYREE ALFONZO (B ) 8. BLACKWELL, SR., RICKY LEE (W ) (AKA ALKEBULANYAHH, ABDIYAHH BEN) 9. BOWMAN, JR., MARION (B ) 27. ROBERTSON, JAMES (W ) 10. BRYANT, JAMES NATHANIEL (B ) 28. [ SAPP, JESSE WAYLON (W ) ] 11. BRYANT, STEPHEN C. (W ) 29. SIGMON, BRAD KEITH (W ) 12. COTTRELL, LUZENSKI ALLEN (B ) 30. [ SIMMONS, KENNETH (B ) ] 13. [ COUNCIL, DONNEY (B ) ] 31. SIMS, MITCHELL (W ) 14. DICKERSON, JR., WILLIAM (B ) 32. SINGLETON, FRED (B ) 15. [ EVANS, KAMELL DELSHAWN (B ) ] 33. STANKO, STEPHEN (W ) 16. FINKLEA, RON (B ) 34. STARNES, NORMAN (W ) 17. HUGHES, MAR-REECE (B ) 35. STOKES, SAMMIE LOUIS (B ) 18. [ HUGHEY, JOHN (B ) ] 36. STONE, BOBBY WAYNE (W ) 19. INMAN, JERRY “BUCK” (W ) 37. TERRY, GARY (W )

Death Row U.S.A. Page 59

38. TORRES, ANDRES ANTONIO (L ) 42. [ WINKLER, LOUIS MICHAEL (W ) ] 39. [ WEIK, JOHN EDWARD (W) ] 43. WOOD, JOHN RICHARD (W ) 40. WILLIAMS, CHARLES CHRISTOPHER (B ) 44. WOODS, ANTHONY (B ) 41. WILSON, JAMES (W )

SOUTH DAKOTA (Lethal Injection) Total = 3 B = 0 W = 3 L = 0 N = 0 A = 0 U = 0

1. BERGET, RODNEY (W ) 3. RHINES, CHARLES (W ) 2. PIPER, BRILEY (W )

TENNESSEE (Lethal Injection or Choice of Electrocution If Sentenced Before 1/1/99; or Electrocution If No Chemicals Available or Lethal Injection Held Unconstitutional) Total = 73 B = 33 W = 36 L = 1 N = 1 A = 2 U = 0 Females = 1 (W )

1. ABDUR’RAHMAN, ABU-ALI (B ) 38. KING, TERRY (W ) 2. BANE, JOHN M. (W ) 39. KISER, MARLAN (W ) 3. BELL, RICKEY (B ) 40. MCKAY, LARRY (B ) 4. [ BERRY, G’DONGALAY PARLO (B ) ] 41. MCNISH, DAVID (W ) 5. BESH, DEELICHO (N ) 42. MIDDLEBROOKS, DONALD (W ) (FKA STROUTH, DONALD) 43. MILLER, DAVID (W ) 6. BLACK, BYRON (B ) 44. [ MORRIS, FARRIS (B ) ] 7. BLAND, ANDRE (B ) 45. [ NESBIT, CLARENCE (B ) ] 8. BURNS, KEVIN (B ) 46. NICHOLS, HAROLD (W ) 9. CARRUTHERS, TONY (B ) 47. ODOM, RICHARD (W ) 10. [ CARUTHERS, WALTER (B ) ] 48. PAYNE, PERVIS (B ) 11. [ CAUTHERN, RONNIE (W ) ] 49. PIKE, CHRISTA ^ (W ) 12. CHALMERS, TYRONE (B ) 50. POWERS, GERALD LEE (A ) 13. CLAYTON, SEDRICK (B ) 51. PRUITT, CORINIO (B ) 14. CONE, GARY (W ) 52. QUINTERO, DERRICK (L ) 15. [ DAVIDSON, JERRY (W ) ] 53. RICE, CHARLES (B ) 16. DAVIDSON, LEMARICUS (B ) 54. [ RIMMER, MICHAEL (W ) ] 17. DELLINGER, JAMES ANDERSON (W ) 55. ROBINSON, GREGORY (B ) 18. DOTSON, JESSIE (B ) 56. ROGERS, WILLIAM GLENN (W ) 19. DUNCAN, DAVID (B ) 57. SAMPLE, MICHAEL (B ) 20. [ FAULKNER, ROBERT (B ) ] 58. SIMS, VINCENT (B ) 21. FREELAND, JOHN (B ) 59. SMITH, OSCAR F. (W ) 22. HALL, BILLY (W ) 60. STEPHENSON, JONATHAN (W ) 23. HALL, JON (W ) 61. STEVENS, WILLIAM (W ) 24. HALL, LEROY (W ) 62. SUTTLES, DENNIS WADE (W ) 25. HENDERSON, KENNATH (B ) 63. SUTTON, GARY (W ) 26. HINES, ANTHONY DARRELL (W ) 64. SUTTON, NICHOLAS (W ) 27. HODGES, HENRY (W ) 65. THOMAS, ANDREW (B ) 28. HUGUELY, STEPHEN LYNN (W ) 66. THOMAS, JAMES WILLIAM (B ) 29. IRICK, BILLY R. (W ) (AKA HAWKINS, JAMES) 30. IVY, DAVID (B ) 67. THOMPSON, GREGORY (B ) 31. JAHI, AKIL (B ) (FKA CARTER, PRESTON) 68. TRAN, HECK VAN (A ) 32. JOHNSON, DONNIE E. (W ) 69. WEST, STEVEN (W ) 33. JOHNSON, NIKOLAUS (B ) 70. WILLIS, HOWARD HAWK (W ) 34. [ JONES, HENRY LEE (B ) ] 71. WRIGHT, CHARLES (B ) 35. JORDAN, DAVID LYNN (W ) 72. [ YOUNG, LEONARD (W ) ] 36. KEEN, DAVID (W ) 73. ZAGORSKI, EDMUND (W ) 37. KEOUGH, ROY (W )

TEXAS (Lethal Injection) Total = 271 B = 113 W = 76 L = 77 N = 0 A = 5 U = 0 Females = 6 (B = 2 W = 3 L = 1)

1. ACKER, DANIEL (W ) 5. ALLEN, KERRY (B ) 2. ALDRIDGE, RULFORD (B ) 6. ALVAREZ, JUAN (L ) 3. [ ALEXANDER, GUY S. (W ) ] 7. ANDRUS, TERENCE (B ) 4. ALLEN, GUY (B ) 8. ARANDA, ARTURO D. (L )

Death Row U.S.A. Page 60

9. ARMSTRONG, DOUGLAS (B ) 76. FLORES, CHARLES (L ) 10. AUSTIN, PERRY ALLEN (W ) 77. FORD, TONY (B ) 11. AVILA, JR., RIGOBERTO (L ) 78. FRANCOIS, ANTHONY (B ) 12. AYESTAS, CARLOS (L ) 79. FRATTA, ROBERT (W ) 13. BALDERAS, JUAN (L ) 80. FREEMAN, JAMES (W ) 14. BALENTINE, JOHN (B ) 81. FREENEY, RAY (B ) 15. BARBEE, STEPHEN (W ) 82. FULLER, BARNEY (W ) 16. BARTEE, ANTHONY (B ) 83. GALLO, TOMAS (L ) 17. BATISTE, TEDDRICK (B ) 84. GAMBOA, JOSEPH (L ) 18. BATTAGLIA, JOHN (W ) 85. GARCIA, GUSTAVO L. (L ) 19. BEATTY, TRACY (W ) 86. GARCIA, HECTOR L. (L ) 20. BESS, DONALD (W ) 87. GARCIA, JOSEPH (L ) 21. BIBLE, DANNY PAUL (W ) 88. GARCIA, JUAN MARTIN (L ) 22. BIGBY, JAMES (W ) 89. GARDNER, JOHN STEVEN (W ) 23. BOWER, LESTER L. (W ) 90. GARZA, HUMBERTO (L ) 24. BRAZIEL, JR., ALVIN (B ) 91. GARZA, JR., JOE FRANCO (L ) 25. BREWER, BRENT (W ) 92. GARZA, MANUEL (L ) 26. BRIDGERS, ALLEN (B ) 93. GATES, BILL (B ) 27. BROADNAX, JAMES (B ) 94. GOBERT, MILTON (B ) 28. [ BROWN, ALFRED DEWAYNE (B ) ] 95. GOMEZ, IGNACIO (L ) 29. BROWN, ARTHUR (B ) 96. [ GONGORA, NELSON (L ) ] 30. BROWN, MICAH (W ) 97. GONZALES, MICHAEL (L ) 31. BROXTON, EUGENE A. (B ) 98. GONZALES, RAMIRO (L ) 32. BUCK, DUANE, EDWARD (B ) 99. GRANGER, BARTHOLOMEW (B ) 33. BUNTION, CARL W. (W ) 100. GREEN, GARY (B ) 34. BURTON, ARTHUR (B ) 101. GREEN, TRAVIS (B ) 35. BUSBY, JR., EDWARD (B ) 102. [ GREER, RANDOPLH M. (B ) ] 36. BUTLER, STEVEN A. (B ) 103. GRIFFIN, STANLEY (B ) 37. CADE, TYRONE (B ) 104. GUEVARA, GILMAR (L ) 38. CAMPBELL, ROBERT J. (B ) 105. GUIDRY, HOWARD (B ) 39. CANALES, ANIBAL (L ) 106. GUTIERREZ, GERONIMO (L ) 40. CANTU, IVAN (L ) 107. GUTIERREZ, RUBEN (L ) 41. CARDENAS, RUBEN (L ) 108. HALL, JUSTEN (W ) 42. CARGILL, KIMBERLY ^ (W ) 109. HALPRIN, RANDY (W ) 43. CARPENTER, DAVID (W ) 110. HAMILTON, JR., RONALD JAMES (B ) 44. CARTER, TILON (B ) 111. HARPER, GARLAND (B ) 45. CARTY, LINDA ^ (B ) 112. HARRIS, JR., JAMES (B ) 46. CASTILLO, JUAN (L ) 113. HARRIS, RODERICK (B ) 47. CATHEY, ERIC (B ) 114. HATTEN, LARRY (B ) 48. CHANTHAKOUMMANE, KOSOUL (A ) 115. HAYNES, ANTHONY (B ) 49. CHARLES, DERRICK (B ) 116. HENDERSON, JAMES LEE (B ) 50. CLARK, TROY JAMES (W ) 117. HERNANDEZ, FABIAN (L ) 51. COBLE, BILLIE W. (W ) 118. HOLBERG, BRITTANY ^ (W ) 52. COLE, JAIME (L ) 119. HOLIDAY, RAPHAEL (B ) 53. CORTEZ, RAUL (L ) 120. HOWARD, JAMAAL (B ) 54. CRUTSINGER, BILLY JACK (W ) 121. HUMMEL, JOHN (W ) 55. CRUZ-GARCIA, OBEL (L ) 122. HUNTER, CALVIN (B ) 56. CUBAS, EDGARDO (L ) 123. IBARRA, RAMIRO (L ) 57. CUMMINGS, RICKEY (B ) 124. IRVAN, WILLIAM (W ) 58. CURRY, GEORGE (B ) 125. JACKSON, CHRISTOPHER (B ) 59. DANIEL, BRANDON (A ) 126. JEAN, JOSEPH (B ) 60. DAVILA, ERICK (B ) 127. JENKINS, WILLIE (B ) 61. DAVIS, BRIAN E. (W ) 128. JENNINGS, ROBERT M. (B ) 62. DAVIS, FRANKLIN (B ) 129. JOHNSON, DEXTER (B ) 63. DAVIS, IRVING ALVIN (B ) 130. JOHNSON, MATTHEW (B ) 64. DENNES, REINALDO (L ) 131. JONES, QUINTIN (B ) 65. DEVOE, PAUL (W ) 132. JONES, SHELTON D. (B ) 66. DRUERY, MARCUS (B ) 133. JORDAN, CLARENCE (B ) 67. EARVIN, HARVEY Y. (B ) 134. JOUBERT, ELIJAH DWAYNE (B ) 68. EDWARDS, TERRY (B ) 135. KEMP, JR., EMANUEL (B ) 69. ELDRIDGE, GERALD C. (B ) 136. KING, JOHN WILLIAM (W ) 70. ESCAMILLA, LICHO (L ) 137. LANDOR, III, MABRY (B ) 71. ESCOBAR, ARELI (L ) 138. LAVE, JOSEPH R. (B ) 72. ESCOBEDO, JOEL (L ) 139. LEZA, ARMANDO (L ) 73. ESPADA, NOAH (L ) 140. [ LEWIS, DAVID LEE (W ) ] 74. ESTRADA, LARRY (L ) 141. LEWIS, III, HARLEM (B ) 75. FIERRO, CESAR R. (L ) 142. [ LIM, KIM LY (A ) ]

Death Row U.S.A. Page 61

143. LIZCANO, JUAN (L ) 208. ROCHA, FELIX (L ) 144. LONG, STEPHEN (W ) 209. ROCKWELL, KWAME (B ) 145. LOPEZ, DANIEL (L ) 210. RODRIGUEZ, ROSENDO (L ) 146. LOVE, ALBERT (B ) 211. ROUTIER, DARLIE LYNN ^ (W ) 147. LUCIO, MELISSA ^ (L ) 212. RUBIO, JOHN ALLEN (L ) 148. LUNA, JOE MICHAEL (L ) 213. RUIZ, ROLANDO (L ) 149. MAMOU, JR., CHARLES (B ) 214. RUIZ, WESLEY (L ) 150. MARSHALL, GERALD (B ) 215. RUNNELS, TRAVIS (B ) 151. MARTINEZ, JOSE NOEY (L ) 216. RUSSEAU, GREGORY (B ) 152. MARTINEZ, RAYMOND D. (L ) 217. RUSSELL, JR., PETE (B ) 153. [ MASON, WILLIAM MICHAEL (W ) ] 218. SALDANO, VICTOR (L ) 154. MASTERSON, RICHARD ALLEN (W ) 219. SALES, TARUS (B ) 155. MATAMOROS, JOHN (L ) 220. SEGUNDO, JUAN MEZA (L ) 156. MATTHEWS, DAMON (B ) 221. SHEPPARD, ERICA ^ (B ) 157. MAYS, RANDALL (W ) 222. SHORE, ANTHONY ALLEN (W ) 158. MCFARLAND, GEORGE E. (B ) 223. SKINNER, HENRY (W ) 159. [ MCGOWEN, ROGER (B ) ] 224. SLATER, PAUL (B ) 160. MEDINA, ANTHONY (L ) 225. SMITH, DEMETRIUS (B ) 161. MEDINA, HECTOR (L ) 226. SMITH, JACK HARRY (W ) 162. MEDRANO, RODOLFO (L ) 227. SOFFAR, MAX A. (W ) 163. MELENDEZ, PABLO (L ) 228. SOLIZ, MARK (L ) 164. MENDOZA, MOISES (L ) 229. SORTO, WALTER (L ) 165. MILAM, BLAINE (W ) 230. [ SOSA, PEDRO S. (L ) ] 166. MILLER, DEMONTRELL (B ) 231. SPARKS, ROBERT (B ) 167. MOONEY, NELSON W. (W ) 232. SPEER, WILLIAM (W ) 168. MOORE, BOBBY JAMES (B ) 233. SPROUSE, KENT (W ) 169. MUHAMMAD, NAIM (B ) 234. STALEY, STEVEN (W ) 170. MULLIS, TRAVIS (W ) 235. STOREY, PAUL DAVID (B ) 171. MURPHY, JEDEDIAH (W ) 236. SUNIGA, BRIAN (L ) 172. MURPHY, JULIUS (B ) 237. SWEARINGEN, LARRY (W ) 173. MURPHY, PATRICK (W ) 238. TABLER, RICHARD (W ) 174. [ NELSON, MARLIN E. (W ) ] 239. TERCERO, BERNARDO (L ) 175. NELSON, STEVEN (B ) 240. THOMAS, ANDRE (B ) 176. NORMAN, LEJAMES (B ) 241. THOMAS, KENNETH D. (B ) 177. [ NORRIS, MICHAEL W. (B ) ] 242. THOMAS, STEVEN (W ) 178. OCHOA, ABEL (L ) 243. THOMPSON, CHARLES (W ) 179. [ OLSEN, CHRISTIAN (W ) ] 244. THUESEN, JOHN (W ) 180. PANETTI, SCOTT LOUIS (W ) 245. TONG, CHUONG DUONG (A ) 181. PEREZ, LOUIS (L ) 246. TREVINO, CARLOS (L ) 182. PETETAN, US (B ) 247. TURNER, ALBERT (B ) 183. PREVOST, JEFFREY (B ) 248. VALDEZ, FIDENCIO (L ) 184. PREYOR, TAICHIN (B ) 249. VASQUEZ, PABLO (L ) 185. PRIBLE, JR., RONALD JEFFREY (W ) 250. VASQUEZ, RICHARD (L ) 186. PRUETT, ROBERT LYNN (W ) 251. VILLANUEVA, JORGE (L ) 187. PRYSTASH, JOSEPH (W ) 252. WARD, ADAM (W ) 188. RABBANI, SYED M. (A ) 253. WARDLOW, BILLY JOE (W ) 189. RABY, CHARLES (W ) 254. WARDRIP, FARYION (W ) 190. RAMEY, KER’SEAN (B ) 255. WASHINGTON, WILLIE T. (B ) 191. RAMIREZ, JOHN (L ) 256. WEATHERS, OBIE (B ) 192. RAMIREZ, JUAN RAUL (L ) 257. WESBROOK, COY WAYNE (W ) 193. RAMOS, ROBERT M. (L ) 258. [ WHEATFALL, DARYL K. (B ) ] 194. RAYFORD, WILLIAM (B ) 259. WHITAKER, THOMAS BART (W ) 195. REED, RODNEY (B ) 260. WHITE, GARCIA G. (B ) 196. RENTERIA, DAVID (W ) 261. WILKINS, CHRISTOPHER (W ) 197. REYNOSA, JUAN (L ) 262. WILL, II, ROBERT GENE (W ) 198. RHOADES, RICK ALLEN (W ) 263. WILLIAMS, ARTHUR LEE (B ) 199. RICKS, CEDRIC (B ) 264. WILLIAMS, CLIFTON (B ) 200. RILES, RAYMOND G. (B ) 265. WILLIAMS, ERIC (W ) 201. RIPKOWSKI, BRITT (W ) 266. WILLIAMS, PERRY EUGENE (B ) 202. [ RIVERA, ANGEL (L ) ] 267. WOOD, DAVID L. (W ) 203. [ RIVERA, JOSE A. (L ) ] 268. WOOD, JEFFERY (W ) 204. [ RIVERS, WARREN (B ) ] 269. WOODARD, ROBERT (B ) 205. ROBERSON, ROBERT (W ) 270. YOUNG, CHRISTOPHER (B ) 206. ROBERTSON, MARK (W ) 271. YOUNG, CLINTON (W ) 207. ROBINSON, CORTNE (B )

Death Row U.S.A. Page 62

UTAH (Lethal Injection or Choice of Firing Squad If Sentenced Prior to March 15, 2004) Total = 9 B = 1 W = 5 L = 2 N = 1 A = 0 U = 0

1. ARCHULETA, MICHAEL (L ) 6. [ LOVELL, DOUG (W ) ] 2. CARTER, DOUGLAS (B ) 7. MAESTAS, FLOYD EUGENE (L ) 3. HONI, DAVE TABERONE (N ) 8. MENZIES, RALPH (W ) 4. KELL, TROY (W ) 9. TAYLOR, VON (W ) 5. LAFFERTY, RON (W )

VIRGINIA (Lethal Injection or Choice of Electrocution) Total = 8 B = 3 W = 4 L = 1 N = 0 A = 0 U = 0

1. BURNS, WILLIAM JOSEPH (W ) 5. MORVA, WILLIAM (W ) 2. GRAY, RICKY JOVAN (B ) 6. PORTER, THOMAS A. (B ) 3. JUNIPER, ANTHONY B. (B ) 7. PRIETO, ALFREDO (L ) 4. LAWLOR, MARK (W ) 8. TELEGUZ, IVAN (W )

WASHINGTON (Lethal Injection or Choice of Hanging) Total = 9 B = 4 W = 5 L = 0 N = 0 A = 0 U = 0

1. CROSS, DAYVA (W ) 6. SCHERF, BYRON (W ) 2. DAVIS, CECIL (B ) 7. SCHIERMAN, CONNER (W ) 3. ELMORE, CLARK RICHARD (W ) 8. WOODS, DWAYNE (B ) 4. GENTRY, JONATHAN LEE (B ) 9. YATES, ROBERT LEE (W ) 5. GREGORY, ALLEN EUGENE (B )

WYOMING (Lethal Injection Unless Held Unconstitutional, then Gas Chamber) Total = 1 B = 0 W = 1 L = 0 N = 0 A = 0 U = 0

1. [ EATON, DALE WAYNE (W ) ]

U.S. GOVERNMENT (Lethal Injection) Total = 61 B = 28 W = 24 L = 7 N = 1 A = 1 U = 0 Females = 1 (W )

1. AGOFSKY, SHANNON (W ) 27. HIGGS, DUSTIN (B ) 2. ALLEN, BILLIE JEROME (B ) 28. HOLDER, NORRIS (B ) 3. AQUART, AZIBO (B ) 29. HONKEN, DUSTIN (W ) 4. BARNETTE, AQUILA MARCIVICCI (B ) 30. JACKSON, RICHARD ALLEN (W ) 5. BARRETT, KENNETH (W ) 31. JOHNSON, CORY (B ) 6. BASHAM, BRANDON (W ) 32. KADAMOVAS, JURIJUS (W ) 7. BATTLE, ANTHONY (B ) 33. LAWRENCE, DARYL (B ) 8. BERNARD, BRANDON (B ) 34. LECROY, WILLIAM (W ) 9. BOLDEN, ROBERT (B ) 35. LEE, DANIEL (W ) 10. BOURGEOIS, ALFRED (B ) 36. LIGHTY, KENNETH JAMAL (B ) 11. BROWN, MEIER JASON (B ) 37. MIKHEL, IOURI (W ) 12. CARO, CARLOS (L ) 38. MIKOS, RONALD (W ) 13. COONCE, WESLEY PAUL (W ) 39. MITCHELL, LEZMOND (N ) 14. CORLEY, ODELL (B ) (AKA RA’ID, NASIH) 40. MONTGOMERY, LISA ^ (W ) 15. DAVIS, LEN (B ) 41. NELSON, KEITH D. (W ) 16. DUNCAN, JOSEPH (W ) 42. ORTIZ, ARBOLEDA (B ) 17. EBRON, JOSEPH (B ) 43. PAUL, JEFFREY WILLIAMS (W ) 18. [ FELL, DONALD (W ) ] 44. PURKEY, WESLEY IRA (W ) 19. FIELDS, EDWARD (W ) 45. ROANE, JR., JAMES H. (B ) 20. FIELDS, SHERMAN LAMONT (B ) 46. ROBINSON, JULIUS (B ) 21. FULKS, CHADRICK (W ) 47. RODRIGUEZ, ALFONSO (L ) 22. GABRION, II, MARVIN CHARLES (W ) 48. RUNYON, DAVID (A ) 23. GARCIA, EDGAR BALTAZAR (L ) 49. [ SAMPSON, GARY LEE (W ) ] 24. HAGER, THOMAS (B ) 50. SANCHEZ, RICARDO (L ) 25. HALL, CHARLES MICHAEL (W ) 51. SANDERS, THOMAS (W ) 26. HALL, ORLANDO (B ) 52. SAVAGE, KABONI (B )

Death Row U.S.A. Page 63

53. SNARR, MARK ISAAC (W ) 58. UMANA, ALEJANDRO (L ) 54. TAYLOR, REJON (B ) 59. VIALVA, CHRISTOPHER (B ) 55. TIPTON, RICHARD (B ) 60. WEBSTER, BRUCE (B ) 56. TORREZ, JORGE AVILA (L ) 61. WILSON, RONELL (B ) 57. TROYA, DANIEL (L )

U.S. MILITARY (Lethal Injection for Army, Navy and Marines; No Means Chosen for Air Force or Coast Guard) Total = 6 B = 3 W = 3 L = 0 N = 0 A = 0 U = 0

1. AKBAR, HASAN (B ) 4. HENNIS, TIMOTHY (W ) 2. GRAY, RONALD (B ) 5. LOVING, DWIGHT J. (B ) 3. HASAN, NIDAL (W ) 6. WITT, ANDREW (W )

CODES FOR STATE ROSTERS:

B Black A Asian W White N Native American L Latino/a U Unknown at this issue

^ Female & Sentenced to death in the state where listed, but incarcerated in another state [ ] Reversals: Defendants 1) awaiting a retrial or a new sentencing proceeding following a court order; or 2) whose court ordered conviction or sentence reversal is not yet final

Death Row U.S.A. Page 64 SUPREME COURT REVIEW – OCTOBER TERM 2014

CASE NAME ISSUES OR HOLDING LINK TO OPINION Brumfield v. Cain Because the inmate’s evidence of intellectual disability satisfied 06.18.2015 the requirements of 28 U.S.C. § 2254(d)(2), he was entitled to have his Atkins claim considered on the merits in federal court.

Carroll v. Carman The U.S. Court of Appeals for the Third Circuit erred when it 11.10.2014 concluded that a police officer is not entitled to qualified (decided immunity from a lawsuit under Section 1983 that alleged, among without oral other things, that he entered their property in violation of the argument) Fourth Amendment when he went into their backyard and onto their deck without a warrant. The police officer did not violate clearly established federal law when he went to a sliding glass door that he believed was a customary entryway that was open to visitors.

Christeson v. Roper When a death row inmate’s appointed attorneys had missed the 1.20.2015 filing deadline for his first federal habeas petition and could not (decided be expected to argue that the inmate was entitled to equitable without oral tolling of the statute of limitations, the district court erred in argument) denying (and the court of appeals erred in affirming the denial of) a motion for the appointment of substitute, conflict-free counsel.

City and County of San Police officers who forcibly entered the room of a woman with a 05.18.2015 Francisco v. S heehan mental disability and shot her are entitled to qualified immunity from a lawsuit seeking redress for the woman’s injuries, because there was no clearly established law requiring them to accommodate her mental illness.

City of Los Angeles v. Los Angeles Municipal Code § 41.49, which requires hotel 06.22.2015 Patel operators to record and keep specific information about their guests on the premises for a ninety-day period and to make those records available to "any officer of the Los Angeles Police Department for inspection" on demand, is facially unconstitutional because it fails to provide the operators with an opportunity for pre-compliance review.

Coleman-Bey v. The “three strikes” provision of the Prison Litigation Reform Act 05.18.2015 Tollefson prevents a court from granting in forma pauperis status to a prisoner who “has, on three or more prior occasions, while incarcerated . . . , brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.” A prior dismissal on one of the provision’s statutorily enumerated grounds counts as a strike, even if the dismissal is the subject of an ongoing appeal. Davis v. Ayala Any federal constitutional error that may have occurred by 06.18.2015 excluding the attorney for a defendant in a capital murder trial from part of the Batson hearing was harmless.

Elonis v. U.S. The Third Circuit’s instruction, requiring only negligence with 6.1.2015 respect to the communication of a threat, is not sufficient to support a conviction under 18 U.S.C. § 875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.”

Glebe v. Frost Even if, at Frost’s robbery trial, the state trial court violated the 11.17.2014 Constitution when it held that state law prohibited Frost from (decided simultaneously contesting his liability and arguing duress during without oral closing arguments, it was not clearly established that such a argument) mistake constitutes a structural error requiring the automatic reversal of Frost’s conviction.

Glossip v. Gross (1) Petitioners failed to establish that any risk of harm from the 06.29.2015 use of midazolam was substantial when compared to a known and available alternative method of execution; (2) the district court did not commit clear error when it found that the petitioners failed to establish that Oklahoma’s use of midazolam in its execution protocol entails a substantial risk of severe pain.

Grady v. North For purposes of the Fourth Amendment, a state conducts a search 3.30.2015 Carolina when it attaches a device to a person’s body, without consent, to (decided allow it to track that person’s movements. without oral argument) Heien v. North Carolina A police officer’s reasonable mistake of law gives rise to 12.15.2014 reasonable suspicion that justifies a traffic stop under the Fourth Amendment.

Henderson v. U.S. A court-ordered transfer of a felon’s lawfully owned firearms 05.18.2015 from government custody to a third party is not barred by a federal law that prohibits felons from possessing guns if the court is satisfied that the recipient will not give the felon control over the firearms, so that he could either use them or direct their use.

Ho lt v. Hobbs An Arkansas prison policy that prevents a Muslim prisoner from 01.20.2015 growing a half-inch beard in accordance with his religious beliefs violates the Religious Land Use and Institutionalized Persons Act.

Jennings v. Stephens A prisoner who sought federal habeas relief based on three 01.14.2015 theories of ineffective assistance of counsel and prevailed in the district court on two of them is not required to file a cross-appeal or seek a certificate of appealability on the third theory to rely on it as part of his defense against the state’s appeal.

Johnson v. U.S. The residual clause in the Armed Career Criminal Act is 06.26.2015 unconstitutionally vague.

Kingsley v. To prove an excessive force claim under 42 U.S.C. § 1983, a 06.22.2015 Hendrickson pretrial detainee must show only that the officers’ use of that force was objectively unreasonable; he does not need to show that the officers were subjectively aware that their use of force was unreasonable.

Lopez v. Smith Because the Supreme Court’s caselaw does not clearly establish 10.6.2014 that a prosecutor’s focus on one theory of liability can render (decided earlier notice of another theory of liability inadequate, the without oral decision of the court of appeals granting habeas relief is reversed. argument)

McFadden v. U.S. To convict a defendant of distribution of a controlled substance 06.18.2015 analogue – a substance with a chemical structure that is “substantially similar" to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) – the government must prove that the defendant knew he was dealing with a substance regulated under the Controlled Substance Act or Analogue Act.

Mellouli v. Lynch A non-citizen’s state conviction for concealing unnamed pills in 6.1.2015 his sock did not trigger removal under 8 U.S.C. § 1227(a)(2)(B)(i), which authorizes the deportation of an alien "convicted of a violation of . . . any law or regulation of a state, the United States, or a foreign country related to a controlled substance."

Ohio v. Clark The introduction at trial of statements made by a three-year-o ld 06.18.2015 boy to his teachers identifying his mother’s boyfriend as the source of his injuries did not violate the Confrontation Clause, when the child did not testify at trial, because the statements were not made with the primary purpose of creating evidence for prosecution.

Rodriguez v. U.S. Absent reasonable suspicion, police extension of a traffic stop to 04.21.2015 conduct a dog sniff violates the Constitution’s shield against unreasonable seizures.

Taylor v. Barkes Prison officials have qualified immunity from a lawsuit, filed by 6.1.2015 the family of an inmate who committed suicide, which alleged that they had failed to adequately supervise the private contractor that provided medical treatment at the prison facility, because at the time of the incident there was no clearly established law requiring the proper implementation of adequate suicide prevention protocols.

Toca v. Louisiana 1) Does the rule announced in Miller v. Alabama, 567 U. S. ____ Dismissed as (2012), apply retroactively to this case? moot after a settlement 2) Is a federal question raised by a claim that a state collateral that included review court erroneously failed to find a Teague exception? client’s release from pr iso n Warger v. S hauers Federal Rule of Evidence 606(b), which provides that certain 12.8.2014 juror testimony about events in the jury room is not admissible “during an inquiry into the validity of a verdict,” precludes a party seeking a new trial from using one juror’s affidavit of what another juror said in deliberations to demonstrate the other juror’s dishonesty during voir dire.

Whitfield v. U.S. A bank robber “forces [a] person to accompany him,” for 01.13.2015 purposes of 18 U.S.C. § 2113(e), when he forces that person to go somewhere with him, even if the movement occurs entirely within a single building or over a short distance.

Woods v. Donald The lower court’s decision holding that an attorney provided per 3.30.2015 se ineffective assistance of counsel under United States v. (decided Cronic when he was briefly absent during testimony concerning without oral other defendants, is reversed, because no Supreme Court decision argument) clearly establishes that the respondent in this case is entitled to relief under Cronic.

Yates v. U.S. For purposes of 18 U.S.C. § 1519, which imposes criminal 02.25.2015 liability on anyone who “knowingly . . . destroys . . . any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States,” a “tangible object” is one used to record or preserve information.

NOTEABLE CERT GRANTS – OCTOBER TERM 2015

CASE NAME ISSUES

Foster v. Whether the Georgia courts erred in failing to recognize race discrimination Hump hre y under Batson v. Kentucky in the extraordinary circumstances of this death penalty case.

Hurst v. F lorida Whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court's decision in Ring v. Arizona.

Kansas v. Carr Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt,” as the Kansas Supreme Court held here, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances; and whether the trial court's decision not to sever the sentencing phase of the co-defendant brothers’ trial here – a decision that comports with the traditional approach preferring joinder in circumstances like this – violated an Eighth Amendment right to an “individualized sentencing” determination and was not harmless in any event.

Kansas v. Gleason Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt,” as the Kansas Supreme Court held in this case, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances.

Lockhart v. U.S. Whether the mandatory minimum sentence of 18 U.S.C. § 2252(b)(2) is triggered by a prior conviction under a state law relating to "aggravated sexual abuse" or "sexual abuse," even though the conviction did not "involv[e] a minor or ward," an issue that divides the federal courts of appeals.

Luis v. U.S. Whether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.

Montgomery v. Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on Lo uis ia na collateral review to people condemned as juveniles to die in prison.

Musacchio v. U.S. (1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and (2) whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.

Ocasio v. U.S. Whether a conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy.

Lynching in America: Confronting the Legacy of Racial Terror

Equal Justice Initiative Men and boys pose beneath the body of Lige Daniels shortly after he was lynched on August 3, 1920, in Center, Texas.

From the Civil War until World War II, millions of African Americans were terrorized and traumatized by the lynching of thousands of black men, women, and children. This report documents this history and contends that America’s legacy of racial terror must be more fully addressed if racial justice is to be achieved. 1 Lynching in America: Confronting the Legacy of Racial Terror

REPORT SUMMARY

Equal Justice Initiative 122 Commerce Street Montgomery, Alabama 36104 334.269.1803 www.eji.org

© 2015 by Equal Justice Initiative. All rights reserved. This is a summary only; quoted material is cited in the full-length report. For a copy of the full-length report, please e-mail EJI at [email protected] or call 334.269.1803. No part of this publication may be reproduced, modified, or distributed in any form or by any electronic or mechanical means without express prior written permission of Equal Justice Initiative (EJI). EJI is a nonprofit law organization with offices in Montgomery, Alabama.

Opposite: James Allen, ed., et al., Without Sanctuary: Lynching Photography in America (Santa Fe, NM: Twin Palms Pub- lishers, 2000), 117-118. On the cover: 10,000 people gathered to watch the lynching of Henry Smith in Paris, Texas, on February 1, 1893. (© CORBIS.)

1 ithout memory, our existence would be barren and opaque, like Wa prison cell into which no light penetrates; like a tomb which rejects the living . . . [I]f anything can, it is memory that will save humanity. For me, hope without memory is like memory without hope. - Elie Wiesel

2 Introduction

Between the Civil War and World War II, thousands of African Americans were lynched in the United States. Lynchings were violent and public acts of torture that traumatized black people throughout the country and were largely tolerated by state and federal officials. These lynchings were terrorism. “Terror lynchings” peaked between 1880 and 1940 and claimed the lives of African American men, women, and children who were forced to endure the fear, humiliation, and barbarity of this widespread phenomenon unaided.

Lynching profoundly impacted race relations in America and shaped the geographic, po- litical, social, and economic conditions of African Americans in ways that are still evident today. Terror lynchings fueled the mass migration of millions of black people from the South into urban ghettos in the North and West during the first half of the twentieth century. Lynching created a fearful environment where racial subordination and segregation was maintained with limited resistance for decades. Most critically, lynching reinforced a legacy of racial inequality that has never been adequately addressed in America. The administra- tion of criminal justice especially is tangled with the history of lynching in profound ways that continue to contaminate the integrity and fairness of the justice system.

This report begins a necessary conversation to confront the injustice, inequality, anguish, and suffering that racial terror and violence created. The history of terror lynching compli- cates contemporary issues of race, punishment, crime, and justice. Mass incarceration, ex- cessive penal punishment, disproportionate sentencing of racial minorities, and police abuse of people of color reveal problems in American society that were framed in the terror era. The narrative of racial difference that lynching dramatized continues to haunt us. Avoiding honest conversation about this history has undermined our ability to build a nation where racial justice can be achieved.

The Context for this Report

In America, there is a legacy of racial inequality shaped by the enslavement of millions of black people. The era of slavery was followed by decades of terrorism and racial subor- dination most dramatically evidenced by lynching. The civil rights movement of the 1950s and 1960s challenged the legality of many of the most racist practices and structures that sustained racial subordination but the movement was not followed by a continued com- mitment to truth and reconciliation. Consequently, this legacy of racial inequality has per- sisted, leaving us vulnerable to a range of problems that continue to reveal racial disparities and injustice. EJI believes it is essential that we begin to discuss our history of racial injustice more soberly and to understand the implications of our past in addressing the challenges of the present.

3 Lynching in America is the second in a series of reports that examines the trajectory of American history from slavery to mass incarceration. In 2013, EJI published Slavery in Amer- ica, which documents the slavery era and its continuing legacy, and erected three public markers in Montgomery, Alabama, to change the visual landscape of a city and state that has romanticized the mid-nineteenth century and ignored the devastation and horror cre- ated by racialized slavery and the slave trade.

Over the past four years, EJI staff have spent thousands of hours researching and doc- umenting terror lynchings in the twelve most active lynching states in America: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Car- olina, Tennessee, Texas, and Virginia. We distinguish “racial terror lynchings”—the subject of this report—from hangings and mob violence that followed some criminal trial process or that were committed against non-minorities without the threat of terror. Those lynchings were a crude form of punishment that did not have the features of “terror lynchings” di- rected at racial minorities who were being threatened and menaced in multiple ways.

We also distinguish “terror lynchings” from racial violence and hate crimes that were prosecuted as criminal acts. Although criminal prosecution for hate crimes was rare during the period we examine, such prosecutions ameliorated those acts of violence and racial an- imus. The lynchings we document were acts of terrorism because these murders were car- ried out with impunity, sometimes in broad daylight, often “on the courthouse lawn.” These lynchings were not “frontier justice,” because they generally took place in communities where there was a functioning criminal justice system that was deemed too good for African Americans. Terror lynchings were horrific acts of violence whose perpetrators were never held accountable. Indeed, some “public spectacle lynchings” were attended by the entire white community and conducted as celebratory acts of racial control and domination.

Key Findings of this Report

First, racial terror lynching was much more prevalent than previously reported. EJI re- searchers have documented several hundred more lynchings of African Americans than the number identified in the most comprehensive work done on lynching to date. Pro- fessor Stewart E. Tolnay’s extraordinary work provided an invaluable resource, as did the research collected at Tuskegee University in Tuskegee, Alabama. These two sources are widely viewed as the most comprehensive collection of research data on the subject of lynching in America. EJI conducted extensive analysis of these data as well as supplemental research and investigation of lynchings in each of the subject states. We reviewed local newspapers, historical archives, and court records; conducted interviews with local histori- ans, survivors, and victims’ descendants; and exhaustively examined contemporaneously published reports in African American newspapers. EJI has documented 3959 lynchings of

4 black people in twelve Southern states between the end of Reconstruction in 1877 and 1950, which is at least 700 more lynchings in these states than previously reported.

Second, some states and counties were particularly terrifying places for African Ameri- cans and had dramatically higher rates of lynching than other states and counties we re- viewed. Florida, Mississippi, Arkansas, and Louisiana had the highest statewide rates of lynching in the United States. Georgia and Mississippi had the highest number of lynchings. Hernando, Taylor, Lafayette, and Citrus counties in Florida; Early and Oconee counties in Georgia; Fulton County, Kentucky; and Moore County, Tennessee had the highest rates of terror lynchings in America. Phillips County, Arkansas, and Lafourche and Tensas parishes in Louisiana were sites of mass killings of African Americans in single-incident violence that mark them as notorious places in the history of racial terror violence. The largest numbers of lynchings were found in Orange, Marion, Alachua, and Polk counties in Florida; Caddo, Bossier, Iberia, Ouachita, and Tanqipahoa parishes in Louisiana; Jefferson and Dallas coun- ties in Alabama; Early and Brooks counties in Georgia; Hinds and Lowndes counties in Mississippi; Anderson and McLennan counties in Texas; and Shelby County, Tennessee.

Third, our research confirms that many victims of terror lynchings were murdered with- out being accused of any crime; they were killed for minor social transgressions or for de- manding basic rights and fair treatment. Racial terror lynching was a tool used to enforce Jim Crow laws and racial segregation—a tactic for maintaining racial control by victimizing the entire African American community, not merely punishment of an alleged perpetrator for a crime.

Fourth, our conversations with survivors of lynchings show that terror lynching played a key role in the forced migration of millions of black Americans out of the South. Thousands of people fled to the North and West out of fear of being lynched. Parents and spouses sent away loved ones who suddenly found themselves at risk of being lynched for a minor social transgression; they characterized these frantic, desperate escapes as surviving “near-lynchings.”

Fifth, in all of the subject states, we observed that there is an astonishing absence of any effort to acknowledge, discuss, or address lynching. Many of the communities where lynchings took place have gone to great lengths to erect markers and monuments that me- morialize the Civil War, the Confederacy, and historical events during which local power was violently reclaimed by white Southerners. These communities celebrate and honor the ar- chitects of racial subordination and political leaders known for their belief in white su- premacy. There are very few monuments or memorials that address the history and legacy of lynching in particular or the struggle for racial equality more generally. Most communities do not actively or visibly recognize how their race relations were shaped by terror lynching.

5 Sixth, we found that most terror lynchings can best be understood as having the features of one or more of the following: (1) lynchings that resulted from a wildly distorted fear of interracial sex; (2) lynchings in response to casual social transgressions; (3) lynchings based on allegations of serious violent crime; (4) public spectacle lynchings; (5) lynchings that escalated into large-scale violence targeting the entire African American community; and (6) lynchings of sharecroppers, ministers, and community leaders who resisted mistreat- ment, which were most common between 1915 and 1940.

Seventh, the decline of lynching in the studied states relied heavily on the increased use of capital punishment imposed by court order following an often accelerated trial. That the death penalty’s roots are sunk deep in the legacy of lynching is evidenced by the fact that public executions to mollify the mob continued after the practice was legally banned.

Finally, the Equal Justice Initiative believes that our nation must fully address our history of racial terror and the legacy of racial inequality it has created. This report explores the power of “truth and reconciliation” or transitional justice to address oppressive histories by urging communities to honestly and soberly recognize the pain of the past. Only when we concretize the experience through discourse, memorials, monuments, and other acts of reconciliation can we overcome the shadows cast by these grievous events.

6 Second Slavery After the Civil War

At the end of the Civil War, the nation did nothing to address the narrative of racial dif- ference that is the most enduring evil of American slavery. Involuntary servitude was hor- rific for enslaved people, but the ideology of white supremacy was in many ways a more severe barrier to freedom and equality. White Southern identity was grounded in a belief that whites are inherently superior to African Americans. Following the war, whites reacted violently to the notion that they would now have to treat their former human property as equals and pay for their labor. Plantation owners attacked black people simply for claiming their freedom. In May 1866, in Memphis, Tennessee, forty-six African Americans were killed; ninety-one houses, four churches, and twelve schools were burned to the ground; at least five women were raped; and many black people fled the city permanently.

In his 1867 annual message to Congress, President Andrew Johnson declared that black Americans had “less capacity for government than any other race of people,” that they would “relapse into barbarism” if left to their own devices, and that giving them the vote would result in “a tyranny such as this continent has never yet witnessed.” Instead of fa- cilitating black land ownership, President Johnson (a Unionist former slaveholder from Ten- nessee) advocated a new practice that soon replaced slavery as a primary source of Southern agricultural labor: sharecropping.

7 Formerly enslaved people were beaten and murdered for asserting they were free after the Civil War. Without federal troops, freed black men and women remained subject to violence and intimidation for any act or gesture that showed independence or freedom. (Library of Congress.)

Officials struggled to control increasingly violent and lawless groups of white suprema- cists in their states. Beginning as disparate “social clubs” of former Confederate soldiers, these groups morphed into large paramilitary organizations that drew thousands of mem- bers from all sectors of white society. As historian Eric Foner explained, the “wave of coun- terrevolutionary terror that swept over large parts of the South between 1868 and 1871 lacks a counterpart . . . in the American experience.” While white mobs attacked black vot- ers, the United States Supreme Court began an assault on the legal architecture of Recon- struction. Prior to 1865, the Court had only twice struck down congressional acts as unconstitutional; between 1865 and 1872, the Court did so twelve times. A proposal in Congress to discipline Georgia for the violence and corruption surrounding its 1870 election was defeated by a five-day filibuster, and Northern support for federal intervention on be- half of black people living in the South diminished considerably.

Undermined by the United States Supreme Court and a Congress that retreated from protecting recently emancipated African Americans, Reconstruction collapsed. As one black man from Louisiana stated, “The whole South—every state in the South—had got into the hands of the very men that held us as slaves.” For millions of black men, women, and children, a new violent and tragic era in America had begun. As Mississippi Governor Adelbert Ames predicted, “They are to be returned to a condition of serfdom. An era of second slavery.”

8 The Politics That Created Terrorism

When Alabama rewrote its constitution in 1901, John B. Knox, president of the consti- tutional convention, opened the proceedings with a statement of purpose: “Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this state.” The South created a system of state and local laws and practices that constituted a pervasive and deep-rooted racial caste system. The era of “second slavery” had officially begun. Relying on language in the Thirteenth Amendment that prohibits slavery and in- voluntary servitude “except as punishment for crime,” lawmakers empowered white-con- trolled governments to extract black labor in private lease contracts or on state-owned farms.

By 1890, the term “Jim Crow” was used to describe the “subordination and separation of black people in the South, much of it codified and much of it still enforced by custom, habit, and violence.” Racial segre- gation often meant the total exclusion of black people from public facili- ties, institutions, and op- portunities. Over the century that this racial caste system reigned, per- ceived violations of the racial order were met with brutal violence targeted at black Americans—and lynching was the weapon of choice. Southern lynch- ing took on a racialized character, and a brutal era of racial terror was born.

(Thomas Nast/Harper's Weekly, Sept. 5, 1868)

9 Lynching in America

By the end of the nineteenth century, Southern lynching had become a tool of racial control that terrorized and targeted African Americans. Through lynching, Southern white communities asserted their racial dominance over the region’s political and economic re- sources—a dominance first achieved through slavery would be restored through terror.

Characteristics of the Lynching Era

The thousands of African Americans lynched between 1880 and 1950 differed in many respects, but in most cases, the circumstances of their murders can be categorized as one or more of the following: (1) lynchings that resulted from a wildly distorted fear of inter- racial sex; (2) lynchings in response to casual social transgressions; (3) lynchings based on allegations of serious violent crime; (4) public spectacle lynchings; (5) lynchings that esca- lated into large-scale violence targeting the entire African American community; and (6) lynchings of sharecroppers, ministers, and community leaders who resisted mistreatment, which were most common between 1915 and 1940.

Lynchings Based on Fear of Interracial Sex. Nearly 25 percent of the lynchings of African Americans in the South were based on charges of sexual assault. The mere accu- sation of rape, even without an identification by the alleged victim, could arouse a lynch mob. The definition of black-on-white “rape” in the South required no allegation of force because white institutions, laws, and most white people rejected the idea that a white woman would willingly consent to sex with an African American man.

In 1889, in Aberdeen, Mississippi, Keith Bowen allegedly tried to enter a room where three white women were sitting; though no further allegation was made against him, Mr. Bowen was lynched by the “entire (white) neighborhood” for his “offense.” General Lee, a black man, was lynched by a white mob in 1904 for merely knocking on the door of a white woman’s house in Reevesville, South Carolina; and in 1912, Thomas Miles was lynched for allegedly inviting a white woman to have a cold drink with him.

Lynchings Based on Minor Social Transgressions. Hundreds of African Americans ac- cused of no serious crime were lynched for social grievances like speaking disrespectfully, refusing to step off the sidewalk, using profane language, using an improper title for a white person, suing a white man, arguing with a white man, bumping into a white woman, and insulting a white person. African Americans living in the South during this era were terrorized by the knowledge that they could be lynched if they intentionally or accidentally violated any social convention defined by any white person.

10 In 1940, Jesse Thornton was lynched in Luverne, Alabama, for referring to a white police officer by his name without the title of “mister.” In 1919, a white mob in Blakely, Georgia, lynched William Little, a soldier returning from World War I, for refusing to take off his Army uniform. White men lynched Jeff Brown in 1916 in Cedarbluff, Mississippi, for acci- dentally bumping into a white girl as he ran to catch a train.

Lynchings Based on Allegations of Crime. More than half of the lynching victims EJI documented were killed under accusation of committing murder or rape. Deep racial hos- tility in the South during this period focused suspicion on black people, whether evidence supported that suspicion or not, especially in cases of violent crime against white victims.

Whites’ accusations against black people were rarely scrutinized seriously. Of the hun- dreds of black people lynched under accusation of rape and murder, nearly all were killed without being legally convicted. When Berry Noyse was accused of killing the sheriff in Lexington, Tennessee, in 1918, an angry mob lynched him in the courthouse square, dragged his body through the town, shot it dozens of times, and burned the body in the middle of the street below hung banners that read, “This is the way we do our bit.”

Jesse Washington was burned before a crowd of thousands in Waco, Texas, in 1916. (© Bettmann/CORBIS.) Public Spectacle Lynchings. Large crowds of In Dyersburg, Tennessee, a white people, often numbering in the thousands and including elected officials and prominent citi- mob tortured Lation Scott with zens, gathered to witness pre-planned, heinous a hot poker iron, gouging out killings that featured prolonged torture, mutilation, his eyes, shoving the hot poker dismemberment, and/or burning of the victim. down his throat and pressing it White press justified and promoted these carnival- all over his body before like events, with vendors selling food, printers pro- castrating him and burning him ducing postcards featuring photographs of the lynching and corpse, and the victim’s body parts alive over a slow fire. collected as souvenirs. These killings were bold, public acts that implicated the entire community and sent a message that African Ameri- cans were sub-human, their subjugation was to be achieved through any means necessary, and whites who carried out lynchings would face no legal repercussions.

In 1904, after Luther Holbert allegedly killed a local white landowner, he and a black woman believed to be his wife were captured by a mob and taken to Doddsville, Missis- sippi, to be lynched before hundreds of white spectators. Both victims were tied to a tree and forced to hold out their hands while members of the mob methodically chopped off their fingers and distributed them as souvenirs. Next, their ears were cut off. Mr. Holbert was then beaten so severely that his skull was fractured and one of his eyes was left hang-

Lynching of Henry Smith in Paris, Texas, on February 1, 1893 (© CORBIS)

12 (National Archives) ing from its socket. Members of the mob used a large corkscrew to bore holes into the victims’ bodies and pull out large chunks of “quivering flesh,” after which both victims were thrown onto a raging fire and burned. The white men, women, and children present watched the horrific murders while enjoying deviled eggs, lemonade, and whiskey in a pic- nic-like atmosphere.

Lynchings Targeting the Entire African American Community. Some lynch mobs tar- geted entire black communities by forcing black people to witness lynchings and demand- ing that they leave the area or face a similar fate. These lynchings were designed for broad impact—to send a message of domination, to instill fear, and sometimes to drive African Americans from the community. After a lynching in Forsyth County, Georgia, in 1912, white vigilantes distributed leaflets demanding that all black people leave the county or suffer deadly consequences; so many black families fled that, by 1920, the county’s black popu- lation had plunged from 1100 to just thirty.

To maximize lynching as a terrorizing symbol of power and control over the black com- munity, white mobs frequently chose to lynch victims in a prominent place inside the town’s African American district. In 1918 in rural Unicoi County, Tennessee, a group of white men sought a black man named Thomas Devert who was accused of kidnapping a white girl. When the men found Mr. Devert crossing a river with the girl in his arms, they shot him in the head and the girl drowned. Insisting that the entire black community needed to witness Mr. Devert’s fate, the enraged mob dragged his dead body to the town railyard and built a funeral pyre. The white men then rounded up all sixty African American residents and forced the men, women, and children to watch the corpse burn. These African Americans and eighty black people who worked at a local quarry were then told to leave the county within twenty-four hours.

Lynchings of Black People Resisting Mistreatment (1915-1940). From 1915 to 1940, whites used lynching to suppress African Americans who, individually and in organized groups, were demanding the economic and civil rights to which they were entitled.

In 1918, when Elton Mitchell of Earle, Arkansas, refused to work on a white-owned farm without pay, “prominent” white citizens of the city cut him into pieces with butcher knives and hung his remains from a tree. In Hernando, Mississippi, in 1935, when white landowners learned that Reverend T. A. Allen was trying to start a sharecropper’s union among local impoverished and exploited black laborers, they formed a mob, seized him, shot him many times, and threw him into the Coldwater River. Also in 1935, Joe Spinner Johnson, leader of the Sharecroppers’ Union in Perry County, Alabama, was called from work by his landlord and delivered to a white gang that tied him “hog-fashion with a board behind his neck and his hands and feet tied in front of him” and beat him. Mr. Johnson’s mutilated body was found several days later in a field near the town of Greensboro.

14 In 1940, Jesse Thornton In 1919, a white mob in White men lynched Jeff was lynched in Luverne, Blakely, Georgia, Brown in 1916 in Alabama, for referring to lynched William Little, Cedarbluff, Mississippi, a white police officer by a soldier returning for accidentally bumping his name without the title from World War I, for into a white girl as he ran of “mister.” refusing to take off his to catch a train. Army uniform.

In 1912, Thomas Miles was General Lee, a black In 1889, in Aberdeen, lynched for allegedly man, was lynched by a Mississippi, Keith Bowen writing letters to a white white mob in 1904 for was lynched after he woman inviting her to merely knocking on allegedly tried to enter a have a cold drink with the door of a white room where three white him. woman’s house in women were sitting. Reevesville, South Carolina.

Lynching in the South, 1877-1950

This report documents 3959 lynchings of black people that occurred in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, and Virginia between 1877 and 1950. The data reveals telling trends across time and region, including that lynchings peaked between 1880 and 1940.

Georgia, Mississippi, and Louisiana had the highest absolute number of African Amer- ican lynching victims during this period. The rankings change when the number of lynch- ings are considered relative to each state’s total population and African American population. Florida, Mississippi, and Arkansas had the highest per capita rates of lynching by total population, while Arkansas, Florida, and Louisiana had the highest per capita rates of lynching by African American population. (See Tables 1 and 2.)

The twenty-five counties with the highest rates of lynchings of African Americans during this era are located in eight of the twelve states studied: Arkansas, Louisiana, Florida, Ten- nessee, Georgia, Texas, Kentucky, and Mississippi. The terror of lynching was not confined to a few outlier states. Racial terror cast a shadow of fear across the region. (See Table 3.)

15 Table 1: African American Lynching Victims by State, 1877-1950

Alabama 326 Arkansas 503 Florida 331 Georgia 586 Kentucky 154 Louisiana 540 Mississippi 576 North Carolina 102 South Carolina 164 Tennessee 225 Texas 376 Virginia 76 Total 3959

Table 2: Number of African Americans Lynched Annually Per 100,000 Residents in Southern States, 1880 to 1940

State Per capita rate

Florida 0.594 Mississippi 0.556 Arkansas 0.545 Louisiana 0.475 Georgia 0.378 Alabama 0.256 South Carolina 0.180 Tennessee 0.165 Texas 0.154 Kentucky 0.111 Virginia 0.072

16 North Carolina 0.068

Table 3: 25 Counties With the Most Lynching Victims, 1877-1950 A Rank County Lynchings A 1. Phillips, AR 243 F 2. Caddo, LA 54 G 3. Lafourche, LA 50 K 4. Tensas, LA 40 L 5. Ouachita, LA 35 M 6. Orange, FL 34 N 7. Bossier, LA 32 S 8. Marion, FL 30 9. Jefferson, AL 29 T 10. Dallas, AL 25 T 11. Early, GA 24 V 12. Iberia, LA 23 T 13-t. Anderson, TX 22 13-t. Hinds, MS 22 13-t. Tangipahoa, LA 22 16-t. Brooks, GA 21 16-t. Shelby, TN 21 18. McLennan, TX 20 19-t. Alachua, FL 19 19-t. Lowndes, MS 19 19-t. Polk, FL 19 22-t. Kemper, MS 18 22-t. Leflore, MS 18 22-t. Warren, MS 18 25-t. Columbia, FL 17 25-t. Taylor, FL 17 25-t. Fulton, KY 17 25-t. Obion, TN 17

17 Enabling an Era of Lynching: Retreat, Resistance, and Refuge

The lynching era was fueled by the movement to restore white supremacy, but North- ern and federal officials who failed to act as black people were terrorized and murdered enabled this campaign of racial terrorism. For more than six decades, as Southern whites used lynching to enforce a post-slavery system of racial dominance, white officials outside the South watched and did little.

Congress never passed an anti-lynching bill, instead capitulating to Southern politicians who argued that such legislation constituted racial “favoritism” and violated states’ rights. Southern states passed their own anti-lynching laws to show that federal legislation was unnecessary,but refused to enforce them. Very few white people were convicted of mur- der for lynching a black person in America during this period,and of all lynchings committed after 1900, only 1 percent resulted in a lyncher being convicted of a criminal offense.

By 1886, a “New South” con- trolled by white supremacist leaders President Theodore Roosevelt was largely established. The domi- declared that “the greatest existing nant political narrative blamed lynching on its victims, insisting that cause of lynching is the perpetration, brutal mob violence was the only ap- especially by black men, of the propriate response to the growing hideous crime of rape.” scourge of black men raping white women. Southern white politicians relied on lynching and vigilantism to restore white supremacist state governments and successfully defeated proposed federal voting rights protections. When the Southern-con- trolled Democratic Party won the White House and a majority of Congress in 1892—just as the national lynching rate soared—the Republican Party “defected entirely to the resur- gent white supremacist order,” and in 1896 regained power by running “strictly as a party of economic interests, not civil rights.”

Opposition to Lynching

African Americans undertook their own efforts to combat the terror of lynching through grassroots activism. Black people targeted members of white lynch mobs for economic retaliation by boycotting their businesses, refusing to work for them, and setting fire to their property. To thwart lynching attempts, black people risked serious harm to hide fugi- tives, organized sentinels to guard prisoners against lynch mobs, and engaged in armed self-defense. Black anti-lynching activists like journalists Ida B. Wells and T. Thomas Fortune and Tuskegee sociologist Monroe Work harnessed the growing power of the black press

18 to dispute the black-on-white rape ex- cuse and demand accountability for lynchings.

Black efforts to combat racial vio- lence during the lynching era gave rise to many important black organizations, in- cluding the nation’s most effective and longstanding, the National Association for the Advancement of Colored People (NAACP). The NAACP formed in direct response to racial attacks in Springfield, Illinois, in 1908 that shocked Northerners and demonstrated that lynching was not Howard University students protest lynching, 1934. only a Southern phenomenon. The (© Bettmann/CORBIS.) NAACP’s campaign decrying lynching as “America’s shame” helped turn the tide of public opinion—including in the South. In 1930, white Southerners launched the Association of Southern Women to Prevent Lynching and by 1940, it had 40,000 supporters. By the mid-1930s, “forward-looking white Southerners were compelled to adopt the position that lynching was barbaric and disgraceful, even as they continued to defend white supremacy or rail against black criminality.”

When national lynching rates declined markedly in the 1930s, NAACP Executive Secre- tary Walter White attributed the trend to these shifts in the public discourse and to anti- lynching activism, as well as to the Great Migration. In a brutal environment of racial subordination and terror, faced with the constant threat of harm, close to six million black Americans fled the South between 1910 and 1970. Within a single decade, the black pop- ulations of Georgia and South Carolina declined by 22 percent and 24 percent, respectively. The United States Department of Labor observed that one of the “more effective causes of the exodus . . . is the Negroes’ insecurity from mob violence and lynchings.”

Confronting Lynching

When the era of racial terror and widespread lynching ended in the mid-twentieth cen- tury, it left behind a nation and an American South fundamentally altered by decades of systematic community-based violence against black Americans. The effects of the lynching era echoed through the latter half of the twentieth century. African Americans continued to face violent intimidation when they transgressed social boundaries or asserted their civil rights, and the criminal justice system continued to target people of color and victimize African Americans. These legacies have yet to be confronted.

19 Black Southerners who survived the lynching era remained subject to the established legal system of racial apartheid known as Jim Crow. As organized resistance to this racial caste system began to swell in the early 1950s, black demonstrators were met with violent opposition from white police officers and community members. Black activists who protested racial segregation and disenfranchisement through boycotts, sit-ins, voter reg- istration drives, and mass marches were beaten, shot, and bombed by whites.

Lynching and racial terror profoundly compromised the criminal justice system, which required no reliable findings of guilt to authorize “legal” executions or to hand over pris- oners to the lynch mob. Southern courts deeply embedded themselves in the exploitation of black workers in the South by enforcing “Black Codes” and convict leasing laws that branded black people as criminals to facilitate their reenslavement for state profit. In fla- grant violation of federal law, local officials barred African Americans from serving on juries, which reinforced the impunity under which lynching flourished. The fairness of the judicial system was wholly compromised for African Americans, and the courts operated as tools of their subjugation.

Lynching also racialized criminality. Whites defended lynching as necessary to protect their property, families, and Southern way of life from dangerous black criminals, both in response to allegations of criminal behavior and as a preemptive strike against the threat of black violent crime. Although the Constitution’s presumption of innocence is a bedrock principle of American criminal justice, African Americans were assigned a presumption of guilt.

Prisoners from Limestone Correctional Facility in Alabama work on a “chain gang” as punishment, 1995. (© Andrew Holbrooke/CORBIS.) 20 Lynching’s Legacy: Capital Punishment in America

“Perhaps the most important reason that lynching declined is that it was replaced by a more palatable form of violence.”

By 1915, court-ordered executions outpaced lynchings in the former slave states for the first time. Two-thirds of those executed in the 1930s were black, and the trend con- tinued. As African Americans fell to just 22 percent of the South’s population between 1910 and 1950, they constituted 75 percent of those executed in the South during that period. In the 1987 case of McCleskey v. Kemp, the Supreme Court considered statistical evidence demonstrating that Georgia decisionmakers were more than four times as likely to impose death for the killing of a white person than a black person. Accepting the data as accurate, the Court described racial bias in sentencing as “an inevitable part of our criminal justice system” and upheld Warren McCleskey’s death sentence because he had failed to identify a “constitutionally significant risk of racial bias” in his case.

Race remains a significant factor in capital sentencing. African Americans make up less than 13 percent of the nation’s population, but nearly 42 percent of those currently on death row in America are black, and 34 percent of those executed since 1976 have been black. In 96 percent of states where researchers have completed studies examining the relationship between race and the death penalty, results reveal a pattern of discrim- ination based on the race of the victim, the race of the defendant, or both. Capital trials today remain proceedings with little racial diversity; the accused is often the only person of color in the courtroom and illegal racial discrimination in jury selection is widespread, especially in the South and in capital cases. In Houston County, Alabama, prosecutors have excluded 80 percent of qualified African Americans from juries in death penalty cases.

More than eight in ten American lynchings between 1889 and 1918 occurred in the South, and more than eight in ten of the nearly 1400 legal executions carried out in this country since 1976 have been in the South. Modern death sentences are disproportion- ately meted out to African Americans accused of crimes against white victims; efforts to combat racial bias and create federal protection against racial bias in the administra- tion of the death penalty remain thwarted by familiar appeals to the rhetoric of states’ rights; and regional data demonstrates that the modern death penalty in America mirrors racial violence of the past. As contemporary proponents of the American death penalty focus on form rather than substance by tinkering with the aesthetics of lethal punish- ment to improve procedures and methods, capital punishment remains rooted in racial terror—“a direct descendant of lynching.”

21 21 Lynching victims George Dorsey and Dorothy Dorsey Malcolm are buried by the black community, Monroe, Georgia, 1946. (© Bettmann/CORBIS.) Trauma and the Legacy of Lynching

The lynching era left thousands dead; it significantly marginalized black people in the country’s political, economic, and social systems; and it fueled a massive migration of black refugees out of the South. In addition, lynching—and other forms of racial terrorism—in- flicted deep traumatic and psychological wounds on survivors, witnesses, family members, and the entire African American community. Whites who participated in or witnessed grue- some lynchings and socialized their children in this culture of violence also were psycho- logically damaged. And state officials’ indifference to and complicity in lynchings created enduring national and institutional wounds that we have not yet confronted or begun to heal. Establishing monuments and memorials to commemorate lynching has the power to end the silence and inaction that have compounded this psycho-social trauma and to begin the process of recovery.

Most Southern terror lynching victims were killed on sites that remain unmarked and unrecognized. The Southern landscape is cluttered with plaques, statues, and monuments that record, celebrate, and lionize generations of American defenders of white supremacy, including public officials and private citizens who perpetrated violent crimes against black citizens during the era of racial terror. The absence of a prominent public memorial ac- knowledging racial terrorism is a powerful statement about our failure to value the African Americans who were killed or gravely wounded in this brutal campaign of racial violence. National commemoration of the atrocities inflicted on African Americans during decades of racial terrorism would begin building trust between the survivors of racial terrorism and the governments and legal systems that failed to protect them. 22 Lynchings occurred in communities where African Americans today remain marginalized, disproportionately poor, overrepresented in prisons and jails, and underrepresented in decisionmaking roles in the criminal justice system. The traumatic experience of surviving mass violence creates “insecurity, mistrust, and disconnection from people”—psychological harms that were amplified by the dangers inherent in navigating Southern racial boundaries.

The psychological harm inflicted by the era of terror lynching extends to the millions of white men, women, and children who instigated, attended, celebrated, and internalized these horrific spectacles of collective violence. Participation in collective violence leaves perpetrators with their own dangerous and persistent damage, including harmful defense mechanisms such as “diminish[ed] empathy for victims” that can lead to intensified violent behaviors that target victims outside the original group. Lynching was a civic duty of white Southern men that brought them praise. Southern white children were taught to embrace traumatic violence and the racist narratives underlying it.

Lynchings in the American South were not isolated hate crimes committed by rogue vigilantes. Lynching was targeted racial violence at the core of a systematic campaign of terror perpetrated in furtherance of an unjust social order. Selective public memory com- pounds the harm of officials’ complicity in lynching and maintains the otherness of black people who have lived in these communities for generations.

Public acknowledgment and commemoration of mass violence is essential not only for victims and survivors, but also for perpetrators and bystanders who suffer from trauma and damage related to EJI and community leaders erect public markers about slavery in Montgomery, Alabama, their participation in in 2013. (Bernard Troncale.) systematic violence and dehumanization. Formalizing a space for memory, reflection, and grieving can help victims “move beyond anger and a sense of powerlessness.” Suffering must be engaged, heard, recognized, and remembered before a society can recover from mass violence.

23 EJI’s Race and Poverty Project

Lynching in America is part of EJI’s race and poverty project, which examines the history of racial injustice in America and the impact of structural poverty on a range of issues. We invite you to join us in our work on the legacy of racial inequality. To order a copy of our annual calendar on racial history, please send us an e-mail at [email protected]. You can browse expanded content in our History of Racial Injustice timeline at http://racialinjus- tice.eji.org/. For forthcoming reports and project information, please join our mailing list by visiting www.eji.org. EJI is a private, nonprofit organization. Individual donations are greatly appreciated and tax deductible.

24 For a copy of the full-length Lynching in America report, please e-mail EJI at [email protected] or call 334.269.1803.

Equal Justice Initiative 122 Commerce Street Montgomery, Alabama 36104 334.269.1803 www.eji.org

25 Fordham Law Review

Volume 77 | Issue 6 Article 3

2009 Combat Veterans, Mental Health Issues, and the Death Penalty: Addressing the Impact of Post- Traumatic Stress Disorder and Traumatic Brain Injury Anthony E. Giardino

Recommended Citation Anthony E. Giardino, Combat Veterans, Mental Health Issues, and the Death Penalty: Addressing the Impact of Post-Traumatic Stress Disorder and Traumatic Brain Injury, 77 Fordham L. Rev. 2955 (2009). Available at: http://ir.lawnet.fordham.edu/flr/vol77/iss6/3

This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. ESSAY

COMBAT VETERANS, MENTAL HEALTH ISSUES, AND THE DEATH PENALTY: ADDRESSING THE IMPACT OF POST- TRAUMATIC STRESS DISORDER AND TRAUMATIC BRAIN INJURY

Anthony E. Giardino*

More than 1.5 million Americans have participatedin combat operations in Iraq and Afghanistan over the past seven years. Some of these veterans have subsequently committed capital crimes and found themselves in our nation 's criminaljustice system. This Essay argues that combat veterans suffering from post-traumatic stress disorder or traumatic brain injury at the time of their offenses should not be subject to the death penalty. Offering mitigating evidence regarding military training, post-traumatic stress disorder, and traumaticbrain injury presents one means that combat veterans may use to argue for their lives during the sentencing phase of their trials. Alternatively, Atkins v. Virginia and Roper v. Simmons offer a framework for establishing a legislatively or judicially created categorical exclusion for these offenders, exempting them from the death penalty as a matter of law. By understanding how combat service and service-related injuries affect the personal culpability of these offenders, the legal system can avoid the consequences of sentencing to death America's mentally wounded warriors,ensuring that only the worst offenders are subject to the ultimate punishment.

INTRODUCTION Since the U.S. Supreme Court decisions Atkins v. Virginia' and Roper v. Simmons2 established categorical exclusions from execution for the

* J.D., magna cum laude, Boston College Law School, 2008; M.A., National Security Studies, Georgetown University, 1998; B.S., with merit, Political Science, U.S. Naval Academy, 1998. The author currently serves as a major in the U.S. Marine Corps. The positions and opinions stated in this Essay are those of the author alone and do not represent the views of the U.S. Government, the U.S. Department of Defense, the U.S. Marine Corps, or any other governmental entity. The author thanks Emily Sack for her helpful feedback on early drafts of this essay, and John Gordon for his advice and guidance. Most of all, the author wishes to thank Liz and Sophie for their love and support. 1. 536 U.S. 304, 321 (2002).

2955 2956 FORDHAM LAW REVIEW [Vol. 77 mentally retarded and juveniles, the debate over who should be exempt from the death penalty has been intense. 3 In August 2006, the American Bar Association (ABA) weighed in and issued a report on the death penalty that stated, RESOLVED, That the American Bar Association, without taking a position supporting or opposing the death penalty, urges each jurisdiction that imposes capital punishment to implement the following policies and procedures: 1. Defendants should not be executed or sentenced to death if, at the time of the offense, they had significant limitations in both their intellectual functioning and adaptive behavior, as expressed in conceptual, social, and practical adaptive skills, resulting from mental retardation, dementia, or a traumatic brain injury. 2. Defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law. A disorder manifested primarily by repeated criminal conduct or attributable solely to the acute effects of voluntary use of alcohol or other drugs does not, standing alone, constitute4 a mental disorder or disability for purposes of this provision. The ABA recommendations have been criticized for excluding too large a class of offenders without addressing their individualized circumstances, diagnoses, and culpability.5 Other scholars have criticized the entire notion of categorical exclusions as creating "a psychiatric can of worms" that raises more problems that it does solutions regarding who should be subject to the death penalty.6 Some have also argued that categorical exclusions

2. 543 U.S. 551, 578 (2005). 3. See generally ABA Task Force on Mental Disability and the Death Penalty, Recommendation and Report on the Death Penalty and Persons with Mental Disabilities, 30 MENTAL & PHYSICAL DISABILITY L. REP. 668 (2006) (hereinafter ABA Report); Dora W. Klein, Categorical Exclusions from Capital Punishment: How Many Wrongs Make a Right?, 72 BROOK. L. REv. 1211 (2007); Douglas Mossman, Atkins v. Virginia: A Psychiatric Can of Worms, 33 N.M. L. REV. 255 (2003); Eileen P. Ryan & Sarah B. Berson, Mental Illness and the Death Penalty, 25 ST. LouIs U. PuB. L. REV. 351 (2006); Christopher Slobogin, Mental Disorder as an Exemption from the Death Penalty: The ABA-IRR Task Force Recommendations, 54 CATH. U. L. REV. 1133 (2005); Ronald J. Tabak, Executing People with Mental Disabilities: How We Can Mitigate an Aggravating Situation, 25 ST. LouIs U. PB. L. REV. 283 (2006); Helen Shin, Note, Is the Death of the Death Penalty Near? The Impact of Atkins and Roper on the Future of CapitalPunishment for Mentally Ill Defendants, 76 FORDHAM L. REV. 465 (2007). 4. ABA Report, supra note 3, at 668. 5. See McKoy v. North Carolina, 494 U.S. 433, 443 (1990) ("'[T]he punishment should be directly related to the personal culpability of the defendant .. .- (quoting Penry v. Lynaugh, 492 U.S. 302, 327 (1989))); ABA Report, supra note 3, at 668; Klein, supra note 3, at 1214-15, 1258-59; Slobogin, supra note 3, at 1147-50. 6. Mossman, supra note 3, at 286; see also Klein, supra note 3, at 1258-59. 2009] COMBAT VETERANS AND THE DEATH PENALTY 2957 ultimately work against the abolitionist movement by strengthening the 7 argument that the death penalty is appropriate for some offenders. Even with these criticisms, there are strong arguments for not putting to death those offenders who suffer from severe mental disorders or mental defects that impair their ability to appreciate the wrongfulness of their 8 conduct or to conform their conduct to the requirements of the law. Fortunately, capital defendants suffering from severe mental disorders, such as post-traumatic stress disorder (PTSD), or mental defects, such as traumatic brain injury (TBI), enjoy wide latitude to argue for their lives by putting on any relevant mitigating evidence during the sentencing phases of their trials. 9 Arguing for a legislatively or judicially created categorical exclusion presents another means by which defendants with certain mental disorders or defects can avoid the death penalty in light of the risk that mitigating evidence based on psychology or psychiatry will be undervalued, misunderstood, or treated as an aggravating factor by a sentencer.10 In particular, combat veterans deserve special consideration when determining whether the death penalty should be imposed.1" For more than seven years, we have been a nation at war. For most people, life has gone on, and very few in society have any connection whatsoever to the military. 12 One study indicates that, of veterans who returned from ground combat duty in 2004, 89% reported having been "attacked or ambushed" by the enemy during their tour of duty, and 93% reported having been shot at or receiving small arms fire. 13 The Veterans Administration has already

7. See Klein, supra note 3, at 1258; Ryan & Berson, supra note 3, at 359-60; Shin, supra note 3, at 516. 8. See, e.g., MODEL PENAL CODE § 210.6(4)(g) (Proposed Official Draft 1962) (section titled "Sentence of Death for Murder; Further Proceedings to Determine Sentence"); ABA Report, supra note 3, at 668; Slobogin, supra note 3, at 1139-47; Shin, supra note 3, at 513- 16. 9. See Kansas v. Marsh, 126 S.Ct. 2516, 2525 (2006) ("In aggregate, our precedents confer upon defendants the right to present sentencers with information relevant to the sentencing decision and oblige sentencers to consider that information in determining the appropriate sentence."); Tennard v. Dretke, 542 U.S. 274, 284 (2004); McKoy, 494 U.S. at 435; infra notes 69-76 and accompanying text. 10. See Roper v. Simmons, 543 U.S. 551, 564-79 (2005); Tennard, 542 U.S. at 288-89; Atkins v. Virginia, 536 U.S. 304, 311-21 (2002); John M. Fabian, Death Penalty Mitigation and the Role of the Forensic Psychologist, 27 LAW & PSYCHOL. REv. 73, 90 (2003); Leona D. Jochnowitz, Missed Mitigation: Counsel's Evolving Duty to Assess and Present Mitigation at Death Penalty Sentencing, 43 CRiM. L. BULL. 3, 5 (2007); Ryan & Berson, supra note 3, at 376-77; infra Part III.A. 11. See, e.g., Johnson v. Singletary, 612 So. 2d 575, 577 (Fla. 1993) (Kogan, J., concurring) ("When this death warrant is executed, Florida will electrocute a man injured and most probably maimed psychologically while serving in his nation's military in Vietnam and elsewhere."); infra notes 34-66 and accompanying text. 12. See, e.g., James P. McGovern, Editorial, The Iraq Money Pit, BOSTON GLOBE, Oct. 4, 2007, at A9. 13. See Kevin Bowe, A Prosecutor Anticipates Post-traumatic Stress Disorder, 39 PROSECUTOR 30, 36 (2005) (citing Charles W. Hoge et al., Combat Duty in Iraq and Afghanistan, Mental Health Problems, and Barriers to Care, 351 NEW ENG. J. MED. 13, 16- 17, 18 & tbl.2 (2004) ("Respondents to our survey who had been deployed to Iraq reported a very high level of combat experiences, with more than 90 percent of them reporting being 2958 FORDHAM LA W REVIEW [Vol. 77

diagnosed more than 90,000 combat veterans of Iraq and Afghanistan as possibly suffering from PTSD and estimates indicate that as many as 100,000 veterans will require mental health support due to PTSD in the future. 14 Additionally, an April 2008 RAND Corporation report, "Invisible Wounds of War," (RAND Report) found that about 300,000 military veterans who deployed to Iraq or Afghanistan presently suffer from PTSD, or about 20% of the 1.64 million veterans who served in those 15 environments. Also overlooked is the fact that there have been more than 1800 combat veterans diagnosed as suffering from service-related TBIs due to the ongoing conflicts in Iraq and Afghanistan. 16 According to experts, tens of thousands of combat veterans are suspected of having suffered a mild form of TBI, an injury for which the long-term effects are unknown. 17 The RAND Report further estimates that over 300,000 veterans of Iraq and Afghanistan have suffered some form of a TBI. 18 Because TBIs are primarily caused by the improvised explosive devices (IEDs) that are the preferred weapon used by insurgents against American forces, these injuries have become known as the "signature wound" of the war on terror. 19

shot at and a high percentage reporting handling dead bodies, knowing someone who was injured or killed, or killing an enemy combatant (Table 2).")). 14. See Bowe, supra note 13, at 36; Press Release, Senator John F. Kerry, The Battle Within: Washington Must Stop Ignoring Hidden War Wounds (Aug. 11, 2006), available at http://kerry.senate.gov/cfm/record.cfm?id=265327; see also Hoge et al., supra note 13, at 16; William H. McMichael, VA Diagnosing Higher Rates of PTSD, MARINE CORPS TIMES, Jan. 18, 2009, http://www.marinecorpstimes.com/news/2009/0 1/military-veterans carestats_ 011609w/. 15. CTR. FOR MIL. HEALTH POL'Y RESEARCH, INVISIBLE WOUNDS OF WAR: PSYCHOLOGICAL AND COGNITIVE INJURIES, THEIR CONSEQUENCES, AND SERVICES TO ASSIST RECOVERY, at xxi, 434-35 (Terri Tanielian & Lisa H. Jaycox eds., 2008); see Lizette Alvarez, Nearly a Fifth of War Veterans Report Mental Disorders, a Private Study Finds, N.Y. TIMES, Apr. 18, 2008, at A20; Ann Scott Tyson, Combat Stress May Cost US. up to $6 Billion, WASH. POST, Apr. 18, 2008, at A18; see Marek M. Sipko, Combat Operational Stress Control: Prevention Through Training and Education, MARINE CORPS GAZETTE, Nov. 2008, at 77, 77-80 (discussing the increased incidence of mental disorders, alcohol abuse, drug abuse, and PTSD diagnoses in the Marine Corps since the start of combat operations in Iraq and Afghanistan). 16. Ronald Glasser, A Shock Wave of Brain Injuries, WASH. POST, Apr. 8, 2007, at BI. 17. See Charles W. Hoge et al., Mild Traumatic Brain Injury in US. Soldiers Returning from Iraq, 358 NEw ENG. J. MED. 453, 454 (2008) ("[L]ittle is known about the epidemiology of mild traumatic brain injury during deployment and its association with adverse health outcomes after deployment."); Benedict Carey, Battle Concussions Tied to Stress Disorder, N.Y. TIMES, Jan. 31, 2008, at A21; Gina Cavallaro, TBI Task Force Identifies Deficiencies in Care: Mild Injuries Need More Attention, Experts Report, MARINE CORPS TIMES, Feb. 11, 2008, at 19; Glasser, supra note 16; Kelly Kennedy, Doctor, Engineers Discover TBI Detection Breakthrough: Portable Equipment Could Be Used to Find Injury in Field, MARINE CORPS TIMES, Mar. 10, 2008, at 16. 18. Alvarez, supra note 15; Tyson, supra note 15. 19. See, e.g., Hoge et al., supra note 17, at 454 ("Traumatic brain injury has been labeled a signature injury of the wars in Iraq and Afghanistan."); Joshua Holland, Editorial, 4,000 Doesn't Even Begin to Tell the Toll of Iraq War, CHI. SUN-TIMES, Mar. 25, 2008, at 21. 2009] COMBAT VETERANS AND THE DEATH PENALTY 2959

Not surprisingly, U.S. courts are beginning to see these afflicted combat veterans on trial for capital crimes. 20 If the death penalty is truly only for the worst offenders, justice requires that combat veterans 21 suffering, at the time of their offenses,22 from service-related 23 PTSD or TBI not be executed or sentenced to death. 24 This should be so because PTSD is a

20. See, e.g., Dennis Huspeni, Soldier's Murder Trial Opens Today, GAZETTE (Colo. Springs), Nov. 1, 2008, available at http://www.gazette.com/articles/eastridge- 42727 article.html/courtfarry.html (discussing case of Louis Bressler and other soldiers from the Fort Carson area who are facing first-degree murder charges for a murder that took place after their return from Iraq); David Olinger, Deadly Duty, DENVER POST, Nov. 15, 2008, at IA ("In three years, nine men from [the 3700-soldier 4th Brigade Combat Team] have been charged in 10 murders and attempted homicides, all but two in or around Colorado Springs."); Deborah Sontag & Lizette Alvarez, Across America, Deadly Echoes of Foreign Battles, N.Y. TIMES, Jan. 13, 2008, at Al; Deborah Sontag & Lizette Alvarez, Combat Trauma Takes the Witness Stand, N.Y. TIMES, Jan. 27, 2008, at Al [hereinafter Sontag & Alvarez, Combat Trauma]; Deborah Sontag & Lizette Alvarez, When Strains on Military Families Turn Deadly, N.Y. TIMES, Feb. 15, 2008, at Al [hereinafter Sontag & Alvarez, When Strains]; David Young, Cortez Gets Life Plus 80 Years, GREELEY TRIBUNE (Colo.), Nov. 13, 2008, at A2, available at http://www.greeleytribune.com/article/ 20081113/NEWSO1/811139993/1051 &parentprofile= 1001 &title=Cortez%20gets%201ife%2 Oplus%2080%20years (discussing the case of Ricardo Cortez, a veteran of two tours in Iraq, who was convicted of first-degree murder in the shooting deaths of his estranged wife and unborn child after unsuccessfully arguing insanity due to PTSD); Angela K. Brown, Marine Charged in Ex-girlfriend's Death, USA TODAY, Mar. 27, 2008, http://www.usatoday.com/ news/nation/2008-03-27-1913814200_x.htm (discussing case of Eric Acevedo, who was charged with capital murder after stabbing his ex-girlfriend to death); The Cases, N.Y. TIMES, Jan. 12, 2008, http://www.nytimes.com/interactive/2008/01/12/us/20080113- VETSDATABASE.html; see also Susan Davies, Troop-Related Felonies Expected to Increase, KOAA.COM, Feb. 5, 2009, http://www.koaa.com/aaaa-top-stories/x407184412/ Troop-related-felonies-expected-to-increase. 21. For the purposes of this Essay, the term "combat veteran" refers to one who has served or is serving in the armed forces during a war or contingency operation and has been involved in hostilities by either taking fire from or returning fire with an enemy force. See infra notes 251-53 and accompanying text. "The term 'contingency operation' means a military operation that... is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force ... 10 U.S.C. § 101(a)(13) (2006). 22. Because the effects of either post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI) persist for years, even decades, after exposure to a combat environment or a service-related head injury, a combat veteran may use the concepts discussed in this paper so long as it can be determined by a prior or forensic diagnosis by a mental health professional that the mental health issue existed at the time of the offense. See, e.g., Bell v. Cone, 535 U.S. 685, 702-19 (2002) (Stevens, J., dissenting); Johnson v. Singletary, 612 So. 2d 575, 580 (Fla. 1993). 23. See infra notes 257-60 and accompanying text. 24. See Roper v. Simmons, 543 U.S. 551, 569 (2005) (holding that the death sentence is improper for those who are not the "worst offenders"); Atkins v. Virginia, 536 U.S. 304, 318 (2002) (holding that the death sentence is improper for those with "diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others"); ABA Report, supra note 3, at 668 (saying that the death sentence is improper for those suffering from TBI or a severe mental disorder at the time of the offense); Slobogin, supra note 3, at 1135-36. There is some indication that mild TBIs are strongly associated with the development of PTSD and physical health problems in combat veterans. See Hoge et al., supra note 17, at 453, 457, 461-62. 2960 FORDHAM LAW REVIEW [Vol. 77 severe mental disorder 25 that can cause "acting or feeling as if the traumatic event were recurring (includ[ing] ...dissociative flashback episodes... )," "intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event," "difficulty falling or staying asleep," "irritability or outbursts of anger," "difficulty concentrating," "hypervigilance," and "exaggerated startle response. '26 And, TBI is a mental defect that can cause "a number of deficits in intellectual and adaptive functioning, such as agnosia (failure to recognize or identify objects) and disturbances in executive functioning connected with planning, organizing, sequencing, and abstracting. '27 The effects of PTSD and TBI do not necessarily excuse criminal actions, but do reduce the personal culpability of combat veterans for their capital crimes because "[a]t the time of the murder, the capacity of the defendant to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect."'28 Mitigating evidence regarding this diminished culpability due to the existence of PTSD or TBI in combat veterans at the time of the offense should be given great weight by the sentencer in determining whether or not death is the appropriate punishment.29 Additionally, the rationale used by the Supreme Court in Roper and Atkins to create categorical exclusions for juveniles and the mentally retarded could support a further argument for excluding certain combat veterans from the application of the death penalty as a matter of law. 30

25. M. B. FIRST ET AL., NAT'L CTR. FOR POSTTRAUMATIC STRESS DISORDER, U.S. DEP'T OF VETERANS AFFAIRS, STRUCTURED CLINICAL INTERVIEW FOR THE DSM-IV Axis I DISORDERS (SCID PTSD MODULE) (1996), available at http://www.ncptsd.va.gov/ncmain/ ncdocs/assmnts/structuredclinicalinterview for the dsmivaxis i-disordersscidptsd_m odule.html?printable-template=assessment (noting that PTSD is an Axis I diagnosis); ABA Report, supra note 3, at 670 (explaining that a severe mental disorder is one "roughly equivalent to disorders that mental health professionals would consider the most serious 'Axis I diagnoses'); PsychNet-UK, DSM IV Explained, http://www.psychnet-uk.com/ dsm iv/misc/dsmdiagnosis.htm (last visited Mar. 31, 2009) (explaining what defines and distinguishes different Axis categories in the DSM-IV). 26. AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 467-68 (4th rev. ed. 2000) [hereinafter DSM-IV-TR]; CLAUDIA BAKER & CESSIE ALFONSO, NAT'L CTR. FOR POSTTRAUMATIC STRESS DISORDER, U.S. DEP'T OF VETERANS AFFAIRS, FORENSIC VALIDITY OF A PTSD DIAGNOSIS (n.d.), available at http://www.ncptsd.va.gov/ncmain/ncdocs/fact-shts/fsforensic.html?opm 1&rr=rr92&srt=d &echorr-true; Nicholas J. Motherway, Post-traumaticStress, 49 AM. JuR. 2D Proofof Facts 73, §§ 4-10 (2007); infra Part lI.B. 27. ABA Report, supra note 3, at 669-70; see also Slobogin, supra note 3, at 1135-36; infra Part II.C. 28. MODEL PENAL CODE § 210.6(4)(g); see also ; DSM-IV-TR, supra note 26; BAKER & ALFONSO, supra note 26; Barry L. Levin, Defense of the Vietnam Veteran with Post- Traumatic Stress Disorder, 46 AM. JUR. Trials 441, §§ 5, 17-24; Motherway, supra note 26, §§ 4-10; D. Michael Bitz & Jean Sepp Bitz, Incompetence in the Brain Injured Individual, 12 ST. THOMAS L. REV. 205, 230-34 (1999); Tabak, supra note 3, at 293. 29. See, e.g., Tennard v. Dretke, 542 U.S. 274, 287-89 (2004); DSM-IV-TR, supra note 26; BAKER & ALFONSO, supra note 26; Bitz & Bitz, supra note 28, at 230-34. 30. See Roper v. Simmons, 543 U.S. 551, 564-79 (2005); Atkins v. Virginia, 536 U.S. 304, 311-21 (2002). 2009] COMBAT VETERANS AND THE DEATH PENALTY 2961

Because the existence of service-related PTSD or TBI in combat veterans reduces personal culpability, they cannot be regarded as "among the worst offenders" and should not be subject to the ultimate sentence. 31 Presenting PTSD, TBI, and military training evidence to a sentencer during the sentencing phase of a capital trial represents one way to avoid subjecting combat veterans to the death penalty. 32 Because the characteristics of those suffering from PTSD and TBI are similar to those of minors and the mentally retarded, legislatures or the courts should create a categorical exclusion from the death penalty for combat veterans suffering from PTSD or TBI at the time of their offenses to ensure that only the worst offenders 3 are put to death. 3 This Essay examines these issues and argues against imposing the death penalty on combat veterans who were suffering, at the time of their offenses, from service-related PTSD or TBI. Part I explains why combat veterans are a distinct and special population of offenders who should be treated differently for purposes of the death penalty. Part II addresses the different types of mitigating evidence that a combat veteran can present to argue for his or her life during the sentencing phase of a capital trial. Part III discusses the role categorical exclusions can play in the imposition of the death penalty and argues that there should be a narrow categorical exclusion for certain combat veterans. Lastly, this Essay concludes with a summary of the issues presented and a restatement of the main points to consider when combat veterans are involved in capital crimes.

I. DISTINGUISHING COMBAT VETERANS FROM OTHER OFFENDERS How can one distinguish a combat veteran with service-related PTSD or TBI from a battered woman with PTSD or an adult who suffered a TBI as a youth? How can one distinguish a combat veteran with PTSD or TBI from a veteran who served in peacetime and suffered a TBI in military training? When combat veterans use their military service, PTSD, or TBI as mitigating evidence to argue against the imposition of the death penalty, courts and sentencers are reluctant to acknowledge that they should be treated any differently than other classes of offenders. 34 The distinguishing characteristic, however, is that combat veterans would not have service- related PTSD or TBI but for government action in the form of training them to kill and sending them to war.35

31. See Roper, 543 U.S. at 569. 32. See Levin, supra note 28, §§ 37-38. 33. See Roper, 543 U.S. at 564-79;Atkins, 536 U.S. at 311-21. 34. See, e.g., Sontag & Alvarez, Combat Trauma, supra note 20. 35. See, e.g., Levin, supra note 28, § 5 (discussing transformation of enlistees into persons with a "warrior identity" and "central focus upon killing" (citing ROBERT JAY LIFTON, HOME FROM THE WAR: VIETNAM VETERANS: NEITHER VICTIMS NOR EXECUTIONERS 28 (1973))); Sontag & Alvarez, When Strains, supra note 20 ("'I am quite sure that, but for the war, he would have taken a different approach. When you see people being shot every day, death is not a big thing."' (quoting the brother-in-law of a combat veteran who committed a murder-suicide)); Brown, supra note 20 (discussing what Eric Acevedo's 2962 FORDHAMLA WREVIEW [Vol. 77

There is something very unique about a normal young man or woman who volunteers to serve his or her country, who is trained to kill other people, who is sent to war by the government and exposed to combat, and 36 then returns a changed person that ends up committing a capital crime. Some courts and states recognize the psychological wounds of war and try to give credit for the service of combat veterans in their sentencing calculus. 37 Many courts, however, would rather ignore this elephant in the room than confront the reality that the combined effect of government- sponsored military training and combat exposure transforms men and 38 women into something quite different from their former selves. Facts relating to exposure to combat and government-sponsored military training present a unique form of mitigating evidence that can aid in distinguishing combat veterans from the "average" offender for purposes of imposing the death penalty. 39 Exposure to combat is most often the 40 triggering event that causes service-related PTSD in combat veterans. IED blasts are most often the cause of combat-related TBIs. 41 Because there is often a clear link between combat- and service-related PTSD or TBI, one can easily distinguish these combat veterans from other offenders with PTSD or TBI because of the government's involvement in sending 42 them to war where these disabilities were incurred. mother said about her son who is currently facing capital murder charges: "I gave him to the government nice and healthy, and the government returned somebody who is capable of [murdering an ex-girlfriend with a kitchen knife]"). 36. See, e.g., Bell v. Cone, 535 U.S. 685, 704-05 (2002) (discussing dramatic changes in Gary Cone's character following combat service in Vietnam); Johnson v. Singletary, 612 So. 2d 575, 580 (Fla. 1993) ("This is a man who devoted his adult life to the defense of his nation, who then was abandoned without the medical intervention he obviously needed after being injured while on his nation's business."); Levin, supra note 28, § 5; Dennis H. Grant, Letter to the Editor, Psychological Damage of Combat, 148 AM. J. PSYCHIATRY 2, 271 (1991) ("And yet I find it hard to believe that any human being is made for trauma, is made to be traumatized, or comes through it unscathed. I find it hard to believe that men were made for wars."); Sontag & Alvarez, Combat Trauma, supra note 20; Brown, supra note 20. 37. See, e.g., Sontag & Alvarez, Combat Trauma, supra note 20; The Cases, supra note 20; infra Part III.C.2. 38. See Bell, 535 U.S. at 709-10 (discussing difficulties defense counsel faced in admitting PTSD-related evidence); Johnson, 612 So. 2d at 581 ("I am gravely disturbed that Johnson was not even permitted the tiniest mitigating value for his physical and mental disabilities, nor for the one thing that caused them: his years of good and productive service in the military."); DAVE GROSSMAN, ON KILLING: THE PSYCHOLOGICAL COST OF LEARNING TO KILL IN WAR AND SOCIETY passim (1995) (discussing the killing conditioning process); Sontag & Alvarez, Combat Trauma, supra note 20 (Judge Charles B. Kommann of the U.S. District Court for South Dakota "cautioned the jury that nobody got 'a free pass to shoot somebody' because they 'went to Iraq or Afghanistan or the moon"'); The Cases, supra note 20. 39. See Levin, supra note 28, § 5 ("hyperalert, combat-ready, and still poised for action"); S. L. A. MARSHALL, MEN AGAINST FIRE: THE PROBLEM OF BATTLE COMMAND IN FUTURE WAR 36-43, 64-84 (William Morrow & Co. 1961) (1947); Mark S. Martins, Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering, 143 MIL. L. REV. 1, 71-76 (1994). 40. See infra Part II.B. 41. See infra Part II.C. 42. See infra Part II.C. 2009] COMBAT VETERANS AND THE DEATH PENALTY 2963

While combat exposure is the leading cause of PTSD and TBI in combat veterans, one could argue that combat veterans with these mental illnesses are indistinguishable for the purposes of analyzing culpability relative to other offenders with similar mental illnesses, such as a battered woman suffering from PTSD or an adult who suffered a TBI as a child.43 But, it is the combination of government-sponsored combat exposure and military training that sets these combat veterans apart as a unique and different class of offenders. 44 Understanding how military training indoctrinates and conditions soldiers4 5 to kill is necessary to appreciate the differences between combat veterans and other offenders with similar mental illnesses. Modem military training was built on the lessons of World War II. In the aftermath of that conflict, S. L. A. Marshall, a prominent military historian, conducted detailed interviews with veterans about how men fought and what drove them to fight.46 His results, at least in one regard, were very surprising. He found that as few as fifteen percent of soldiers would consciously fire their weapon at the enemy in battle, and he backed up his findings with historical research into past conflicts and wars. 47 These findings were startling and begged the question in the minds of many 4 8 military leaders: why can't Johnny kill? For Marshall, the answer to increasing the lethality of soldiers came down to training them in a different way, and his advice to the Army in 1947, was, "What we need to seek in training are any and all means by which we can increase the ratio of effective fire when we have to go to war."4 9 To get to that point, he made recommendations for breaking down the "inner and usually unrealized resistance towards killing a fellow man" that is within all of us. 50 His suggestions were implemented by the military in the years between World War II and the Korean War, where firing rates in combat rose to fifty-five percent. 5' By Vietnam, the percentage of soldiers who would fire their weapon at the enemy had risen to ninety 52 percent or higher.

43. See, e.g., Sontag & Alvarez, Combat Trauma, supra note 20 (jury instructions directed granting of no "free pass" for combat service). 44. See Levin, supra note 28, § 5 ("Thus, the seeds of PTSD were sown in basic combat training. The fertilizer, water, and sunlight were Vietnam, without which all that training was nothing more than a sophisticated and elaborate G.I. Joe war game."); Grant, supra note 36, at 271. 45. The term "soldier" is used in this Essay in the generic sense to refer to any member of the U.S. Army, Navy, Marine Corps, Air Force, or Coast Guard. 46. See GROSSMAN, supra note 38, at 1-4; MARSHALL, supra note 39, at 5-13; Martins, supra note 39, at 14. 47. See GROSSMAN, supra note 38, at 4, 17-28; MARSHALL, supra note 39, at 56; Martins, supra note 39, at 14. 48. See GROSSMAN, supra note 38, at 29. 49. MARSHALL, supra note 39, at 23, 50-63; see also Martins, supra note 39, at 14. 50. GROSSMAN, supra note 38, at 1 (quoting MARSHALL, supra note 39, at 79); see also Levin, supra note 28, § 5; Grant, supra note 36, at 271. 51. See GROSSMAN, supra note 38, at 251; MARSHALL, supra note 39, at 9. 52. GROSSMAN, supra note 38, at 251; Chuck Vinch, On Killing: Film Explores Warrior'sInner Struggle, MARINE CORPS TIMES, Oct. 20, 2008, at 50. 2964 FORDHAMLAWREVIEW [Vol. 77

After WWII, a combination of stimulus-response training and psychological inoculation increased the willingness of American soldiers to kill during battle.53 This modern method of military training subjects soldiers to operant conditioning in order to break down the innate psychological resistance to killing another human being. 54 Repetitive stimulus-response training ensures that soldiers will reflexively take another life when a given set of circumstances exist. 55 Psychological inoculation is imposed upon soldiers to desensitize them to the act of killing and allow 56 them to deny to themselves that they have killed another human being. The effect of modem military training is most apparent when a combat veteran suffering from service-related PTSD or TBI commits an act of violence. The act of violence may take place as a reflexive response to a set of stimuli, such as a "flashback" at the time of the killing, or as another similar violent reaction to an event due to the judgment-altering effects of PTSD or TBI. 57 Because military personnel have been conditioned to kill,

53. See Levin, supra note 28, § 5; GROSSMAN, supra note 38, at 81-82, 160-64, 251-64; MARSHALL, supra note 39, at 36-43, 50-84; Martins, supra note 39, at 71-76. See generally BRUCE K. SIDDLE, SHARPENING THE WARRIOR'S EDGE (1998) (discussing modem use of psychological methods to train people for combat situations). 54. See GROSSMAN, supra note 38, at 1, 81-82, 160-64, 251-64; MARSHALL, supra note 39, at 36-43, 50-84; Mark S. Martins, Deadly Force Is Authorized, but Also Trained,ARMY L., Sept.-Oct. 2001, at 1, 3-5, 8-9, 15; Martins, supra note 39, at 71-76. 55. See Levin, supra note 28, § 5 (discussing the link between military indoctrination and "all the incessant marching, pugil and bayonet training, guard duty, [kitchen patrol duty], and the overwhelming demand to obey authority without question"); GROSSMAN, supra note 38, at 233, 252-61; Martins, supra note 54, at 9 (discussing the training of soldiers in reflexive shooting techniques to ensure "rapid incapacitation of the threat" and "to inculcate effective responses under the stress of a deadly force encounter, when visual narrowing, auditory exclusion, decreased fine motor skills, and other symptoms are to be expected"); Martins, supra note 39, at 71-76 (discussing the U.S. Army's use of cognitive psychology and human learning theories in military training to improve decision making and actions under stress). The objective of military training is not to create one who can kill without remorse or restraint. See GROSSMAN, supra note 38, at 251-64. Rather, all military combat training assumes that a soldier will think rationally in deciding when and whether to kill another human being. See Levin, supra note 28, § 5; GROSSMAN, supra note 38, at 260- 61; Martins, supra note 54, at 5, 8-9, 15; Martins, supra note 39, at 71. The duty to obey regulations and orders of superiors serves as a check on the use of deadly force in combat and peacetime by soldiers. See GROSSMAN, supra note 38, at 260-61. See generally Mark J. Osiel, Obeying Orders: Atrocity, Military Discipline, and the Law of War, 86 CAL. L. REv. 939 (1998) (discussing the role of authority and obedience to orders in the military). 56. See Levin, supra note 28, § 5 (discussing the need for soldiers to be desensitized "to common everyday events" in order to be an effective killer on the battlefield); GROSSMAN, supra note 38, at 81-82, 160-64, 251-64 (discussing the role of dehumanization and desensitization in the training of soldiers to kill); David Zucchino, When It Comes Time to Kill, L.A. TIMES, Apr. 27, 2008, at 1 (discussing the infantry training process for enlisted Marines bound for Iraq). 57. See Martins, supra note 54, at 3-4; Tabak, supra note 3, at 299-300 (discussing the case of Vietnam veteran George Franklin Page on North Carolina's death row for killing during a manic flashback episode); Michael J. Davidson, Note, Post-traumatic Stress Disorder: A ControversialDefense for Veterans of a Controversial War, 29 WM. & MARY L. REv. 415, 424-29 (1988); Sontag & Alvarez, Combat Trauma, supra note 20 ("'What does he think?' the lawyer said. 'Lethal threat, lethal threat, lethal threat, neutralize threat, boom, boom, boom, boom, boom, boom, boom, boom, boom, continues to shoot."'). 2009] COMBAT VETERANS AND THE DEATH PENALTY 2965 desensitized to the act of killing, and taught to deny to themselves that they have in fact killed, combat veterans who suffer from the judgment-altering effects of PTSD and TBI are less culpable than others suffering from the same mental illnesses.58 This is true because military training has impaired their ability to appreciate fully the wrongfulness of killing and, when they act violently in response to a set of stimuli, to conform their conduct to the 59 requirements of the law. In distinguishing between combat veterans and peacetime veterans with service-related PTSD or TBI who have both received this same type of military training, the difference is that exposure to combat, in many ways, is a unique and transformative experience for soldiers.60 A peacetime veteran PTSD or TBI who commits a crime while suffering from service-related 61 may still use evidence of military training to argue for a lesser sentence. While peacetime veterans may use this military training evidence to distinguish themselves from the average offender in sentencing, they are unlikely to find much sympathy with a court as compared to a veteran who has also been exposed to combat, especially one who suffered from service- related PTSD or TBI at the time of the offense. 62 This is because combat exposure is recognized as a very unique and distinguishing trait that sets a combat veteran apart from a peacetime veteran because the combat veteran

58. See MODEL PENAL CODE § 210.6(4)(g) (Proposed Official Draft 1962); see also Levin, supra note 28, § 5; Martins, supra note 54, at 3-5, 8-9, 15; Martins, supra note 39, at 71-76. 59. Supra note 58. 60. See, e.g., Bell v. Cone, 535 U.S. 685, 704-05 (2001); Johnson v. Singletary, 612 So. 2d 575, 580 (Fla. 1993); State v. Phipps, 883 S.W.2d 138, 139-41 (Tenn. Crim. App. 1994) (discussing how a soldier changed from exemplary to disturbed after enduring Iraqi SCUD attacks during the first Gulf War); Levin, supra note 28, §§ 4-5; GROSSMAN, supra note 38, passim; Grant, supra note 36, at 271; Sontag & Alvarez, Combat Trauma, supra note 20; Brown, supra note 20. 61. A peacetime veteran could incur PTSD or TBI through any variety of noncombat, service-related causes ranging from training exercise accidents to incidents occurring while performing day-to-day military duties. See, e.g., Johnson, 612 So. 2d at 578 (describing "a freak head injury on military maneuvers"); Levin, supra note 28, § 5. 62. See, e.g., Bell, 535 U.S. at 703-14 (Stevens, J., dissenting) (discussing how Gary Cone unsuccessfully attempted to use his noncombat military service as a supply clerk in Vietnam to argue an insanity defense and to obtain a sentence other than death); Johnson, 612 So. 2d at 579-80 (describing how a Vietnam veteran facing execution who suffered service-related head injuries should be "given proper credit for the good that he has done and the bad that he has suffered while in service to his nation in Vietnam and elsewhere"); Phipps, 883 S.W.2d at 148, 149-51 (rejecting a diminished capacity defense based on a claim of PTSD in a capital crime where the death penalty was not sought); Levin, supra note 28, § 5 (recounting the general impact of military training in changing behavior); Grant, supra note 36, at 271 (illustrating the psychologically damaging effects of combat); Sontag & Alvarez, Combat Trauma, supra note 20 (noting that a federal judge gave no downward departure from the sentencing guidelines when sentencing a combat veteran with a severe case of PTSD to twenty-one years in jail for second-degree murder); The Cases, supra note 20 (displaying 121 cases involving unlawful killings by combat veterans and how courts have handled them); see also supra note 273. 2966 FORDHAM LA W REVIEW [Vol. 77 has willingly exposed himself or herself to danger in service of his or her 63 nation. What we see as a result of the combination of military training and exposure to combat are combat veterans who are very different than average offenders or peacetime veterans.64 When combat exposure additionally causes service-related PTSD or TBI in combat veterans, their personal culpability is diminished relative to average offenders who also suffer from PTSD or TBI, but lack the element of government-sponsored military training.65 Combat veterans are a distinct and special population of offenders who should be treated differently under the law because they are far from those who are "'the most deserving of execution.' 66 Fortunately, the Supreme Court's interpretation of the Eighth Amendment permits combat veteran offenders to argue for their lives in capital trials in a number of ways.

II. ARGUING FOR LIFE BY PRESENTING MITIGATING EVIDENCE In the thirty-two years since the Supreme Court decided Gregg v. Georgia,67 reinstating the death penalty as a potential punishment,68 the tension between the requirement to narrow the class of offenders eligible for the death penalty and the need for wide latitude in sentencing to allow for individualized consideration has led to the adoption of a bifurcated capital trial process.69 Once guilt has been established in the trial phase, the

63. See, e.g., Bell, 535 U.S. at 704-05 (illustrating a "pre-Vietnam Cone"); Johnson, 612 So. 2d at 578-79 (suggesting that the defendant lost his mind due to Vietnam experiences); Phipps, 883 S.W.2d at 141 (discussing the defendant's experiences during combat that led to his PTSD); Levin, supra note 28, § 5 (equating combat with nuclear winter); Grant, supra note 36, at 271; Sontag & Alvarez, Combat Trauma,supra note 20; Brown, supra note 20. 64. See Levin, supra note 28, §§ 4-5; GROSSMAN, supra note 38, passim; Martins, supra note 54, at 3-5, 8-9, 15; Martins, supra note 39, at 71-76 (discussing soldier training methodology). 65. See MODEL PENAL CODE § 210.6(4)(g) (Proposed Official Draft 1962) (listing mitigating circumstances); Levin, supra note 28, § 5. 66. Roper v. Simmons, 543 U.S. 551, 568 (2005) (quoting Atkins v. Virginia, 536 U.S. 304, 319 (2002)). 67. 428 U.S. 153 (1976). 68. Id. at 165-87. 69. See Kansas v. Marsh, 126 S.Ct. 2516, 2524-25 (2006) ("Together, our decisions in Furman v. Georgia ...and Gregg v. Georgia... establish that a state capital sentencing system must: (1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant's record, personal characteristics, and the circumstances of his crime." (citing Gregg, 428 U.S. at 189)); McKoy v. North Carolina, 494 U.S. 433, 443 (1990) ("[T]he punishment should be directly related to the personal culpability of the defendant ...... (quoting Penry v. Lynaugh, 492 U.S. 302, 327 (1989))); Marshall v. Lonberger, 459 U.S. 422, 456-57 (1983) (Stevens, J., dissenting) ("Bifurcated proceedings are now the rule in capital cases throughout the Nation."); Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) ("'[T]he fundamental respect for humanity underlying the Eighth Amendment... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death."' (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976))); Furman v. Georgia, 408 U.S. 238 (1972) (per curiam) (requiring the application of the death 2009] COMBAT VETERANS AND THE DEATH PENALTY 2967 admission of mitigating evidence in the sentencing phase of these trials is essential to meeting the requirement that the punishment fit the crime and providing a sentence tailored to the individual. 70 To serve this end, the Supreme Court has given defendants wide latitude to offer anything, "'if the sentencer could reasonably find that [the information] warrants a sentence 71 less than death."' The almost unlimited ability of a capital defendant to offer anything in arguing for life is based on the notion that "[c]apital punishment must be limited to those offenders who commit 'a narrow category of the most serious crimes' and whose extreme culpability makes them 'the most deserving of execution."' 72 In dealing with cases involving mental illnesses, such as PTSD, and mental defects, such as TBI, the Court has refused to limit the admission of such evidence to only the guilt phase functioning has mitigating dimension because "[i]mpaired intellectual ' 73 beyond the impact it has on the individual's ability to act deliberately." The Court has made clear that "[e]vidence of significantly impaired intellectual functioning is obviously evidence that 'might serve as a basis 74 for a sentence less than death.' In the case of combat veterans suffering from PTSD or TBI who are on trial for their lives in the capital sentencing phase, three specific types of mitigating evidence are particularly relevant and helpful in arguing against the imposition of the death penalty. 75 Evidence regarding (1) military training, (2) PTSD, and (3) TBI may be offered to show the sentencer that a combat veteran suffering from PTSD or TBI has diminished personal culpability that does not make him or her "'most deserving of execution.' "76

A. Modern Military Training The above discussion about how modem military training transforms a citizen into a soldier is important to consider in distinguishing a combat penalty in a nonarbitrary manner); Fabian, supra note 10, at 79 (describing the "humanization strategy" used in the penalty phase). 70. See Marsh, 126 S.Ct. at 2525 ("The use of mitigation evidence is a product of the requirement of individualized sentencing." (citing Graham v. Collins, 506 U.S. 461, 484-89 (1993) (Thomas, J., concurring))); Tennard v. Dretke, 542 U.S. 274, 284-89 (2004); McKoy, 494 U.S. at 443; Eddings, 455 U.S. at 111-12; Fabian, supra note 10, at 79. 71. Tennard, 542 U.S. at 285 (quoting McKoy, 494 U.S. at 441); see also Skipper v. South Carolina, 476 U.S. 1, 4 (1986) ("[I]n capital cases 'the sentencer... [must] not be precluded from considering, as a mitigatingfactor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."' (quoting Eddings, 455 U.S. at 110)). 72. See Roper v. Simmons, 543 U.S. 551, 568 (2005) (quoting Atkins v. Virginia, 536 U.S. 304, 319 (2002)). 73. See Tennard, 542 U.S. at 288. The Court also found that "impaired intellectual functioning is inherently mitigating." Id. at 287. 74. Id. at 288 (quoting Skipper, 476 U.S. at 5). 75. See generally infra Part IIA-C. 76. See Roper, 543 U.S. at 568 (quoting Atkins, 536 U.S. at 319). 2968 FORDHAM LAW REVIEW [Vol. 77

veteran with a mental illness from an "average" offender. But, in making an argument that aspects of modem military training should be considered as mitigating evidence, 77 this Essay explains with some detail how a government trains its soldiers and how such training reduces culpability so 78 as to have a mitigating effect. The process of transforming a normal, young man or woman into a Soldier, Sailor, Airman, or Marine to serve in defense of the United States has commonly been referred to as an activity that breaks down the psyche in order to build a new person in the mold of what the military desires in its fighting men and women. 79 In this process, the objective is to develop instant and willing obedience to orders, which ensures that military commands and duties will be carried out without question in times of combat, extreme stress, and fatigue. 80 The method employed by drill instructors and other personnel who train soldiers, whether they realize it or not, is operant conditioning. 81 Operant conditioning is one step removed from the more commonly known method of classical conditioning. 82 Classical conditioning, popularized by the studies and research of Ivan Pavlov, involves the simple technique of conditioning a response based on providing a stimulus. 83 The most famous example of classical conditioning is the creation of salivation in a dog through the repetitive ringing of a bell at dinner time when food is provided. 84 At the conclusion of the classical conditioning process, the dog would salivate whenever the bell would ring regardless of whether or not food was provided at the same time.85 Operant conditioning takes this process further to condition behaviors, not just responses. 86 By incorporating the use of positive and negative reinforcement techniques, it is possible to condition behaviors. 87 In the military context, the clearest example of operant conditioning is the use of punishments and rewards in basic training.88 A recruit in boot camp will be rewarded for performing a task, such as shining her boots or cleaning her

77. See MODEL PENAL CODE § 210.6(4)(g) (Proposed Official Draft 1962). 78. Infra Part II.A. 79. See, e.g., Levin, supra note 28, § 5; Zucchino, supra note 56. 80. See Levin, supra note 28, § 5; GROSSMAN, supra note 38, at 81-82, 251-64; MARSHALL, supra note 39, at 36-43, 50-84; Martins, supra note 54, at 3-5, 8-9, 15; Martins, supra note 39, at 71-76. 81. See supra note 80. 82. See GROSSMAN, supra note 38, at 252-53. 83. Id. 84. See id. 85. See id. 86. See Levin, supra note 28, § 5; GROSSMAN, supra note 38, at 81-82, 160-64, 251-64 (describing conditioning by hate, psychological inoculation, cultural distance, and desensitization); Martins, supra note 54, at 3-5, 8-9, 15 (explaining the military's deadly force policy); Martins, supra note 39, at 71-76 (describing the rules of engagement scheme, which teaches when soldiers should use force). 87. See GROSSMAN, supra note 38, at 252-53. 88. See Levin, supra note 28, § 5; GROSSMAN, supra note 38, at 81-82, 251-64; Martins, supra note 54, at 3-5, 8-9, 15; Martins, supra note 39, at 71-76. 2009] COMBAT VETERANS AND THE DEATH PENALTY 2969 rifle properly, with words of praise or by not being yelled at by a drill instructor. 89 A recruit who does not properly perform these tasks will be yelled at and subjected to physical punishment in the form of having to do push-ups or other physical exercises. 90 The net result of operant conditioning in the recruit training process is that certain behaviors are taught and indoctrinated over time so that when a recruit graduates from basic training, she should automatically polish her boots and clean her rifle properly in the hope of a reward or avoiding punishment. 91 In the killing context, the process is slightly more complicated, but uses the same methodology. In training, a soldier will receive introductory instruction in how to shoot a weapon.92 As part of this training, she will be rewarded for being able to shoot a rifle properly with a variety of marksmanship badges to be worn on her uniform based on accuracy of fire. 93 Shooting well is further rewarded with praise from peers and supervisors. 94 Failing to shoot accurately can result in punishment through remedial training and ridicule from peers for not performing to the basic standard. 95 These skills and behaviors are reinforced and built upon once a soldier reports to the military unit with which she will train and deploy 96 reinforcement conditions a soldier to overseas. This positive and negative 97 perform the desired behavior-accurately shooting at a target. Psychological inoculation goes hand-in-hand with training designed to condition desired behavior in a fighting man or woman.98 Soldiers are desensitized to the act of killing in boot camp and in follow-on training with a hypermilitaristic attitude that teaches them that killing the enemy on a

89. See, e.g., GROSSMAN, supra note 38, at 81-82, 251-64; Zucchino, supra note 56. 90. See, e.g., GROSSMAN, supra note 38, at 81-82, 251-64; Zucchino, supra note 56. 91. See Levin, supra note 28, § 5; GROSSMAN, supra note 38, at 81-82, 251-64; Martins, supra note 54, at 3-5, 8-9, 15; Martins, supra note 39, at 71-76; Zucchino, supra note 56. 92. See Levin, supra note 28, § 5 (discussing how the introductory training process results in "creating a new sense of identity, structure, and social group adherence for the inductee"); GROSSMAN, supra note 38, at 177-78, 233, 253-56 (discussing initial marksmanship training and the introductory training process); Martins, supra note 54, at 3- 4, 8-9, 15 (discussing marksmanship training and the military's focus on accurate fire and effective target engagement); Martins, supra note 39, at 71-76 (discussing the U.S. Army's training methodology). 93. See GROSSMAN, supra note 38, at 177-78, 253-56 (discussing positive reinforcement). 94. See id. at 177-78, 233, 253-56. 95. See id. 96. See Levin, supra note 28, § 5 (discussing the behavior of a combat-ready soldier); GROSSMAN, supra note 38, at 177-78; Martins, supra note 54, at 3-5, 8-9, 15; Martins, supra note 39, at 71-76; Zucchino, supra note 56 (discussion of Iraq predeployment training for an infantry Marine). 97. See Levin, supra note 28, § 5; GROSSMAN, supra note 38, at 177-79, 253-56; Martins, supra note 54, at 3-5, 8-9, 15; Martins, supra note 39, at 71-76; Zucchino, supra note 56. 98. See Levin, supra note 28, § 5; GROSSMAN, supra note 38, at 81-82, 160-64, 251-52, 255-56; Zucchino, supra note 56. 2970 FORDHAM LAW REVIEW [Vol. 77 battlefield is a good and honorable action.99 In marksmanship training, soldiers shoot at man-sized and man-shaped targets in order to mimic the moment in the future when they may be called upon to aim at a person and pull the trigger.' 00 In training with military units, hyperrealistic training is employed, which involves everything from killing live animals to simulate human casualties in first aid training'01 to using Hollywood-style theatrical makeup to place realistic wounded and dead enemy soldiers in the middle of training exercises. 102 The net effect is that a soldier is conditioned by her government to shoot accurately at a human being when necessary, desensitized to the act of killing, and taught that she can rationalize killing another human being on a battlefield because it is a good and honorable action. 103 It is not novel to say that these operant conditioning techniques provide an explanation as to how a person's behavior changes to permit him or her to commit an unlawful killing. 104 Evidence of operant conditioning and desensitization to the act of killing has previously been used in the video game context. 105 In James v. Meow Media, Inc.,106 the U.S. Court of Appeals for the Sixth Circuit examined the effect that the repetitive playing of role-player video games involving killing other people had on a teenager who killed three students and wounded five others at his high school in Paducah, Kentucky.10 7 While the court decided this civil products liability case on other grounds, it entertained and did not dismiss the idea that one could be conditioned and desensitized to the act of killing by repeated exposure to realistic marksmanship-type video games.' 0 8 Other cities and states seeking to reduce their homicide rates by banning violent video

99. See Levin, supra note 28, § 5 (emphasizing the value in killing and dying); GROSSMAN, supra note 38, at 81-82, 160-64, 251-52, 255-56; Zucchino, supra note 56. For example, recruits in basic training will often chant songs as they run that glorify killing the enemy in battle. See Zucchino, supra note 56. Dehumanization is another technique that is often employed to portray the enemy as less deserving of living. See GROSSMAN, supra note 38, at 82, 160-64, 251-64. 100. See GROSSMAN, supra note 38, at 177-78, 233, 253-56. 101. Jennifer Hlad, PETA Protests Use of Animals in Military Training, Jacksonville DAILY NEWS (N.C.), Mar. 30, 2009, available at http://www.jdnews.com/common/printer/ view.php?db-jdn&id=63342 (describing how combat trauma training using live animals "duplicat[es] the kind of stress our corpsmen might experience when they have to save a fellow Marine or sailor"). 102. See GROSSMAN, supra note 38, at 254-56; Zucchino, supra note 56. 103. See Levin, supra note 28, § 5 (describing how solders become desensitized to the violence of war); GROSSMAN, supra note 38, at 160-64, 251-64; Tom Roeder, Homicides Give Reason to Review Standards, GAZETrE (Colo. Springs), Oct. 17, 2008, available at http://www.gazette.com/articles/army_42037 article.html/iraq-mental.html ("'For the most part, soldiers are conditioned out of feeling empathy for the people they must kill .... ' (quoting psychology professor Lucinda Woodward)); Zucchino, supra note 56. 104. See, e.g., James v. Meow Media, Inc., 300 F.3d 683, 688 (6th Cir. 2002). 105. See, e.g., id. at 688, 693-95, 698; GROSSMAN, supra note 38, at 299-305, 312-16. 106. 300 F.3d 683, 688 (6th Cir. 2002). 107. See id. at 688, 693-95, 698. 108. See id. at 700-01. 2009] COMBAT VETERANS AND THE DEATH PENALTY 2971 games have also cited this type of conditioning as having a linkage with an increased propensity to take human life. 109 The overall effect of state-sponsored training and techniques that condition people to kill, desensitize them to the act of killing, and allow them to rationalize the act of killing is that it affects, in varying degrees, the ability to appreciate the wrongfulness of killing another person."I 0 Because military operant conditioning promotes the behavior of killing another person only when authorized in defined circumstances or when ordered to by a superior, it follows that society is protected when a soldier or a veteran is thinking and acting rationally. I1 A rational person who has been subjected to operant conditioning by the government still has a different perspective on the wrongfulness of killing and a lower psychological barrier to killing another person than a non- combat veteran offender. 112 When a soldier or veteran commits an unlawful killing, evidence of military training has some mitigating value in that it helps explain her mindset and actions as they relate to the act of killing another human being. 113 If a combat veteran's judgment is impaired by PTSD or TBI, the mitigating nature of military training evidence is amplified to further reduce personal culpability relative to the average offender. This is because the combination of impaired judgment and military training significantly interferes with the ability to appreciate the wrongfulness of the act of killing and to conform one's conduct to the requirements of the law. 114

B. Post-traumaticStress Disorder In examining the mitigating role that PTSD plays in cases of combat veterans suffering from the disorder at the time of a capital crime, it is very telling that PTSD first gained formal recognition as a combat-related

109. See, e.g., H. 1423, 2007 Leg., 185th Sess. (Mass. 2007), available at http://www.mass.gov/legis/bills/house/185/ht0 pdf/ht0 1423.pdf (restricting the sale of violent video games to minors); GROSSMAN, supra note 38, at 299-305, 312-16; Bob Egelko, Ruling Banning Age Restriction on Video Game Sales Is Upheld, S.F. CHRON., Feb. 21, 2009, at B1; Lynda Gledhill, Judge Blocks Ban on Sale of Violent Video Games to Minors, S.F. CHRON., Dec. 23, 2005, at Al. 110. See Levin, supra note 28, § 5 (explaining that psychological military training alters human behavior regarding killing); GROSSMAN, supra note 38, at 81-82, 160-64, 251-64. 111. See GROSSMAN, supra note 38, at 251-64; Martins, supra note 39, at 71-76; supra note 55 and accompanying text. 112. See Levin, supra note 28, § 5; Roeder, supra note 103. Michael Hagan, the civilian coordinator for the U.S. Army's "Battlemind Training" mental health program, stated, "A key component of [reintegration into society after combat] . . . is having soldiers turn off instinctual reactions that saved their lives in combat." Roeder, supra note 103. 113. Levin, supra note 28, § 18. 114. See MODEL PENAL CODE § 210.6(4)(g) (Proposed Official Draft 1962); Roeder, supra note 103 ("Ray Scurfield, a PTSD expert at the University of Southern Mississippi Gulf Coast, said the way America is using troops in Iraq and Afghanistan makes it harder for troops to turn off the kill-or-be-killed instincts of war."). 2972 FORDHAM LAW REVIEW [Vol. 77 disorder following the Vietnam War. 115 While PTSD has been diagnosed in car accident victims, battered women, abused children, and other people who have experienced traumatic events, the disorder has historically been available to and used in courts primarily by combat veterans. 116 The history of PTSD gives this mitigating evidence particular weight and credibility when introduced by combat veterans in the sentencing phase of a 7 capital trial. 11 PTSD is "not a new phenomenon." 1 8 For as long as there has been war, there have been combat veterans who have borne the psychological scars of battle. 19 In the aftermath of the Civil War, these mentally ill combat veterans were said to have "'irritable heart.""'120 After World War I, combat veterans were said to have shell shock. 121 It was not until the aftermath of World War II and the advent of attempts by modem mental health professionals to treat mental illnesses that these psychological ailments 122 started to gain some level of formal recognition as a gross stress reaction. Combat stress was referred to in early versions of the Diagnostic and Statistical Manual of Mental Disorders (DSM) as a gross stress reaction, but was removed from the manual as the United States entered the Vietnam

115. See Motherway, supra note 26, §§ 2-3; Timothy P. Hayes, Jr., Post-traumaticStress Disorder on Trial, 190 MIL. L. REv. 67, 71-72 (2006); Daniel E. Speir, Application and Use of Post-traumaticStress Disorderas a Defense to Criminal Conduct, ARMY L., June 1989, at 17, 17 (explaining the effect of PTSD on Vietnam veterans); Davidson, supra note 57, at 415-22 (discussing the unique Vietnam experience with PTSD). 116. See Speir, supra note 115, at 22; Davidson, supra note 57, at 424-40; see also Rich Cholodofsky, War Stress Basis for Ex-Loyalhanna Man's Murder Case Appeal, TRIB.-REV. (Pittsburgh), Oct. 4, 2008, available at http://www.pittsburghlive.com/x/tribunereview /news/westmoreland!print_591590.html (discussing a Desert Storm veteran's request for a new trial and desire to use PTSD as a defense to the specific intent requirement of a murder charge). 117. See Motherway, supra note 26, §§ 2-3 (discussing the development of PTSD as a combat-related psychological reaction); Davidson, supra note 57, at 424-40 (discussing generally the development of the use of PTSD as a criminal defense by Vietnam veterans). 118. Motherway, supra note 26, § 2 (describing the historical background and nomenclature of mental health problems in combat veterans); see Hayes, Jr., supra note 115, at 69-70 (discussing the history of PTSD from the days of Hebrew civilization to present times); Speir, supra note 115, at 17 (describing the history of PTSD); Davidson, supra note 57, at 418-20 (providing an historical overview of postcombat mental health reactions). 119. See Motherway, supra note 26, § 2; Bowe, supra note 13, at 30; Hayes, Jr., supra note 115, at 69-72; Speir, supra note 115, at 17. 120. Hayes, Jr., supra note 115, at 70 (quoting Jo Knox & David H. Price, Healing America's Warriors, Vet Centers and the Social Contract (Apr. 18-20, 1996) (unpublished paper), available at http://www.vietnam.ttu.edu/vietnamcenter/events/1996_Symposium/96 papers/healing.htm); see Bowe, supra note 13, at 30. 121. Motherway, supra note 26, § 2 (citing PETER G. BOURNE, MEN, STRESS AND VIETNAM 10-22 (1970)); Bowe, supra note 13, at 30; Hayes, Jr., supra note 115, at 70 (citing Steve Bentley, A Short History of PTSD: From Thermopylae to Hue, Soldiers Have Always Had a DisturbingReaction to War, VVA VETERAN, Jan. 1991, at 11, 14); Speir, supra note 115, at 17; Davidson, supra note 57, at 418 (citing BOURNE, supra note 121, at 6). 122. See Motherway, supra note 26, §§ 2-3 (citing AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (1952)); Hayes, Jr., supra note 115, at 71 (citing Bentley, supra note 121, at 11-16); Davidson, supra note 57, at 419-20 (citing JOSEFINA J. CARD, LIVES AFTER VIETNAM 103 (1983)). 2009] COMBAT VETERANS AND THE DEATH PENALTY 2973

War.123 In many ways, this removal can be attributed to the fact that World War II combat veterans had a much easier time dealing with the aftermath of their combat experiences. 124 Service in the war was almost universal amongst male citizens, there was widespread support for their service, and there was a broad support network of family and friends that these veterans could turn to for help after coming home. 125 Largely for these reasons, World War II combat veterans exhibited few problems, and there was no pressing call to recognize mental health issues that affected their behavior 126 or required treatment. Vietnam was a different conflict that created unique issues for its combat veterans involving mental health issues, homelessness, and substance abuse. 127 Unlike World War II, service in Vietnam was not universal, military service in the war was unpopular, and people who did not serve there did not understand the difficulties of that combat environment and the effect on mental health. 128 The rise of mental health issues in Vietnam-era combat veterans, as compared to World War II-era combat veterans, could also be partly accounted for by the changes to military training that broke 29 their psyche in order to make them better killers on the battlefield.' As these disaffected combat veterans mobilized and began to advocate for help and benefits in the 1970s, many pushed for formal recognition of what mental health professionals were terming Vietnam Stress Syndrome. 130 Courts were also beginning to see the introduction of Vietnam Stress Syndrome in criminal trials as a basis for an insanity

123. Motherway, supra note 26, § 3; Davidson, supra note 57, at 419-20. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is the authoritative text used by mental health professionals in assessing and diagnosing mental illnesses and disorders. See Levin, supra note 28, §§ 17-27. 124. See GROSSMAN, supra note 38, at 285-89; Davidson, supra note 57, at 419. 125. See GROSSMAN, supra note 38, at 285-87; Davidson, supra note 57, at 417-19 (discussing the differences between the experiences of Vietnam veterans and World War II- era veterans upon returning to the United States). 126. See GROSSMAN, supra note 38, at 285-87; Davidson, supra note 57, at 416-22. 127. See GROSSMAN, supra note 38, at 264-80, 287-89; Motherway, supra note 26, § 2; Davidson, supra note 57, at 415-22; see also Phillip Dine, War's Legacy: Its Human Toll, ST. Louis POST-DISPATCH, Mar. 16, 2008, at Al (comparing problems experienced by Iraq veterans to those experienced by Vietnam veterans). 128. See GROSSMAN, supra note 38, at 264-80, 287-89; Hayes, Jr., supra note 115, at 71-72; Davidson, supra note 57, at 417-19. 129. See Levin, supra note 28, § 5 (discussing the specific military training soldiers received during the Vietnam era); GROSSMAN, supra note 38, passim. It is important to note that each war creates veterans with different psychological reactions, and further study of the particular effects of combat operations in Iraq and Afghanistan is in order. See Hoge et al., supra note 13, at 14 ("The all-volunteer force deployed to Iraq and Afghanistan and the type of warfare conducted in these regions are very different from those involved in past wars, differences that highlight the need for studies of members of the armed services who are involved in the current operations."). 130. See Motherway, supra note 26, § 2 (discussing the push to recognize the "common pattern of psychic reaction to traumatic events" observed in Vietnam veterans in the 1970s); Hayes, Jr., supra note 115, at 71-72 (discussing work by veterans groups and mental health workers regarding PTSD in the 1970s); Speir, supra note 115, at 17. 2974 FORDHAM LA W REVIEW [Vol. 77 defense or other excuses regarding criminal liability. 131 While these issues were being raised, the version of the DSM in effect since before the Vietnam War was undergoing significant revision regarding treatment and 132 recognition of mental health issues based on traumatic events. When the DSM-III was published in 1980, PTSD was formally recognized as a mental disorder by the community of mental health professionals, largely due to the widespread incidence of mental health problems in Vietnam veterans. 133 This led to increased acceptance and use of PTSD by combat veterans in trials because it did not require courts to recognize the undefined concept of Vietnam Stress Syndrome based solely on expert testimony. 134 Since being formally recognized, the use of PTSD in trials has expanded beyond Vietnam veterans to include anyone who has undergone a traumatic event in her life and fits within the diagnostic criteria. 135 Although the DSM has been revised since 1980, the definition of the symptoms and what is required to diagnose PTSD has changed very little. 136 The current version of the DSM requires the following to diagnose PTSD: * Must have been exposed to a "traumatic event" involving "actual or threatened death or serious injury" that caused a response involving intense "fear, helplessness, or horror"; * Must exhibit specific symptoms consistent with PTSD, such as reexperiencing the traumatic event, "avoidance of stimuli" that recall the traumatic event, or "increased arousal" of the senses. * Must exhibit "clinically significant distress or impairment in social, occupational, or other important areas of functioning" after exposure to the traumatic stressor. * Must exhibit symptoms for "more than one month" 7 duration. 3

131. See Speir, supra note 115, at 17-22 (discussing the early uses of PTSD as a criminal defense and as a factor in mitigation in sentencing). 132. See Motherway, supra note 26, §§ 2-3; Hayes, Jr., supra note 115, at 71-72; Davidson, supra note 57, at 419-22. 133. See Motherway, supra note 26, §§ 2-3; Hayes, Jr., supra note 115, at 71-72; Davidson, supra note 57, at 419-22. 134. See Speir, supra note 115, at 17; Davidson, supra note 57, at 424-40; Sontag & Alvarez, Combat Trauma, supra note 20. 135. See BAKER & ALFONSO, supra note 26; Motherway, supra note 26, § 2; Speir, supra note 115, at 22. 136. See DSM-IV-TR, supra note 26; BAKER & ALFONSO, supra note 26; Hayes, Jr., supra note 115, at 72; Levin, supra note 28, §§ 17-27; Motherway, supra note 26, §§ 4-10. 137. DSM-IV-TR, supra note 26; see BAKER & ALFONSO, supra note 26; Levin, supra note 28, §§ 17-27; Motherway, supra note 26, §§ 4-10. PTSD can also be characterized as having a delayed onset in that the disorder need not arise immediately after the event. DSM- 1V-TR, supra note 26; see BAKER & ALFONSO, supra note 26; Levin, supra note 28, §§ 2009] COMBAT VETERANS AND THE DEATH PENALTY 2975

In addition, there are a number of specific symptoms that are associated with a diagnosis of PTSD, including sleep problems, hypervigilance, exaggerated startle response, irritability, outbursts of anger, difficulty concentrating, difficulty completing tasks, "flashbacks" that involve reliving the traumatic event, impulsive behavior, and, in some cases, psychotic behavior. 138 In recognizing that PTSD is a serious clinical disorder with symptoms that alter behavior and judgment, the DSM classifies it as an Axis I disorder along with illnesses including depression, schizophrenia, and other major mental disorders. 139 Furthermore, the ABA considers all Axis I disorders to be severe mental disorders that alter behavior and judgment to the degree that persons who suffer from such 140 disorders should be exempt from the death penalty. Because PTSD alters behavior and judgment, a diagnosis has mitigating value since its symptoms affect "the capacity of the defendant to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law."'141 For a combat veteran, the effects of PTSD are significant and the introduction of the existence of PTSD at the time of the offense through either a prior or forensic diagnosis should cause a sentencer to recognize the special mitigating nature of this evidence and spare the combat veteran's life.142

C. TraumaticBrain Injury Traumatic brain injuries are neither uncommon nor insignificant. In fact, more than ninety thousand people a year suffer severe and debilitating brain injuries in the United States. 143 While TBIs in the United States are already numerous, there has been a marked increase in the number of TBIs in combat veterans as a result of the conflicts in Iraq and Afghanistan over the past seven years.'4 In light of this recent increase in the incidence of brain injury in combat veterans, TBI has become a key issue in both the guilt and

17-27; Motherway, supra note 26, §§ 4-10; Bowe, supra note 13, at 33 (stating that one in three cases of PTSD may be delayed). 138. See DSM-IV-TR, supra note 26; Levin, supra note 28, § 22; Motherway, supra note 26, § 4. PTSD has also been linked to behaviors that involve substance abuse, risky sexual habits, and physical abuse. See Kelly Kennedy, Links Between PTSD, Substance Abuse Explored, MARINE CORPS TIMES, Jan. 7, 2009, http://www.marinecorpstimes.com/news/ 2009/01 /military-substanceabuse-ptsd_0 10809w/. 139. See FIRST ET AL., supra note 25; PsychNet-UK, supra note 25 (explaining what defines and distinguishes different Axis categories in the DSM-IV). 140. ABA Report, supra note 3, at 668, 670-71. 141. MODEL PENAL CODE § 210.6(4)(g) (Proposed Official Draft 1962) (alteration in original); see BAKER& ALFONSO, supra note 26; Motherway, supra note 26, §§ 4-10. 142. See Johnson v. Singletary, 612 So. 2d 575, 579-80 (Fla. 1993); BAKER & ALFONSO, supra note 26; Levin, supra note 28, §§ 17-27; Motherway, supra note 26, §§ 4-10. 143. William J. Winslade, Traumatic Brain Injury and Criminal Responsibility, MED. ETHics, Fall 2003, at 2, 4. 144. See Alvarez, supra note 15; Tyson, supra note 15; Memorandum from Jonathan B. Perlin, Undersecretary for Health, Dep't of Veterans Affairs, to Dep't of Veterans Affairs Primary Care Clinicians, Screening and Clinical Management of Traumatic Brain Injury I (Jan. 25, 2006) [hereinafter VA TBI Memo] (on file with the Fordham Law Review). 2976 FORDHAM LAW REVIEW [Vol. 77 sentencing phases of murder trials involving combat veterans as 14 5 defendants. There are a number of reasons that explain why TBIs are so common in combat veterans to have become known as the "signature wound" of the wars in Iraq and Afghanistan. 146 First, the use of IEDs is one of the preferred methods employed by insurgents to attack and kill American forces. 147 These explosions cause concussive blasts that emit shock waves that often result in unconsciousness, disorientation, and other injuries in soldiers. 148 Many soldiers would have died as a result of these blasts in past conflicts. 149 However, advances in vehicle armor, helmets, body armor, and medical treatment on the battlefield have resulted in many more soldiers surviving their injuries and returning to society. 150 In light of these factors, it is now estimated that more than three hundred thousand combat veterans have survived and suffer from some form of TBI as a result of the war on terror. 151 For those soldiers who survive combat actions that cause head injuries, it is difficult to diagnose specifically the existence of a TBI.152 As opposed to 53 an illness like PTSD, which uses the DSM criteria to make a diagnosis,' there are no universal definitions or evidence-based guidelines available to

145. See Kelly Kennedy, Traumatic Brain Injury: Common Wound of War, MARINE CORPS TIMES, Aug. 30, 2007, http://www.marinecorpstimes.com/news/2007/08/marine brainmain_070828/ (discussing the increase in the TBI diagnosis in veterans); The Cases, supra note 20 (providing examples of 121 veterans who have been charged with committing murders since returning from war). 146. See, e.g., Alvarez, supra note 15; Tyson, supra note 15. 147. See, e.g., Glasser, supra note 16. 148. See id. Consider the following explanation regarding the danger of improvised explosive device (IED) blasts: Here's why IEDS carry such hidden danger. The detonation of any powerful explosive generates a blast wave of high pressure that spreads out at 1,600 feet per second from the point of explosion and travels hundreds of yards. The lethal blast wave is a two-part assault that rattles the brain against the skull. The initial shock wave of very high pressure is followed closely by the "secondary wind": a huge volume of displaced air flooding back into the area, again under high pressure. No helmet or armor can defend against such a massive wave front. It is these sudden and extreme differences in pressure-routinely 1,000 times greater than atmospheric pressure-that lead to significant neurological injury. Id. 149. See id. 150. See Hoge et al., supra note 17, at 454 ("Because of improved protective equipment, a higher percentage of soldiers are surviving injuries that would have been fatal in previous wars." (citing Susan Okie, Traumatic Brain Injury in the War Zone, 352 NEw ENG. J. MED. 2043, 2045 (2005)); Glasser, supra note 16. The wounded-to-killed ratio in Vietnam was 2.6 wounded for each person killed. In the war on terrorism, it is sixteen wounded for each person killed. See Glasser, supra note 16. 151. See Alvarez, supra note 15; Tyson, supra note 15. 152. See Kennedy, supra note 17; VA TBI Memo, supra note 144, at 1-3. 153. See DSM-IV-TR, supra note 26; BAKER & ALFONSO, supra note 26; Levin, supra note 28, § 20; Motherway, supra note 26, §§ 4-10. 2009] COMBAT VETERANS AND THE DEATH PENALTY 2977

diagnose TBI in a combat veteran. 154 The existence of different forms of TBI, such as mild and moderate forms of TBI, adds to the diagnostic difficulties because it is believed that minor concussions, which do not result in unconsciousness or other outward symptoms, can cause delayed 155 and severe symptoms that are not apparent for months after the injury. Since medical experts generally define TBI as a blow or jolt to the head that disrupts the functioning of the brain, a diagnosis is currently only possible through an intensive mental and physical examination by medical professionals to determine if there has been a disruption in the functioning of the brain. 156 Diagnosing a less severe form of TBI is more difficult because the injury is often undetectable in scans of the brain, the symptoms often mirror those of PTSD, and complaints range from passing headaches to mild seizures. 157 Although TBI may be difficult to diagnose, there is an overall consensus within the medical community regarding the symptoms 58 exhibited by those who have suffered a TBI. Those afflicted with TBI exhibit symptoms that include: * "Headaches, sleep disturbances, and sensitivity to light and noise ...."159 * Cognitive symptoms in the form of "disturbances in attention, memory, or language, as well as delayed reaction time during problem solving" as "diagnosed on mental-

154. See Kennedy, supra note 17; VA TBI Memo, supra note 144, at 2. The federal government has defined traumatic brain injury for the purposes of educational disabilities as an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child's educational performance. Traumatic brain injury applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. 34 C.F.R. § 300.8(c)(12) (2008). 155. See Ryan & Berson, supra note 3, at 372-73; Bruce H. Stern, Representing the Mildly Brain-Injured Client, TRIAL, Sept. 2000, at 48, 48-50; Robina Riccitiello, Iraq: A Marine's Experience of Brain Injury, NEWSWEEK, Mar. 17, 2006, http://www.msnbc. msn.com/id/l1882164/site/newsweek/print/l/displaymode/1098/; VA TBI Memo, supra note 144, at 1-3. 156. See Stern, supra note 155, at 48-50; Kennedy, supra note 17; VA TBI Memo, supra note 144, at 1-3. 157. See Richard A. Bryant, Editorial, Disentangling Mild Traumatic Brain Injury and Stress Reactions, 358 NEW ENG. J. MED. 525, 525 (2008) ("[Mild TBI] symptoms can include problems with memory, balance, and concentration, as well as ringing in the ears, sensitivity to light or sound, and irritability."); Stern, supra note 155, at 48-50; Kennedy, supra note 17 ("'Mild' is a misnomer because it can mean anything from a Marine who bangs his head but has nothing more than a passing headache, to [a Marine] who bangs his head and has headaches, permanent short-term memory loss and mild seizures."). 158. See Ryan & Berson, supra note 3, at 371-73; Stern, supra note 155, at 48-49; VA TBI Memo, supra note 144, at 1-3. 159. Okie, supra note 150, at 2045. 2978 FORDHAM LA W REVIEW [Vol. 77

status examination or through neuropsychological 60 testing."1 * Behavioral symptoms in the form of "mood changes, depression, anxiety, impulsiveness, emotional outbursts, or inappropriate laughter."161 * "Common behavioral deficits includ[ing] decreased ability to initiate responses, verbal and physical aggression, agitation, learning difficulties, shallow self-awareness, altered sexual functioning, impulsivity, and social disinhibition .... ,,162 * "[E]motional disturbances and personality changes... leading to alterations in the individual's ability to make decisions, plan, focus, make 63 selections and self-monitoring of their own performance.' * "[D]eficits in intellectual and adaptive functioning, such as agnosia (failure to recognize or identify objects) and disturbances in executive functioning connected with planning, organizing, sequencing, and abstracting."'164 These symptoms, and numerous studies about the effect of brain injuries on behavior, all establish that there is a link between TBIs and an inability to 165 conform one's behavior to society's expectations and the law. When mitigating evidence of a diagnosis of TBI in an offender is properly admitted through expert medical testimony and results of diagnostic testing, there is great value since TBI and its symptoms affect "the capacity of the defendant to appreciate the criminality [wrongfulness] 66 of his conduct or to conform his conduct to the requirements of the law." The Supreme Court itself has acknowledged the mitigating nature of deficiencies in cognitive, behavioral, and emotional abilities in stating that "[e]vidence of significantly impaired intellectual functioning is obviously

160. Id. 161. Id. at 2045-46. 162. Brief for National Disability Rights Network et al. as Amici Curiae in Support of Petitioner at 5, Leonard v. Simpson, 128 S. Ct. 24 (2007) (No. 06-1317), 2007 WL 1319342 (quoting NIH Consensus Development Panel, Rehabilitation of Persons with Traumatic Brain Injury, 282 J. AM. MED. ASS'N 974, 976 (1999)). 163. Bitz & Bitz, supra note 28, at 232 (citing Donald T Stuss & Catherine A. Gow, "Frontal Dysfunction" After Traumatic Brain Injury, NEUROPSYCHIATRY, NEUROPSYCHOLOGY & BEHAV. NEUROLOGY 272, 273 (1992)). 164. ABA Report, supra note 3, at 669-70 (citing DSM-IV-TR, supra note 26, at 135) (describing symptoms of dementia). 165. See MODEL PENAL CODE § 210.6(4)(g) (Proposed Official Draft 1962); Bitz & Bitz, supra note 28, at 230-35; Ryan & Berson, supra note 3, at 372-73; see also VA TBI Memo, supra note 144, at 1-3. 166. MODEL PENAL CODE § 210.6(4)(g) (Proposed Official Draft 1962) (alteration in original); see Brief for National Disability Rights Network et al., supra note 162, at 9-20; Bitz & Bitz, supra note 28, at 230-34. 2009] COMBAT VETERANS AND THE DEATH PENALTY 2979 evidence that might serve as a basis for a sentence less than death."'167 For a combat veteran, the effects of TBI are significant, and the introduction of the existence of TBI at the time of the offense through either a prior or forensic diagnosis should cause a sentencer to recognize the unique mitigating nature of this evidence and spare the combat veteran's life. 168

III. ARGUING FOR LIFE BY PROPOSING A CATEGORICAL EXCLUSION Ideally, mitigating evidence would ensure that the death penalty was only imposed on those offenders who are 'the most deserving of execution.' 1 69 Unfortunately, the discretion of judges has proven over time that certain offenders have been sentenced to death despite evidence of impairments in intellectual and mental functioning. 170 To guard against this danger, the Supreme Court created specific categorical exclusions that put certain classes of offenders, such as the mentally retarded and juveniles, outside the 17 1 reach of the death penalty as a matter of law.

A. Justificationfor and Criticisms of CategoricalExclusions Categorical exclusions are necessary because sentencers may not, in their own discretionary role, give effect to some forms of mitigating evidence regarding certain offenders. 172 Mitigating evidence of mental health issues should evoke sympathy and explain why a capital defendant is not among "'the most deserving of execution." ' 173 Yet, all too often, sentencers construe the mitigating nature of mental health issues as a factor in aggravation because it also speaks to future dangerousness and lack of rehabilitative potential.' 74 Thus, mitigating evidence of mental health

167. See Tennard v. Dretke, 542 U.S. 274, 288 (2004) (quoting Skipper v. South Carolina, 476 U.S. 1, 5 (1986)) (internal quotation marks omitted). 168. See Brief for National Disability Rights Network et al., supra note 162, at 9-20; MODEL PENAL CODE § 210.6(4)(g) (Proposed Official Draft 1962); Bitz & Bitz, supra note 28, at 230-34. 169. See Roper v. Simmons, 543 U.S. 551, 568 (2005) (quoting Atkins v. Virginia, 536 U.S. 304, 319 (2002)); Fabian, supra note 10, at 90; Jochnowitz, supra note 10, at 5; Ryan & Berson, supra note 3, at 376-77; Slobogin, supra note 3, at 1150-51; Tabak, supra note 3, at 288-93. 170. See, e.g., Roper, 543 U.S. at 558; Atkins, 536 U.S. at 309; see also Fabian, supra note 10, at 90; Jochnowitz, supra note 10, at 5, 9-16; Ryan & Berson, supra note 3, at 376- 77; Slobogin, supra note 3, at 1150-51; Tabak, supra note 3, at 288-93. 171. Roper, 543 U.S. at 564-79; Atkins, 536 U.S. at 311-21. 172. See Roper, 543 U.S. at 573; Atkins, 536 U.S. at 320-21; Slobogin, supra note 3, at 1150-51; Tabak, supra note 3, at 288-93. 173. See Roper, 543 U.S. at 568 (quoting Atkins, 536 U.S. at 319); Slobogin, supra note 3, at 1150-51; Tabak, supra note 3, at 288-93. 174. See Roper, 543 U.S. at 573; Atkins, 536 U.S. at 320-21; Fabian, supra note 10, at 90; Ryan & Berson, supra note 3, at 376-77; Slobogin, supra note 3, at 1150-51; Tabak, supra note 3, at 288. 2980 FORDHAM LAW REVIEW [Vol. 77 issues functions as a double-edged sword that can cut both ways to both 75 help and hurt a defendant's plea to be given a sentence of less than death. 1 An additional justification for having categorical exclusions is that mitigating evidence based on psychology or psychiatry is undervalued and often misunderstood by sentencers. 176 It is understandable that skepticism exists when a psychiatrist or psychologist attempts to advance a unique expert opinion regarding behavior in the sentencing phase of a capital trial. 177 However, when judges properly serve as the evidentiary gatekeeper in a Daubert inquiry, 178 they ensure that junk science and untested theories do not enter the courtroom; rather, only diagnoses based on accepted medical theories and diseases should be admitted. 179 In those circumstances where it is established that a valid mental health issue existed at the time of the offense based on expert testimony, 180 a categorical exclusion precludes the sentencer from devaluing and discounting that 181 mitigating factor to assess a sentence of death where it is unwarranted. Categorical exclusions based on the existence of certain characteristics, such as mental retardation, mental illness, or being a juvenile, may protect defined classes of offenders from being put to death, but these exclusions also inspire criticism from many fronts. A number of death penalty abolitionists dislike categorical exclusions because they acknowledge that some offenders deserve to die for their crimes. 182 Some critics argue that

175. See Roper, 543 U.S. at 573; Atkins, 536 U.S. at 320-21; Fabian, supra note 10, at 90; Jochnowitz, supra note 10, at 14; Ryan & Berson, supra note 3, at 376-77; Slobogin, supra note 3, at 1150-51; Tabak, supra note 3, at 288-93. 176. See Roper, 543 U.S. at 564-79; Tennard v. Dretke, 542 U.S. 274, 288-89 (2004); Atkins, 536 U.S. at 317-21; Fabian, supra note 10, at 90; Jochnowitz, supra note 10, at 5; Ryan & Berson, supra note 3, at 376-77. 177. See Fabian, supra note 10, at 90; Ryan & Berson, supra note 3, at 376-77. 178. E.g., Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-95 (1993) (describing several factors federal courts must review when performing "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue"). 179. See, e.g., Bado-Santana v. Ford Motor Co., 482 F. Supp. 2d 192, 193-97 (D.P.R. 2007). 180. Interesting issues are presented regarding who should determine whether an offender meets the criteria for a categorical exclusion. Is it an issue of law for the judge to decide after weighing expert testimony? Or, is it an issue of fact for a jury to determine after hearing differing expert testimony? Such questions are worthy of further examination but are beyond the scope of this Essay. See Nava Feldman, Annotation, Application of ConstitutionalRule of Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), that Execution of Mentally Retarded Persons Constitutes "Cruel and Unusual Punishment" in Violation of Eighth Amendment, 122 A.L.R.5TH 145 (2004). 181. See Roper, 543 U.S. at 564-79; Atkins, 536 U.S. at 311-21; Fabian, supra note 10, at 90; Jochnowitz, supra note 10, at 9-16; Ryan & Berson, supra note 3, at 376-77; Slobogin, supra note 3, at 1150-51; Tabak, supra note 3, at 290-93. 182. See Klein, supra note 3, at 1259 ("The Court in both Roper and Atkins seems to have forgotten, however, about the Eighth Amendment rights of those who are still subject to the death penalty, and also about its own prior commitment to the Eighth Amendment principle that capital punishment must be imposed fairly and consistently or not at all."); Ryan & Berson, supra note 3, at 359-60 (discussing arguments about categorical exclusions for the 2009] COMBAT VETERANS AND THE DEATH PENALTY 2981 categorical exclusions are out of step with the death penalty jurisprudence that has developed because they substitute legal exclusions for measured assessments of individualized culpability by sentencers. 183 Other critics point to the practical definitional difficulties in establishing standards and criteria for classifying an offender as part of the protected class. 184 While one commentator has referred to the recent establishment of categorical exclusions as akin to the opening up of "a psychiatric can of worms," 185 the Supreme Court applied a clear framework for analyzing whether to adopt a categorical exclusion in the cases of Atkins v. Virginia and Roper v. Simmons. 186 The ABA has already argued for extending the categorical exclusion framework to include those with severe mental disorders and TBIs that significantly impair the capacity of an offender "(a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law."' 8 7 This recommendation has been criticized for being overly broad. 188 But, within the ABA recommendations and the categorical exclusion framework applied in Atkins and Roper,189 it is clear that a narrow categorical exclusion should exist for combat veterans who were suffering, at the time of their offense, from service-related PTSD or TBI.

B. Atkins and Roper Frameworkfor Recognizing a CategoricalExclusion In 1980, Johnny Paul Penry, a mentally retarded murderer, was sentenced to death in Texas for raping and killing Pamela Carpenter. 190 In 1986, Georgia executed Jerome Bowden, another mentally retarded murderer. 191 mentally ill and the dilemmas created by "'incremental abolition' of the death penalty (quoting Atkins, 536 U.S. at 353)); Shin, supra note 3, at 516 ("[fln the long run, advocating for the categorical exemption may be counterproductive to [the abolitionist] goal of eradicating the [death] penalty in this country."). 183. See Kansas v. Marsh, 126 S. Ct. 2516, 2525 (2006); McKoy v. North Carolina, 494 U.S. 433, 443 (1990) ("'[T]he punishment should be directly related to the personal culpability of the defendant ... ' (quoting Penry v. Lynaugh, 492 U.S. 302, 327 (1989))); ABA Report, supra note 3, at 668; Klein, supra note 3, at 1258-59 ("Because juvenile and mentally retarded offenders are not necessarily less culpable, categorically excluding them from capital punishment results in unjust treatment for similarly culpable non-juvenile and non-mentally retarded offenders."); Slobogin, supra note 3, at 1147-50 (discussing and addressing arguments against a categorical exclusion for those with severe mental illnesses). 184. See Ryan & Berson, supra note 3, at 355 (citing AMNESTY INT'L, UNITED STATES OF AMERICA: THE EXECUTION OF MENTALLY ILL OFFENDERS (2006), available at http://www.amnesty.org/en/library/info/AMR51/003/2006) (discussing the failure of the Supreme Court to specify standards or procedures for determining if a person is competent or suffering from mental illness). 185. See, e.g., Mossman, supra note 3. 186. See Roper, 543 U.S. at 564-79; Atkins, 536 U.S. at 311-21; infra Part III.B. 187. ABA Report, supra note 3, at 668, 670. 188. See Mossman, supra note 3, at 289-91; Ryan & Berson, supra note 3, at 381. 189. See Roper, 543 U.S. at 564-79; Atkins, 536 U.S. at 313-21; ABA Report, supra note 3, at 668. 190. Penry v. Lynaugh, 492 U.S. 302, 307-10 (1989); Mossman, supra note 3, at 257. 191. Atkins, 536 U.S. at 313 n.8. 2982 FORDHAMLAWREVIEW [Vol. 77

The execution of Bowden apparently caused the federal government and the states of Maryland and Georgia to pass statutes that prohibited the execution of those who are mentally retarded. 192 Penry used these statutes 193 on appeal to argue that the Eighth Amendment of the U.S. Constitution requires a categorical exclusion from execution for the mentally retarded 194 because such a punishment is cruel and unusual. In 1989, the Supreme Court, in Penry v. Lynaugh,195 rejected his argument for a categorical exclusion, refusing to exempt mentally retarded offenders from being subject to the death penalty as a matter of law under the prohibitions of the Eighth Amendment. 196 On the same day as deciding Penry, the Court also examined the propriety of imposing the death penalty on juvenile offenders in Stanford v. Kentucky, 197 holding that the Eighth Amendment did not bar the imposition of the death penalty on offenders 8 who were older than fifteen but younger than eighteen years of age. 19 Although rejecting the arguments for categorical exclusions in both cases, the Court in its analyses clarified the factors and considerations inherent in determining if executing a given class of offenders violates the Eighth Amendment prohibition on cruel and unusual punishment. 199 It was not until Atkins v. Virginia and Roper v. Simmons that the Court had the opportunity to once again examine adopting a categorical exclusion for a given class of offenders. In 2002, the Court held in Atkins that it was unconstitutional to impose the death penalty on mentally retarded persons.200 In 2005, the Court held in Roper that it was unconstitutional to impose the death penalty upon juvenile offenders. 20 1 The Court employed a two-step analysis for determining whether the death penalty is an acceptable punishment for certain classes of offenders under the Eighth Amendment's prohibition against cruel and unusual punishment.202 In the first part of this

192. See, e.g., Federal Death Penalty Act of 1994, Pub. L. No. 103-322, 108 Stat. 1967 (codified as amended at 18 U.S.C. § 3596(c) (2006)); GA. CODE ANN. § 17-10-61 (Supp. 2008); MD. CODE ANN. CRIM. LAW § 2-202(b)(2)(ii) (LexisNexis 2008); see also Atkins, 536 U.S. at 313-14;Penry,492 U.S. at 334. 193. U.S. CONST. amend VIII. 194. Penry,492 U.S. at 328-29, 333-34; Mossman, supra note 3, at 257-58. 195. 492 U.S. 302. 196. Id. at 328-30, 339-40 ("In sum, mental retardation is a factor that may well lessen a defendant's culpability for a capital offense. But we cannot conclude today that the Eighth Amendment precludes the execution of any mentally retarded person of Penry's ability convicted of a capital offense simply by virtue of his or her mental retardation alone."); see Atkins, 536 U.S. at 306-07, 313-15; Mossman, supra note 3, at 255, 257-59; Ryan & Berson, supra note 3, at 355. 197. 492 U.S. 361 (1989), overruled by Roper v. Simmons, 543 U.S. 551, 568-75 (2005). 198. Id. at 380; see also Roper, 543 U.S. at 555-56; Ryan & Berson, supra note 3, at 355. 199. Penry, 492 U.S. at 328-40; Stanford, 492 U.S. at 368-80; see Mossman, supra note 3, at 257-59. 200. Atkins, 536 U.S. at 321; see Mossman, supra note 3, at 261-63; Ryan & Berson, supra note 3, at 355; Shin, supra note 3, at 481. 201. Roper, 543 U.S. at 574-75; see Ryan & Berson, supra note 3, at 355; Shin, supra note 3, at 487. 202. Roper, 543 U.S. at 564-79; Atkins, 536 U.S. at 311-21; see Shin, supra note 3, at 477-81,483-87. 2009] COMBAT VETERANS AND THE DEATH PENALTY 2983 analysis, the Court attempted to determine whether putting to death certain offenders constitutes punishment that is "'graduated and proportioned to [the] offense"' 20 3 and within the boundaries of the "evolving standards of 204 decency that mark the progress of a maturing society. In assessing whether the death penalty is appropriate for certain classes of offenders and reflective of "evolving standards of decency," 205 the Court first examined "objective evidence of contemporary values" 20 6 and other evidence that serves as "'a significant and reliable objective index' of societal mores." 207 The Court held that the clearest objective evidence is to be found in "the legislation enacted by the country's legislatures." 20 8 The Court additionally looked to "data reflecting the actions of sentencing juries" as indicia of a national consensus against putting to death certain classes of offenders. 209 National consensus about contemporary values and standards of decency was also ascertained from the views of professional organizations, religious groups, and opinion polls.2 10 While there is much disagreement about relying on international opinion to define American standards of decency, the Court acknowledged that world opinion can "provide respected and significant confirmation for [its] own conclusions" when seeking to determine if the death penalty is a disproportionate 211 punishment for a given category of offenders. Objective evidence of contemporary values and societal mores is important but did not dictate in Atkins and Roper whether or not a class of offenders should be exempt from the death penalty under the Eighth Amendment. 212 The second part of the analysis required that the Supreme Court "determine, in the exercise of [its] own independent judgment, whether the death penalty is a disproportionate punishment for [a class of

203. Roper, 543 U.S. at 560 (quoting Atkins, 536 U.S. at 311); see also Weems v. United States, 217 U.S. 349, 367 (1910); Shin, supra note 3, at 477-78. 204. Atkins, 536 U.S. at 341 (quoting Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion)). 205. Roper, 543 U.S. at 594 (quoting Trop, 356 U.S. at 101) (internal quotation marks omitted). 206. Id. (quoting Penry v. Lynaugh, 492 U.S. 302, 331 (1989)) (internal quotation marks omitted); Atkins, 536 U.S. at 312. 207. Roper, 543 U.S. at 90 (O'Connor, J., dissenting) (quoting Coker v. Georgia, 433 U.S. 584, 596 (1977) (plurality opinion)); Atkins, 536 U.S. at 323 (same). 208. See Atkins, 536 U.S. at 312 (quoting Penry, 492 U.S. at 331); see also id. at 324 (Rehnquist, C.J., dissenting); Shin, supra note 3, at 477-79, 483-85. 209. See Roper, 543 U.S. at 590 (O'Connor, J., dissenting) (citing Coker, 433 U.S. at 596). 210. See Atkins, 536 U.S. at 316 n.21. But see id. at 325-28 (Rehnquist, C.J., dissenting); Shin, supra note 3, at 479. 211. See Roper, 543 U.S. at 575-79; Atkins, 536 U.S. at 316 n.21; id. at 324-28 (Rehnquist, C.J., dissenting) (stating that data gathered by professional and religious organizations should not be given any weight in the Eighth Amendment analysis); Shin, supra note 3, at 479, 486-87. 212. See Roper, 543 U.S. at 575-79; Atkins, 536 U.S. at 312-13; Shin, supra note 3, at 477-81. 2984 FORDHAM LAW REVIEW [Vol. 77 offenders]. '213 This second step allowed the Court to weigh in with its own judgment and consider subjective factors, such as the penological goals of punishment, specific mitigating factors that may entitle a class of offenders to a categorical exclusion, and whether or not there is an unacceptable likelihood that a sentencer could disregard those mitigating factors to still 4 arrive at a sentence of death. 21 1. Defining a Categorical Exclusion for the Mentally Retarded in Atkins v. Virginia Daryl Renard Atkins was sentenced to death in Virginia for the 1996 murder of Eric Nesbitt. 215 In the Supreme Court of Virginia, he challenged his sentence on the grounds that he was "'mentally retarded and thus [could not] be sentenced to death."'' 216 In a divided opinion, a majority of the court relied upon Penry v. Lynaugh to hold that a mentally retarded person can be sentenced to death. 217 The U.S. Supreme Court granted certiorari to address "the gravity of the concerns expressed by the dissenters" from the Supreme Court of Virginia and revisit the issue in Penry regarding the constitutionality of imposing the death penalty upon mentally incompetent adults.218 In deciding Atkins v. Virginia, the U.S. Supreme Court held that the mentally retarded should not be subject to execution because, "[i]f the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. ' 219 The Court held that the mentally retarded are entitled to a categorical exclusion from the death penalty because of the national consensus that had developed regarding the "relative culpability of mentally retarded offenders," the lack of satisfaction of the "penological" goals of the death penalty in executing the mentally retarded, the mitigating nature of the characteristics of mental retardation, and the "risk 'that the death penalty will be imposed in spite of factors which may call for a less severe penalty.' "220

213. Roper, 543 U.S. at 564; see Atkins, 536 U.S. at 312-13; Shin, supra note 3, at 478, 480-81,485-87. 214. See, e.g., Roper, 543 U.S. at 564-79; Atkins, 536 U.S. at 312-13; Shin, supra note 3, at 478-81, 484-87. 215. Atkins, 536 U.S. at 307. 216. Id. at 310 (quoting Atkins v. Virginia, 534 S.E.2d 312, 318 (Va. 2000)); see Mossman, supra note 3, at 261. 217. Atkins, 534 S.E.2d at 319; see Mossman, supra note 3, at 261. 218. Atkins, 536 U.S. at 310; see Mossman, supra note 3, at 261; Shin, supra note 3, at 477. 219. Atkins, 536 U.S. at 319; see Klein, supra note 3, at 1219-28; Ryan & Berson, supra note 3, at 357-58; Slobogin, supra note 3, at 1140; Shin, supra note 3, at 480-81. 220. Atkins, 536 U.S. at 317, 320 (quoting Lockett v. Ohio, 438 U.S. 586, 605 (1978)); see Mossman, supra note 3, at 262-63; Ryan & Berson, supra note 3, at 357-58; Slobogin, supra note 3, at 1140; Shin, supra note 3, at 478-81. 2009] COMBAT VETERANS AND THE DEATH PENALTY 2985

First, the Court determined that objective indicia of contemporary values and societal mores reflected a discomfort with and intolerance for the execution of the mentally retarded. 221 The Court found that, in the years since Penry v. Lynaugh, a national consensus had developed based on the actions of legislatures that "unquestionably reflect[ed] widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes '222 served by the death penalty. After determining that the objective evidence indicated that there was a national consensus against the imposition of the death penalty on the mentally retarded, the Court moved onto the second step of the analysis and examined the issue using its own independent judgment. 223 It examined the penological goals of the death penalty and found that neither deterrence nor retribution was advanced by executing the mentally retarded. 224 The Court held that the retributive purpose of the death penalty was not served because, if execution was an improper punishment for the average offender, 225 it was most certainly improper in the case of a mentally retarded person. The Court also reasoned that the deterrent purposes of the death penalty were not advanced because it is "less likely that [the mentally retarded] can process the information of the possibility of execution as a penalty and, as a 226 result, control their conduct based upon that information." The Court also assessed how the characteristics of mental retardation served as mitigating factors and found that the mentally retarded "by definition ... have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others." 227 In addition, the Court found that there was an unacceptable risk that evidence of mental retardation presented in mitigation could be construed by a sentencer as a factor in aggravation in 28 spite of the fact that it should call for a penalty less severe than death. 2

221. See Atkins, 536 U.S. at 313-17; Mossman, supra note 3, at 262; Shin, supra note 3, at 478-80. 222. Atkins, 536 U.S. at 317; see Mossman, supra note 3, at 262-63; Shin, supra note 3, at 478-80. 223. See Atkins, 536 U.S. at 317-21; Shin, supra note 3, at 480-81. 224. See Atkins, 536 U.S. at 318-20; Slobogin, supra note 3, at 1140; Shin, supra note 3, at 480-8 1. 225. See Atkins, 536 U.S. at 319; Slobogin, supra note 3, at 1140; Shin, supra note 3, at 480. 226. See Atkins, 536 U.S. at 320; Slobogin, supra note 3, at 1140; Shin, supra note 3, at 480. 227. Atkins, 536 U.S. at 18; see Klein, supra note 3, at 1223-28; Mossman, supra note 3, at 262; Slobogin, supra note 3, at 1140; Shin, supra note 3, at 480. 228. See Atkins, 536 U.S. at 320-21; Shin, supra note 3, at 481. 2986 FORDHAM LAW REVIEW [Vol. 77

2. Defining a Categorical Exclusion for Juveniles in Roper v. Simmons

Christopher Simmons was a seventeen-year-old junior in high school when he murdered Shirley Crook by kidnapping her, tying her up, and throwing her from a bridge so that she would drown. 229 In the Missouri state courts, he was tried as an adult and sentenced to death.230 Subsequent to being denied postconviction relief in both state and federal courts, the U.S. Supreme Court issued its decision in Atkins, holding that the mentally retarded could not be sentenced to death.231 Simmons then sought relief from the Missouri Supreme Court, "arguing that the reasoning of Atkins established that the Eighth Amendment prohibits the execution of a juvenile who was under eighteen when the crime was committed. '232 The Missouri 233 Supreme Court agreed with his rationale and set aside the death sentence. 234 The state appealed, and the Supreme Court granted certiorari. In Roper v. Simmons, the U.S. Supreme Court held that juveniles should not be subject to execution because their "objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. '235 The Court held that juveniles were entitled to a categorical exclusion from the death penalty because objective indicia provide evidence that juveniles are categorically less culpable than the average criminal; the penological goals of the death penalty regarding deterrence and retribution are not served by executing juveniles; the characteristics of being a juvenile have mitigating qualities; and there is an unacceptable risk of a sentencer disregarding mitigating arguments based on youth and imposing the death penalty where a sentence less severe than 6 death is appropriate. 23 In seeking to determine whether or not there was a national consensus against the execution of juveniles, the Court recognized that there was a consensus, but there was no clear objective evidence of legislative action by the states as there was in Atkins.237 Lacking clear evidence of legislative action, the Court instead recognized a "trend toward abolition of the juvenile death penalty [that] carries special force in light of the general 238 popularity of anticrime legislation" in the nation's state legislatures. This national consensus, the Court claimed, could be observed in "the objective indicia of consensus in this case-the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even

229. Roper v. Simmons, 543 U.S. 551, 556-57 (2005); Shin, supra note 3, at 482. 230. Roper, 543 U.S. at 557-58; Shin, supra note 3, at 482-83. 231. Roper, 543 U.S. at 559. 232. Id.; see Shin, supra note 3, at 482-83. 233. Roper, 543 U.S. at 559-60; Shin, supra note 3, at 483. 234. Roper, 543 U.S. at 560. 235. Id. at 573; Shin, supra note 3, at 484-87. 236. See Roper, 543 U.S. at 566-75; Klein, supra note 3, at 1228-29; Slobogin, supra note 3, at 1140; Shin, supra note 3, at 484-87. 237. See Roper, 543 U.S. at 564-67; Klein, supra note 3, at 1228. 238. Roper, 543 U.S. at 566; see Shin, supra note 3, at 484-85. 2009] COMBAT VETERANS AND THE DEATH PENALTY 2987 where it remains on the books; and the consistency in the trend toward 239 abolition of the practice." When the Court applied its own independent judgment in Roper, it came to conclusions that were similar to those it reached in Atkins. 240 The Court found that the retributive goals of the death penalty were not advanced by executing juveniles because the most severe penalty under the law should not be "imposed on one whose culpability or blameworthiness is '241 diminished, to a substantial degree, by reason of youth and immaturity. The Court also found that the deterrent purposes of the death penalty were not served by executing juveniles because "the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will 42 be less susceptible to deterrence." 2 Additionally, the Court examined how the characteristics of juveniles served as mitigating factors and found that "[t]hree general differences between juveniles under 18 and adults demonstrate that juvenile offenders '243 cannot with reliability be classified among the worst offenders. Specifically, the Court found that (1) juveniles "lack ... maturity and [have] an underdeveloped sense of responsibility" that often results "in impetuous and ill-considered actions and decisions"; 244 (2) "juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure"; 245 and (3) "the character of a juvenile is not as well formed as that of an adult."'246 Based on these mitigating factors, the Court reasoned that a juvenile should never be characterized as among the worst offenders because the factors indicate that juveniles may "be forgiven for failing to escape negative influences in their whole environment," juveniles are still developing their character and may not be irretrievably depraved, and there is a greater possibility "that a minor's character 247 deficiencies will be reformed" as compared to an adult offender. Finally, the Court found that there was an unacceptable risk that a sentencer would disregard mitigating arguments based on youth and impose the death penalty. 248 In recognizing that individualized consideration of mitigating circumstances was not enough to prevent juveniles from being sentenced to death, the Court found "that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective

239. Roper, 543 U.S. at 567; see Shin, supra note 3, at 484-85. 240. See Roper, 543 U.S. at 568-79; Klein, supra note 3, at 1228. 241. Roper, 543 U.S. at 571; see Slobogin, supra note 3, at 1140; Shin, supra note 3, at 486. 242. Roper, 543 U.S. at 571; Shin, supra note 3, at 486 (quoting Roper, 543 U.S. at 571). 243. See Roper, 543 U.S. at 569; Shin, supra note 3, at 485. 244. Roper, 543 U.S. at 569 (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)) (internal quotation marks omitted). 245. Id. (citing Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)); Shin, supra note 3, at 485 (quoting Roper, 543 U.S. at 569). 246. See Roper, 543 U.S. at 569-70; Shin, supra note 3, at 485-86. 247. Roper, 543 U.S. at 570; see Shin, supra note 3, at 485-86. 248. See Roper, 543 U.S. at 572-73; Shin, supra note 3, at 486. 2988 FORDHAMLAW REVIEW [Vol. 77 immaturity, vulnerability, and lack of true depravity should require a 249 sentence less severe than death.

C. Narrow CategoricalExclusion for Certain Combat Veterans Based on the rationales of Atkins and Roper, there should be a narrow categorical exclusion for combat veterans who were suffering at the time of their offense from service-related PTSD or TBI. This categorical exclusion would reflect the national consensus that has developed regarding the impropriety of putting to death this class of offenders; recognize that the penological goals of the death penalty are not served by executing these offenders; acknowledge the significant mitigating nature of PTSD and TBI in combat veterans who have also been trained to kill by the government; and address the unacceptable risk that a sentencer could disregard mitigating evidence of military training, PTSD, and TBI to impose a death sentence where it is unwarranted. Such a categorical exclusion will not excuse the actions of those who commit capital offenses, but will merely limit their punishment to a term of years or life imprisonment without the possibility of parole. 1. Defining the Proposed Categorical Exclusion

Some critics of categorical exclusions point to definitional difficulties in opposing the creation of classes of offenders that are exempt from the death penalty as a matter of law.250 A categorical exclusion for combat veterans with service-related PTSD or TBI would pose some definitional problems, but it is possible to clearly define the requirements for who should and should not be included in the proposed class. First, one meets the criteria for being a combat veteran only if he or she has taken fire from or fired at an enemy force while serving in the armed forces. 251 Enemy fire should include both direct fire, such as bullets from rifles and pistols, and indirect fire, such as mortars, rockets, and artillery. 252 As with mental retardation, the burden of proving this point should be on

249. Roper, 543 U.S. at 573; see Shin, supra note 3, at 486. 250. See Ryan & Berson, supra note 3, at 355. 251. See U.S. DEP'T OF THE NAVY, SECRETARY OF THE NAVY INSTRUCTION No. 1650.1G, NAVY AND MARINE CORPS AWARDS MANUAL 2-27 to 2-29 (2002); Monique Randolph, Airmen Receive First AF Combat Action Medals, AIR FORCE LINK, June 12, 2007, http://www.af.mil/news/story.asp?id=123056767; U.S. Army, Combat Action Badge, http://www.army.mil/symbols/combatbadges/Action.html?storyid-key=7285 (last visited Mar. 31, 2009). 252. See Randolph, supra note 251 (describing the creation of the Air Force Combat Action Medal, which was "created to recognize Air Force members who were engaged in air or ground combat off base in a combat zone.... [or] were under direct and hostile fire, or who personally engaged hostile forces with direct and lethal fire"); U.S. Army, supra note 251 (specifying that soldiers are eligible for a combat action badge if they have "perform[ed] assigned duties in an area where hostile fire pay or imminent danger pay is authorized"). See generally U.S. DEP'T OF THE NAVY, supra note 251 (describing active engagement of fire as a requirement to receiving certain award medals and honors). 2009] COMBAT VETERANS AND THE DEATH PENALTY 2989 the person attempting to assert that they are part of the proposed class. 2 53 Military records, eyewitness testimony, and news reports could all be relied upon by a combat veteran to establish that one was exposed to enemy fire or took part in shooting at the enemy. Second, it would be required that a combat veteran be suffering from a diagnosis of PTSD or TBI at the time of his or her offense. 254 The defense would have the burden of proving that a combat veteran was suffering from PTSD or TBI at the time of the offense. 255 Additionally, any prior or forensic diagnosis of PTSD or TBI should be based on a medical evaluation using the DSM criteria for PTSD and the diagnostic criteria accepted within the medical community for determining the existence of a TBI. 256 Finally, for a diagnosis of PTSD or TBI to be considered service-related, some aspect of military service must be the primary cause of the injury in the opinion of a medical expert. 257 There can be preexisting or other causal factors at play in a diagnosis of PTSD or TBI. 258 But, for it to be considered service-related where there are other causes, the medical expert examining and diagnosing the combat veteran must find that the primary cause of the PTSD or TBI is related to military service. 259 This determination is not difficult to make, and the current U.S. Department of Veterans Affairs disability rating process already provides an existing method that may easily be adopted by the courts.260

2. Objective Evidence of Contemporary Values and Societal Mores Objective indicia of societal mores and contemporary values support the adoption of a categorical exclusion from the death penalty for combat veterans who commit capital crimes while suffering from service-related PTSD or TBI. Much like the situation in Roper v. Simmons, where there was a lack of explicit legislative action with regard to executing juveniles,

253. See supra note 180 and accompanying text. 254. See supra Part II.B-C (defining and discussing PTSD and TBI). 255. See supra Part II.B-C (discussing diagnoses for PTSD and TBI). It is important that one allow for a forensic diagnosis in light of the fact that there are barriers to care and a stigma attached to seeking out mental health issues as a result of military service. See Hoge et al., supra note 13, at 13 ("Our findings indicate that among the study groups there was a significant risk of mental health problems and that the subjects reported important barriers to receiving mental health services, particularly the perception of stigma among those most in need of such care."). 256. See supra Part II.B-C. 257. See U.S. Dep't of Veterans Affairs, VA Health Care Eligibility & Enrollment, http://www.va.gov/healtheligibility/Library/Glossary/#s (last visited Mar. 31, 2009) ("Generally a service-connected disability is a disability that VA determines was incurred or aggravated while on active duty in the military and in the line of duty. A service-connected rating is an official ruling by VA that your illness/condition is directly related to your active military service. Service-connected ratings are established by VA Regional Offices located throughout the country."). 258. See supra Part II.B-C. 259. See supra note 257. 260. See supra note 257. 2990 FORDHAMLA WREVIEW [Vol. 77 there is little evidence regarding executing combat veterans in the expression of the country's legislatures. 261 However, there is a trend evidenced in the actions of at least three state legislatures-California, Minnesota, and Connecticut-and four cities-Anchorage, Alaska; Tulsa, Oklahoma; Edwardsville, Illinois; and Buffalo, New York-in treating combat veterans differently when they commit crimes through diversion programs and "veterans courts" that recognize their diminished culpability relative to the average offender. 262 Two other states, Massachusetts and New Hampshire, have initiated community-based programs to deal with veterans with PTSD in the criminal justice system. 263 These legislative actions are important and carry "special force in light of the general ' 264 popularity of anticrime legislation." Public opinion and legislative action in support of veterans who suffer from PTSD and TBI also present objective evidence of a national consensus that supports recognizing combat veterans as a distinct and unique group worthy of special treatment by the government and under the law. 265 From magnetic yellow ribbons on cars to broad campaign promises to take care of our veterans, it appears that popular sentiment backing those combat veterans who have served in Iraq and Afghanistan favors helping them with any service-related injuries they may have incurred. 266 This sentiment

261. See supra notes 237-39 and accompanying text. 262. See Sontag & Alvarez, Combat Trauma, supra note 20; Ruben Rosario, Talk Doesn't Mean Action for Vets, PIONEER PRESS (St. Paul, Minn.), Apr. 27, 2008, at B 1; Alaskan City Establishes Diversion Court for Veterans, JOIN TOGETHER, July 15, 2004, http://www.jointogether.org/news/headlines/inthenews/2004/alaskan-city-establishes-for.html; Conn. Bill Creates Criminal Docket for Vets, MARINE CORPS TIMES, Feb. 23, 2009, http://www.marinecorpstimes.corn/news/2009/02/apctvets-court_022209/;Shanna McCord, Boulder Creek Woman Speaks on National Veterans Panel, SANTA CRUZ SENTINEL, Oct. 31, 2008, http://www.scsextra.com/story.php?sid=80753&storySection Local&fromSearch= true&searchTerms (discussing the California Assembly Bill 2586, which provides for alternative sentences for veterans involved in drug, alcohol, and other minor offenses); Michelle Rabinowitz & Sway Calloway, Veterans Fightfor an Alternative Justice System that Takes Their Trauma into Account: Former Marines in Oklahoma Help Set Up a System to Provide Treatment for Vets Arrested for Drug- and Alcohol-Related Crimes, MTV.COM, Oct. 23, 2008, http://www.mtv.com/news/articles/1597696/20081022/story.jhtml; Jim Suhr, Another Veterans-Only Court Established, MARINE CORPS TIMES, Jan. 12, 2009, http://www.marinecorpstimes.com/news/2009/01/apyeterans_court 011209/; Beth Walton, Crime and PTSD: Pending Legislation Would Help Veterans Get Treatment Instead of Prison Time, CITYPAGES, Mar. 26, 2008, http://www.citypages.com/2008-03-26/feature/ crime-and-ptsd/. El Paso County, Colorado; Waupaca County, Wisconsin; and Rock County, Wisconsin also have plans to launch veterans courts in the summer of 2009. See Dan Wilson, Vets Get Attention from Courts, POST-CRESCENT (Wis.), Feb. 23, 2009, at A3; Susan Davies, Troop-Related Felonies Expected to Increase, KOAA.COM, Feb. 5, 2009, http://www.koaa.com/aaaa-top-stories/x407184412/Troop-related-felonies-expected-to- increase. 263. Bowe, supra note 13, at 33-34. 264. See Roper v. Simmons, 543 U.S. 551, 566 (2005) (citing Atkins v. Virginia, 536 U.S. 304, 315 (2002)). 265. See Shin, supra note 3, at 494-96, 502-04. 266. See, e.g., Matthew J. Friedman, Editorial, Acknowledging the Psychiatric Cost of War, 351 NEW ENG. J. MED. 75, 76 (2004) ("Americans no longer confuse war with the warrior; those returning from Iraq or Afghanistan enjoy national support, despite sharp 2009] COMBAT VETERANS AND THE DEATH PENALTY 2991 indicates that a significant number of Americans would support, or at least tolerate, a narrow categorical exclusion from the death penalty for combat veterans who committed a capital offense while suffering from service- related PTSD or TBI. The opinions of professional organizations also serve as objective indicia that there should be a categorical exclusion for combat veterans who were suffering from service-related PTSD or TBI at the time of their offenses.267 The ABA recommendations from August 2006 clearly support extending a categorical exclusion to this class of combat veterans.268 Additionally, the ABA recommendations have also been endorsed by the American Psychiatric Association, the American Psychological Association, and the National Alliance of the Mentally 111.269 The support of these professional organizations indicates that there is a national consensus behind treating combat veterans with service-related PTSD or TBI differently under the law and recognizing that they have diminished culpability relative to the average offender. 270 political disagreement about the war itself."); Rosario, supra note 262; Sontag & Alvarez, Combat Trauma, supra note 20; Press Release, Office of the White House Press Sec'y, Fact Sheet: President Bush Has Provided Unprecedented Support for Our Veterans (Nov. 7, 2008), available at http://georgewbush-whitehouse.archives.gov/news/releases/2008/1 I/ 20081107-5.html ("'We have a moral obligation to provide the best possible care and treatment to the men and women who have served our country."' (quoting President George W. Bush)); Press Release, Pew Research Ctr. for the People & the Press, A Year After the Walter Reed Scandal: Public Continues to Fault Government for Troop Care (Mar. 19, 2008), available at http://people-press.org/reports/pdf/404.pdf ("A year after the problems at Walter Reed Army Medical Center and other military hospitals made major news, the public remains highly critical of the government's performance in supporting and caring for soldiers who have returned from Iraq and Afghanistan."); Americans Believe Wounded Iraq War Veterans Are Not Receiving High Quality Medical Care When They Return to the U.S., HARRIS INTERACTIVE, May 25, 2008, http://www.harrisinteractive.com/news/allnewsbydate. asp?NewslD=1309 ("'This new research is consistent with research we recently conducted with the American Psychiatric Association that found that citizens of all types and political leanings, service men and women, and their families alike do not believe veterans are able to access and receive the best mental healthcare possible here in the United States."' (quoting Humphrey Taylor, chairman of The HarrisPolO); Jeffrey M. Jones, Eight in 10 Say Leaders Pay Too Little Attention to Veterans, GALLUP, Apr. 25, 2007, http://www.gallup.corn/ poll/27310/Eight-Say-Leaders-Pay-Too-Little-Attention-Veterans.aspx ("Eighty-one percent of Americans say government leaders pay too little attention to the needs of military veterans, according to the March 26-29 poll."); Kevin Maurer, Mind Training Helps with Combat, Then PTSD, MARINE CoRPs TIMES, Oct. 8, 2008, http://www.marinecorpstimes. com/news/2008/10/ap..warriormind_100708/ ("'At the end of the day, a yellow ribbon bumper sticker is not going to cut it' .... 'If this [PTSD treatment] is something that will help some of our soldiers, we should do it."' (quoting Sarah Ernst, senior Warrior Mind instructor for the Warrior Mind Training program at Camp Lejeune, North Carolina)); Lydia Saad, Americans Respect the Military, Honor Veterans, GALLUP, Nov. 11, 2002, http://www.gallup.com/poll/7177/Americans-Respect-Military-Honor-Veterans.aspx ("Nearly three-quarters (73%) of veterans say they have received the respect and thanks [they] deserve for serving in the armed forces." (alteration in original) (internal quotation marks omitted)). 267. See supra Parts II.B-C, III.A; supra note 210 and accompanying text. 268. See ABA Report, supra note 3, at 668. 269. Id. 270. See id.; supra notes 210-11 and accompanying text. 2992 FORDHAM LA W REVIEW [Vol. 77

Perhaps the best objective indicia of societal mores is reflected in the cases that have come up regarding combat veterans who have faced trial for capital crimes. 271 While it is likely too early to say that the sentencing data reflects an undeniable trend, sentencing judges do seem to be giving combat veterans lesser sentences in certain cases in recognition of their reduced culpability relative to the average offender.272 For example, the recent study of 121 unlawful killings in the United States involving combat veterans of Iraq or Afghanistan as defendants or perpetrators indicates that the courts have shown some degree of leniency in a number of cases. 273 Comments from the bench, and even from prosecutors, may indicate a trend in showing leniency during sentencing and compassion for those combat veterans who were suffering from PTSD or TBI at the time of their offense. 274

271. See The Cases, supra note 20. 272. For example, Cody Morris, a veteran suffering from PTSD, shot and killed someone at a house party after returning from Iraq two weeks earlier. See Shelly Byrne, Probation Consideredfor Carlisle Veteran: Cody Morris Was Sentenced in July in the Death of His Friend Casey Hall, PADUCAH SUN (Ky.), Nov. 2, 2008, at IA, available at http://www.tmcnet.com/usubmit/2008/11/02/3753455.htm ("The jury considered murder and manslaughter charges, but ultimately decided he was guilty of the lesser charge of reckless homicide."); see also Sontag & Alvarez, Combat Trauma, supra note 20; The Cases, supra note 20. 273. After claiming that his gun went off accidentally and killed a neighbor, Kenneth Baginski received a reduced sentence as a result of plea negotiations that took into account his combat injuries and combat stress. See The Cases, supra note 20. Michael Hulett's lawyer believed "the judge gave [him] a break on what could have been a more severe sentence for first-degree murder 'because he was a 19-year-old with an Iraq background."' Id. Michael Kempton, Jr., was given a lighter sentence for a charge of drunken vehicular homicide due to his service in Iraq. See id. Anthony Klecker was sentenced to less than a year in jail for the drunken vehicular homicide of a 16-year-old cheerleader while he was suffering from PTSD and self-medicating with heavy alcohol usage. See id. David Murphy was sentenced to probation for the drunken vehicular homicide of two newlyweds in Texas that occurred soon after his return from Iraq. See id. Matthew Sepi had a murder charge and an attempted murder charge against him dismissed by a Las Vegas court "after he successfully completed two Veterans Affairs treatment programs, one for substance abuse and another for post-traumatic stress disorder." Id. Walter Smith killed his girlfriend and mother of his twin children after being discharged from the U.S. Marine Corps due to PTSD and was only sentenced to one to fifteen years in prison after pleading guilty to manslaughter. See id. Jared Terrasas was allowed to plead guilty to felony child endangerment instead of murder in the death of his infant son after his return from Iraq. See id. After deploying twice to Iraq and having previously pleaded no contest to felony child abuse, Jessie Ullom's son died, and he subsequently pleaded no contest to a charge of involuntary manslaughter, was placed on probation, and received an honorable discharge from the U.S. Army. See id. 274. See Deborah Sontag, An Iraq Veteran 's Descent; a Prosecutor'sHard Choice, N.Y. TIMES, Jan. 20, 2008, at AI ("We looked at this case and said, 'When he presents to a jury that he served his country like his country asked him to serve, and even his country admits, with his discharge and his disability pay, that he has severe psychological trauma'-we felt there was a very good chance that the members of a jury would find him not guilty and basically punish the government for the position he's in."); Sontag & Alvarez, Combat Trauma, supra note 20 ("'I see these stickers that people have on their vehicles saying, "Support the troops."... I don't see much support for the troops as years go on when these people come back injured and maimed."' (quoting Judge Charles B. Kommann, before he 2009] COMBAT VETERANS AND THE DEATH PENALTY 2993

3. Applying the Court's Own Judgment to the Proposed Categorical Exclusion

While these objective indicia of national consensus reflect broad support for treating combat veterans who were suffering from service-related PTSD or TBI at the time of their crimes differently under the law, the Supreme Court will be required to apply its own independent judgment to determine "whether the death penalty is a disproportionate punishment for [a class of offenders]. '27 5 The application of the Court's own independent judgment should lead to conclusions that are similar to those of Atkins v. Virginia and 2 76 Roper v. Simmons. In applying its own judgment and considering subjective factors, the Court will find that the penological goals of the death penalty are not served by executing these offenders on many of the same grounds discussed regarding the mentally retarded in Atkins. 277 The retributive purpose of the death penalty is not served by executing anyone in this proposed class of offenders because the diminished culpability of one suffering from PTSD or TBI certainly does not warrant a death sentence "[i]f the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State." 278 The deterrent goals of the death penalty are not furthered by executing the proposed category of combat veterans because, as a result of the judgment-impairing effects of PTSD and TBI at the time of their crime, it will be "less likely that they [could] process the information of the possibility of execution as a penalty and, as a result, ' 279 control their conduct based upon that information." The Court, in exercising its own independent judgment, should also undertake an examination of the mitigating characteristics of PTSD and TBI in combat veterans. 280 By conducting the same sort of examination that it did in Atkins and Roper, the Court should find that both PTSD and TBI symptoms significantly affect judgment so as to render combat veterans suffering from those conditions similar to, if not less culpable than, the mentally retarded and juveniles. The symptoms of PTSD and TBI are similar to mental retardation and juvenile status insofar as the ability to appreciate the wrongfulness of one's conduct and to conform one's conduct to the requirements of the law is significantly diminished. The Court should also examine the role that government-sponsored military training plays in diminishing culpability in combat veterans, especially those with PTSD or TBI, to find further support for a categorical exclusion.

sentenced James Allen Gregg, who was found guilty of second-degree murder for a killing committed while suffering from PTSD)); The Cases, supra note 20. 275. Roper v. Simmons, 543 U.S. 551, 564 (2005); see Atkins v. Virginia, 536 U.S. 304, 318-21 (2002); supra Parts II.B--C, III.A; supranotes 212-14 and accompanying text. 276. See supra Part 111.B.1-2. 277. See supra Part III.B.1. 278. Atkins, 536 U.S. at 319; see supra Parts II.B-C, III.B.1. 279. Atkins, 536 U.S. at 320. 280. See supra Part II.B-C (describing the mitigating effects of PTSD and TBI). 2994 FORDHAM LA W REVIEW [Vol. 77

Perhaps most importantly, the Court could likely address the unacceptable risk that a sentencer could disregard mitigating evidence of military training, PTSD, or TBI offered by a combat veteran who committed a crime while suffering from service-related PTSD or TBI to impose a death sentence where it is unwarranted. In assessing the degree of risk that a sentencer might undervalue or disregard this type of mitigating evidence, the Court should consider the declining representation of veterans in the community, in the judiciary, in Congress, and in society as a whole. 28' Fewer veterans means fewer on the bench and fewer in the jury box who have a meaningful understanding of what sacrifices these people made in combat and what they have been exposed to in combat.282 Another consideration the Court could examine is the considerable risk, already evidenced by some comments from prosecutors and judges, 28 3 that a sentencer might treat this evidence of stress disorder or brain injury as aggravating evidence, seeing a heightened risk to society of permitting a "crazy, government-trained killer" to live. Should it consider these factors, the Court will probably conclude that combat veterans who commit capital crimes, but were also suffering from PTSD or TBI at the time of their offenses, should be spared the death penalty because of the unacceptable "risk 'that the death penalty will be imposed in spite of factors which may 284 call for a less severe penalty."' Lastly, the Court should consider the more fundamental question of whether the government should be in the business of putting to death the volunteers they have trained, sent to war, and broken in the process.285 The Court should find that it is unconscionable for the government to sentence soldiers and veterans to death for criminal actions that would likely not have happened but for their military service. When a combat veteran with service-related PTSD or TBI commits a capital crime, it is a unique circumstance that requires sparing them from the hand of the executioner. No one ever deserves a "free pass" for killing another person,286 but crafting a categorical exclusion to recognize the mitigating nature of PTSD and TBI is the least that the government can do

281. See Michael S. Woodson, Soldiers for the Truth, SFTT Special Report: A Combat Vet Needed for the Supreme Court, DEFENSEWATCH, July 12, 2005, http://www.sftt.org/cgi- bin/csNews/csNews.cgi?command=viewone&id=19&database=DefenseWatch%202005%20 A.db; Military Officers Association of America, Declining Military Experience in Congress, http://www.moaa.org/lac/ac-resources/lac-resources-tips/lac-resourcestips-decline.htm (last visited Mar. 31, 2009); U.S. Census Bureau, People: Veterans, http://factfinder.census. gov/jsp/saff/SAFFInfo.jsp?_pageld=tp I 2 veterans (last visited Mar. 31, 2009). 282. See Woodson, supra note 281; Military Officers Assoc. of Am., supra note 281; U.S. Census Bureau, supra note 281. 283. See Sontag & Alvarez, Combat Trauma, supra note 20; The Cases, supra note 20. 284. Atkins v. Virginia, 536 U.S. 304, 320 (2002) (quoting Lockett v. Ohio, 438 U.S. 586, 605 (1978)). 285. See, e.g., Grant, supra note 36, at 271; Tabak, supra note 3, at 299-300 (discussing case of Vietnam veteran George Franklin Page on North Carolina's death row for killing during a manic flashback episode). 286. Sontag & Alvarez, Combat Trauma, supra note 20. 2009] COMBAT VETERANS AND THE DEATH PENALTY 2995 to account for the psychological wounds that have, in effect, been caused by service to the nation.287 Such a categorical exclusion will prevent a sentencer from construing these factors as aggravating to impose the death penalty where it is unwarranted. 288

CONCLUSION Because the existence of service-related PTSD or TBI in combat veterans reduces personal culpability, these veterans cannot be regarded as "among the worst offenders" and should not be subject to the ultimate sentence. Presenting PTSD, TBI, and military training evidence to a sentencer during the sentencing phase of a capital trial represents one way to avoid subjecting combat veterans to the death penalty. Because the characteristics of PTSD and TBI are similar to those of minors and the mentally retarded that merit a categorical exclusion from the death penalty for those classes, an exclusion for combat veterans suffering from PTSD or TBI at the time of their offenses must be created by legislatures or the courts to ensure that only the worst offenders receive their "just deserts" and are put to death.

287. See id.; supra notes 11-19 (describing the "[i]nvisible [w]ounds of [w]ar" that veterans suffer after returning from war). 288. See supra Part III. Notes & Observations ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

49 Wake Forest L. Rev. 1375

Wake Forest Law Review Winter, 2014

Article

ABOLISHING JAILHOUSE SNITCH TESTIMONY

Russell D. Covey a1

Copyright (c) 2014 Wake Forest Law Review Association, Inc.; Russell D. Covey

INTRODUCTION

Jailhouse snitch testimony is arguably the single most unreliable type of evidence currently used in criminal trials. Snitches are deeply unreliable witnesses. Many are con artists, congenital liars, and practiced fraudsters. As compensated witnesses, all snitches have deep conflicts of interest. What is worse, jailhouse snitch testimony as a class is not only the least credible type of evidence, but it is also among the most persuasive to jurors because jailhouse informants typically allege to have personally heard defendants confess their guilt to the crimes charged. Introduction of a defendant's confession, from any source, radically changes the complexion of a case, particularly one lacking other evidence that directly implicates the defendant in the crime. Research studies demonstrate that jurors are simply ill equipped to evaluate the credibility of jailhouse informant testimony and consistently give such testimony far more weight than is due even if they are aware of the incentives jailhouse snitches receive or expect in exchange for their testimony. The prejudicial effect of unreliable jailhouse snitch testimony is magnified by the context in which the evidence is presented to the jury. Jailhouse snitches are States' witnesses, and the credibility of their testimony is likely substantially bolstered as a result. Prosecutors bolster jailhouse snitch testimony simply by putting them on the witness stand as State's witnesses, signaling to the jury that the prosecutor believes their testimony is trustworthy. Even in cases in which bolstering crosses the line into the territory of the unethical or improper, and it often does, prosecutors are rarely called out for their misconduct, much less face sanctions. As a result of both implicit and explicit prosecutorial bolstering, jailhouse snitch testimony tends to have an even greater, and potentially more prejudicial, effect on reliable fact-finding.

Jailhouse snitch testimony, in fact, is so likely to make a material difference to the outcome of close cases, and so likely to be *1376 false, that permitting such witnesses to testify, absent direct corroboration through electronic recording or some other similarly reliable method, should be flatly banned. Numerous commentators have proposed modest fixes to the jailhouse snitch problem. Some have urged the conduct of pretrial reliability hearings. Others have argued for enhanced disclosure obligations regarding informant background and testimony. Still other fixes have been proposed. But given the depth to which jailhouse testimony is compromised, these modest proposals are simply inadequate. Anything less than total abolition of jailhouse snitch testimony is fundamentally insufficient to address what is perhaps the most outrageous and destructive prosecutorial practice currently tolerated by law.

This Article lays out that argument. Following this introduction, Part I demonstrates that jailhouse informant testimony is inherently biased and that the temptations faced by inmates to commit perjury are overwhelming. Part II explains why jailhouse snitch testimony is so persuasive to jurors, and why it is responsible for a disproportionate number of wrongful convictions. Part III examines the present devices relied upon to filter out unreliable informant testimony--cross-examination and post- conviction review--and finds them wanting. Neither device has a successful track record of providing relief to wrongfully convicted defendants nor offers any realistic mechanism to screen out unreliable snitch testimony. Part IV considers several remedies proposed by commentators and enacted in a few jurisdictions. These remedies, if adopted, might marginally improve the situation in some cases, but all of these remedies ultimately fail to address the fundamental problems of unreliability and unaccountability that are inherent to this class of evidence. Part V then advances the main thesis of the Article, urging adoption

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375 of a total ban on jailhouse informant testimony, subject only to a possible exception for testimony corroborated with electronic recording of any alleged confession or admission made by a criminal defendant. It assesses the grounds for such a ban by examining other categorical evidentiary exclusions enforced through judicial, legislative, or executive action.

I. JAILHOUSE SNITCH TESTIMONY IS FUNDAMENTALLY AND PERVASIVELY UNRELIABLE

Exoneration studies have identified a set of recurrent causes of wrongful convictions, including false confessions, mistaken eyewitness testimony, and faulty forensic evidence. 1 However, no *1377 evidence is more intrinsically untrustworthy than the allegations of a jailhouse snitch. 2 According to some wrongful conviction scholars, jailhouse snitch testimony is the single greatest cause of wrongful convictions. 3 This should not be surprising. It is hard to imagine more facially untrustworthy evidence. One federal court characterized the practice of using jailhouse snitches as “one of the most abused aspects of the criminal justice system,” 4 another as a “fertile field[] from which truth-bending or even perjury could grow,” 5 and a third called jailhouse snitch testimony “inherently unreliable.” 6 In an address intended as advice for prosecutors, federal judge Stephen Trott warned prosecutors not to trust criminal informants: *1378 Criminals are likely to say and do almost anything to get what they want, especially when what they want is to get out of trouble with the law. This willingness to do anything includes not only truthfully spilling the beans on friends and relatives, but also lying, committing perjury, manufacturing evidence, soliciting others to corroborate their lies with more lies, and double-crossing anyone with whom they come into contact, including--and especially--the prosecutor. A drug addict can sell out his mother to get a deal, and burglars, robbers, murderers[,] and thieves are not far behind. Criminals are remarkably manipulative and skillfully devious. Many are outright conscienceless sociopaths to whom “truth” is a wholly meaningless concept. To some, “conning” people is a way of life. Others are just basically unstable people. A “reliable informer” one day may turn into a consummate prevaricator the next. 7

Judge Trott warned that, among informants, jailhouse snitches are indisputably the worst of the bunch: The most dangerous informer of all is the jailhouse snitch who claims another prisoner has confessed to him. The snitch now stands ready to testify in return for some consideration in his own case. Sometimes these snitches tell the truth, but more often they invent testimony and stray details out of the air. 8

The practice of using jailhouse snitches in serious criminal cases is both pervasive and, as a direct result, a major cause of error in the criminal justice system. 9 Although it had long been apparent that jailhouse snitch testimony was sometimes extremely unreliable, the strong link between jailhouse snitches and wrongful convictions has only become clear recently thanks to the still-breaking wave of DNA exonerations. 10 Analysis of the causes of wrongful convictions in these cases reveals that jailhouse snitches have been involved in a surprisingly large percentage of known wrongful convictions--twenty-one percent--according to Innocence Project founders Barry Scheck, Peter Neufeld, and Jim Dwyer. 11 The Scheck, Neufeld, and Dwyer study looked at exonerations resulting from DNA testing, a sample that included a disproportionately large percentage of sexual assault cases. 12

*1379 Jailhouse informants play an even more pernicious role in capital cases. 13 One criminal defense attorney testified before a Los Angeles County grand jury that she had conducted a study of all cases in which a California defendant received the death penalty and concluded that jailhouse informant testimony was used in approximately one-third of those cases. 14 According to the Northwestern University Law School's Center on Wrongful Convictions, 45.9 percent of documented wrongful convictions in capital cases involved testimony by jailhouse informants or by “killers with incentives to cast suspicion away from themselves,” making “snitches the leading cause of wrongful convictions in U.S. capital cases.” 15 The Commission on

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

Capital Punishment convened by former Illinois Governor George Ryan concluded that testimony from jailhouse informants appeared to be a major cause of wrongful convictions in the cases it looked at involving persons sentenced to death in Illinois. 16

A. Jailhouse Informants Face Overwhelming Temptations to Commit Perjury

Jailhouse snitches testify not out of the goodness of their hearts but to obtain one or more of a variety of incentives typically offered to them. These incentives range from almost trivial benefits, like cigarettes, to improved jail conditions and cash payments, 17 up to the gold standard of “cooperation benefits”--release or reduction of *1380 jail sentences. 18 Indeed, testifying against fellow inmates may often constitute a prisoner's only hope of escaping a substantial prison term. 19 The unscrupulous inmate thus faces powerful temptations to serve as a jailhouse snitch. As the Fifth Circuit has observed, “It is difficult to imagine a greater motivation to lie than the inducement of a reduced sentence.” 20 Another court noted that it was “obvious” that cooperation premised on promises of leniency or immunity “provide[s] a strong inducement to falsify” testimony. 21 Even in cases where leniency or immunity is not at stake, the prospect of receiving some tangible reward for false testimony can be irresistible. As one attorney commented, “When you dangle extra rewards, furloughs, money, their own clothes, stereos, in front of people in overcrowded jails, then you have an unacceptable temptation to commit perjury.” 22

Not only are the temptations to manufacture false snitch testimony powerful, the difficulty of doing so is minimal. As a Canadian commission created to investigate the causes of one wrongful conviction observed, “In-custody confessions are often easy to allege and difficult, if not impossible, to disprove.” 23 To generate a credible confession, a snitch need only learn some basic details about a fellow inmate's case. 24 A lying jailhouse snitch might gather information about a high profile case simply by reading newspaper stories or watching television broadcasts about the case. 25 Snitches can also obtain details about fellow prisoners' cases by speaking with complicit friends and relatives who can monitor preliminary hearings and other case proceedings and feed details to the aspiring snitch. 26 In some cases, informants share knowledge about case *1381 facts with each other, permitting multiple informants to corroborate each other's testimony. 27 Investigators have documented cases in which prison inmates purchased information from others outside of prison in an attempt to trade it for reduced sentences. 28 And now there is the Internet. As one commentator has observed, “The combination of the increasing availability of information over the internet and inmate internet access makes fabricating confessions even easier than ever before.” 29

The ease with which jailhouse informants can fabricate credible confessions was demonstrated by one particularly industrious snitch, Leslie Vernon White, a “convicted kidnapper, robber[,] and car thief.” 30 In 1990, the CBS news program 60 Minutes aired a segment featuring White, a self-proclaimed jailhouse snitch. 31 Two years earlier, White demonstrated for jailers how simple it was to concoct a confession and convince prosecutors it was genuine. 32 He repeated the performance while on camera for the CBS news program. 33 White's methods were shocking in their audacity. To get information, he simply picked up the telephone and asked for it. 34 To get government officials to talk, White posed as a law enforcement official or a government worker, and in that guise, contacted various government agencies, including the sheriff's information bureau, the county coroner, and the district attorney handling the case, from whom he obtained details about the facts and evidence of the case. 35 Then he arranged to be transported to or from the courthouse with the defendant who supposedly made the confession so that he could plausibly establish an opportunity for the defendant's alleged confession to have been made to him. 36

Having gathered the basic case information and established a context in which the supposed confession occurred, it was easy for *1382 White to approach a homicide detective or a prosecutor with a deal. 37 “The key thing is they want to win,” White explained. 38

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

So if I come forward with the information as detailed as that they're gonna use it. Because the jury not knowing the system or how it works, is going to believe when I get up there with all these details and facts, that this guy sat in the jail cell, or he sat on the bus, or he sat in the holding tank somewhere, or told me through a door or something, they're gonna believe me. 39

Over the course of several years, White appeared as a government witness in numerous cases and offered to appear in even more. 40 In return, he received various rewards for doing so, including a letter recommending parole from a high-ranking official in a district attorney's office. 41 These benefits did not always work out well for the citizens of California. On White's last furlough, he used the opportunity to beat his wife, snatch a purse, and assault his landlady with a knife. 42

As a result of the furor caused by White's confession and his startling demonstration of the ease with which he could manufacture false jailhouse confessions, Los Angeles County convened a grand jury investigation. 43 The Los Angeles County Grand Jury commenced a year-long examination of the jailhouse informant problem in the county. 44 What it found was even more shocking than White's demonstration. Based on extensive documentary and witness testimony, the Grand Jury learned of the existence of a complex and pervasive “informant system” at work in Los Angeles County, one that was driven by “the unwritten understanding between prosecutors and informants as to the benefits to be derived from their testimony.” 45 In its report, the Grand Jury described a system set up to manufacture false jailhouse informant testimony. 46 At the county jail, known informants were segregated and housed in a special unit--known as the “K-9 unit.” 47 Police officers and prosecutors in need of additional evidence could request that an inmate be housed in the K-9 unit, and those requests were routinely granted. 48 The delivery of fresh meat to the *1383 K-9 unit typically set off a feeding frenzy among the seasoned snitches housed there, and it was not unusual for several K-9 inmates to contact officials with reports of alleged confessions only hours after the unsuspecting prisoner's arrival. 49 Attempts to obtain information from the unwitting inmate might begin in minutes. 50

The Grand Jury found evidence that not only did clever informants like Leslie Vernon White find ways to gather facts needed to fool police and prosecutors into believing that they had heard a defendant confess to a crime, but in some cases police and prosecutors actively colluded with jailhouse informants to manufacture false evidence. 51 These officials, some informants testified, provided them with copies of arrest reports, trial transcripts, and case files; took the informants to crime scenes; and sometimes simply fed them the facts of the crime in order to help the informants develop convincing testimony. 52

Snitches, moreover, risk little by fabricating false testimony. Perjury prosecutions of lying jailhouse informants are almost nonexistent. 53 As a case in point, following the Los Angeles County Grand Jury's investigation of the jailhouse informant problem, and despite discovery of large-scale and pervasive deception by jailhouse informants, the only two individuals prosecuted for providing perjured testimony in any court or case were the grand jury witnesses who had helped to expose the problems in the jailhouse snitch system. 54 In contrast, snitches who helped convict other innocent defendants were never prosecuted. 55 The message is *1384 clear-- lying snitches have little to lose and everything to gain by falsely reporting to police and testifying to juries that fellow inmates have confessed to crimes.

Witnesses suspected of lying to benefit criminal defendants, on the other hand, do not fare nearly so well. When a witness is thought to have lied on behalf of a criminal defendant, the witness is far more likely to be prosecuted for perjury. In one prominent Illinois case involving the killing of a Chicago police officer, six witnesses initially gave statements to police implicating Jonathan Tolliver as a suspect. 56 Those same witnesses later recanted their statements. 57 According to the witnesses, the original statements had been coerced from them by police. 58 The witnesses, however, paid dearly for the recantations. Five of the witnesses were charged with perjury and ultimately pled guilty to avoid even more serious sanctions. 59

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

Prosecutors then trumpeted the convictions as proof that the allegations that the witnesses' testimony had been coerced by police were false. 60

Inmates thus find it easy to fabricate incriminating evidence against fellow defendants and costly to retract incriminating statements once made. Where the rewards for providing incriminating evidence are great, and where the costs of providing false testimony on behalf of the State are negligible, the “frequency of fabrication by witnesses who have made ‘deals' with the government,” as one commentator has observed, “while impossible to ascertain with accuracy, is potentially staggering.” 61

The easy availability of such powerful but unreliable evidence inevitably tempts both incautious and unethical prosecutors and law enforcement officials. The temptation to use snitch testimony is so great, and the costs so low, that prosecutors frequently put on such testimony despite multiple “red flags.” Confirmation bias and tunnel vision are likely significant explanations for the frequency with which jailhouse snitch testimony that was later proved false is accepted and used by prosecutors. 62 Confirmation bias describes the tendency, well documented by cognitive researchers, for individuals to seek out evidence that confirms their preexisting beliefs and *1385 minimize or ignore evidence that contradicts those beliefs. 63 Tunnel vision, similarly, refers to the tendency of persons to ignore or downplay facts or evidence inconsistent with an individual's preexisting beliefs. 64 It is a product of the “‘compendium of common heuristics and logical fallacies,’ to which we are all susceptible, that lead[s] actors in the criminal justice system to ‘focus on a suspect, select and filter the evidence that will “build a case” for conviction, while ignoring or suppressing evidence that points away from guilt.”’ 65 Prosecutorial tunnel vision has been identified as a major cause of wrongful convictions. 66 Confirmation bias and tunnel vision help explain why prosecutors often continue to defend the credibility of jailhouse snitch testimony even after it has been confirmed in exoneration proceedings to have been false. 67

The ease with which false jailhouse snitch testimony can be manufactured also plays into the hands of corrupt police officers and prosecutors who are seeking shortcuts to conviction or are engaged in corrupt conduct. Research on wrongful convictions, for example, demonstrates that police are likely to set up innocent people, when they do, by using evidence that is easy to manufacture and hard to disprove. 68 Jailhouse snitch testimony fits that description. As the *1386 first-hand accounts provided by seasoned snitches prove, it is almost laughably simple to conjure up a plausible, albeit false, claim that a criminal defendant made a jailhouse confession. Once such allegations have been made by an informant, the informant has much to gain by sticking to his story, and even more to lose by retracting it. 69

B. Compensated Witnesses Are Inherently Biased

A jailhouse informant is the quintessential self-interested witness. Anglo-American law has long recognized the potentially distorting effects of self-interest on the accuracy and reliability of legal proceedings. 70 Indeed, “[s]elf-interested witnesses were barred from testifying under early common law,” 71 and informers in particular were viewed as incompetent witnesses if they stood to directly gain some material benefit from their testimony. 72 Although the common law bar on self-interested witnesses has generally been abandoned, awareness of the effect of self-interest on decision making continues to grow. 73 Cognitive researchers have documented the powerful biasing effect of self-interest on objectivity. 74 Human judgment is almost inevitably influenced, *1387 consciously or unconsciously, by perceived self-interest. 75 Where persons must decide which of two positions to adopt or accept as true, those who stand to benefit from taking one position rather than another tend to favor the position that furthers their own self-interest. 76 Recognition of the biasing effect of self-interest provides a basis for a wide variety of legal rules. Self-interest bars some witnesses from testifying in probate proceedings, 77 for instance, and “self- serving bias” has been recognized in some contexts as grounds for regulating the types of compensation that a witness might be provided for testifying.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

For example, normally “payments to witnesses in return for testimony are considered unethical and illegal.” 78 Lawyers who provide such incentives to witnesses are subject to professional sanctions. 79 There are, however, exceptions to the rule. Expert witnesses, who are retained by parties and paid significant sums to testify on the party's behalf in court, are an obvious example. 80 Ethical rules attempt to constrain the degree to which compensated expert witnesses have a stake in the outcome of the cases in which they testify. 81 Almost every jurisdiction forbids expert witnesses from being paid on a contingent fee basis in recognition that such a fee arrangement would unduly bias the expert's testimony and be *1388 likely to induce the witness to tailor her testimony to favor the party on whose behalf she is testifying. 82 Ethics experts have continued to express concern about even non-contingent fee arrangements with expert witnesses. 83 The mere act of soliciting an initial opinion in a case provides expert witnesses with incentives to provide a favorable assessment because doing so greatly enhances the likelihood that they will be retained and paid for future testimony. 84

In criminal law, aside from experts and the parties themselves, the most common type of compensated or incentivized witness is the informant. 85 Informants come in many shapes and sizes. There are informants on the street who are paid to feed information to police. 86 There are accomplices, codefendants, and coconspirators who seek cooperation deals with prosecutors in order to reduce or avoid their criminal exposure. 87 The use of informants pervades the criminal justice system. According to one account, approximately one in eight federal prisoners had his or her sentence reduced as a result of providing information to federal prosecutors. 88 All such witnesses are prone to self-serving bias, as are the police and prosecutors who benefit from their testimony. 89 One might argue, therefore, that all informant testimony, and perhaps all incentivized testimony more generally, is compromised as a result of self-serving bias. 90

Jailhouse snitches, however, pose more of a problem than paid expert witnesses or even other types of snitches. The impact of a biased expert witness can be muted in many cases by the proffer of competing expert testimony. In a classic “battle of experts,” each side can call out an opposing expert whose opinion strays too far from the facts or mainstream science, or at least make clear to the *1389 jury that the opposing expert's interpretation is subject to debate. In addition, most credible expert witnesses face reputational constraints that limit the expert's willingness to proffer knowingly false or misleading testimony. 91 The same cannot be said for jailhouse snitches whose reputations are already marginal. Nor is it realistic to think that criminal defendants can combat jailhouse snitch testimony, or even the testimony of cooperating accomplice witnesses, street snitches, and the like, by calling comparable witnesses of their own. A criminal defendant lacks the ability to commandeer helpful testimony from such witnesses because, unlike the prosecutor, he lacks any power to reward such witnesses with leniency or immunity from prosecution. 92 And whereas prosecutors routinely reward street informants for information and testimony, a criminal defendant who paid a street informant to testify on his behalf would likely be charged with tampering or bribing witnesses. 93 Nonetheless, it is not implausible to assume that in many cases some types of cooperating accomplices and street snitches do have a credible basis for their testimony. Testimony provided by a codefendant who admits to being present at the crime scene, for example, can be tested against the known facts and evidence in the case, including the defendant's own account where the defendant chooses to testify.

In contrast, a criminal defendant is typically helpless to counter testimony provided by a lying jailhouse informant. Unlike with experts, defendants cannot usually put on their own “jailhouse snitch,” so criminal defendants lack any opportunity to fight back on an even playing field. In criminal trials there is no “battle of snitches” that might balance competing versions of events. The criminal defendant can try, as many have, to call other inmates to testify that the defendant did not make any jailhouse confession. 94 But such testimony is, on its face, usually irrelevant, and courts will often bar it as such. 95 Even when allowed, however, it is not likely to be effective. After all, such witnesses cannot prove the negative-- that an alleged confession did not actually occur--if the jailhouse informant testifies, as an untruthful jailhouse informant invariably will, that the confession was made out of earshot of other prisoners. Finally, whereas ethical rules bar contingent fee agreements with experts out of

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375 fear that such arrangements will bias witness *1390 testimony, jailhouse informants--and indeed all informants--testify almost exclusively under arrangements that create de facto contingent payment arrangements. Because “payment” in terms of leniency almost always is granted by the prosecutor after the informant testifies, the informant readily understands that the informant's chances of getting rewarded are contingent on his delivery of credible incriminating evidence against the defendant.

II. JAILHOUSE SNITCH TESTIMONY IS HIGHLY PERSUASIVE EVIDENCE

Jailhouse snitch testimony is problematic for another reason. There is, by and large, only one thing to which a jailhouse snitch can testify: that a fellow inmate confessed, and confession evidence is widely acknowledged to possess unique potency. 96 The Supreme has Court observed that confessions are “probably the most probative and damaging evidence that can be admitted.” 97 One prominent evidence scholar asserted that “introduction of a confession makes the other aspects of a trial in court superfluous.” 98 Research confirms that evidence that the defendant has confessed greatly increases the odds of conviction. 99 In a study conducted by Kassin and Neumann, researchers presented mock jurors with a variety of evidence of guilt and found that jurors were far more likely to convict suspects when the evidence included a confession than when other types of traditional evidence, such as eyewitness identifications or physical evidence, were presented. 100 They thus concluded that “confession evidence has a greater impact on jurors--and is seen as having a greater impact by jurors-- than other potent types of evidence.” 101

Secondary confessions--that is, confessions made to witnesses (other than police officers)--are likely not as persuasive to jurors as direct confessions. 102 Jurors do, as a general matter, discount secondary confession evidence to some extent, and jurors may often be unwilling to convict based on secondary confession evidence alone. 103 However, secondary confession evidence remains extremely potent. “Since few species of evidence are as powerful as an acknowledgement of guilt from the mouth of the accused, *1391 jailhouse informant testimony can be highly persuasive.” 104 Secondary confession evidence is likely to be particularly critical in “close cases.” 105 That is, jailhouse snitch testimony is likely to be most influential where the State has some other evidence of guilt, but that other evidence is weak. 106 And these cases are precisely the ones in which jailhouse snitches are most likely to be used. 107 After all, the State must pay a price to induce the jailhouse snitch to testify, and it can be expected to avoid doing so unless prosecutors believe that the testimony is needed. 108 Accordingly, jailhouse snitch testimony will typically only be introduced when the prosecutor is concerned about the sufficiency of her case, and the testimony will tend to have the greatest impact in precisely those cases. 109

The prevailing assumption by courts, and the justification for admitting jailhouse snitch testimony absent any significant reliability review or assessment, is that jurors are capable of discounting unreliable snitch testimony as the facts and circumstances warrant. 110 This assumption is almost certainly incorrect. Research on fundamental attribution error demonstrates that jurors cannot properly discount snitch testimony, even when they know that snitches have incentives to lie. 111

In a recent study, a team of researchers set out to test the claim that jurors are able to effectively discount secondary confession evidence provided by a cooperating witness with incentives to fabricate evidence. 112 Their findings undercut the assertion that jurors are able to properly take into account the degree to which witness incentives undermine reliability. 113 In the study, the researchers recruited 345 college students and persons from the community to act as mock jurors. 114 All of the mock jurors were given an abbreviated trial transcript drawn from a real criminal case. 115 The transcript set forth the testimony of two State's witnesses, one who provided fiber evidence and another who *1392 presented knife evidence, and included opening and closing statements. 116 The control group received this transcript only. 117 Other groups received the same transcript, plus the testimony of an additional witness who claimed to have heard the defendant confess to the crime. 118 In some cases, mock

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375 jurors were told that the witness had inadvertently learned of the crime and came forward as an act of civic duty. 119 In other cases, they were told that the witness was testifying pursuant to a cooperation deal in which the witness would directly benefit from his testimony. 120 The researchers then asked all of the mock jurors to assess the guilt of the defendant. 121 Consistent with prior research, researchers found that mock jurors who were given the confession evidence convicted the defendant at significantly higher rates than those who were not presented the confession evidence. 122

More disturbing, however, the researchers found that the mock jurors who were presented with the confession evidence convicted at the same rate regardless of the source of the evidence. 123 Conviction rates, their data indicated, “were unaffected by the explicit provision of information indicating that the witness received an incentive to testify.” 124 Although the mock jurors' questionnaire responses demonstrated that they understood that the “civic duty” witness was more interested in serving justice than the “incentivized” witness, the mock jurors failed to discount the reliability of the incentivized witness. 125

The most plausible explanation for these results, as the researchers suggest, is that the mock jurors were committing “fundamental attribution error.” 126 As they explain, “According to the fundamental attribution hypothesis, perceivers will ignore the contextual and situational factors in favor of a dispositional attribution. In application to a jury situation, jurors should perceive a witness' behavior as influenced by personal factors rather than situational demands.” 127

The vast majority of participants in the experiment seemed to make just this mistake, dismissing the possibility that important contextual factors like incentives for incriminating another suspect might influence the witness's motives to provide truthful *1393 testimony. 128 The mock jurors instead simply accepted the witness's testimony at face value. 129

Prior studies similarly have concluded that “attributors attach insufficient weight to situational causes and accept behavior at ‘face value.”’ 130 To be sure, some of these studies have found evidence that subjects were able to engage in some critical assessment of certain types of confession evidence. 131 For instance, where subjects were told that a confession was coerced through threats or violence, they tended to more heavily discount the credibility of the confession. 132 After conducting one such study in which investigators provided subjects with trial transcripts from a mock case presenting a variety of evidence to the subjects, the investigators found that the subjects consistently gave some types of evidence more weight than others. 133 Although subjects continued to be more likely to convict in confession cases than nonconfession cases, subjects generally viewed confessions made in exchange for positive rewards as more credible than confessions made in response to threats. 134 When the coercive influence was operationally defined as a threat of harm or punishment, subjects clearly discounted the confession evidence--they viewed the confession as involuntary and manifested a relatively low rate of conviction. However, when coercion took the form of an offer or a promise of leniency, subjects were unable or unwilling to dismiss the prior confession. 135

Although this research demonstrates that jurors have the capacity to overcome fundamental attribution bias and discount certain types of confession evidence, it does nothing to increase confidence in jurors' capacity to properly assess jailhouse snitch testimony induced through positive incentives. Rather, these findings cast further doubt on jurors' ability to adequately discount the reliability of jailhouse snitch testimony that has been induced through positive incentives.

Juror insensitivity to the increased unreliability of incentivized witness testimony is magnified by two additional factors. First, as discussed above, typical jurors almost certainly do not understand how easy it is for jailhouse snitches to manufacture detailed false *1394 confessions. If jailhouse snitches testify about details that seem like they could only have been learned if the perpetrator had actually confessed to the snitch, but were actually gathered through the variety of approaches that snitches like Sidney Storch have admitted to using, then jailhouse snitch testimony will often be viewed as more credible than it should be.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

Second, many jurors might perceive jailhouse snitch testimony as worthy of enhanced credence because of implicit or explicit prosecutorial bolstering of the witness's credibility. The mere fact that a prosecutor calls a jailhouse informant to serve as a State's witness suggests that the prosecutor has already determined the witness to be credible and truthful. Although the amount of presumptive credit the jury extends to State's witnesses will vary depending on both the local community's and the individual juror's views regarding prosecutorial honesty and integrity, in many jurisdictions the State begins with the benefit of the doubt. 136

Moreover, even though it constitutes improper practice, it is not uncommon for prosecutors to affirmatively vouch for, or bolster, the credibility of the jailhouse snitches they put on the witness stand. 137 Take the controversial case of Troy Davis, who was executed in 2011. 138 Davis was tried for the 1989 murder of Savannah police officer Mark McPhail. 139 At Davis's trial in 1991, the State called a jailhouse snitch named Kevin McQueen to testify about an alleged confession made by Davis while the two men were on the prison basketball court. 140 The snitch's testimony was suspect. Not only had McQueen served as an informant for the State in other cases, 141 but his testimony was also seemingly implausible on its face. Numerous witnesses testified at Davis's trial that the persons who *1395 were involved with the police officer shooting had been playing pool at a local pool hall, that a man named Sylvester “Red” Coles had gotten into an argument with a homeless man outside the pool hall, and that Troy Davis and a friend--who had both also been playing pool at the hall at the time--had followed Coles and his victim up the street to a Burger King parking lot where the police officer--who was responding to the fight between Coles and the homeless man--was shot. 142

When the State called jailhouse snitch McQueen to testify at trial, however, McQueen claimed that Troy Davis had “confessed” to him a very different set of facts. 143 According to McQueen, Davis told him that he had gone to a party in Cloverdale, 144 a Savannah suburb, and that after the party, he had gone to his girlfriend's house, that they had decided to get breakfast at Burger King, and that he ran into someone who owed Davis money that was loaned to buy “dope.” 145 According to McQueen, Davis told him that “they got into some beef there, and then a whole bunch of commotion started, and a dude came in what turned out to be Officer McPhail, and there were some shots fired.” 146 On cross-examination, McQueen admitted that he had seen a story about the shooting on the news but denied “hoping to gain any advantage by testifying on behalf of the State, claiming that he had already been sentenced for his crimes.” 147

The supposed confession recounted by McQueen failed to match up in almost any way with the other evidence in the case. McQueen's version of the confession put Davis in the wrong place, at the wrong time, for the wrong reasons, in light of the evidence *1396 presented at trial and the State's own theory of the case. 148 In fact, McQueen's account of this supposed confession was deemed, by the federal district court judge who years later conducted a three-day habeas hearing on Troy Davis's contention of actual innocence, to be patently false because it “totally contradict[ed] the events of the night as described by numerous other State witnesses.” 149 Indeed, the judge found that McQueen's trial testimony “was so clearly fabricated” that the Court could not understand “why the State persist[ed] in trying to support its veracity.” 150

But the State's position at trial and beyond was that McQueen's testimony was solid and credible. 151 In his closing argument to the jury, Savannah District Attorney Spencer Lawton beseeched the jury to credit McQueen's testimony. 152 As he told the jury: You heard from Kevin McQueen. Kevin McQueen was, in Mr. Barker's terms, the jailbird. Well, if you're going to talk to Troy Anthony Davis about what he did, you've got to be where Troy Anthony Davis is, and Kevin McQueen told you that he was told by Troy Anthony Davis that . . . Davis had shot Officer McPhail. There's not a reason on earth to doubt his word. There was nothing, no reason why he had to be here, except that we subpoenaed him when we learned what he had to say. 153

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

Notwithstanding that the jailhouse snitch's testimony was later dismissed as “clearly fabricated,” jurors were assured by the District Attorney that “there's not a reason on earth to doubt his word.” 154 It is difficult, in retrospect, to ascertain the weight that the jury ultimately gave to McQueen's testimony, but the attempt by prosecutors to bolster McQueen's testimony and convince the jury that the jailhouse snitch was a reliable witness certainly could have contributed to the jury's decision to convict.

III. STATUS QUO SAFEGUARDS ARE INEFFECTIVE

Despite the virtual avalanche of evidence that jailhouse snitch testimony is inherently biased, unreliable, and frequently the cause of wrongful convictions, few jurisdictions have taken any meaningful steps to limit its use, and none bar it completely. 155 Defenders of the status quo contend that the traditional tools of litigation--vigorous *1397 cross-examination and post- conviction review--adequately enable criminal defendants to discredit lying jailhouse snitches or, where jailhouse testimony was only later revealed to have been perjured, to obtain post-conviction relief. 156 For reasons discussed below, neither of these supposedly reliable litigation tools provides innocent defendants with meaningful protections from being wrongfully convicted because of false jailhouse snitch testimony.

A. Cross-Examination Constitutes an Inadequate Means to Check False or Unreliable Jailhouse Snitch Testimony

In Kansas v. Ventris, 157 the U.S. Supreme Court had an opportunity to adopt sweeping limitations on the use of jailhouse informant testimony. 158 Defendant Ray Ventris had been convicted of aggravated burglary and aggravated robbery after he and an accomplice named Rhonda Theel shot and killed a man in his home and drove away with approximately $300 and the victim's cell phone. 159 Theel pleaded guilty to aggravated robbery and agreed to testify against Ventris. 160 In exchange, prosecutors agreed not to prosecute Theel for murder. 161 At trial, Theel testified that Ventris was the main instigator, while Ventris testified that Theel was primarily responsible for the robbery and shooting. 162

The State then called a jailhouse informant who had been planted in Ventris's holding cell for the specific purpose of gathering “incriminating statements” from Ventris. 163 Although the State conceded that use of the jailhouse informant to elicit incriminating statements from Ventris likely violated the Sixth Amendment, the trial court permitted the informant's testimony regarding Ventris's statements to come in for impeachment purposes. 164 The informant then testified that Ventris confessed to him that “‘[h]e'd shot this man in his head and in his chest’ and taken ‘his keys, his wallet, about $350.00, and . . . a vehicle.”’ 165

The jury acquitted Ventris on the murder count, but convicted him of aggravated burglary and aggravated robbery. 166 The Kansas *1398 Supreme Court reversed the convictions, holding that the admission of Ventris's purported confession obtained in violation of the Sixth Amendment for impeachment purposes was erroneous. 167 When the case reached the U.S. Supreme Court, Ventris and amici on his behalf argued, inter alia, that “jailhouse snitches are so inherently unreliable” that the Court should “craft a broader exclusionary rule for uncorroborated statements obtained by that means.” 168 The Court rejected that argument. 169

As the Court explained, “Our legal system . . . is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses, and we have long purported to avoid ‘establish[ing] this Court as a rule-making organ for the promulgation of state rules of criminal procedure.” 170 The Court concluded that statements obtained in violation of the Sixth Amendment may be used for impeachment purposes, and that the credibility of the jailhouse informant's testimony regarding Ventris' alleged jailhouse confession was a matter for the jury to determine. 171 The Court thus declined to impose more stringent regulation of jailhouse informant testimony. Reasoning similarly, numerous state courts have also rejected calls for greater regulation of jailhouse informant testimony. 172

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

The Court's holding in Ventris followed the conventional notion that credibility and reliability determinations should normally be left to the fact finder. 173 As the Court noted in Daubert v. Merrell Dow Pharmaceuticals, Inc., 174 “Vigorous cross examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” 175

The assumption, however, that vigorous cross-examination provides an effective means of exposing or defeating unreliable *1399 evidence is increasingly being questioned with respect to certain types of evidence. The Oregon State Supreme Court recently decided that in cases involving eyewitness identifications obtained through suggestive police procedures, “‘traditional’ methods of testing reliability--like cross-examination--can be ineffective at discrediting unreliable or inaccurate eyewitness identification evidence.” 176 As the Oregon court noted, research studies have demonstrated that mock jurors are surprisingly bad at distinguishing accurate and inaccurate eyewitness identifications. 177 Prominent academic commentators have also concluded that judges and jurors often fail to properly discount all sorts of direct and factual evidence, including eyewitness testimony, because they are “often not aware of the factors that decrease the reliability of eyewitness perception and memory,” and not nearly as competent at evaluating the veracity of witnesses testifying in court as commonly thought. 178

For these same reasons, the Court's assumption in Ventris that impeachment of unreliable or untruthful witnesses is sufficient to protect criminal defendants from wrongful convictions is wrong in the case of jailhouse snitches. As noted above, confession evidence is a uniquely potent form of evidence in criminal trials. Jurors are almost certain to give extraordinary weight to evidence that a defendant has confessed. Where confession evidence has been obtained through the use of coercion, the courts have long recognized that such evidence is inadmissible, and that the conventional means of impeaching unreliable evidence-- cross-examination--provides insufficient protection against undue prejudice. 179 As Justice White observed in Arizona v. Fulminante: 180 A defendant's confession is “probably the most probative and damaging evidence that can be admitted against him,” so damaging that a jury should not be expected to ignore it even if told to do so. Moreover, it is impossible to know what credit and weight a juror gave to a confession. 181

*1400 Strict exclusion is sometimes the only appropriate remedy where extremely damaging but unreliable evidence threatens to “distort the truth-seeking function of the trial.” 182

Second, because jurors are likely to proceed under the biasing influence of fundamental attribution error, the traditional stuff of impeachment--the demonstration that a jailhouse snitch has a poor character for honesty and self-interested motives to testify-- will often have little or no impact on jury decision making. Once the jury has heard the evidence that the defendant has confessed to the crime, the damage has already been done.

Third, unlike most other types of evidence frequently used in criminal cases, jailhouse snitch testimony is often uniquely insulated from effective impeachment. This insulation exists in part because the incentives that jailhouse informants receive in exchange for cooperation are typically hidden. 183 Prosecutors rarely negotiate explicit deals with jailhouse snitches prior to their testimony. 184 Rather, prosecutors and snitches operate with a shared understanding that a snitch's positive performance will eventually be rewarded with tangible benefits. 185 The lack of any record of benefits promised to the informant impedes effective impeachment by defense counsel, just as it was designed to do. 186 The usual practice of refusing to enter into any formal deal before the snitch testifies in court was documented in one Florida case, where the prosecutor's notes memorializing his conversation with the snitch were later discovered and became the subject of a Brady dispute. 187 Here is how the prosecutor summarized his conversation: “Spoke with Fred Landt [Freeman's defense counsel] regarding Dennis Freeman. Told him I

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375 would make no firm offer prior to [Ponticelli's] trial but assured him his cooperation would be remembered with favor before mitigating judge/Sturgis. Will make no formal deal on the record prior to trial.” 188

At an evidentiary hearing on the Brady claim, the prosecutor denied that the note indicated that she had made any undisclosed *1401 deal with the informant. 189 Regardless of whether that claim was technically correct, the note evidences what is already acknowledged to be standard practice: prosecutors avoid making any formal deals prior to trial, but provide sufficient post- trial rewards to snitches to ensure a steady future supply. 190 That practice was also apparent in the notorious case of Cameron Todd Willingham. 191 Willingham was accused in Texas of murdering his three young daughters by arson. 192 At his capital trial, Texas prosecutors called jailhouse snitch Johnny Webb, who was serving a fifteen-year sentence for aggravated robbery, to testify about a confession Willingham supposedly made. 193 After testifying improbably that Willingham, who hardly knew Webb, confessed to him through a hole in a steel door in Willingham's cell, Webb denied that prosecutors had offered him any inducement to testify. 194 Nonetheless, “[f]ive years later the prosecutor asked the Texas Board of Pardons and Paroles to grant Webb parole.” 195 Webb later recanted his trial testimony, but then recanted his recantation. 196 Willingham, who is widely believed to be innocent, was executed by Texas in 2004. 197

Jailhouse snitch testimony is also difficult to impeach effectively because it is invariably of the “he said-she said” variety. As long as the snitch can plausibly testify that he had an opportunity--no matter how fleeting--to speak with the defendant, the snitch's claim that the defendant confessed to him is practically unverifiable. Defense counsel can impugn the credibility of the snitch, but many criminal defendants--especially defendants with a criminal *1402 history--go into a jury trial with their own credibility highly suspect and will often be unlikely to come out on top in any swearing contest. Whether or not the jailhouse snitch is perceived to be believable may ultimately turn simply on the comparative rhetorical skills of the prosecutor and defense counsel. 198 Defense attorneys equipped with superior cross-examination skills may successfully blunt the force of a jailhouse snitch's testimony, but the vast majority of criminal defendants saddled with average or inferior counsel will have no such luck. It is not unusual, moreover, for trial courts to affirmatively prevent the defense from even questioning the snitch about the snitch's criminal history or the charges pending against him. 199

Apart from simply impeaching the character of the snitch or the circumstances or plausibility of the snitch's claim, there is very little that defense counsel can do to counter snitch testimony. For a variety of reasons, defense lawyers can rarely call witnesses of their own to prove that the defendant did not confess to the snitch. 200 In most cases, a lying snitch will simply testify that the defendant confessed in private, when there were no other witnesses to overhear the alleged confession. 201 And in some cases, inmates work together to corroborate each other's false testimony. 202 The Los Angeles County Grand Jury investigation on the County's use of jailhouse informants discovered several instances in which multiple inmates coordinated their trial testimony to make their false claims more credible. 203 Not only is it difficult to find jailhouse witnesses who can effectively counter snitch testimony, in some cases it is positively hazardous to even try. 204 One attorney told the Los Angeles Grand Jury that jailhouse informants were so uniformly untrustworthy that he was afraid to even interview them because he feared they might fabricate some criminal activity that the attorney *1403 was engaged in, such as suborning perjury. 205 Whereas under current law prosecutors are permitted to reward informants and cooperating witnesses with substantial benefits in exchange for their helpful testimony, defense lawyers have no comparable authority. 206 Indeed, defense lawyers who offer rewards to defense witnesses might be prosecuted for witness tampering. 207

In sum, the dynamics of jailhouse snitch testimony make cross-examination uniquely ill suited to produce reliable results. While suffering many similar defects, other forms of incentivized testimony, such as that provided by cooperating accomplices, co- defendants, and street snitches, at least provide defense counsel with some objective factual context that might be used to assess the credibility of the witness. As the National Association of Criminal Defense Lawyers (“NACDL”) argued to the Supreme

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

Court in Ventris, accomplice testimony retains at least some indicia of reliability because “the accomplice inculpates herself in the process.” 208 In contrast, “snitch testimony lacks even this form of corroboration.” 209

For all these reasons, cross-examination cannot be relied upon to ensure that false snitch testimony is not believed or that unreliable evidence is not given undue weight by jurors.

B. Post-Conviction Review of False Jailhouse Snitch Testimony Is Also Insufficient

If cross-examination often proves wholly ineffective in countering false jailhouse snitch testimony, the other traditional remedy--post-conviction review--is even more dysfunctional. First, the same structural difficulties that plague efforts to impeach snitches through cross-examination are present in a post-conviction challenge of snitch testimony. Rarely will evidence be available, post-conviction, to prove that a jailhouse snitch lied at trial. 210 Credibility determinations are largely in the province of the fact finder and are almost never disturbed on review. 211 Second, even when reviewing courts do determine that a jailhouse informant's testimony was unreliable, or even plainly false, courts rarely grant relief. 212

In one puzzling case, for example, a defendant had been convicted and sentenced to life in prison for allegedly participating *1404 in the rape and murder of a young woman. 213 The State's evidence against the defendant was weak. DNA evidence implicated another man but not the defendant. 214 The only physical evidence against the defendant was a single pubic hair that had been recovered among sixteen others from the crime scene. 215 The hair was described as a nonexclusive match to the defendant's hair type. 216 The State conceded by stipulation that the defendant was excluded as a contributor of any of the other fifteen hairs. 217 One of these possibly matched another suspect in the case. 218 The State's case against the defendant was built on this one hair and the testimony of three witnesses. 219 The first witness was a fourteen-year-old boy, described in a psychological evaluation as having a penchant for lying, who gave inconsistent statements to police, only one of which implicated the defendant, and who testified at trial that the defendant was not involved in the attack. 220 The other two witnesses were jailhouse informants. 221 The first jailhouse informant, a man named Hopkins, testified that the defendant had confessed to participating in the attack. 222 Hopkins's credibility was dubious; according to the appellate court: Hopkins admitted to hearing jail guards talking about the case, but claimed he heard their conversations after he first talked to the police. He said that everyone in jail was talking about what happened in defendant's case. Hopkins also revealed that he had provided testimony in two other special circumstance murder cases. In exchange for his testimony, Hopkins had three felony counts dismissed. His sentence of four years ten months on the remaining counts he pled guilty to was stayed and he was released from jail. Furthermore, Hopkins's statement that he talked with defendant while they worked mornings together at the same job in the jail yard was shown to be untrue, as defendant never had a morning job. 223

A second jailhouse informant named Cooper also testified that defendant had admitted to participating in the rape and murder. 224 *1405 But as the appellate court pointed out, this informant also had both a record of prior cooperation and apparently strong incentives to testify. 225

Cooper was in the San Joaquin County Jail on warrants for charges of possession of precursors with intent to manufacture drugs and receiving stolen property, plus prior conviction enhancements. 226 Cooper stated he was afraid that if he went to prison he would be killed. 227 Cooper also had a lengthy record of felony and misdemeanor convictions dating to the 1970s and was on probation at the time of his testimony. 228 In exchange for his testimony, Cooper was allowed to serve his time in Humboldt County, where he was placed in an alternative work program. 229 After two days in that program, Cooper left. 230 He remained

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375 at large until just before the trial, when he was arrested on a probation violation and sentenced to thirty days in jail. 231 When arrested, Cooper gave several fake names and birth dates, apparently to avoid arrest on three outstanding felony warrants. 232 Cooper also admitted he had provided information to the police to benefit himself a couple of times in the past. 233

Notwithstanding the obvious flimsiness of the State's case--consisting entirely of one nonexclusively matching hair, an inconsistent statement from an untrustworthy child, and the testimony of two jailhouse snitches, one of whom was caught in a flat lie and the other who had obvious incentives to help the State--the jury convicted and the appellate court affirmed. 234 The appellate court reasoned that although there were serious problems with each of the witnesses who testified, the witnesses corroborated each other. 235 The police statement given by the fourteen-year-old with a propensity to lie was corroborated by the self-serving and clearly perjurious testimony of the jailhouse snitch, and vice versa. 236 The appellate court seems to have thought that while a small amount of untrustworthy evidence might provide an insufficient basis for conviction, problems with the reliability of the State's evidence could be overcome by piling on more untrustworthy evidence.

*1406 Sometimes appellate judges simply do not know what to think but affirm anyway. In one Georgia case, a habeas court denied relief to a defendant who had been convicted of murder and armed robbery almost entirely on the testimony of a jailhouse informant named Donald Bates. 237 At trial, Bates testified that the defendant Johnny Ashley had made a jailhouse confession to him. 238 Defense counsel for Ashley adduced substantial impeachment evidence on cross-examination, but the jury convicted Ashley nonetheless. 239 After conducting extensive post-conviction hearings, Ashley's lawyers put on extensive evidence that Bates was mentally ill and had fabricated his trial testimony. 240

At the conclusion of the hearing on the matter, the judge summed up his thoughts on the matter: At the trial I thought Donald Bates was lying. Now I think Donald Bates is lying on the trial, but I do not think that affects the verdict in the case . . . I just don't believe prisoners who testify against prisoners to get out of jail. And I don't think juries do either. I didn't believe it then; I don't believe it now. I don't think that you've proved anything about what the truth is, either. I don't think it was what Mr. Bates swore it was and I don't think we know. 241

Despite conceding that one of the main witnesses at Ashley's trial was an untrustworthy witness and a blatant liar, the trial court denied Ashley's motion for a new trial, based entirely, it appears, on the judge's conviction that the snitch's testimony was so obviously perjured that members of the jury must have realized it. 242 In so ruling, the judge failed to take into account several factors that might have led a jury to give such testimony credence at trial, including that Mr. Bates was the State's witness whose credibility *1407 was defended by the prosecutor, that the judge himself had permitted the witness to testify in the first place, and that the jury's verdict itself belied his conclusion. In any event, the court's ruling was affirmed on appeal. 243 Ashley served twenty years in a Georgia prison, and was released on parole on January 31, 2012. 244

What is worse, even in cases where jailhouse snitches come forward and admit that they lied at trial, courts rarely grant defendants post-conviction relief. 245 This happened, for instance, in the Troy Davis case. 246 Five years after jailhouse snitch Kevin McQueen testified that Davis confessed to shooting police officer Mark McPhail, McQueen executed an affidavit recanting his trial testimony. 247 In the affidavit, McQueen explained that he had heard details of the Davis case on television and from other inmates, and he had then contacted the detective in charge of the investigation. 248 He falsely told the detective that Davis had confessed to him and repeated the story at trial. 249 He also admitted that the charges against him had been dropped or reduced as a reward for his testimony, a fact that he also lied about at trial. 250

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

McQueen's recantation was presented to numerous courts during the approximately twenty years that Davis sought to prove that he was actually innocent of the murder of the Savannah police officer. 251 Because Davis was deemed to have procedurally defaulted most of his legal claims, few courts even addressed the significance of McQueen's recantation. 252 When a judge finally did consider the significance of the recantation in a habeas hearing conducted to evaluate Davis's actual innocence claim, the judge rejected it as insignificant. 253 According to the judge, McQueen's trial testimony was so patently false that the jury must have been aware of the fact *1408 at trial. 254 Therefore, the judge concluded, McQueen's recantation was both plainly true and inconsequential. 255 Davis's habeas petition was denied, and Davis was subsequently executed. 256

Although it took twenty years, a better result was obtained by Bobby Joe Maxwell. Maxwell had been convicted in 1992-- largely on the testimony of infamous jailhouse snitch Sidney Storch--of committing several murders attributed to the “Skid Row Stabber.” 257 Based on extensive evidence, including the testimony given by Storch to the Los Angeles County Grand Jury, that Storch was a serial perjurer who had made a living concocting false jailhouse confessions, the Ninth Circuit granted Maxwell's habeas petition in 2012. 258 Even then, however, the Ninth Circuit was forced to expressly overrule factual findings made by the California Superior Court, which had concluded, notwithstanding overwhelming evidence of Storch's “pattern of perjury,” that there was no basis in the Maxwell case itself to find that Storch's testimony was false. 259

California sought certiorari in the United States Supreme Court, which was denied over the dissents of Justices Scalia and Alito. 260 Justice Scalia complained that, at best, “the evidence relied on by the Ninth Circuit might permit, but by no means compels, the conclusion that Storch fabricated Maxwell's admission.” 261 This, Scalia argued, was an insufficient basis upon which to grant habeas relief. 262 Writing in support of the Court's denial of certiorari, Justice Sotomayor responded: The dissent labels all of this evidence “circumstantial.” It insists that it is possible that Storch repeatedly falsely implicated other defendants, and fabricated other material facts at Maxwell's trial, but uncharacteristically told the truth about Maxwell's supposed confession. Of course, that is possible. But it is not reasonable, given the voluminous evidence that Storch was a habitual liar who even the State concedes told other material lies at Maxwell's trial. 263

Maxwell's case does demonstrate that post-conviction relief for some victims of false jailhouse testimony is possible, but it is the exception that proves the rule. The evidence of Storch's misconduct was overwhelming, and Maxwell's victory seemingly grudging. *1409 Plainly, post-conviction relief for defendants convicted on the basis of unreliable or false snitch testimony is technically available but practically attainable only in extreme cases, and even then only over spirited opposition. As the state court rulings in Maxwell's case illustrate, busy and jaded state appellate courts typically look the other way in the presence of even blatant evidence that jailhouse snitches lied at a criminal defendant's trial, and sentiment in favor of upholding those determinations exists in some quarters all the way up the judicial chain of command. 264

This anecdotal evidence is supported by more systematic research. Professor Brandon Garrett conducted a study of the first two hundred DNA exonerations. 265 In those cases, Garrett found that jailhouse informant testimony had been a factor in 11.5 percent of the cases. 266 Jailhouse informants provided testimony in forty-three percent of the capital cases that ultimately ended in exoneration. 267 Strikingly, not one of those wrongly convicted defendants attempted to challenge their convictions based on a claim that the jailhouse informant had fabricated testimony, likely, as Garrett surmises, “because they could not locate any evidence to prove that the informants testified falsely.” 268 Reviewing the record of relief granted in cases involving false jailhouse snitch testimony, it is abundantly clear that wrongly convicted defendants cannot rely on post-conviction processes for relief. As Anne Bowen Poulin has argued, “When false testimony is given at trial the truth finding process is fundamentally

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375 corrupted.” 269 The courts' routine failure to grant relief to defendants who establish that jailhouse snitches presented false testimony at trial deserves prompt and effective relief, but such relief, sadly, for most has simply not been forthcoming.

IV. REGULATION OF JAILHOUSE SNITCH TESTIMONY SHORT OF ABOLITION IS CERTAIN TO BE INEFFECTIVE

A wide variety of commentators have condemned jailhouse snitch testimony for many of the reasons noted here. 270 They have *1410 proposed a variety of reforms, including enhanced disclosure requirements to ensure vigorous cross-examination of jailhouse informants, pretrial reliability hearings, special jury instructions, using experts to educate the jury about the effect of incentives on the reliability of testimony, and heightened corroboration requirements. 271 Few, however, have vigorously called for an outright ban on use of electronically uncorroborated jailhouse snitch testimony. 272 As I argue here, however, nothing less than a total ban on such testimony will be effective.

A. Pretrial Reliability Hearings Are Unlikely to Adequately Screen Out Lying Jailhouse Snitches

Some commentators have proposed conducting pretrial reliability hearings to screen out unreliable jailhouse snitch testimony. 273 Leading snitch expert Alexandra Natapoff, for example, urges courts to conduct pretrial reliability hearings for all informant witnesses, including jailhouse snitches that the government intends to present at trial. 274 In such hearings, the government would have the burden to demonstrate “the reliability of any informant witness, or statements made by that informant.” 275 Moreover, as she points out, at least three states have already established pretrial reliability hearings for jailhouse snitches. 276 Proponents argue that such hearings fall well within the comfort zone of trial courts, which regularly are asked to screen other types *1411 of evidence, such as scientific evidence and expert witness testimony, for reliability. 277

Professor George Harris has also proposed that courts undertake extensive pretrial reliability hearings of any compensated witness, including jailhouse snitches. 278 Harris suggests that evidence at such hearings would include anything relevant to the witness's credibility, including the “nature of compensation that the witness has received or may receive,” the witness's history of cooperation in other cases, and physical or other evidence “unknown to the witness at the time of her initial proffer of testimony, that is consistent with or contradicts the cooperator's testimony” in specific and unanticipated ways. 279 “Changed testimony, a history of repeated cooperation for compensation, compensation out of proportion to the government's legitimate interest in the prosecution of the defendant, or overtly contingent compensation should create a presumption of insufficient reliability that the moving party would have to overcome.” 280

Although adoption of a pretrial reliability screening requirement would not be a bad thing, and might even be moderately helpful, the proposed pretrial reliability screenings would certainly not be a panacea. Indeed, there is little reason to believe that trial courts have the ability or inclination to screen out false jailhouse snitch testimony in the mine run of cases.

For starters, judges are unlikely to be any better than jurors at distinguishing lying witnesses from honest ones. 281 Numerous studies have examined the extent to which training and expertise improves one's ability to assess whether others are telling the truth. 282 Police officers in particular have been the focus of many of these studies because they regularly interview suspects and evaluate the credibility of the stories they are told. 283 Without exception, those studies have found that “people are poor intuitive judges of truth and deception, and that police investigators and *1412 other so-called experts who routinely make such judgments are also highly prone to error.” 284 Indeed, some studies indicate that specialized training might make interviewers more likely to misinterpret the truthfulness of the interviewee and to increase the interviewer's confidence in those misjudgments. 285 If police investigators--who often receive special training in interrogation skills and lie detection--

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375 have not demonstrated any measurable advantage in detecting deception, there is little reason to believe judges--who deal with individuals at far greater remove--have developed any better abilities.

Like police officers, judges actually might be more poorly equipped than jurors to fairly evaluate the credibility of a jailhouse snitch's incriminating testimony, and confirmation bias again may be the culprit. Research on judge and juror perceptions of guilt indicates that judges are more likely to view criminal defendants as guilty than jurors. 286 In Kalven and Zeisel's classic study of jury behavior, for example, the researchers found that judges were consistently more likely than juries to vote to convict. 287 Other researchers have found “similar patterns of trial judges unduly leaning in the prosecution's favor when appraising the evidence.” 288 Due to the volume of apparently guilty criminal defendants that judges see regularly in their courtrooms, judges may similarly be more strongly disinclined to question the accuracy of the jailhouse snitch's testimony, which confirms what the judge likely assumes anyway: that the defendant is guilty.

Pro-prosecution bias by judges has been frequently noted in other contexts as well. For instance, judicial tolerance of police perjury is widely acknowledged. 289 Courts know that police frequently lie but tend to look the other way. 290 A variety of scholars have concluded that trial judges “habitually accept[] the policeman's word” and may even ignore police lies “to prevent the suppression of evidence and assure conviction.” 291 At least one research study *1413 lends empirical credence to that hypothesis. 292 One commentator summarized the most frequently advanced explanations for why judges so frequently fail to crack down on police perjury: 1) it is impossible to determine if a witness is lying; 2) judges dislike the possibility of suppressing evidence due to police perjury; 3) many judges believe that most defendants in the system are guilty; 4) judges are more likely to believe an officer's testimony rather than the defendant's; and 5) judges do not enjoy accusing other government officials of lying. 293

The reasons judges are reluctant to make credibility determinations against police are also applicable to jailhouse snitches in that adverse credibility findings might also impugn the motives or integrity of the prosecutors who put the snitches on the witness stand. In many cases there will be little external basis on which to assess the credibility of a jailhouse snitch's testimony. Because of pro-prosecution bias, judges may be more inclined to permit prosecutors to put on potentially unreliable evidence, particularly because such evidence confirms the possible judicial assumption that most defendants are, in fact, guilty. While judges are unlikely to be inclined to specially credit an inmate's testimony under most circumstances, they may be more willing to credit such testimony where it has been previously vetted--or at least apparently vetted--by law enforcement officials. Finally, just as judges are often reluctant to accuse police officers of lying, they probably are also reluctant to make an adverse credibility determination against a witness for whom the prosecutor has--expressly or implicitly--personally vouched. After all, a judicial determination that such a witness is lying at minimum suggests that the prosecutor who put that witness on the stand was negligent in proffering the evidence, and could even imply that the prosecutor knowingly attempted to use false testimony.

That judges tend, for whatever reason, to be biased when assessing the admissibility of evidence is further supported by the judicial track record in screening scientific evidence. As Professor Suzanne Rozelle has argued, a study of evidentiary challenges in criminal cases reveals a clear pattern of pro-prosecution admissibility rulings. 294 Courts readily admit all sorts of questionable forensic “match” evidence proffered by prosecutors, *1414 including tool mark, bite mark, footprint, and handwriting comparisons, that lack any scientific foundation regarding the reliability of the method or the proficiency of the analyst. 295 At the same time, those same courts routinely deny defendants' requests to put on expert witnesses to testify about the known unreliability of that evidence, even where such testimony is grounded in empirical research. 296 This pro-prosecution bias strongly suggests that judges will conduct pretrial reliability screenings of jailhouse snitch testimony in the same one- sided manner.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 17 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

In sum, most judges' laissez-faire attitudes about State's witnesses provides little reason to expect that if given the opportunity to conduct pretrial hearings, judges will suddenly crack down on unreliable jailhouse snitches.

B. Disclosure of Impeachment Material

A small number of states require prosecutors to comply with enhanced disclosure obligations in certain types of cases involving jailhouse informants. 297 As a result of recent reforms, for example, Illinois prosecutors must now disclose a substantial amount of information about informants, including any benefit promised to the informant in exchange for testimony, the circumstances in which the defendant's alleged confession supposedly occurred, names of witnesses present at the time, and the informant's prior history of cooperation with the State. 298 Oklahoma and Nebraska also require enhanced pretrial disclosure. 299 Oklahoma's Court of Criminal Appeals recently established disclosure rules applicable to jailhouse snitch testimony in all cases. 300 According to the Oklahoma Court, at least ten days prior to trial the State must disclose the informant's criminal history, any deal or promise extended to the informant, the circumstances in which the admission or confession was obtained, other cases in which the informant has testified and any benefits received as a result, any statements recanting his statement or testimony, and any other information relevant to the informant's credibility. 301 This impeachment evidence is undoubtedly necessary to permit defense counsel to better cross-examine informants. For these reasons, numerous commentators *1415 have called for increased disclosure obligations along similar lines. 302

There may, however, be inherent limits on the extent to which disclosure rules can mitigate the likely prejudice resulting from admission of unreliable jailhouse snitch testimony. First, no matter how scathing the impeachment, jurors all begin with the knowledge that jailhouse snitches are convicted criminals. Notwithstanding that knowledge, jurors routinely believe snitch testimony anyway. Second, as George Harris has noted, most of the critical details surrounding a jailhouse informant's testimony, including how the government “selects, prepares, and evaluates” such witnesses, are “undiscoverable,” and “[e]ven that which is discoverable often remains resistant to realistic portrayal at trial.” 303 More likely, however, the critical information will simply never be uncovered. “Given the secrecy surrounding the prosecutor's preparation of her witnesses and the inability to review the process meaningfully, it is virtually impossible to ascertain whether and to what extent witnesses have been coached by prosecutors and police to give false or misleading testimony.” 304 In addition, many types of benefits that prosecutors can bestow on jailhouse informants--such as a promise not to bring future charges or to bring lesser charges rather than greater charges--are protected under the guise of prosecutorial discretion and insulated from discovery. 305

There are additional reasons why enhanced discovery will not resolve the jailhouse snitch problem. Perhaps most importantly, in many cases there simply will be little to disclose. When an inmate comes forward purporting to possess incriminating information, the State can truthfully claim that it had nothing to do with initiating contact with the witness. It simply received the evidence that the witness reported, found it credible, and proffered it at trial. The fundamental question--whether the informant is truthful or lying--will remain for the jury to determine. Because no formal deal will actually have been made in most cases prior to the witness's in-court testimony, there also will be nothing to disclose regarding any benefit or inducement offered by the State in exchange for the testimony. When questioned about whether the witness has received a benefit, the witness can honestly state that he has not. He might add, as witnesses frequently and honestly do, that he hopes the prosecutor or judge will look favorably upon him in the future as a result of his testimony, because the prosecutor has never *1416 made any explicit promise to reward him, and because the prosecutor has only asked him to testify “truthfully” about what he knows.

Enhanced disclosure is an inadequate remedy for another, and perhaps even more basic, reason. Precisely in those cases in which jailhouse snitch testimony is likely to be most sought out, prosecutors cannot be trusted to fairly and honestly disclose the critical facts that would undermine the snitch's testimony. 306 If police or prosecutors have affirmatively provided essential details about a case to a jailhouse snitch they know to be untrustworthy, have made secret promises to reward witnesses for their testimony in the future, or have recruited the snitch--in violation of the Sixth Amendment--to affirmatively elicit incriminating

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 18 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375 information against a fellow inmate, then no formal disclosure requirement will induce the prosecutor to disclose such damning information.

Finally, even if a disclosure requirement did result in discovery of important impeachment evidence that defense counsel could use at trial to impeach the witness, it is not clear that witness impeachment alone is sufficient to blunt the prejudice caused by testimony that the defendant has confessed to the crime. As discussed above, research suggests that while jurors have the capacity to recognize that some witnesses are more self-interested than others, such information does not necessarily get processed in a way that helps defendants. Due to the stickiness of fundamental attribution error, jurors are still more likely to vote to convict, particularly in close cases, after hearing even tainted and objectively unreliable confession evidence.

C. Corroboration

Another suggestion made by commentators is to apply heightened corroboration requirements to jailhouse snitch testimony. 307 Indeed, the American Bar Association passed a resolution “calling on federal, state, and local governments to adopt measures so ‘no prosecution should occur based solely upon uncorroborated jailhouse informant testimony.”’ 308 These *1417 recommendations recently have been implemented in a few states, including Texas 309 and California, 310 which have enacted legislation to require corroboration of jailhouse informants' testimony. 311

Jailhouse snitch corroboration requirements are often modeled on similar corroboration requirements for accomplice testimony. 312 While these reforms are laudable for what they are worth, they simply are not worth that much. The main problem with a corroboration requirement is that, as typically formulated, it is too lax. Under Texas law, for example, “all that is required is that there be some evidence--other than the jailhouse informant's testimony--which tends to connect the accused to the commission of the offense.” 313 California's requirement is somewhat more stringent. In California, it is not enough if the corroborating evidence merely “tends to connect” the defendant to the crime. 314 Rather, the corroborating evidence must, in fact, “connect[] the defendant with the commission of the offense.” 315 Accomplice testimony, however, can be corroborated by jailhouse snitch testimony, and vice versa, substantially weakening the protective value of the corroboration requirement. 316 Jailhouse snitches can also presumably be corroborated by other jailhouse snitches. 317

Other states rely on the “corpus delicti rule” to enforce a more modest corroboration requirement. In Tennessee, for instance, “the corpus delicti of a crime may not be established by a confession *1418 alone.” 318 Accordingly, a conviction may not be sustained if the only evidence in the case is testimony by a jailhouse informant. The corpus delicti rule, however, provides even weaker protection against lying jailhouse snitches. In Tennessee, for example, as long as the prosecutor can prove that a crime in fact occurred, the corpus delicti rule will not bar the State from relying solely on jailhouse informant testimony to establish that a particular individual was the crime's perpetrator. 319

Even where the corroboration requirement has some teeth, it will rarely make much of a difference. In the vast majority of cases in which jailhouse snitch testimony is sought, there will be at least some other evidence implicating the defendant. 320 In those cases, however, prosecutors want to use the jailhouse snitches for precisely the reason that they should not be allowed to do so: the other evidence in the case is weak or equivocal, making the jailhouse snitch testimony unduly influential in determining the outcome of the case. 321 After all, there is no reason to use jailhouse snitch testimony--and to reward convicted criminals for providing it--if the State has sufficient other evidence to prove guilt beyond a reasonable doubt. It is only in cases where the prosecutor believes there to be a real risk of acquittal that the prosecutor will be willing to “pay” the price for such testimony. 322

These corroboration rules do little to prevent wrongful convictions from occurring in the types of cases in which jailhouse snitches are typically used. Prosecutors will rarely move forward in *1419 cases where there is no evidence at all connecting

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 19 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375 a defendant to a charged crime, and as long as there is some other evidence, even if it is quite weak, then the corroboration requirement will not prevent the snitch's testimony from coming in.

Perhaps a truly robust corroboration rule would make a difference. For instance, reliability would not be a significant problem under a rule that permitted jailhouse snitch testimony to come in only if the alleged confession made to the snitch had been electronically recorded. In that case, the snitch's testimony would be corroborated by the taped recording of the conversation. Of course, such a rule would raise other problems--most significantly, Sixth Amendment concerns--that would preclude snitches from being used to secretly record confessions by other inmates in most cases. 323

Given the substantial concerns, however, that police officers and prosecutors might provide jailhouse informants with crucial details about the investigation--inadvertently or otherwise--even a strong corroboration requirement that did not actually require electronic recording would fail to provide sufficient protection. First, there is documented evidence that law enforcement agents have provided informants with incriminating details in some cases. 324 More generally, research on false confessions demonstrates that even police officers and prosecutors acting entirely in good faith can, and have, inadvertently revealed supposedly secret details to interrogated suspects during the course of interrogation. 325 Judges and juries then concluded that those confessions were reliable precisely because they included details about which only the perpetrator of the crime supposedly could know. 326 Corroboration of the “details” of the suspect's confession, in these cases, actually served to bolster the false confessions. 327 Courts uniformly emphasized that these confessions contained admissions that only the true murderer or rapist could have known. 328

While recording the entirety of the interrogation might have revealed the source of contamination, anything less only further *1420 cemented its persuasiveness. 329 The same dynamic almost certainly would be at work in cases involving jailhouse snitches. A mandatory requirement that all conversations between a snitch and state agents be recorded, as some commentators have urged, 330 would address some aspects of the problem, but given the variety of possible sources of information from which a jailhouse snitch can potentially draw, only a tape recording of the defendant's actual confession to the snitch would adequately ensure that the snitch's testimony was reliable.

D. Jury Instructions

Commentators have also called for juries to be instructed about the special reliability concerns present when jailhouse informants testify. 331 A few states have adopted such requirements. 332 While requiring special jury instructions is harmless, it is, like the other measures discussed above, almost certainly an insufficient remedy. The problems with jury instructions are well documented. A wealth of data suggests that jury instructions are generally ineffective tools for channeling a juror's assessment of evidence presented at trial. 333 First, jurors generally are poor at understanding traditional jury instructions or applying those instructions in deliberations. 334 *1421 Second, studies using mock jurors have consistently shown that instructions to disregard relevant evidence do not prevent jurors from incorporating that evidence into deliberations. 335 Studies of the efficacy of cautionary instructions are also at best mixed. 336 There is thus substantial reason to doubt that such instructions will prove effective in inoculating jurors after exposure to false jailhouse snitch testimony. Indeed, like with unreliable confession evidence generally, it is far more likely that such instructions “occur too late in the process to undo the damage” once the testimony “has entered the stream of evidence at trial.” 337 Where evidence as potentially prejudicial as a reported post-crime confession is at issue, cautionary jury instructions--while undoubtedly better than nothing--are simply inadequate to ensure that innocent criminal defendants receive a fair trial.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 20 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

There is, in short, no reason to believe that jury instructions are an effective tool to neutralize the impact of highly prejudicial false snitch testimony. Relying on jury instructions to redress the harm inflicted from false jailhouse snitch testimony is like applying a Band-Aid to a gunshot wound. It merely obscures the problem.

Indeed, even if all of the above requirements were in place, there would still be no reason for confidence that false jailhouse snitch testimony might not be admitted and relied upon by jurors to convict innocent defendants. Observations made by scholars writing about a similar problem--the admissibility of unreliable expert forensic witness testimony--apply equally to jailhouse snitch testimony: “Experimental research . . . reinforces the need for incriminating [] evidence to be reliable because the various trial *1422 safeguards, along with lay jurors, trial, and appellate judges, have not performed well in response to prosecutions and convictions incorporating unreliable [] evidence.” 338

Jailhouse snitch testimony is fundamentally and pervasively unreliable. Its use poses an irremediable threat of taint in criminal cases.

V. ABOLITION IS THE ONLY APPROPRIATE REMEDY

Abolition of jailhouse snitch testimony is perhaps a radical suggestion. After all, courts are extremely reluctant to bar use of relevant evidence in general, and even more so to exclude an entire class of potentially material evidence altogether. Nonetheless, there is precedent for such a ban. Indeed, several types of evidence are now considered so lacking in reliability that they are flatly banned as admissible in-court evidence. Moreover, it is increasingly clear that nothing less than a total ban can protect innocent criminal defendants from the substantial risk of wrongful conviction as a result of the use, and abuse, of jailhouse snitch testimony.

A. Constitutional Precedents: Coerced Confessions

Coerced confessions are the paradigmatic example of a type of evidence that has been barred as a matter of law from use in criminal trials. 339 Although there are constitutional considerations at play in the taking as well as the use of coerced confessions, the ban on the use of coerced confessions can be traced in substantial measure to the inherent unreliability of such evidence. 340

The voluntary confession requirement is a longstanding common-law evidence rule that ultimately took on constitutional significance in the United States. 341 The rule is premised on the presumption that freely made confessions are strongly reliable, but that confessions induced through promises or threats lack such indicia of reliability. 342 The Arizona v. Fulminante case reflects the *1423 Supreme Court's most recent recognition of both the inherent unreliability of coerced confessions and the difficulty of repairing the prejudice done to defendants when such evidence is erroneously admitted. 343 It is perhaps noteworthy that Fulminante, though widely invoked as a coerced confessions case, is also a jailhouse snitch case. 344 In Fulminante, the defendant was suspected of killing his eleven-year-old stepdaughter. 345 While in jail for an unrelated offense, Fulminante allegedly made statements to a fellow inmate implicating him in the killing. 346 After the inmate reported the statements to the FBI, the inmate was instructed to “find out more.” 347 As a suspected child murderer, Fulminante was being threatened by other prisoners and was deeply concerned for his safety. 348 The inmate “offered to protect Fulminante from his fellow inmates, but told him, ‘You have to tell me about it,’ you know. I mean, in other words, ‘For me to give you any help.”’ 349 Fulminante then allegedly admitted to the inmate that he had driven his stepdaughter “to the desert on his motorcycle, where he choked her, sexually assaulted her, and made her beg for her life, before shooting her twice in the head.” 350

Fulminante moved to suppress the confession on grounds that it was the product of coercion. 351 The trial court denied the motion, and Fulminante was convicted and sentenced to death. 352 The Arizona Supreme Court reversed, concluding that the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 21 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375 trial court erred in finding that the confession was voluntary and that the error was not harmless. 353 The U.S. Supreme Court granted certiorari *1424 and affirmed. 354 All nine justices agreed that use of coerced confession evidence at trial is per se error. 355 “Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.” While some statements by a defendant may concern isolated aspects of the crime or may be incriminating only when linked to other evidence, a full confession in which the defendant discloses the motive for and means of the crime may tempt the jury to rely upon that evidence alone in reaching its decision. 356

The Court was divided, however, as to whether admission of a coerced confession could ever be harmless. 357 A five justice majority held that harmless error analysis was appropriate even in cases where a coerced confession had improperly been admitted at trial, but that the error in Fulminante's case was not harmless. 358 Four justices dissented from the application of harmless error analysis, contending that such evidence was so inherently prejudicial that no trial in which such evidence had been presented to a jury could be fair. 359

The Court thus emphasized not only that use of coerced confessions was always constitutionally improper, but that any harmless error analysis conducted by a court in a case where a coerced confession had erroneously been admitted required “extreme caution,” since “the risk that the confession is unreliable” is magnified by the “profound impact” that confession evidence tends to exert upon juries. 360

Of course, the constitutional ban on involuntary confessions necessitated by due process considerations is accompanied by the Fifth Amendment's ban on compelled self-incriminating testimony. 361 That ban is further expanded under Miranda v. Arizona 362 to preclude government use of virtually all statements obtained by police during custodial interrogation in a manner inconsistent with the procedural safeguards established by the Court. 363

*1425 B. Procedurally Unreliable Hearsay Evidence

A coerced confession is not the only kind of evidence categorically prohibited from use in criminal trials. The Sixth Amendment's Confrontation Clause similarly precludes the use, at trial, of a particular class of evidence, namely, testimonial out-of-court statements that were either made without prior opportunity for cross-examination or by a currently available declarant. 364 The Court's pre-Crawford Confrontation Clause jurisprudence was an express reflection of the constitutional importance of evidentiary reliability. 365 In Ohio v. Roberts, 366 the Court construed the Confrontation Clause as directed toward the exclusion of out-of-court statements made by unavailable witnesses that lack “adequate ‘indicia of reliability.”’ 367 Of course, with Crawford, the Court reconceptualized its Confrontation Clause jurisprudence, downplaying mere evidentiary reliability as the touchstone of constitutional admissibility of hearsay evidence. 368 Instead, the Court substituted a procedural standard: hearsay evidence was admissible under the Confrontation Clause only if it was either nontestimonial, or if testimonial, only if it had previously been subject to cross-examination. 369 Nonetheless, the Court was explicit that the reliability of evidence was the primary purpose of the Confrontation Clause: To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined. 370

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 22 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

The Sixth Amendment Confrontation Clause thus represents a longstanding, and well-recognized, constitutional exclusionary principle for a class of presumptively unreliable evidence.

Judges also have the ability, although it is one that is infrequently used, to enforce wholesale exclusions on classes of *1426 evidence deemed insufficiently reliable. 371 A court might exclude jailhouse informant testimony on grounds that admission of such unreliable evidence violates basic due process norms. 372

Alternatively, courts might follow the lead established in Jackson v. Denno 373 and impose stricter constitutional regulation on the use of jailhouse snitch testimony. The defendant in Jackson, Nathan Jackson, alleged that his murder confession was the product of coercion. 374 Pursuant to New York state procedure, the voluntariness of Jackson's confession was submitted, along with all of the other evidence, to the jury, which was accordingly instructed that if it found that Jackson's confession had been coerced, it should ignore it. 375 Jackson complained that submission of a coerced confession to the jury irreparably tainted the case. 376 The U.S. Supreme Court agreed, ruling that questions regarding the voluntariness of confessions must be adjudicated prior to trial in order, among other things, to ensure that jurors do not rely on unreliable involuntary confessions to “serve as makeweights in a compromise verdict,” or to prevent jurors from “accepting the confessions to overcome lingering doubt of guilt prejudice.” 377

The logic underlying an expansion of the Jackson rule to jailhouse snitch cases is simple. Like involuntary confessions, jailhouse snitch testimony is patently unreliable. Permitting a snitch to testify regarding the substance of an alleged confession is little different from permitting a police officer to testify about an allegedly coerced confession. The only difference is the identity of the witness--and few would argue that the credibility of inherently self-interested felons is greater than that of police officers. Certainly, the logic undergirding the Jackson rule, at minimum, counsels for mandatory pretrial reliability hearings for contested jailhouse snitch testimony, as many commentators have argued and as a few states now require. But because--unlike presumably uncoerced confessions made to trained and disinterested law enforcement officers--all jailhouse confessions are inherently unreliable, it makes far more sense to treat those alleged confessions like coerced confessions, requiring not merely that they *1427 be screened through pretrial reliability hearings, but that they be absolutely precluded. 378

C. Statutory and Administrative Exclusions

While the federal Constitution bars the use of certain classes of presumptively unreliable evidence, such as compelled confessions and statements obtained in violation to the Confrontation Clause, still other classes of evidence are barred by statute, evidentiary rule, and administrative practice. 379

One familiar example is polygraph evidence. Because of deep-seated concerns about its reliability, polygraph evidence has been banned by statute in many states. 380 In virtually every state where it has not been banned by statute, it has been ruled per se inadmissible by courts. 381 Such bans are appropriate, the Supreme Court has held, because of the State's “unquestionably . . . legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial.” 382 Indeed, the evidence at issue in the famous Frye v. United States 383 case-- setting minimum standards for the admissibility of scientific evidence-- was a polygraph test. 384 Although the test for admissibility established in Frye has been replaced by the Daubert criteria, the ban on polygraph evidence in criminal cases remains largely--albeit not entirely--intact. 385

*1428 Other types of evidence have also been deemed sufficiently unreliable in some jurisdictions and therefore categorically inadmissible. Visual hair analysis, for example, is “a kind of evidence so inexact that it is restricted or barred in some jurisdictions.” 386 Other examples include hypnotically refreshed testimony 387 and uncorroborated accomplice testimony. 388

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 23 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

(Of course, all of the flaws of uncorroborated accomplice testimony, and then some, exist with respect to uncorroborated jailhouse snitch testimony as well.) Some law enforcement agencies have taken it upon themselves to refrain from using or sanctioning the use of certain types of unreliable evidence. The FBI, for instance, stopped performing bullet lead analysis after the “National Research Council concluded that available data did not support expert testimony linking crime bullets to a particular source.” 389

Because of the highly unreliable nature of jailhouse snitch testimony, state and federal lawmakers and law enforcement agencies can and should, consistent with the treatment of other forms of grossly unreliable evidence, ban the use of jailhouse snitch testimony through legislative or administrative fiat. 390

CONCLUSION

Jailhouse snitch testimony is an inherently unreliable type of evidence. Snitches have powerful incentives to invent incriminating *1429 lies about other inmates in often well-founded hopes that such testimony will provide them with material benefits, including in many cases substantial reduction of criminal charges or sentences. At the same time, false snitch testimony is difficult if not altogether impossible to impeach. Because such testimony usually pits the word of two individuals against one another, both of whose credibility is suspect, jurors have little ability to accurately or effectively assess or weigh the evidence. Moreover, research suggests that jurors frequently succumb to fundamental attribution error and unwittingly fail to properly discount the reliability of evidence supplied by biased and self-interested witnesses. Unreliability concerns are further magnified because jailhouse snitch testimony is almost exclusively a species of confession evidence, and ample research demonstrates that confession evidence is more persuasive to jurors than any other type of evidence.

Although some jurisdictions have placed a few modest limits on jailhouse snitch testimony, no jurisdiction has banned such testimony outright. It continues to be assumed that the traditional tools of trial procedure-- cross-examination and post- conviction review--are adequate to screen out unreliable evidence and safeguard defendants' rights. These methods, however, are plainly insufficient, as mounting evidence of wrongful convictions brought about through the use of false snitch testimony attests. Commentators have urged adoption of a variety of additional measures intended to bolster the ability of courts to screen such testimony for reliability, but on closer examination, none of these suggestions--while on their own terms marginally helpful--sufficiently mitigates the high risk that false jailhouse snitch testimony will be admitted and have a material impact on jury deliberations.

The only effective solution is to flatly preclude the use of such testimony. The constitutional infrastructure already exists to permit courts to move in this direction. The Supreme Court's longstanding preclusion of coerced confession evidence provides a precedent readily applicable to confession evidence from jailhouse snitches. But in all likelihood, if change in this area comes, it will be as a result of legislative resolve to take meaningful steps to reduce wrongful convictions. There is a mature body of research data that identifies the primary causes of wrongful convictions. Jailhouse snitch testimony is at the top of the list. It is low fruit, waiting to be picked.

Footnotes a1 Professor of Law, Georgia State University. Thanks to Caren Morrison for her comments on earlier drafts of the Article, to Pam Brannon and the research library staff for their diligent research support, and to the GSU College of Law for financial support for this project.

1 See, e.g., BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO WRONG 8-9 (2011); Samuel R. Gross et al., Exonerations in the U.S., 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 542-44 (2005).

2 See, e.g., THE JUSTICE PROJECT, JAILHOUSE SNITCH TESTIMONY: A POLICY REVIEW 1 (2007), available at http://www.pewtrusts.org/~/ media/legacy/uploadedfiles/wwwpewtrustsorg/reports/death_penalty_ reform/

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 24 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

Jailhouse20snitch20testimony20policy20br (stating that “snitch testimony is widely regarded as the least reliable testimony encountered in the criminal justice system”); see also Brief of the NACDL as Amicus Curiae in Support of Respondent at 2, Kansas v. Ventris, 556 U.S. 586 (2009) (No. 07-1356), 2008 WL 5409458, at *2 [hereinafter Brief of the NACDL] (“[A] jailhouse snitch's uncorroborated claim that the defendant confessed to him...is notoriously unreliable.”). Similarly, a state court has cautioned that “[c] ourts should be exceedingly leery of jailhouse informants, especially if there is a hint that the informant received some sort of a benefit for his or her testimony.” Dodd v. State, 993 P.2d 778, 783 (Okla. Crim. App. 2000).

3 See Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21, 57 (1987) (reporting that jailhouse informants testified falsely in 117 of the 350 wrongful convictions studied). Other exoneration studies have identified eyewitness “misidentifications” and false confessions as factors in a greater number of known wrongful convictions. GARRETT, supra note 1. Even if mistaken eyewitness testimony and false confessions have led to a greater absolute number of known wrongful convictions, there is little doubt that false jailhouse snitch testimony occurs with greater frequency than mistaken eyewitness identifications or false confessions. While eyewitness testimony and defendant confessions are two of the most common types of evidence used in criminal prosecutions, snitch testimony appears in a quantitatively smaller subset of cases. ALEXANDRA NATAPOFF, SNITCHING: CRIMINAL INFORMANTS AND THE EROSION OF AMERICAN JUSTICE 6 (2009). Nonetheless, it still manages to account for a sizeable number of documented wrongful convictions. Bedau & Radelet, supra.

4 Zappulla v. New York, 391 F.3d 462, 470 n.3 (2d Cir. 2004) (quoting Jana Winograde, Comment, Jailhouse Informants and the Need for Judicial Use Immunity in Habeas Corpus Proceedings, 78 CALIF. L. REV. 755, 756 (1990)).

5 United States. v. Levenite, 277 F.3d 454, 461 (4th Cir. 2002).

6 Sivak v. Hardison, 658 F.3d 898, 916 (9th Cir. 2011).

7 Stephen S. Trott, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 HASTINGS L.J. 1381, 1383 (1996).

8 Id. at 1394.

9 NATAPOFF, supra note 3, at 6-7.

10 Id. at 7.

11 JIM DWYER ET AL., ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER DISPATCHES FROM THE WRONGLY CONVICTED 246 (2000).

12 Id. at 244-46.

13 NATAPOFF, supra note 3, at 7.

14 REPORT OF THE 1989-90 LOS ANGELES COUNTY GRAND JURY: INVESTIGATION OF THE INVOLVEMENT OF JAIL HOUSE INFORMANTS IN THE CRIMINAL JUSTICE SYSTEM IN LOS ANGELES COUNTY 37, available at http:// www.ccfaj.org/documents/reports/jailhouse/expert/1989-1990%20LA%C20County%C20Grand%C20Jury%R#eport.pdf [hereinafter GRAND JURY REPORT]. Following the release of the Grand Jury Report, the L.A. County District Attorney's Office adopted stringent controls over the use of jailhouse snitches and now rarely permits their use at trial. NATAPOFF, supra note 3, at 189-90.

15 NW. UNIV. SCH. OF LAW CTR. ON WRONGFUL CONVICTIONS, THE SNITCH SYSTEM: HOW SNITCH TESTIMONY SENT RANDY STEIDL AND OTHER INNOCENT AMERICANSTODEATHROW3(2004-2005),availableat http:// www.innocenceproject.org/docs/SnitchSystemBooklet.pdf [hereinafter THE SNITCH SYSTEM].

16 GEORGE H. RYAN, REPORT OF THE GOVERNOR'S COMMISSION ON CAPITAL PUNISHMENT 7-8 (2002), available at http:// illinoismurderindictments.law.northweste/docs/Illinois_Moratorium_Commission_ complete-report.pdf.

17 Harris County, Texas, has recently begun a program offering jailhouse informants up to $5000 for helpful information. See Renee C. Lee, Harris Co. Sheriff Offers Cash for Jailhouse Tipsters, HOUS. CHRON. (Jan. 10, 2011), http://www.chron.com/news/houston- texas/article/Harris-Co-sheriff-offers-cash-for-jailhouse-1623204.php.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 25 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

18 Caren Myers Morrison, Privacy, Accountability, and the Cooperating Defendant: Towards a New Role for Internet Access to Court Records, 62 VAND. L. REV. 921, 935-36 (2009).

19 See Carl N. Hammarskjold, Comment, Smokes, Candy, and the Bloody Sword: How Classifying Jailhouse Snitch Testimony as Direct, Rather than Circumstantial, Evidence Contributes to Wrongful Convictions, 45 U.S.F. L. REV. 1103, 1106 (2011) (citing Maxwell v. Roe, 628 F.3d 486, 505 n.10 (9th Cir. 2010)) (describing one jailhouse snitch's boast to have lied in exchange for “$30.00 from petty cash” and “some smokes and candy”); Morrison, supra note 18 (noting that a “successful cooperator...might ultimately get years off his sentence or even avoid prison altogether”).

20 United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987).

21 United States v. Meinster, 619 F.2d 1041, 1045 (4th Cir. 1980).

22 Robert Reinhold, California Shaken over an Informer: He Shows How to Fabricate a Prisoner's Confession, N.Y. TIMES, Feb. 17, 1989, at A17 (quoting Robert Berke, a lawyer for California Attorneys for Criminal Justice).

23 FRED KAUFMAN, THE COMMISSION ON PROCEEDINGS INVOLVING GUY PAUL MORIN 599, available at http:// www.attorneygeneral.jus.gov.on.ca/english/about/pubs/morin/morin_ch3cd.pdf.

24 NATAPOFF, supra note 3, at 71.

25 GRAND JURY REPORT, supra note 14, at 72-73.

26 Id. at 70-71.

27 Id. at 68.

28 See Brad Heath, Federal Prisoners Use Snitching for Personal Gain, USA TODAY (Dec. 14, 2012, 3:06 PM), http:// www.usatoday.com/story/news/nation/2012/12/14/jailhouse-informants-for-sale/1762013/.

29 Peter P. Handy, Jailhouse Informants' Testimony Gets Scrutiny Commensurate with Its Reliability, 43 MCGEORGE L. REV. 755, 759 (2012).

30 Keith A. Findley, Innocence Protection in the Appellate Process, 93 MARQ. L. REV. 591, 629 n.192 (2009) (quoting Steve Mills & Ken Armstrong, The Inside Informant, CHI. TRIB., Nov. 16, 1999, at A1).

31 NATAPOFF, supra note 3, at 71.

32 Steve Mills & Ken Armstrong, Part 3: The Jailhouse Informant, CHI. TRIB. (Nov. 16, 1999), http://articles.chicagotribune.com/1999-11-16/news/chi-991116deathillinois3_1_court-and-police-records-murder- confessions-jailhouse-informant.

33 Id.

34 Id.

35 Id.

36 Id.

37 Id.

38 Id.

39 GRAND JURY REPORT, supra note 14, at 72.

40 See Reinhold, supra note 22.

41 Id.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 26 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

42 Id.

43 GRAND J URY REPORT, supra note 14, at 1-2.

44 Id. at 2.

45 Id. at 39.

46 See id. at 19.

47 Id. at 9.

48 See id. at 54-55.

49 See id. at 56 (“Within twenty-four hours of the inmate's arrival...an informant called the Los Angeles Police Department and left a message for the detective that he had information about the inmate.... [T]hree days after arranging for the inmate to be placed with informants, the detective interviewed three informants, each of whom claimed to have obtained incriminating information from the inmate.”).

50 Ted Rohrlich, Authorities Go Fishing for Jailhouse Confessions, L.A. TIMES, Mar. 4, 1990, at A1.

51 See GRAND JURY REPORT, supra note 14, at 27-28.

52 Id.

53 For example, in an infamous case known as the “Marietta Seven,” James Creamer and six others were wrongfully convicted between 1973 and 1975 of murdering two doctors in Marietta, Georgia, based largely on the perjured testimony of an informant testifying under immunity. THE JUSTICE PROJECT, supra note 2, at 8-9. After extensive findings undermining the snitch's credibility, the convictions were reversed and charges dropped against all seven defendants. Id. at 9-11. Despite calls to prosecute the snitch, the District Attorney declined to bring perjury charges. Id. at 11.

54 See Ted Rohrlich, L.A. Jailhouse Informant Seized on Perjury Charge, L.A. TIMES (Feb. 20, 1992), http:// articles.latimes.com/1992-02-20/news/mn-3537_1_jailhouse-informant-scandal; Ted Rohrlich, Perjurer Sentenced to 3 Years, L.A. TIMES (May 20, 1992), http://articles.latimes.com/1992-05-20/local/me-312_1_law-enforcement-officer.

55 See Rohrlick, Perjurer Sentenced to 3 Years, supra note 54.

56 People v. Tolliver, 807 N.E.2d 524, 534-35 (Ill. App. Ct. 2004).

57 Id.

58 Id. at 531-34.

59 Stefano Esposito, Last of Five Accused of Perjury in Ceriale Slaying Trial Sentenced, CHI. SUN-TIMES, Aug. 3, 2004, news, at 12.

60 Id.

61 R. Michael Cassidy, Problem of Implied Inducements, 98 NW. U. L. REV. 1129, 1130 (2004).

62 As Peter Joy has explained, “There are a number of psychological impediments the prosecutor faces, including tunnel vision, which may make the prosecutor a poor judge” of a witness's credibility. Peter A. Joy, Constructing Systemic Safeguards Against Informant Perjury, 7 OHIO ST. J. CRIM. L. 677, 680 (2010).

63 See generally Raymond S. Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2 REV. GEN. PSYCHOL. 175 (1998); Barbara O'Brien, Prime Suspect: An Examination of Factors That Aggravate and Counteract Confirmation Bias in Criminal Investigations, 15 PSYCHOL. PUB. POL'Y & L. 315 (2009).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 27 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

64 See Barbara O'Brien, A Recipe for Bias: An Empirical Look at the Interplay Between Institutional Incentives and Bounded Rationality in Prosecutorial Decision Making, 74 MO. L. REV. 999, 1044 (2009) (“An investigator exhibiting tunnel vision selects and filters evidence with an eye toward building a case against that suspect and consequently overlooks evidence that undermines it.”).

65 Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 WIS. L. REV. 291, 292 (quoting Dianne L. Martin, Lessons About Justice from the “Laboratory” of Wrongful Convictions: Tunnel Vision, the Construction of Guilt and Informer Evidence, 70 UMKC L. REV. 847, 848 (2002)).

66 Id. at 293 (noting that “[m]ost official inquiries into specific wrongful convictions have noted the role that tunnel vision played in those individual cases of injustice”).

67 See Charles I. Lugosi, Punishing the Factually Innocent: DNA, Habeas Corpus and Justice, 12 GEO. MASON U. C.R. L.J. 233, 235 (2002) (noting that “even after DNA testing has proven the innocence of a prisoner, prosecutors refuse to accept the results and rely upon other evidence that supports guilt, or they create a new theory of how the crime occurred (never before put to the judge and jury) to justify the continued punishment of an innocent person”).

68 See Russell Covey, Police Misconduct as a Cause of Wrongful Convictions, 90 WASH. U. L. REV. 1133, 1153 (2013) (observing that corrupt law enforcement officers who framed innocent individuals in the Rampart scandal typically charged defendants with crimes that are “easily manufactured” and difficult to defend against because they pitted the police officers' word against that of the defendant).

69 In some cases, jailhouse snitch systems have operated, and may still be operating, that call into question the integrity and honesty of law enforcement officials at a system-wide level. See GRAND JURY REPORT, supra note 14, at 18-19.

70 See United States v. Murphy, 41 U.S. (16 Pet.) 203, 210 (1842).

71 Warren Moise, I'm Booored! Bias and the Busy Trial Lawyer, S.C. LAW, Jan. 2009, at 10, 11; see also Murphy, 41 U.S. (16 Pet.) at 210 (describing the general rule at common law as “undoubtedly” providing “in criminal cases as well as in civil cases, that a person interested in the event of the suit or prosecution, is not a competent witness”). Justice Story, however, acknowledged numerous exceptions to the general rule. For example, “a person who is to receive a reward for or upon the conviction of the offender” was “universally recognised as a competent witness, whether the reward be offered by the public or by private persons.” Id. at 211; see also Carla Spivack, Let's Get Serious: Spousal Abuse Should Bar Inheritance, 90 OR. L. REV. 247, 299 (2011) (noting the historical “common-law bar to interested witnesses testifying in any proceeding”).

72 As counsel argued to the United States Supreme Court in United States v. Murphy, “Informers are, generally, incompetent witnesses, where they are to receive any portion of the decree, sentence or judgment, without the necessity of a second suit.” 41 U.S. (16 Pet.) at 205-06 (citing United States v. The Schooner Thomas and Henry, 1 Brock. Rep. 374; Tilly's Case, 1 Str. 316; Rex v. Stone, 2 Ld. Raym. 1545).

73 See Sean J. Griffith, Deal Protection Provisions in the Last Period of Play, 71 FORDHAM L. REV. 1899, 1947-48 (2003).

74 Id. (stating that the existence of self-serving bias has been established in numerous studies). According to Griffith, “Self-serving bias involves selective information processing, according to which a subject sees what it wants to see and conflates what is fair with what benefits oneself.” Id. at 1948 (internal citations omitted).

75 Id. at 1947-48.

76 See Ward Farnsworth, The Legal Regulation of Self-Serving Bias, 37 U.C. DAVIS L. REV. 567, 569 (2003) (“It has long been understood that when people are better off if something is true, they become more likely to perceive it as true.”).

77 Some states have enacted statutory bars on testimony by interested parties in probate proceedings. See, e.g., Howle v. Edwards, 11 So. 748, 749 (Ala. 1892) (discussing an 1891 statute providing that “no person having a pecuniary interest in the result of the suit shall be allowed to testify against the party to whom his interest is opposed, as to any transaction with or statement by the deceased person whose estate is interested in the result of the suit or proceedings”).

78 George C. Harris, Testimony for Sale: The Law and Ethics of Snitches and Experts, 28 PEPP. L. REV. 1, 1 (2000).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 28 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

79 See, e.g., Florida Bar v. Wohl, 842 So. 2d 811, 815-16 (Fla. 2003) (imposing a ninety-day suspension on a lawyer who provided financial inducement to a witness to provide factual testimony, because “payment of compensation other than costs to a witness could adversely affect credibility and fact-finding functions”). See generally Joseph Swanson, Let's Be Honest: A Critical Analysis of Florida Bar v. Wohl and the Generally Inconsistent Approach Toward Witness Inducement Agreements in Civil and Criminal Cases, 18 GEO. J. LEGAL ETHICS 1083 (2005).

80 Steven Lubet, Expert Witnesses: Ethics and Professionalism, 12 GEO. J. LEGAL ETHICS 465, 477 (1999) (“Unlike other witnesses who can be reimbursed for only expenses, an expert may be paid a fee for preparing and testifying in court.”).

81 See, e.g., Tagatz v. Marquette Univ., 861 F.2d 1040, 1042 (7th Cir. 1988) (discussing ethical problems with contingent fees); Swafford v. Harris, 967 S.W.2d 319, 322-23 (Tenn. 1998) (holding a contingency fee void as against public policy).

82 Lubet, supra note 80.

83 Id. at 477-78.

84 Id. at 478.

85 Harris, supra note 78.

86 Id. at 3.

87 See Morrison, supra note 18, at 931 (describing how cooperating defendants are recruited by prosecutors).

88 See Heath, supra note 28.

89 Of course, many types of witnesses testify in contexts where it is clear that they have an interest in the outcome. Mothers testify about the good character of their children, and husbands and wives, girlfriends and boyfriends, and friends and coworkers testify about alibis of their friends and loved ones. Plaintiffs and defendants testify about facts surrounding civil disputes with thousands or even millions of dollars on the line. As explained below, jailhouse snitches are demonstrably different. They have no direct knowledge of the facts of a case, little if any reputation to protect, and direct and powerful incentives to manufacture testimony that is easy to conjure and difficult to rebut.

90 That a witness has received payments from the government in exchange for information or cooperation is a materially exculpatory fact that must be disclosed pursuant to Brady v. Maryland. See, e.g., United States v. Sedaghaty, 728 F.3d 885, 892 (9th Cir. 2013) (holding that the government's failure to disclose that a witnesses had received payments from the FBI violated Brady).

91 Lubet, supra note 80, at 465.

92 See J. Richard Johnston, Paying the Witness, Why Is It OK for the Prosecution, but Not the Defense?, CRIM. JUST., Winter 1997, at 21 (arguing that compensating witnesses violates the federal bribery statute).

93 Id. at 22.

94 See, e.g., Short v. Sirmons, 472 F.3d 1177, 1190 (10th Cir. 2006) (holding that the impeachment testimony of a fellow “cellmate” was not material).

95 See, e.g., id.

96 Bruton v. United States, 391 U.S. 123, 139 (1968) (White, J., dissenting).

97 Id.

98 C. MCCORMICK, HANDBOOK OF THE LAW OF EVIDENCE 316 (2d ed. 1983).

99 Saul M. Kassin & Katherine Neumann, On the Power of Confession Evidence: An Experimental Test of the Fundamental Difference Hypothesis, 21 LAW & HUM. BEHAV. 469, 471 (1997).

100 Id. at 481.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 29 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

101 Id.

102 Lisa Dufraimont, Regulating Unreliable Evidence: Can Evidence Rules Guide Juries and Prevent Wrongful Convictions?, 33 QUEEN'S L.J. 261, 274 (2008).

103 Id.

104 Id.

105 Jeffrey S. Neuschatz et al., The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decisionmaking, 32 LAW & HUM. BEHAV. 137, 138 (2008).

106 Cf., Saul M. Kassin & Holly Sukel, Coerced Confessions and the Jury: An Experimental Test of the “Harmless Error” Rule, 21 LAW & HUM. BEHAV. 27, 27 (1997) (noting that evidence of coerced confessions was extremely influential in a test case where other evidence was weak).

107 Neuschatz et al., supra note 105.

108 Id.

109 See id.

110 Kassin & Neumann, supra note 99, at 470.

111 Neuschatz et al., supra note 105, at 142.

112 Id. at 137.

113 Id.

114 Id. at 139.

115 Id. at 140-41.

116 Id. at 140.

117 Id.

118 Id.

119 Id.

120 Id.

121 Id.

122 Id. at 142.

123 Id.

124 Id.

125 Id.

126 Id.

127 Id.

128 Id.

129 Id. at 142, 146.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 30 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

130 Saul M. Kassin & Lawrence S. Wrightsman, Prior Confessions and Mock Juror Verdicts, 10 J. APPLIED SOC. PSYCHOL. 133, 134 (1980) (citing studies).

131 Id.

132 Id.

133 Id.

134 Id.

135 Id. at 143-44.

136 See Anne Bowen Poulin, Prosecutorial Inconsistency, Estoppel, and Due Process: Making the Prosecution Get Its Story Straight, 89 CALIF. L. REV. 1423, 1465 (2001) (“The prosecutor enjoys presumptive credibility in the eyes of the jury and, unlike witnesses who take an oath and are subject to testing through cross-examination and impeachment, the prosecutor is rarely specifically so challenged.”); see also United States v. Gonzalez-Vargas, 558 F.2d 631, 633 (1st Cir. 1977) (observing that “the representative of the government approaches the jury with the inevitable asset of tremendous credibility”); THE JUSTICE PROJECT, supra note 2, at 17 (stating that “jurors are somewhat predisposed to infer some degree of reliability because the witness is presented by the [S]tate”).

137 See, e.g., United States v. Young, 470 U.S. 1, 18-19 (1985) ( “The prosecutor's vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused...may induce the jury to trust the Government's judgment rather than its own view of the evidence.”).

138 Davis v. State, 426 S.E.2d 844 (Ga. 1993) (affirming murder conviction and death sentence); Kim Severson, Georgia Inmate Executed; Raised Racial Issues in Death Penalty, N.Y. TIMES, Sept. 22, 2011, at A1.

139 Trial Transcript at 1228, State v. Davis, No. 089-2467 (Ga. Super. Ct. Oct. 25, 1991) [hereinafter Davis Trial Transcript].

140 Id. at 1229.

141 Id. at 1228.

142 Id. at 1230.

143 Id.

144 Id. at 1230-31. McQueen also claimed that Davis had confessed to shooting someone at the party. According to McQueen, “when he was at the party, he got into a beef with some dudes, and a whole bunch of shooting and stuff going on. So after the party--” Id. at 1230. The D.A. interrupted. “Did he say he did any shooting?” Id. “Yeah,” McQueen answered. Id. The D.A. began to ask if “he was the one that shot” an individual named Michael Cooper at the party, as Davis had been charged with that shooting in addition to the shooting of police officer Mark McPhail. Id. at 1231. However, before the prosecutor could get the name of the shooting victim out, defense counsel cut him off, asking the judge to counsel the prosecutor not to lead the witness. The judge obliged. Id. The prosecutor then rephrased his question: “What did he say about shooting somebody at the party?” Id. McQueen's answer was vague: “Well, exchange of gunfire. He didn't know who shot who, you know, I guess it was the wrong guy, you know, got hung up that night Id.

145 Id.

146 Id. at 1231.

147 In re Davis, No. CV 409-130, 2010 WL 3385081, at *30 (S.D. Ga. Aug. 24, 2010); see Davis Trial Transcript, supra note 139, at 1239, 1243 (informing the defense attorney that he “was already sentenced” and that “the Judge was not going to go back and review [his] case”).

148 In re Davis, 2010 WL 3385081, at *49.

149 Id.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 31 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

150 Id.

151 Davis Trial Transcript, supra note 139.

152 Id.

153 Id. at 1501 (emphasis added).

154 Id.

155 See GARRETT, supra note 1, at 143 (explaining several states' limitations on jailhouse snitch testimony).

156 Id. at 142 (stating that the Supreme Court relies on traditional litigation tools, like cross-examination, to combat the potential for error in snitch testimony).

157 556 U.S. 586 (2008).

158 Id. at 594 n.* (rejecting the suggestion that the Court craft a broader rule to exclude uncorroborated jailhouse snitch testimony).

159 Id. at 588-89.

160 Id.

161 Id.

162 Id. at 589.

163 Id.

164 Id.

165 Id. (quoting State v. Ventris, No. 94,002, 2006 WL 2661161, at *3 (Kan. Ct. App. Sept. 15, 2006)).

166 Id.

167 Id. (citing State v. Ventris, 176 P.3d 920, 928 (Kan. 2008)).

168 Id. at 594 n.*.

169 Id.

170 Id. (quoting Spencer v. Texas, 385 U.S. 554, 564 (1967)); see also United States v. Scheffer, 523 U.S. 303, 313 (1998) (“A fundamental premise of our criminal trial system is that ‘the jury is the lie detector.”’ (quoting United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973))).

171 Ventris, 556 U.S. at 594.

172 See, e.g., Parrish v. Commonwealth, 121 S.W.3d 198, 203 (Ky. 2003) (rejecting a claim that testimony of a jailhouse informant should have been excluded because it was inherently suspect, and its reliability should have been the subject of a cautionary admonition because the rule is that “the credibility of witnesses and the weight to be given sworn testimony are matters for the jury to decide”).

173 See Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (stating that “it is the job of the fact finder, not the trial court, to determine which source is more credible and reliable”).

174 509 U.S. 579 (1993).

175 Id. at 596.

176 State v. Lawson, 291 P.3d 673, 695 (Or. 2012).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 32 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

177 Id. at 695 n.9 (citing R.C.L. Lindsey et al., Can People Detect Eyewitness-Identification Inaccuracy Within and Across Situations?, 66 J. APPLIED PSYCHOL. 79 (1981)).

178 Frederick Schauer & Barbara A. Spellman, Is Expert Evidence Really Different?, 89 NOTRE DAME L. REV. 1, 18-19 (2013) (arguing that the relevancy standard for factual evidence may be too lax).

179 See United States v. Karake, 443 F. Supp. 2d 8, 50 (D.D.C. 2006) (“A long line of Supreme Court precedent makes clear, ‘confessions which are involuntary, i.e., the product of coercion, either physical or psychological,’ are inadmissible....” (quoting Rogers v. Richmond, 365 U.S. 534, 540-41 (1961))).

180 499 U.S. 279 (1991).

181 Id. at 292 (quoting Cruz v. New York, 481 U.S. 186, 195 (1987) (White, J., dissenting)).

182 Id. at 293.

183 See Cassidy, supra note 61, at 1167 n.215 (noting that “[e]xamples abound of significant inducements to accomplice witnesses that were hidden from the defense at trial”); Harvey A. Silverglate, The Decline and Fall of Mens Rea, CHAMPION, Sept.-Oct. 2009, at 14, 18 (noting that “in practice, many types of inducements and threats often are implied, the subject of a knowing wink of the eye by the prosecutor to the prospective witness's lawyer”), available at http://www.threefeloniesaday.com/LinkClick.aspx? fileticket=rdMd9mcf5ZA % 3D&tabid=38.

184 Cassidy, supra note 61, at 1144 n.80.

185 Id. at 1129.

186 Id. at 1142.

187 Ponticelli v. State, 941 So. 2d 1073, 1085 (Fla. 2006).

188 Id.

189 Id.

190 Cassidy, supra note 61, at 1148.

191 Willingham v. Cockrell, No. 02-10133, 2003 WL 1107011 (5th Cir. Feb. 17, 2001).

192 Id. at *1.

193 Paul Gianelli, Junk Science and the Execution of an Innocent Man, 7 N.Y.U. J.L. & LIBERTY 221, 234 (2013) (explaining that lawyers seeking a posthumous exoneration of Willingham have uncovered records indicating that, in fact, prosecutors reduced charges against Webb from aggravated robbery to simple robbery and also advocated on his behalf at a clemency hearing, citing his participation in the Willingham case as a basis).

194 Id. at 233-34; see Brandi Grissom, Citing New Evidence, Urging a Posthumous Pardon in 1992 Case, TEX. TRIB., Sept. 26, 2013, at A19A, available at http://www.nytimes.com/2013/09/27/us/citing-new-evidence-urging-a-posthumous-pardon-in-1992-case.html? _r=0.

195 Gianelli, supra note 193, at 233-34.

196 Id. at 234-35 (noting also that Webb later admitted to a reporter from the New Yorker magazine that he might have “misunderstood” Willingham, adding “[t]he statute of limitations has run out on perjury, hasn't it?”).

197 See Cameron Todd Willingham: Wrongfully Convicted and Executed in Texas, INNOCENCE PROJECT, http:// www.innocenceproject.org/Content/Cameron_Todd_ Willingham_Wrongfully_Convicted&uscore;and_Executed_in_Texas.php (last visited Sept. 1, 2014); David Grann, Trial By Fire: Did Texas Execute an Innocent Man?, NEW YORKER (Sept. 7, 2009), http:// www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 33 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

198 Stephen Bright made this point more generally in the context of death penalty litigation. See Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 YALE L.J. 1835, 1836 (1994).

199 See, e.g., Dansby v. Hobbs, 766 F.3d 809, 821-822 (8th Cir. 2014) (discussing the trial court's enforcement of the motion in limine precluding “the defense from mentioning or attempting to elicit testimony from any witness regarding the reason for [the jailhouse snitch's] incarceration” (internal quotation marks omitted)).

200 See, e.g., C. Blaine Elliott, Life's Uncertainties: How to Deal with Cooperating Witnesses and Jailhouse Snitches, 16 CAP. DEF. J. 1, 10 (2003) (“A defense witness whose freedom is at stake is often too scared of retribution to come forward and offer valuable exculpatory evidence.”).

201 See, e.g., id. at 1 (describing the story of one man wrongfully convicted of murder because a snitch lied about a confession).

202 See GRAND JURY REPORT, supra note 14, at 18, 30.

203 See id.

204 See id. at 39.

205 Id.

206 NATAPOFF, supra note 3, at 186.

207 Id.

208 Brief of the NACDL, supra note 2, at 3.

209 Id.

210 See Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55, 86-87 (2008).

211 5 AM. JUR. 2D Appellate Review § 641 (2014).

212 See supra Subpart III.A.

213 People v. Lopes, No. C041516, 2004 WL 418350, at *1 (Cal. Ct. App. Mar. 8, 2004).

214 Id.

215 Id.

216 Id.

217 Id.

218 Id.

219 Id.

220 Id. at *1-2.

221 A fourth witness who knew nothing of the case at bar testified about an incident occurring after the attack in which the defendant and others allegedly fondled a teenage girl. Id. at *3.

222 Id. at *2.

223 Id. at *3.

224 .Id.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 34 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

225 Id.

226 Id.

227 Id.

228 Id.

229 Id.

230 Id.

231 Id.

232 Id.

233 Id.

234 Id. at *1.

235 Id. at *5.

236 Id. at *3 (noting that a jailhouse snitch's “statement that he talked with defendant while they worked mornings together at the same job in the jail yard was shown to be untrue, as defendant never had a morning job”).

237 Ashley v. State, 439 S.E.2d 914, 915-16 (Ga. 1994).

238 Id. at 916.

239 As the court noted on appeal: During defense counsel's cross-examination of Bates, the witness admitted that he had previously given police officers false information about the case; that he had been convicted six times for forgery; that he had just been released from the mental health unit of a state correctional institution; and that he had mental health problems and was being treated with Prozac. Defense counsel sought to present testimony from an assistant district attorney that, in another murder case, Bates had given authorities false information concerning the identity of the perpetrator in exchange for favorable treatment from the authorities. The trial court refused to allow the evidence after sustaining the State's objection that it was irrelevant and collateral. Id.

240 See Brief of Appellant, Ashley v. State, 439 S.E.2d 914 (Ga. 1994) (No. S93A1989), 1993 WL 13035276, at *24-25.

241 Id.

242 Id.

243 Ashley, 439 S.E.2d at 917.

244 Parolee Database, ST. BOARD. PARDONS & PAROLES (Oct. 18, 2011), http://www.pap.state.ga.us/ParoleeDatabase/ (search “Inmate Number” for “219088”).

245 See generally Anne Bowen Poulin, Convictions Based on Lies: Defining Due Process Protection, 116 PENN ST. L. REV. 331 (2011).

246 Davis v. State, 660 S.E.2d 354, 358-59 (Ga. 2008) (affirming a denial of a motion for a new trial despite recantations by several prosecution witnesses).

247 In re Davis, No. CV409-130, 2010 WL 3385081, at *48 (S.D. Ga. Aug. 24, 2010).

248 Evidentiary Hearing Transcript at 36-37, In re Davis, (No. 09CV00130), 2010 WL 8032222.

249 Id. at 27-30.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 35 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

250 In re Davis, 2010 WL 3385081, at *48.

251 See, e.g., Petition for a Writ of Certiorari at 25, Davis, 660 S.E.2d 354 (No. 08-66), 2008 WL 4366181 (presenting McQueen's recantations as a reason for the Supreme Court of Georgia to reconsider Davis's conviction).

252 .See, e.g., Davis v. Turpin, 539 S.E.2d 129, 134 (Ga. 2001) (holding that Davis had procedurally defaulted on his constitutional claims by failing to raise them on direct appeal).

253 In re Davis, 2010 WL 3385081, at *54.

254 .Id.

255 .Id. at *60.

256 Id. at *61; Kim Severson, Georgia Inmate Executed; Raised Racial Issues in Death Penalty, N.Y. TIMES, Sept. 22, 2011, at A1.

257 Maxwell v. Roe, 628 F.3d 486, 491 (9th Cir. 2010).

258 Id. at 513.

259 Id. at 504-05.

260 Cash v. Maxwell, 132 S. Ct. 611, 613 (2012).

261 Id. at 614 (Scalia, J., dissenting).

262 Id. at 615.

263 Id. at 612 (Sotomayor, J., concurring) (internal citations omitted).

264 But see, e.g., Ex parte Weinstein, 421 S.W.3d 656, 659 (Tex. Crim. App. 2014) (denying habeas relief despite false witness testimony on the grounds that said testimony was immaterial to the verdict).

265 Garrett, supra note 210, at 64.

266 Id. at 86.

267 Id. at 93.

268 Id. at 86-87.

269 Poulin, supra note 245, at 334.

270 See, e.g., THE SNITCH SYSTEM, supra note 15; Alexandra Natapoff, Comment, Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 GOLDEN GATE U. L. REV. 107, 107-29 (2006); David Protess, A Tale of Two Snitches, HUFFINGTON POST (Aug. 10, 2013, 5:12 AM ), http:// www.huffingtonpost.com/david-protess/reynaldo-guevara_b_3397012.html.

271 See, e.g., NATAPOFF, supra note 3, at 192-99; Harris, supra note 78, at 49-58.

272 The authors of a 2007 PEW Charitable Trust study on jailhouse snitches, for instance, condemned their use but advocated a set of reforms, including corroboration, “pretrial disclosures, reliability hearings, and special jury instructions” instead of a categorical ban. THE JUSTICE PROJECT, supra note 2. Rory Little has urged a categorical exclusion of six types of unreliable evidence most frequently linked to wrongful convictions, including jailhouse informant testimony, in capital cases. See Rory K. Little, Addressing the Evidentiary Sources of Wrongful Convictions: Categorical Exclusion of Evidence in Capital Statutes, 37 SW. U. L. REV. 965, 968-69 (2008). Other occasional calls for a total ban have been made. See, e.g., Robert M. Bloom, Jailhouse Informants, 18 A.B.A. SEC. CRIM. JUST. 20, 78 (2003) (“The best way to deal with perjured testimony is to exclude it, and in light of the evidence that testimony from a jailhouse informant is so often false, it, too, should be subject to exclusion.”).

273 See, e.g., DWYER ET AL., supra note 11, at 157; Harris, supra note 78, at 61-62.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 36 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

274 N ATAPOFF, supra note 3, at 194.

275 Id.

276 Id. at 194-95 (identifying Illinois, Oklahoma, and Nevada as mandating pretrial reliability hearings for jailhouse-informant testimony); see D'Agostino v. State, 823 P.2d 283, 285 (Nev. 1991); Dodd v. State, 993 P.2d 778, 784 (Okla. Crim. App. 2000).

277 NATAPOFF, supra note 3, at 195; see Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587-90 (1993).

278 Harris, supra note 78, at 63-64.

279 Id. at 63.

280 Id. at 64-65.

281 See, e.g., Schauer & Spellman, supra note 178, at 19 (noting the “mistaken belief that judges and juries are competent evaluators of the veracity of those who are offering [direct evidence] testimony”).

282 Saul M. Kassin & Christina T. Fong, “I'm Innocent!”: Effects of Training on Judgments of Truth and Deception in the Interrogation Room, 23 LAW & HUM. BEHAV. 499, 501 (1999) (internal citations omitted); see also Gary D. Bond, Deception Detection Expertise, 32 LAW & HUM. BEHAV. 339, 339 (2008) (citing research studies finding that subjects were generally unable to identify lies at a rate greater than chance).

283 See Christian A. Meissner & Saul M. Kassin, “He's Guilty!”: Investigator Bias in Judgments of Truth and Deception, 26 LAW & HUM. BEHAV. 469, 471 (2002).

284 Kassin & Fong, supra note 282, at 500-01; see also Bella M. DePaulo et al., The Accuracy-Confidence Correlation in the Detection of Deception, 1 PERSONALITY & SOC. PSYCHOL. REV. 346, 346 (1997).

285 DePaulo et al., supra note 284.

286 See HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 55-59 (Phoenix ed., 1971); Martin Guggenheim & Randy Hertz, Reflections on Judges, Juries, and Justice: Ensuring the Fairness of Juvenile Delinquency Trials, 33 WAKE FOREST L. REV. 553, 562-63 (1998).

287 KALVEN & ZEISEL, supra note 286; see also Guggenheim & Hertz, supra note 286 (discussing research).

288 Guggenheim & Hertz, supra note 286, at 568.

289 Melanie D. Wilson, Improbable Cause: A Case for Judging Police by a More Majestic Standard, 15 BERKELEY J. CRIM. L. 259, 267-68 (2010).

290 Id. at 267 (citing studies that conclude judges “knowingly acquiesce in police perjury so that they too avoid letting a guilty defendant escape prosecution”).

291 Id. at 265.

292 Id. at 264-65 (studying judicial resolution of claims of police perjury brought by criminal defendants).

293 See Jennifer E. Koepke, Note, The Failure to Breach the Blue Wall of Silence: The Circling of the Wagons to Protect Police Perjury, 39 WASHBURN L.J. 211, 222 (2000) (summarizing reasons that judges are reluctant to find police perjury).

294 See Susan D. Rozelle, Daubert, Schmaubert: Criminal Defendants and the Short End of the Science Stick, 43 TULSA L. REV. 597, 606 (2007).

295 Id. at 599-600.

296 Id.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 37 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

297 GARRETT, supra note 1, at 256.

298 725 ILL. COMP. STAT. 5 / 115-21(c) (1993).

299 NATAPOFF, supra note 3.

300 See Dodd v. State, 993 P.2d 778, 784 (Okla. Crim. App. 2000).

301 Id.

302 See NATAPOFF, supra note 3, at 192; Harris, supra note 78, at 62 (calling for enhanced discovery requirements in cases of all cooperating witnesses, including electronic recording of all ex parte discussions with the cooperator).

303 Harris, supra note 78, at 53.

304 Bennett L. Gershman, Witness Coaching by Prosecutors, 23 CARDOZO L. REV. 829, 833 (2002).

305 Harris, supra note 78, at 53.

306 As one commentator noted, “The likelihood of fabrication resulting from bargained-for testimony is simply too great to rely on a prosecutor's honor and good faith in meeting his discovery obligations” with respect to incentivized witnesses. Cassidy, supra note 61, at 1176.

307 Cf. Christine J. Saverda, Accomplices in Federal Court: A Case for Increased Evidentiary Standards, 100 YALE L.J. 785, 798 (1990) (arguing that corroboration requirements should apply for all compensated informants).

308 See Peter A. Joy, Constructing Systematic Safeguards Against Informant Perjury, 7 OHIO ST. J. CRIM. L. 677, 680-81 (2010) (quoting ABA Res. 108(b), adopted by the House of Delegates (Feb. 15, 2005)). Defendants have argued for adoption of corroboration requirements unsuccessfully in some states. See, e.g., State v. Walker, 82 A.3d 630, 635 (Conn. App. Ct. 2013); see also ABA CRIMINAL JUSTICE SECTION, ACHIEVING JUSTICE: FREEING THE INNOCENT, CONVICTING THE GUILTY 63 (Paul C. Giannelli & Myrna Raeder eds., 2006) (urging reforms of state rules regarding jailhouse informants).

309 TEX. CODE CRIM. PROC. ANN. art. 38.075 (West 2014).

310 CAL. PENAL CODE § 1111.5 (Deering 2008).

311 Id. (“The testimony of an in-custody informant shall be corroborated by other evidence that connects the defendant with the commission of the offense, the special circumstance, or the evidence offered in aggravation to which the in-custody informant testifies.”); TEX. CODE CRIM. PROC. ANN. art. 38.075 (“A defendant may not be convicted of an offense on the testimony of a person...imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.”).

312 Compare CAL. PENAL CODE § 1111.5, with CAL. PENAL CODE § 1111 (Deering 2008).

313 Hernandez v. State, No. 03-10-00863-CR, 2013 WL 3723203, at *4 (Tex. App. July 11, 2013); see also Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994).

314 CAL. PENAL CODE § 1111.

315 Id.; see People v. Davis, 217 Cal. App. 4th 1484, 1490 (2013).

316 See, e.g., People v. Washington, Nos. A118349, A123088, 2009 WL 714512, at *9 (Cal. Ct. App. Mar. 19, 2009) (citing People v. Williams, 940 P.2d 710, 772 (Cal. 1997)); Ramirez v. State, 754 S.E.2d 325, 327 (Ga. 2014).

317 See, e.g., Whitley v. Ercole, 725 F. Supp. 2d 398, 404 (S.D.N.Y. 2010) (affirming conviction based on testimony of jailhouse informant where informant's testimony was corroborated by other jailhouse informants).

318 State v. Churchwell, No. M2011-00950-CCA-R3-CD, 2013 WL 430118, at *7 (Tenn. Crim. App. Feb. 4, 2013) (citing Ashby v. State, 139 S.W. 872 (Tenn. 1911)).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 38 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

319 See id. (holding that the bodies of shooting victims established that a criminal offense had occurred, and therefore the corpus delicti rule was not violated by admission of a jailhouse informant's testimony that the defendant confessed to the crime). Connecticut makes corroboration of a jailhouse snitch's testimony a factor in determining whether a failure to instruct the jury about the potential unreliability of a jailhouse informant was harmless error. See State v. Ebron, 975 A.2d 17, 29 (Conn. 2009); State v. Arroyo, 973 A.2d 1254, 1262-63 (Conn. 2009).

320 Robert P. Mosteller, The Special Threat of Informants to the Innocent Who Are Not Innocents: Producing “First Drafts,” Recording Incentives, and Taking a Fresh Look at the Evidence, 6 OHIO ST. J. CRIM. L. 519, 551-52 (2009).

321 Id.

322 At the same time, cases in which the only evidence against a defendant is jailhouse snitch testimony--though they certainly exist-- are likely to be highly disfavored by prosecutors. After all, even jurors prone to be misled by fundamental attribution error will be hard-pressed to convict a defendant where there is absolutely no other evidence of guilt than the uncorroborated say-so of a single jailhouse snitch. I say a single snitch here advisedly, because in California, at least, jailhouse snitch testimony provided by two different snitches will satisfy the corroboration requirement, as long as the snitches did not have an opportunity to conspire among themselves. See CAL. PENAL CODE § 1111.5 (Deering 2008).

323 The Sixth Amendment bars the State from “deliberately eliciting”-- either directly or through its agents--incriminating statements from criminal defendants. See Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986); United States v. Henry, 447 U.S. 264, 270 (1980). However, the prohibition only applies with respect to crimes as to which the defendant has been charged. See Texas v. Cobb, 532 U.S. 162, 163 (2001).

324 See GRAND JURY REPORT, supra note 14, at 27-28.

325 Brandon L. Garrett, The Substance of False Confessions, 62 STAN. L. REV. 1051, 1053 (2010).

326 Id. at 1113 (examining dozens of exonerations involving false confessions and finding that “[i]n many cases...police likely disclosed [[critical] details during interrogations by telling exonerees how the crime happened”).

327 Id. at 1118.

328 Id.

329 Id.

330 See, e.g., GARRETT, supra note 1, at 247. Some jurisdictions already require such procedures. In Los Angeles County, for example, “the District Attorney's office...requires tape-recording of all interviews with jailhouse informants and preservation of these recordings, as well as any other records of interaction and use of jailhouse informants.” Handy, supra note 29, at 760; see also Gershman, supra note 304, at 861-62; Mosteller, supra note 320, at 560-61, 560 n.193.

331 See, e.g., NATAPOFF, supra note 3, at 197.

332 California is one such state. See CAL. PENAL CODE § 1127a(b) (Deering 2008) (requiring courts to instruct the jury on in-custody informant testimony). Other states include Montana and Oklahoma, which require special jury instructions on informant credibility when a jailhouse informant testifies. See State v. Grimes, 982 P.2d 1037, 1043 (Mont. 1999); Dodd v. State, 993 P.2d 778, 784 (Okla. Crim. App. 2000). Some states require cautionary jury instructions only where a jailhouse informant's testimony lacks corroboration. See People v. Petschow, 119 P.3d 495, 504 (Colo. App. 2004); State v. James, No. 96-CA-17, 1998 WL 518135, at *5 (Ohio Ct. App. Mar. 25, 1998); State v. Spiller, No. 00-2897-CR, 2001 WL 1035213, at *5 (Wis. Ct. App. Sept. 11, 2001).

333 See, e.g., Anthony N. Doob & Hershi M. Kirshenbaum, Some Empirical Evidence on the Effect of s. 12 of the Canada Evidence Act upon an Accused, 15 CRIM. L.Q. 88, 91-95 (1972) (finding that mock jurors who learned of a defendant's prior convictions were more likely to convict regardless of whether they received instructions to disregard the prior convictions). But see David Alan Sklansky, Evidentiary Instructions and the Jury as Other, 65 STAN. L. REV. 407, 423-39 (2013) (reviewing empirical studies and concluding that “evidentiary instructions work, albeit imperfectly”).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 39 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

334 Sara Gordon, Through the Eyes of Jurors: The Use of Schemas in the Application of “Plain-Language” Jury Instructions, 64 HASTINGS L.J. 643, 645 (2013) (reporting that “studies have almost universally returned results finding that, by and large, jurors are confused by jury instructions and often disregard them”).

335 See, e.g., Thomas R. Carretta & Richard L. Moreland, The Direct and Indirect Effects of Inadmissible Evidence, 13 J. APP. SOC. PSYCHOL. 280, 291 (1983) (reporting that mock jurors presented with inadmissible evidence were more likely to convict than jurors not presented with the evidence notwithstanding judicial instructions to disregard it); Saul Kassin & Samuel R. Sommers, Inadmissible Testimony, Instructions to Disregard, and the Jury: Substantive Versus Procedural Considerations, 23 PERSONALITY & SOC. PSYCHOL. BULL. 1046 (1997) (finding that mock jurors exposed to incriminating evidence were more likely to view the defendant as guilty than jurors not exposed to that evidence notwithstanding instructions to ignore it); Lisa Eichorn, Note, Social Science Findings and the Jury's Ability to Disregard Evidence Under the Federal Rules of Evidence, 52 LAW & CONTEMP. PROBS. 341, 347 (1989).

336 Cindy E. Laub et al., Can the Courts Tell an Ear from an Eye? Legal Approaches to Voice Identification Evidence, 37 LAW & PSYCHOL. REV. 119, 156 (2013) (evaluating research on cautionary instructions regarding the reliability of eyewitness testimony); see also Sklansky, supra note 333, at 429.

337 Richard A. Leo et al., Promoting Accuracy in the Use of Confession Evidence: An Argument for Pretrial Reliability Assessments to Prevent Wrongful Convictions, 85 TEMP. L. REV. 759, 823 (2013).

338 Gary Edmond & Kent Roach, A Contextual Approach to the Admissibility of the State's Forensic Science and Medical Evidence, 61 U. TORONTO L.J. 343, 366-67 (2011).

339 Jackson v. Denno, 378 U.S. 368, 376 (1964).

340 Id. at 386 (1964).

341 See, e.g., Arizona v. Fulminante, 499 U.S. 279, 296 (1991); Hopt v. Utah, 110 U.S. 574, 585 (1884).

342 As the Supreme Court long ago observed: But the presumption upon which weight is given to such evidence, namely, that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made either in consequence of inducements of a temporal nature, held out by one in authority, touching the charge preferred, or because of a threat or promise by or in the presence of such person, which, operating upon the fears or hopes of the accused, in reference to the charge, deprives him of that freedom of will or self-control essential to make his confession voluntary within the meaning of the law. Hopt, 110 U.S. at 585.

343 499 U.S. at 296.

344 There was, moreover, some reason to doubt the credibility of Sarivola, the jailhouse informant. Sarivola was associated with the Columbo crime family and convicted for loan sharking, extortion, and illegal debt-collection practices. Brief of Respondent at 11, Arizona v. Fulminante, 499 U.S. 279 (1990) (No. 89-839), 2009 WL 507414. He was also a paid informant for the FBI who received payment for relaying “incriminating statements from targeted suspects.” Id. On one occasion, Sarivola produced a fake audio tape containing purportedly incriminating statements made by another inmate. Id. at 12. He ultimately admitted that the tape was a “phony,” but the FBI continued to use his services even after learning of the fraud. Id. at 6-7.

345 Fulminante, 499 U.S. at 282.

346 Id. at 283.

347 Id.

348 Id.

349 Id.

350 Id.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 40 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

351 Id. at 283-84.

352 Id. at 284.

353 Id.

354 Id. at 284-85.

355 Id. at 288 (White, J., dissenting).

356 Id. at 296 (quoting Bruton v. United States, 391 U.S. 123, 139-40 (1968) (White, J., dissenting)).

357 Id. at 288, 295.

358 Id. at 295, 297.

359 Id. at 288-90.

360 Id. at 296.

361 U.S. CONST. amend. V.

362 384 U.S. 436 (1966).

363 Id. at 460-61.

364 See, e.g., Crawford v. Washington, 541 U.S. 36, 68 (2004) (holding that testimonial evidence is only admissible where cross- examination is unavailable).

365 See, e.g., Ohio v. Roberts, 448 U.S. 56, 66 (1980).

366 Id.

367 Id.

368 Crawford v. Washington, 541 U.S. 36, 61 (2006).

369 Id. at 53-56.

370 Id. at 61.

371 See Welsh S. White, Regulating Prison Informers Under the Due Process Clause, 1991 SUP. CT. REV. 103, 105 (1991).

372 Cf. id.; see also Rory K. Little, Addressing the Evidentiary Sources of Wrongful Convictions: Categorical Exclusion of Evidence in Capital Statutes, 37 SW. U. L. REV. 965, 977 (2009) (citing polygraph evidence as one long-standing example, and pointing out several categories of evidence proven unreliable in wrongful conviction cases, such as junk science).

373 378 U.S. 368 (1964).

374 Id. at 369-70.

375 Id. at 374-75.

376 Id. at 376.

377 Id. at 380 (quoting Stein v. New York, 346 U.S. 156, 177-78 (1956)).

378 Of course, judges might also presumptively exclude such evidence under Rule 403 on the theory that the probative value of jailhouse snitch testimony is outweighed by its prejudicial impact. See FED. R. EVID. 403.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 41 ABOLISHING JAILHOUSE SNITCH TESTIMONY, 49 Wake Forest L. Rev. 1375

379 Indeed, the common exclusion of hearsay and character evidence is based on “the fear that certain kinds of admittedly relevant evidence will be overvalued by the trier of fact.” Schauer & Spellman, supra note 178, at 3.

380 See ARK. CODE ANN. §§ 12-21-701 to 12-21-704 (2009) (holding inadmissible all “stress evaluation instrument[s] [administered by law enforcement] to test or question individuals for purpose of determining and verifying the truth of statements”); CAL. EVID. CODE § 351.1 (Deering 2004) (“[T]he results of a polygraph examination...shall not be admitted into evidence in any criminal proceeding.”). Such evidence is also precluded in military court martials pursuant to Military Rule of Evidence 707, which provides, in relevant part: “(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence.” MILITARY COMM'N R. EVID. 707.

381 See United States v. Scheffer, 523 U.S. 303, 311 (1998) (affirming the military's per se ban on admissibility of polygraph evidence in court martial proceedings).

382 Id. at 303.

383 293 F. 1013 (D.C. Cir. 1923).

384 Id. at 1013-14.

385 See generally Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); James R. McCall, Misconceptions and Reevaluation-- Polygraph Admissibility After Rock and Daubert, 1996 U. ILL. L. REV. 363 (1996).

386 James Liebman, The Overproduction of Death, 100 COLUM. L. REV. 2030, 2050 n.84 (2000) (citing Ken Armstrong & Steve Mills, Death Row Justice Derailed, CHI. TRIB., Nov. 14, 1999, at N1).

387 Michael Martin, Admission of Hypnotically Refreshed Statements, 214 N.Y. L.J. 3 (1995); Gregory G. Sarno, Annotation, Admissibility of Hypnotic Evidence at Criminal Trial, 92 A.L.R.3 D 442 (1979).

388 W.J. Dunn, Annotation, Question as to Who Are Accomplices, Within Rule Requiring Corroboration of Their Testimony, as One of Law or Fact, 19 A.L.R.2 D 1352 (1951); see also M.C.D., Annotation, Contingency That One May Be Subjected to an Independent Claim or Suit Depending on Outcome of Action in Which He Is Called as a Witness as a Disqualifying Interest Within Statutes Disqualifying One Person as Witness Because of Death of Another, 88 A.L.R. 248 (1934); A.M. Swartout, Annotation, Statute Disqualifying One Person as Witness Because of Death of Another as Applicable to Executor or Administrator of Decedent, 117 A.L.R. 606 (1938).

389 Laurel Gilbert, Comment, Sharpening the Tools of an Adequate Defense: Providing for the Appointment of Experts for Indigent Defendants in Child Death Cases Under Ake v. Oklahoma, 50 SAN DIEGO L. REV. 469, 482 (2013); see FBI Press Release, FBI Laboratory Announces Discontinuation of Bullet Lead Examinations, FBI (Sept. 1, 2005), http://www.fbi.gov/news/pressrel/press- releases/fbi-laboratory-announces-discontinuation-of-bullet-lead-examinations.

390 A bill to bar the use of informant testimony in all death penalty cases was proposed by a Texas legislator, but was not enacted. See Brandi Grissom, Bill Would Restrict Informant Testimony in Death Cases, TEX. TRIB. (Nov. 28, 2012), http:// www.texastribune.org/2012/11/28/bill-would-restrict-informant-testimony-death-case/. 49 WFLR 1375

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 42 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

23 Wm. & Mary Bill Rts. J. 487

William & Mary Bill of Rights Journal December, 2014

Symposium: Atkins V. Virginia: A Dozen Years Later--A Report Card

THE TRUE LEGACY OF ATKINS AND ROPER: THE UNRELIABILITY PRINCIPLE, MENTALLY ILL DEFENDANTS, AND THE DEATH PENALTY'S UNRAVELING

Scott E. Sundby a1

Copyright (c) 2014 Publications Council of the College of William & Mary; Scott E. Sundby

Abstract

In striking down the death penalty for intellectually disabled and juvenile defendants, Atkins v. Virginia and Roper v. Simmons have been understandably heralded as important holdings under the Court's Eighth Amendment jurisprudence that has found the death penalty “disproportional” for certain types of defendants and crimes. This Article argues, however, that the cases have a far more revolutionary reach than their conventional understanding. In both cases the Court went one step beyond its usual two-step analysis of assessing whether imposing the death penalty violated “evolving standards of decency.” This extra step looked at why even though intellectual disability and youth were powerful mitigators, juries were not able to reliably use them in their decisionmaking. The Court thus articulated expressly for the first time what this Article calls the “unreliability principle:” if too great a risk exists that constitutionally protected mitigation cannot be reliably assessed, the unreliability means that the death penalty cannot be constitutionally imposed. In recognizing the unreliability principle, the Court has called into serious question the death penalty for other offenders to whom the principle applies, such as mentally ill defendants. And, unlike with the “evolving standards” analysis, the unreliability principle does not depend on whether a national consensus exists against the practice. This Article identifies the six Atkins-Roper factors that bring the unreliability principle into play and shows why they make application of the death penalty to mentally ill defendants unconstitutional. The principle, which finds its constitutional home in the cases of Woodson v. North Carolina and Lockett v. Ohio, has profound implications for the death penalty, and if taken to its logical endpoint calls into question the Court's core premise since Furman v. Georgia, that by providing individualized consideration of a defendant and his crime, the death penalty decision will be free of arbitrariness.

Introduction 488 I. The Evolution of the “Unreliability Principle” 493 A. The Conventional Account: Atkins and Roper as Proportionality Cases 493 B. The “Unreliability Principle” Gets a Foothold: The Additional Analytical Step in Atkins and 495 Roper C. The History: Individualized Consideration as the Guarantor of Reliability 498 D. The Unreliability Principle: The Next Step in the Precedent 505 E. The Next Step in the Evolution: The Effect of the Unreliability Principle 509 II. Categorical Exclusions Under the Unreliability Principle and Mentally Ill Defendants 511 A. Applying the Atkins-Roper Unreliability Factors to Mental Illness 512 1. Mental Illness and the Impairment of the Defendant's Cooperation with his Lawyer and of 512 the Lawyer's Ability to Prepare a Defense 2. The Mentally Ill Defendant as a “Poor Witness” 515 3. Mental Illness and Distortion of the Defendant's Decisionmaking 516 4. Mental Illness as the “Two-Edged Sword” Turning Mitigation into Aggravation 518 5. Mental Illness, Experts, and Scientific Uncertainty 520 6. The Crime's “Brutality” and the Mentally Ill Defendant 522 B. Defining Mental Illness as a Categorical Exclusion from the Death Penalty 523

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

III. The Unreliability Principle and the Unraveling of the Death Penalty 524 Conclusion 528

*488 Introduction

After the Supreme Court in 1972 condemned the death penalty framework in use at the time as unconstitutionally arbitrary and capricious in Furman v. Georgia, 1 many, including at least several Justices, expected the punishment to fade away in the aftermath. 2 In the next four years, however, thirty-five states and Congress rushed to pass new death penalty schemes, 3 leaving the Court with the bewildering task of *489 trying to figure out if a way existed to correct the fundamental flaws that it had identified in Furman. 4 The Court's struggles in the ensuing decades to design and maintain a constitutional system of capital punishment has consumed more of the Court's docket and energy than perhaps any other constitutional controversy. 5

Out of fairness to the Court, it is hard to imagine a task of greater difficulty and immensity-how does one bring rationality, reliability, and consistency to the moral and highly emotional judgment by one human being over another as to whether that person should live or die? The challenge would be difficult enough for a philosopher or a theologian, but it is especially daunting for a Court tasked with bringing the decision within the bounds of the rule of law. In fact, but a year before Furman, Justice Harlan had suggested that the task was impossible: “To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.” 6 Yet, despite Justice Harlan's warning, five years later the Court found itself trying to do exactly what Harlan had declared as “beyond present human ability,” and, as a result, the Court has found itself engaged in an unparalleled level of constitutional micromanagement.

Indeed, in dealing with the aftermath of Furman, the Court has resembled more of an overwhelmed constitutional triage unit than a solemn body of judgment as it has rushed to each newly identified constitutional breach and erected a new rule. We now have constitutional rules specific to capital punishment governing aggravating factors, 7 mitigating factors, 8 the weighing of mitigating and aggravating factors, 9 victim *490 impact evidence, 10 rape of an adult, 11 rape of a child, 12 felony murder, 13 intellectual disability, 14 age, 15 lethal injection, 16 future dangerousness, 17 incompetence to be executed, 18 jurors who have doubts about the death penalty, 19 jurors who are too strongly for the death penalty, 20 jurors where race is an issue, 21 how individual jurors should consider mitigation, 22 not diminishing a juror's sense of responsibility in imposing the death penalty, 23 what jurors must be told about alternative penalties, 24 deadlocked juries, 25 lesser included offense instructions, 26 equal protection claims at sentencing, 27 *491 Miranda as applied to psychiatric exams for capital defendants, 28 claims of innocence, 29 ineffective assistance, 30 prosecutorial misconduct, 31 and clemency. 32

And lest one think that these rules are simple clear-cut statements of law, each rule has spawned its own elaborate subset of cases where the Court has tried to clarify, refine, and spot-fix the problems that inevitably spring up with the announcement of a new rule. 33 The result has been the creation of a tangle of rules and rules-that-clarify rules unlike any other area of the Constitution as the Court has strained to contain the death penalty decision within the rule of law. And in the background of all these rulings still looms the question that Justice Harlan posed on the eve of Furman: does the very nature of the death penalty question simply defy the rule of law and the ability to ensure reliability and consistency?

This Article returns to that question, as have many articles and cases through the years, but through a prism of cases that generally have not been thought of as bearing directly on the question: the Court's landmark holdings in Atkins v. Virginia 34 and *492 Roper v. Simmons, 35 the cases that struck down the death penalty for intellectually disabled and juvenile defendants. While those cases have been properly heralded as important holdings under the Court's continuing Eighth Amendment jurisprudence that has found the death penalty “disproportional” for certain types of defendants and crimes, it turns out that their holdings also contain reasoning with the potential for a far greater impact on the death penalty. Indeed, this Article will show that,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill... properly understood, the cases are less about proportionality and more about a different line of cases, a series of holdings that have focused on individualized sentencing and the need for heightened reliability in capital sentencing. Looked at from this perspective, Atkins and Roper are anything but conventional Eighth Amendment proportionality cases, and instead involve the Court acknowledging for the first time that certain types of mitigation are simply beyond the ken of the capital sentencer.

This acknowledgment, which we will call the “unreliability principle,” has profound implications for the death penalty if applied honestly in future cases. At a minimum, the cases call into serious question the death penalty for other offenders where the unreliability principle applies, such as the category of mentally ill defendants. 36 And if taken to its logical endpoint, the unreliability principle simply cannot *493 be reconciled with the very premise that underlies the Court's efforts to construct a constitutional death penalty: the premise that the death penalty decision can be a rational decision-making process while still fully considering the capital defendant as an individual.

I. The Evolution of the “Unreliability Principle”

A. The Conventional Account: Atkins and Roper as Proportionality Cases

The Court's zig-zagging death penalty jurisprudence is on full display when looking at the Court's cases addressing the constitutionality of applying the death penalty to intellectually disabled and juvenile defendants. In holding that intellectually disabled defendants are beyond the death penalty's reach, Atkins came a mere thirteen years, barely a blink of an eye in constitutional time, after the Court in Penry v. Lynaugh 37 had rejected the very same claim. 38 And Roper constituted only a slightly longer Eighth Amendment about-face, removing juveniles from death-penalty eligibility sixteen years after the Court had declined to do so in Stanford v. Kentucky. 39 Given that the Court's Eighth Amendment proportionality jurisprudence is premised on the notion of “evolving standards of decency,” 40 the relative brevity of time suggests that the two cases are not simply new branches on the Eighth Amendment evolutionary tree, but represent a significant development in the very course of evolution in the death penalty area.

This change in evolutionary course is not self-evident upon first reading Atkins and Roper. The Court appears to simply follow the established framework for looking at whether a category of cases violates the Eighth Amendment because the punishment is so disproportionate that it “violates evolving standards of decency.” 41 *494 Since approving in 1976 the “guided discretion” 42 death penalty schemes that purported to cure the arbitrariness identified in Furman, 43 the Court has utilized a two-step process in assessing whether any specific category of capital cases violates “evolving standards.” In the first step, the Court looks to “objective factors” such as legislative trends, the number of death sentences imposed, and executions carried out, to see if a consensus has emerged against the practice. 44 After undertaking the first step and giving the objective evidence “great importance,” 45 the Court takes a second step in which “the Constitution contemplates that in the end [the Court's] own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” 46 Under this second step, the Court looks at whether the death penalty would fulfill the penological purposes of retribution and deterrence and, therefore, if “there is reason to disagree with the judgment reached by the citizenry and its legislators.” 47 Leading up to Atkins and Roper, the Court had used the proportionality principle to bar the death penalty from being applied to crimes such as non-homicidal rape and simple felony murder. 48

And it was to this familiar two-step formula that the Court turned in Atkins and Roper. In applying the first step in Atkins, Justice Stevens explained that a look at “objective factors” showed that a “dramatic shift in the state legislative landscape . . . ha[d] occurred” since Penry, and that a public sentiment against executing the intellectually disabled had emerged. 49 In Roper, Justice Kennedy looked to “the rejection *495 of the juvenile death penalty in the majority of States; the infrequency of its use . . . ; and the consistency in the trend toward abolition” to find that “today our society views juveniles” as “‘categorically less culpable than the average criminal.”’ 50 While the dissenters took issue with how the majorities in Atkins and Roper took

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill... the nation's pulse to see if a consensus existed, 51 on the whole the examination of the “objective factors” was in line with the Court's prior disproportionality analysis.

Pursuant to its precedent, the Court next “exercise[d] . . . [its] own independent judgment” under the second step by looking at whether the death penalty served capital punishment's retributive and deterrent purposes. In Atkins, the majority concluded that, retributively, intellectually disabled individuals did not possess the culpability necessary to place them among “the narrow category” of those “most deserving” of the death penalty. 52 Moreover, their impairments meant that they could not engage in the “cold calculus” necessary for a punishment to have a deterrent effect. 53 In Roper, Justice Kennedy followed the same analytical path in concluding that juveniles' immaturity meant that they “cannot with reliability be classified among the worst offenders,” 54 and that “‘[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent.”’ 55 Based on the classic two-step “evolving standards” analysis, each majority opinion thus concluded that the death penalty was a violation of the Eighth Amendment.

B. The “Unreliability Principle” Gets a Foothold: The Additional Analytical Step in Atkins and Roper

If Atkins's analysis had concluded at this point as in prior proportionality cases, the opinion would have added by accretion to the Court's body of “evolving standards” case law, but would not have broken any new constitutional analytical ground. Justice Stevens, however, did not stop there, but proceeded to offer an additional “justification” to the conventional two-step analysis: The risk “that the death penalty will be imposed [on intellectually disabled defendants] in spite of factors which may call for a less severe penalty,” Lockett v. Ohio, 438 U.S. 586, 605 (1978), is *496 enhanced, not only by the possibility of false confessions, but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes. . . . [M]oreover, reliance on mental retardation as a mitigating factor can be a two-edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury. [ [Penry v. Lynaugh, 492 U.S. 302, 323-25 (1989)] Mentally retarded defendants in the aggregate face a special risk of wrongful execution. 56 While the full meaning of this justification will be unpacked in detail later, 57 this additional justification planted the seed of a very powerful Eighth Amendment concept that this Article calls the “unreliability principle”: if too great a risk exists that constitutionally protected mitigation cannot be properly comprehended and accounted for by the sentencer, the unreliability that is created means that the death penalty cannot be constitutionally applied.

Perhaps if the Court had not returned to the idea, the unreliability principle would have remained a nascent idea lying dormant in Atkins's holding. The Court, however, invoked the principle again but three years later in Roper. In Roper, the State had argued in part that a categorical ban on the death penalty for juveniles was unnecessary because jurors already were allowed to take youth into account as a mitigating circumstance on a case-by-case basis. 58 In rejecting this argument for the majority, Justice Kennedy again invoked the idea that the mitigation at stake was beyond the sentencer's ken, arguing that the very nature of a capital crime made it almost impossible for a jury to properly assess the mitigating circumstance: An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. In some cases a defendant's youth may even be counted against him. In this very case, as we noted above, the prosecutor argued Simmons' youth was aggravating rather than mitigating. 59 *497 Importantly, the Court further elaborated that while theoretically it might be possible to add yet another rule requiring jurors to be instructed to consider youth as mitigation, any such piecemeal fix could not ensure sufficient reliability:

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

While this sort of overreaching could be corrected by a particular rule to ensure that the mitigating force of youth is not overlooked, that would not address our larger concerns. It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. As we understand it, this difficulty underlies the rule forbidding psychiatrists from diagnosing any patient under 18 as having antisocial personality disorder, a disorder also referred to as psychopathy or sociopathy, and which is characterized by callousness, cynicism, and contempt for the feelings, rights, and suffering of others. If trained psychiatrists with the advantage of clinical testing and observation refrain, despite diagnostic expertise, from assessing any juvenile under 18 as having antisocial personality disorder, we conclude that States should refrain from asking jurors to issue a far graver condemnation-that a juvenile offender merits the death penalty. When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity. 60

Roper thus strongly reinforced Atkins's recognition that if circumstances prevent a juror from being able to give proper consideration to constitutionally protected mitigation, the death penalty categorically cannot be imposed. And here is the interesting aspect of Atkins and Roper's recognition of the unreliability principle: while on the one hand this principle constitutes a significant new development in Eighth Amendment law, the principle itself has roots deeply imbedded in the Court's constitutional doctrine. Indeed, by taking a step back and looking at the unreliability principle's place in the overall constitutional scheme, one can see that the principle is but a natural step in the evolution of the Court's Eighth Amendment doctrine. The key to understanding this evolution, however, is to look at Atkins and Roper not as proportionality cases, but, rather, as the logical and inevitable progression of a different line of Eighth Amendment cases, the Court's requirement that the death penalty only be imposed after a sentencer has given a defendant full “individualized consideration.” 61

*498 C. The History: Individualized Consideration as the Guarantor of Reliability

On the same day in 1976 that the Court approved guided discretion schemes in Gregg v. Georgia, 62 the method by which most states attempted to address arbitrariness by listing aggravating and mitigating factors for the jury to weigh, 63 the Court struck down the mandatory death penalty. Several states, like Louisiana and North Carolina, had responded to Furman by abolishing discretion all together and mandating the death penalty for certain capital crimes. 64 In ruling such efforts unconstitutional in Woodson v. North Carolina, Justice Stewart's plurality opinion laid out the Eighth Amendment principle of individualized consideration: A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death. . . .

[W]e believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. 65

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

Woodson along with its companion case of Roberts v. Louisiana, 66 thus not only allowed but required as a constitutional rule the consideration of “the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind,” 67 *499 an elegiac command of law not often seen in a profession accustomed to thinking in terms of dryly stated rules. 68

The full scope of Woodson and Roberts's constitutional imperative of “individualized consideration” was not made clear until two years later in Lockett v. Ohio. 69 In Lockett, the Court addressed Ohio's “guided discretion” statute that limited the capital sentencer's consideration of mitigating factors to a list of only three circumstances. 70 Ohio had argued that the limited list of mitigators was its effort to comply with Furman by guiding the sentencer's discretion not only as to what factors made the defendant eligible for death, but also as to those that could be considered as weighing against the death sentence. 71 The Lockett Court, however, ruled that limiting what mitigating factors could be considered was irreconcilable with the necessity of allowing individualized consideration before an individual could be sentenced to death. 72 As a result, Lockett issued a broad constitutional mandate that the sentencer must be allowed to consider “any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” 73

Lockett was to have a profound impact on capital sentencing. The requirement that the jury be allowed to consider “any aspect of a defendant's character or record . . . that the defendant proffers as a basis for a sentence less than death” 74 has led to a wide variety of mitigation being presented to juries. Evidence ranges from evidence documenting the hardships and impairments that the defendant has faced in his lifetime, such as child abuse, to evidence aimed at demonstrating to the sentencer that the defendant will function well in prison if given a life sentence. 75 And while the Court's *500 standard for ineffective assistance of counsel still lags behind the realities of capital representation, the Court has begrudgingly come to recognize that a thorough investigation of a capital defendant's life history is required. 76

Lockett's long-term importance, however, lay not only in how it affected courtroom practice, but also in its rationale. In justifying the holding's expansive definition of mitigation, the Court explicitly tied together the need for full consideration of mitigating evidence with the requirement of heightened reliability in capital cases. The Lockett majority began by holding that capital sentencing “call[ed] for a greater degree of reliability” because “the penalty of death is qualitatively different from any other sentence.” 77 Crucially, the Court then expressly linked the heightened reliability with Woodson's requirement of individualized consideration: Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. . . . The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence. 78 And, the Court observed, the need for greater reliability based on individualized consideration means that a death sentence cannot stand if the sentencing carried the “risk” that the sentencer did not fully hear or consider mitigation:

[P]revent[ing] the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. *501 When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments. 79 This strong embracing of individualized consideration as the linchpin to reliability thus placed the focal point of the Eighth Amendment squarely on the sentencer's ability (or inability) to consider constitutionally mandated mitigating evidence.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

The Court cemented the constitutional relationship between individualized consideration and reliability in a number of subsequent cases. In Eddings v. Oklahoma, 80 the Court reversed a death sentence where the lower courts had believed that they were not allowed to consider a defendant's troubled youth as mitigation. 81 In explaining Woodson and Lockett's mandates of individualized consideration of mitigation, the Court elaborated on the principle's importance by stressing that not only is individualized consideration essential for the reliability of a death sentence for a particular defendant, but individualized consideration is a crucial part of satisfying Furman's overall command that death sentences throughout the capital punishment system be consistent: “By holding that the sentencer in capital cases must be permitted to consider any relevant mitigating factor, the rule in Lockett recognizes that a consistency produced by ignoring individual differences is a false consistency.” 82 Without reliable individualized consideration, the capital punishment system as a whole creates an unacceptable risk of reverting to the arbitrariness and capriciousness that brought the system down in Furman v. Georgia. 83

The link between the principle of individualized consideration and the reliability necessary to satisfy Furman also formed a critical part of the Court's rationale in Skipper v. South Carolina. 84 In Skipper, the trial court had excluded testimony that the defendant had exhibited good behavior in his seven months while in jail awaiting trial. 85 With a hint of impatience, the majority noted that “there is no disputing” that it is “now well established” that the defendant has the constitutional right to have “any relevant mitigating evidence” considered. 86 And the majority had no trouble *502 finding that “a defendant's disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by its nature relevant to the sentencing determination.” 87 As in Eddings, the Skipper Court further explained that the specific mitigating evidence at stake also worked to make the capital sentencing system as a whole more reliable: “Consideration of a defendant's past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing . . . .” 88 In fact, the Court drew a direct parallel to its earlier approval of “future dangerousness” as a legitimate aggravating factor because “‘any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose.”’ 89

The case, though, that perhaps most firmly wedded the principle of individualized responsibility with the need for reliability was Penry v. Lynaugh. 90 In Penry, the defendant had introduced evidence of his intellectual disability, but under Texas's capital punishment scheme at the time, the jury had no legal way to give consideration to his condition. 91 Under the Texas scheme, the jury had simply been asked three questions: “Did Penry act deliberately when he murdered Pamela Carpenter? Is there a probability that he will be dangerous in the future? Did he act unreasonably in response to provocation?” 92 If the jury answered “yes” to all three questions, they were to return a death sentence; if they answered “no” to one or more questions, they were to return a verdict of life. 93

Given the nature of the three questions, however, the jury had no meaningful way to give effect to Penry's evidence of intellectual disability. Indeed, because the evidence was that his impairment meant he had poor impulse control, if anything, his mitigating evidence made it more likely that the jury would answer “yes” to the second question of whether he posed a future danger. 94 Because intellectual disability was undeniably mitigating evidence under Lockett, and because the jury had no “vehicle” *503 through which it could have given effect to the mitigation, the Court reversed Penry's death sentence. 95

Especially important, however, for the evolution of the unreliability principle was the opinion's express tying together of the Woodson-Lockett individualized consideration requirement with the need for reliability. 96 Justice O'Connor's majority opinion traced in step-by-step detail the Court's evolving precedent. The opinion began with the Court's now obligatory observation that individualized consideration was bedrock Eighth Amendment doctrine. 97 Next, the opinion emphasized the lesson of

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

Eddings that “it is not enough simply to allow the defendant to present mitigating evidence to the sentencer[; t]he sentencer must also be able to consider and give effect to that evidence in imposing sentence.” 98 Finally, the opinion explained that the full presentation and consideration of mitigation was constitutionally essential, and it was essential because of reliability: Only then can we be sure that the sentencer has treated the defendant as a “uniquely individual human bein[g]” and has made a reliable determination that death is the appropriate sentence. [Woodson v. North Carolina, 428 U.S. 280, 304, 305 (1976)]. “Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime.” 99

And just in case the link between individualized consideration and reliability had not been made abundantly clear, the opinion forcefully returned to the theme later in rejecting the state's argument that allowing the jury to consider broad mitigation would cast the system back into the unfettered discretion that Furman condemned: *504 [I]t is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant's character or record or the circumstances of the offense. Rather than creating the risk of an unguided emotional response, full consideration of evidence that mitigates against the death penalty is essential if the jury is to give a “‘reasoned moral response to the defendant's background, character, and crime.’ “In order to ensure “reliability in the determination that death is the appropriate punishment in a specific case,” the jury must be able to consider and give effect to any mitigating evidence relevant to a defendant's background and character or the circumstances of the crime.

In this case, in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of Penry's mental retardation and abused background by declining to impose the death penalty, we conclude that the jury was not provided with a vehicle for expressing its “reasoned moral response” to that evidence in rendering its sentencing decision. Our reasoning in Lockett and Eddings thus compels a remand for resentencing so that we do not “risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.” “When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” 100

Thus through a series of cases that relentlessly hammered the point home, the Court sent the unambiguous message that the Eighth Amendment right to individualized consideration was to be construed broadly because it was a critical underpinning of the Court's efforts to construct a constitutional death penalty system after Furman. 101 *505 And it is within this line of cases that Atkins can be seen as adding a critical further elaboration on the underlying principle of reliability and individualized consideration.

D. The Unreliability Principle: The Next Step in the Precedent

That Atkins constitutes an important development in the Woodson-Lockett line of cases may at first seem odd since it arose through an Eighth Amendment disproportionality challenge. Upon reflection, however, it makes sense that Atkins would be the case to give voice to the principle that the death penalty categorically cannot be imposed if too great a risk exists that constitutionally protected mitigation will not be properly comprehended and accounted for by the sentencer.

Prior to Atkins, the Court had not been forced to directly face the deep systemic question of whether juries could adequately assess intellectual disability as mitigation. It is true that the Court in Penry had suggested that a categorical ban on the death penalty for intellectually disabled individuals was unnecessary in part because a jury in any individual case could take into account the defendant's intellectual disability as mitigation. 102 And, as we have seen, this rationale actually produced an opinion in Penry that resoundingly sang Woodson and Lockett's praises and strongly reinforced the constitutional requirement that a sentencer must be able to give effect to mitigation for a death sentence to be constitutionally reliable. But because the Court reversed Penry's death sentence since the Texas three-question scheme at the time did not adequately allow the jury to

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill... give effect to his evidence of intellectual disability, 103 the Penry Court never had to directly confront the deeper systemic question: what if the very nature of the intellectual disability meant that the sentencer might not be able to properly assess how the mitigation affected the defendant's moral culpability sentence and precluded a reliable assessment?

In Atkins the Court could no longer avoid the systemic question. As in Penry, the State was arguing that no need for a categorical ban existed because a jury in an individual case could consider intellectual disability as mitigation, and the Virginia system, unlike the Texas scheme, did not preclude its consideration. 104 The Atkins Court was thus forced to confront the larger reliability question, and, as we know, determined that an assessment of an intellectually disabled individual's culpability is beyond a jury's ken. Given the Court's repeated mantra from Woodson through Penry and beyond that the death penalty is not constitutionally acceptable unless there is reliable individualized consideration, the Court could reach no other logical *506 conclusion: if a reliable assessment of constitutionally protected mitigation lies beyond the jury's ability, the jurors cannot even be asked to consider a death sentence.

It was through these circumstances, then, that Atkins took its place as the latest chapter in the Court's line of Woodson-Lockett individualized consideration cases. Consequently, far from residing solely in the Court's line of proportionality cases, Atkins also became an important part of the Court's “individualized consideration” precedent by recognizing that where mitigation defied reliable assessment, the only constitutional answer was a categorical removal of those cases from the death penalty.

Roper took this melding of proportionality and individualized consideration yet a step further as the Court even more explicitly linked its Eighth Amendment ban on the juvenile death penalty with the unreliability of the sentencer's capability to assess youth as mitigation. 105 As noted earlier, the Court observed that while one response might be to craft yet another rule to try and spot fix the unreliability, 106 such an effort would be doomed to failure: “If trained psychiatrists with the advantage of clinical testing and observation refrain, despite diagnostic expertise, from assessing any juvenile under 18 as having antisocial personality disorder, we conclude that States should refrain from asking jurors to issue a far graver condemnation-that a juvenile offender merits the death penalty.” 107 To the Court's credit, once it determined that jurors were unable to reliably assess how juvenile status affected a defendant's culpability, the Court acknowledged that the unreliability required categorical exclusion rather than attempting to affix yet another procedural patch. And in coming to that recognition, the Court expressly invoked Lockett's individualized consideration language as it concluded that the risk that the death penalty will be imposed on juveniles in spite of factors which may call for a less severe penalty was simply too great to allow the death penalty to be decided by the jury. 108

With Atkins and Roper, therefore, the discourse on individualized consideration re-entered the Court's Eighth Amendment dialogue with renewed vigor. That the Court's reliance on the unreliability principle in Atkins and Roper would not be isolated instances became evident when the Court next invoked it in the non-capital case of Graham v. Florida. 109 In striking down life without parole sentences for juveniles *507 who had committed nonhomicide crimes, the Court invoked the unreliability principle to reject the idea that the states could rely on a “case-by-case proportionality” approach to decide if a life without parole sentence violated the Eighth Amendment. 110 Specifically, the Graham Court brought the unreliability principle into play by turning to Atkins and Roper's theme that the very nature of the mitigation rendered an assessment of the defendant's culpability unreliable: [T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings. Juveniles mistrust adults and have limited understandings of the criminal justice system and the roles of the institutional actors within it. They are less likely than adults to work effectively with their lawyers to aid in their defense. Difficulty in weighing long-term consequences; a corresponding impulsiveness; and reluctance to trust defense counsel seen as part of the adult world a rebellious youth rejects, all can lead to poor decisions by one charged with a juvenile offense. These factors are likely to impair the quality of a juvenile defendant's representation. 111 The Court concluded that these “special difficulties” meant that the risk was simply too great that the sentencer would not be able to reliably assess how any particular juvenile defendant might act in the future:

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 9 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

For even if we were to assume that some juvenile nonhomicide offenders might have “sufficient psychological maturity, and at the same time demonstrate sufficient depravity” to merit a life without parole sentence, it does not follow that courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change.

*508 . . . A categorical rule [barring life without parole sentences thus] avoids the risk that, as a result of these difficulties, a court or jury will erroneously conclude that a particular juvenile is sufficiently culpable to deserve life without parole for a non-homicide. 112 The Graham Court's categorical exclusion of juveniles who committed nonhomicide crimes from a sentence of life without parole thus relied on the Eighth Amendment unreliability principle and the danger that such a severe sentence might be erroneously imposed because of the sentencer's inability to make a reliable assessment on a case-by-case basis. 113

And although the unreliability principle was not directly at issue in Hall v. Florida, 114 the case in which the Court struck down Florida's rule that Atkins could not apply unless a defendant had an IQ test of 70 or under, the Court expressly acknowledged “protect[ion] [of] the integrity of the trial process” as one of Atkins's key rationales. 115 Moreover, the Hall opinion revolved around the idea that because *509 Florida's “rigid rule” of a hard cut-off of a 70 IQ ignored how medical professionals use and understand the role of IQ tests, the state “create[d] an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” 116 Indeed, given that part of Atkins's reasoning is that juries are not able to reliably assess whether an intellectually disabled individual deserves the death penalty, it is hard to see how the Court had any choice but to reassert constitutional control over how the category of intellectual disability is defined. Otherwise, Florida, through its under-inclusive definition of intellectual disability, would have once again been exposing defendants who had the attributes that Atkins had singled out as creating “special risks of wrongful execution” to the possibility of an erroneously imposed death sentence. 117

E. The Next Step in the Evolution: The Effect of the Unreliability Principle

Once it is understood that Atkins and Roper are not in fact conventional proportionality cases, their far broader impact on the Eighth Amendment and the death penalty can be seen. Most fundamentally, the unreliability principle is not bound by the first step of the “evolving standards” test that requires a finding of a “national consensus” before the Court can proceed with its proportionality analysis. 118 Rather, *510 because the unreliability principle is an expression of the Woodson-Lockett line of cases rather than the evolving standards cases, the prerequisite of a national consensus simply has no bearing on the constitutional inquiry. As has been recounted, the Woodson-Lockett line of cases instituted the Eighth Amendment mandate that the sentencer must be able to give effect to constitutionally protected mitigation because it was a necessary “cure” to the arbitrariness Furman identified: without proper consideration of mitigation, the death penalty is not sufficiently reliable to satisfy the Eighth Amendment. 119 This requirement, however, has no logical nexus to whether or not a national consensus has coalesced about the mitigation. If a sentencer cannot reliably give effect to the protected mitigation, the Court's constitutional promise is broken. The only question, therefore, is whether the challenged practice runs afoul of the constitutional requirement that the sentencer be able to competently and reliably make a “reasoned moral response.”

Once it is recognized that the Atkins-Roper unreliability principle is not tethered to the “national consensus” requirement but stands on its own, the principle's applicability to other contexts becomes far more expansive. The principle's application might be thought of as occurring on two different levels. The first level involves identifying other specific mitigating circumstances that pose the same dangers of unreliability as intellectual disability and juvenile status. The second level entails using the unreliability principle to mount a global investigation of whether our system of capital punishment can in reality deliver death sentences only after a sentence has reliably given effect to mitigating evidence.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

This Article will attempt to sketch out the basic outlines of each of these applications of the unreliability principle. It will look at the first level by thinking about how the uncertainty principle might apply to defendants suffering from serious mental illness. A number of attempts have been made to extend Atkins and Roper to mentally ill defendants through traditional proportionality analysis, 120 but it is a difficult task given the lack of a clear national consensus similar to what existed for intellectually disabled and juvenile capital defendants. The unreliability principle, on the other hand, presents a much stronger argument that the risk of a death sentence being erroneously imposed upon a mentally ill defendant simply is too great for the Constitution to bear. Second, as a means of beginning to think about the global examination, the Article will use findings concerning implicit bias to see how the unreliability principle calls into question the entire framework of the Court's post-Furman assumptions on the reliability of the death penalty.

In undertaking this review, we can look at the three cases in which the Court has utilized the unreliability principle-Atkins, Roper, and Graham-and identify six *511 factors that the Court has used for flagging “special difficulties” that might place a mitigating factor beyond a sentencer's reliable evaluation. These factors, which we will call the Atkins-Roper unreliability factors are: (1)where the mitigation impairs the defendant's cooperation with his lawyer and the lawyer's ability to prepare a defense; 121 (2) where the mitigation makes the defendant into a “poor witness,” in part because of the likelihood that their demeanor would make them appear to be remorseless; 122 (3) where the mitigation causes distortions in the defendant's thinking process that are likely to produce bad decisions; 123 (4) when the mitigation has a double-edged nature that poses the risk that it will be improperly turned into aggravation; 124 (5) when the complexity and conflicting views of experts in the area are likely to generate confusion and misunderstanding among the jurors; 125 and (6) when the risk that the sheer “brutality” of the crime will preclude jurors from properly considering the mitigation. 126 And if those six criteria are applied to mentally ill defendants, each factor could be recited almost verbatim with a cutting and pasting of “mentally ill defendant” in for “intellectually disabled” in Atkins or “juvenile” defendant in Roper and Graham.

II. Categorical Exclusions Under the Unreliability Principle and Mentally Ill Defendants

Among mitigating circumstances, mental illness is one of the most widely recognized as a characteristic arguing for a sentence less than death. Serious mental illness is a standard statutory mitigating factor in those states that list mitigators in their capital punishment statute. 127 States also often provide by statute for the appointment of a mental health expert simply at the request of a capital defendant, 128 and the Supreme Court has recognized a combined due process-equal protection right to appointment of a mental health expert as an “essential tool” of the defense where mental health is at issue. 129 The “best practices” of capital defendant attorneys require a thorough mental health history and a scouring of the defendant's past looking for signs of mental illness as a basic prerequisite to building the defense's “case for *512 life.” 130 Over half of capital jurors identify a defendant's “history of mental illness” as making them less likely to give a death sentence, with more than a quarter of jurors stating that it would make them “much less” likely. 131

But while mental illness may be recognized in the abstract by jurors as a powerful mitigator, the unreliability principle requires that the courts also ask if they can reliably apply the mitigator in practice. Both intellectual disability and juvenile status, after all, were a key part of any defense attorney's preparation for the “case for life” if they were present in the case. Moreover, like mental illness, capital jurors readily identified a defendant's intellectual disability and juvenile status as having a strong mitigating effect. 132 In fact, the only characteristic that jurors identified as even more likely to sway them towards a life sentence than mental illness was intellectual disability, with almost three-quarters of jurors saying that it would make them less likely to impose death. 133 Jurors identified juvenile status as the fourth most likely characteristic (following intellectual disability, mental illness, and lack of institutional help) to sway them towards a life sentence. 134 The problem in Atkins and Roper, as we have seen, was that although everyone recognized that intellectual disability and youth in the abstract were

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill... powerful mitigators, sentencers could not reliably evaluate them in practice, creating the unacceptable risk of an erroneously imposed death sentence. Those factors that made the risk unacceptable in Atkins and Roper are also present with mentally ill defendants as the six Atkins-Roper factors show.

A. Applying the Atkins-Roper Unreliability Factors to Mental Illness

1. Mental Illness and the Impairment of the Defendant's Cooperation with his Lawyer and of the Lawyer's Ability to Prepare a Defense

Under the Court's analysis, a key aspect that brings the unreliability principle into play is if the mitigator itself impairs the defense attorney's ability to provide *513 effective representation. 135 This impairment may be because, as in Atkins, the defendant is “less able to give meaningful assistance” 136 even if wanting to, or, as in Roper and Graham, because the mitigator impedes the attorney-client relationship. 137 As the Graham Court observed: [T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings. Juveniles mistrust adults and have limited understandings of the criminal justice system and the roles of the institutional actors within it. They are less likely than adults to work effectively with their lawyers to aid in their defense. Difficulty in weighing long-term consequences; a corresponding impulsiveness; and reluctance to trust defense counsel seen as part of the adult world a rebellious youth rejects, all can lead to poor decisions by one charged with a juvenile offense. These factors are likely to impair the quality of a juvenile defendant's representation. 138

Given the critical role that defense counsel plays in crafting the “case for life” that has become the central focus of the modern capital sentencing proceeding, the Court unsurprisingly has viewed such impairment as imperiling the ability of the defense to “make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors.” 139 While this impediment is undeniably true for intellectually disabled and juvenile defendants, a mentally ill defendant is arguably even more debilitated as a client and witness than an intellectually disabled or juvenile defendant. 140

The cooperation issue with counsel can be particularly troublesome when the client is suffering from paranoia, delusions, or deep depression. 141 Sometimes the client will strongly resist the “label” of mentally ill, making it impossible for the lawyer to properly represent the defendant because the mitigating circumstance itself (the mental illness) creates a distrust towards the lawyer and ultimately precludes effective presentation of the mental illness to the jury. 142 The saga of the trial of *514 Theodore Kaczynski, the so-called “Unabomber,” vividly highlights how mental illness gravely impacts an attorney's ability to carry out his or her constitutional duties. Kaczynski was represented by a talented and experienced team of lawyers, but he repeatedly tried to dismiss them because they wanted to present his mental illness as mitigation, the evidence that presented the best chance for a life sentence. 143 As a result, the lawyers had to walk a perilous tightrope of honoring their client's autonomy while trying to present the strongest case for life. 144 The government eventually agreed to forego seeking the death penalty in return for a plea, and Kaczynski pled guilty, but then almost immediately tried to withdraw his plea. 145

Moreover, because the bar for finding a defendant competent to stand trial is placed so low, even if the client wants to cooperate, he may be unable to provide meaningful assistance because of a disjointed thought process, an inability to remember events accurately, or difficulty communicating. Nor will it be uncommon for a mentally ill defendant to be on medication. But while the medication may subdue some of the psychotic symptoms, the price often comes at the ability to assist his attorney. As Justice Kennedy insightfully recognized in arguing against the forced medication of a capital defendant to make him competent to stand trial: Concerns about medication extend also to the issue of cooperation with counsel. We have held that a defendant's right to the effective assistance of counsel is impaired when he cannot cooperate in an active manner with his lawyer. The defendant must

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 12 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill... be able to provide needed information to his lawyer and to participate in the making of decisions on his own behalf. The side effects of antipsychotic drugs can hamper the attorney-client relation, preventing effective communication and rendering the defendant less able or willing to take part in his defense. The State interferes with this relation when it administers a drug to dull cognition. See Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 42 (“[T]he chemical flattening of a person's will can also lead to the defendant's loss of self-determination undermining the desire for self-preservation which is necessary to engage the defendant in his own defense in preparation for his trial”). 146 As with intellectually disabled and juvenile defendants, the very characteristic that diminishes the mentally ill defendant's culpability jeopardizes his attorney's ability to prepare and present the case that would persuade the jury to return a life sentence.

*515 2. The Mentally Ill Defendant as a “Poor Witness”

In addition to concerns over how a mitigating factor impairs trial preparation, the Court has focused on how a mitigating factor may adversely affect the defendant's ability to have his mitigation heard at the trial itself. As with the intellectually disabled defendant, the mentally ill client also is especially likely to make a “poor witness.” 147 The defendant's mental illness may manifest itself through outbursts, an inability to control his movements, or by making inappropriate comments or gestures, such as the defendant who cursed at his jurors, called them “Antichrists,” and told them that he would see them in hell where they would worship him. 148 Jurors who have witnessed such disruptive behavior are likely to interpret the defendant's actions as demonstrating a lack of remorse and an impulsivity that is dangerous. 149

On the other hand, if the defendant is placed on antipsychotic medication to moderate the defendant's behavior, the side effects are likely to, in the Atkins Court's words, “create an unwarranted impression of lack of remorse for their crimes.” 150 The Atkins Court was quite correct to focus on the devastating effect that a jury's perception of a lack of remorse has on the defendant's case for life, because the most common theme of jurors who voted for a death sentence was that the defendant showed no remorse. 151 And in trying to determine whether the defendant was remorseful, jurors relied heavily on the defendant's demeanor in trying to divine his state of mind. 152 Not surprisingly, a perceived lack of emotion made it extremely difficult for the jurors to be receptive to the defendant's case for life (one juror's comment captured well the jurors' search for signs of remorse: “We would have liked to have spoken to him because he showed so little emotion and so little remorse. We just wanted to kind of figure out, are you human? We were kind of looking for anything, anything to find remorse.”) 153 As Justice Kennedy has observed, therefore, while medicating a mentally ill defendant may reduce overt psychotic symptoms, because the side-effect is often a flat demeanor, the “cure” is likely to mislead a jury into returning a death sentence out of a mistaken conclusion that the defendant was remorseless. 154

*516 3. Mental Illness and Distortion of the Defendant's Decisionmaking

In addition to the concerns over how a mitigator can imperil a defense lawyer's ability to provide effective representation, the Court in Graham highlighted the unreliability produced by a juvenile's “[d]ifficulty in weighing long-term consequences; a corresponding impulsiveness; and reluctance to trust defense counsel . . . lead[ing] to poor decisions . . . .” 155 As with a juvenile defendant, the reliability of the penalty phase can be jeopardized because of the necessity of relying on a mentally ill defendant to make key strategic decisions involving constitutional rights. While the unreliability can manifest itself in a number of ways, two examples highlight the problem.

The first is interference with the defendant's decision whether to plead guilty. The Court's decision in Godinez v. Moran 156 highlights how the unreliability principle provides an alternative way to deal with a situation that threatens the integrity of the *517 system. In Godinez, the defendant murdered three people in two episodes-the second episode involved killing his

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 13 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill... ex-wife, immediately after which he attempted to commit suicide. 157 Three months later, deeply depressed and taking four medications, Godinez fired his lawyers, pled guilty, and at the sentencing refused to present any mitigating evidence. 158 His explanation to the judge of why he wanted to represent himself was that he wanted to prevent the presentation of any mitigating evidence, in essence fulfilling a wish to die. 159

In upholding Moran's death sentence, the majority focused solely on the legal meaning of “competency” and whether the term should have different meanings depending on whether a defendant is proceeding to trial, pleading guilty, or representing himself. 160 Looming in the background but unaddressed was the issue that Atkins and Roper now directly call into question: whether a death sentence can be treated as constitutionally reliable when imposed on an individual who is suffering from a profound mental illness, who is taking a prescribed cocktail of anti-psychotic medications (phenobarbital, dilantin, inderal, and vistaril), who has fired his lawyer, and who presents no evidence in mitigation “because he opposed all efforts to mount a defense.” 161

The Atkins-Roper unreliability principle now requires that constitutional conversation to take place. The focus switches from a wringing of judicial hands over the meaning of competency as applied to a hypothetical series of situations to the bedrock Eighth Amendment question of whether mental illness causes, in the words of Graham, a “difficulty in weighing long-term consequences; a corresponding impulsiveness; and reluctance to trust defense counsel . . . lead[ing] to poor decisions . . . .” 162 When, as in Godinez, the mental illness results in a complete void in mitigation for the sentencer to consider, 163 it is difficult to imagine a more fundamental failing of the central premise of the Woodson-Lockett individualized consideration cases: without a full accounting of the defendant's “diverse frailties,” a “reasoned moral response” by the sentencer is literally impossible. 164

A second example of how a mental illness can distort the death penalty decision-making process is by interfering with the defendant's constitutional right to testify. 165 *518 The right to testify is, in the Court's words, “essential to our adversary system.” 166 If unmedicated, the defendant while suffering from symptoms such as delusions or profound depression will have to weigh the consequences of taking the stand-a weighing that in theory would involve an ability to lucidly assess how his unmedicated testimony is likely to be perceived by a jury whose foremost concern will be future dangerousness. 167 If medicated, on the other hand, the medication's effects will cast “grave doubt” on the legitimacy of the waiver of his constitutional right to testify. 168 And, of course, if he should testify, the side effects of the prescriptions create the serious risk that the jury will perceive his manner, demeanor, and tone as projecting remorselessness, dangerousness, or both. 169 In sum, the distorted decisionmaking that troubled the Court so much in the juvenile cases pose equally grave challenges to reliability in the context of mentally ill defendants.

4. Mental Illness as the “Two-Edged Sword” Turning Mitigation into Aggravation

Part of Atkins's rationale in finding that intellectually disabled defendants faced a “special risk of wrongful execution” was the potential for mental retardation to be used as a “two-edged sword.” 170 The Atkins Court noted that a defendant who raises intellectual disability as mitigation may perversely undermine his case for life by also “enhanc[ing] the likelihood that the aggravating factor of future dangerousness will be found by the jury.” 171 Roper focused even more directly upon the double- edged risk that “a defendant's youth may even be counted against him.” 172 In Roper, the prosecutor in his rebuttal closing argument had responded to defense counsel's invocation of Simmons's youth as mitigation by arguing to the jury, “‘Age, he says. Think about age. Seventeen years old. Isn't that scary? Doesn't that scare you? Mitigating? Quite the contrary I submit. Quite the contrary.”’ 173

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 14 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

Double-edged mitigators-factors that are constitutionally mitigating under Lockett but of a nature that allows them to be improperly flipped into aggravation-pose a special problem when it comes to future dangerousness. 174 Capital jurors have made *519 clear that of all aggravating factors, the defendant's future dangerousness is always going to constitute their foremost concern. 175 In many ways jurors view themselves as having taken a Hippocratic Oath upon being sworn in, an oath that above all else they will not allow the defendant to kill again. 176 Consequently, no matter how compelling the mitigating circumstances, the jurors will return a death sentence unless assured that the defendant will not pose a danger in the future. As the Supreme Court recognized in Skipper v. South Carolina, a jury's belief that a defendant will adapt well to prison is crucial to a successful case for life. 177

And when it comes to future dangerousness, mental illness is the classic ‘two-edged sword’ from the juror's perspective. Especially where the mental illness is tied directly into the commission of the crime (for example, the defendant killed the victim because of his delusional thinking), jurors are likely to view the illness as an aggravator. One can see just how easily mental illness can be used by jurors to justify a sentence of death from a case that involved a defendant who everyone agreed suffered from severe mental illness (the state's psychiatrist conceded that the defendant suffered from severe mental illness). 178 Even though all of the jurors agreed that the defendant was very ill and they all had found his long struggle with schizophrenia to be heart wrenching, the jury still voted for death; as one juror explained: We discussed that if he were given life he would be in an eight by eight cell for the rest of his life but might be, with good behavior, released for exercise and have to be around other prisoners and that could be dangerous. . . . What we decided was that regardless of his illness, if he was a danger to society, then the only solution would be the capital punishment. 179 Another juror later summarized the jury's decision in the case even more succinctly when asked about the strongest factors for and against the death penalty: “For: His incurability. Against: His illness.” 180 In weighing that risk-a risk assessment that went well beyond the evidence presented-the jury was so concerned over the defendant's mental illness that they, in effect, used his illness as the reason he could not be allowed to continue living. 181

*520 5. Mental Illness, Experts, and Scientific Uncertainty

In developing the unreliability principle, the Roper Court relied heavily on the fact that the mental health field itself was far from settled in understanding juvenile behavior. 182 As the Court succinctly concluded, “If trained psychiatrists with the advantage of clinical testing and observation refrain, despite diagnostic expertise, from assessing any juvenile under 18 as having antisocial personality disorder, we conclude that States should refrain from asking jurors to issue a far graver condemnation-that a juvenile offender merits the death penalty.” 183 Similar concerns run throughout the use of experts and diagnoses when it comes to mental illness, and not surprisingly the uncertainty and conflicting expert views often manifest themselves at the capital penalty phase.

In Ake v. Oklahoma, 184 the Court held that a psychiatrist was an “essential tool” for the defense under the Due Process Clause when the defendant's sanity is at issue. A primary rationale for the Court was that the field of psychiatry was so riven with uncertainty and disagreement that jurors needed to hear the competing views: Psychiatry is not . . . an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, on cure and treatment, and on likelihood of future dangerousness. Perhaps because there often is no single, accurate psychiatric conclusion on legal insanity in a given case, juries remain the primary factfinders on this issue, and they must resolve differences in opinion within the psychiatric profession on the basis of the evidence offered by each party. When jurors make this determination about issues that inevitably are complex

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 15 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill... and foreign, the testimony of psychiatrists can be crucial and “a virtual necessity if an insanity plea is to have any chance of success.” 185 But while it may be a necessity to have jurors make the determination of insanity at the guilt-innocence phase, 186 Atkins and Roper now require the courts to confront whether asking jurors to decide mental health issues that “inevitably are complex and foreign” 187 introduces too much unreliability when it comes to imposing the death penalty.

*521 The concern is particularly heightened at the capital sentencing phase for two reasons. First, capital jurors tend to be intensely skeptical of mental health experts and mental health defenses presented in mitigation in a way that generally does not extend to the prosecution's mental health experts. 188 While defense experts tend to be viewed as hired guns who are offering up “excuses” in the form of a psychiatric diagnosis, jurors tend not to discount the testimony of the prosecution's experts in the same way. 189 The question of course is not whether experts' diagnoses may sometimes be incorrect, but whether jurors are capable of sifting through the competing psychiatric testimony to determine which testimony is reliable and which is not. 190 And after Atkins and Roper, the unreliability principle commands categorical exclusion if the jurors are discounting defense experts when faced with complex and conflicting psychiatric testimony because such discounting simply creates too much of a “risk ‘that the death penalty will be imposed in spite of factors which may call for a less severe penalty.”’ 191 Indeed, given that the Court has justified that a state can severely curtail the insanity defense on the rationale that psychiatric evidence can be too unreliable for jurors to assess, 192 it is difficult to fathom how jurors can be seen as capable of reliably assessing the same evidence in imposing a death sentence.

A second reason exists why mental illness is at special risk of being unreliably discounted as mitigation by the jury at the sentencing phase. While a defendant's intellectual disability or juvenile status normally will not have been an issue at the guilt- innocence phase, 193 jurors often will already have considered the defendant's mental illness at the guilt-innocence phase in the form of an insanity defense. Most *522 states now use some variation of the M'Naghten test for insanity, 194 requiring a defendant to make the extremely difficult showing that he did not know the difference between “right” and “wrong.” And while mental illness under Lockett still qualifies as powerful mitigation even if the illness did not prevent him from understanding the difference between “right” and “wrong,” jurors are often confused on this point. 195 As a result, the distinct risk arises that jurors, already having deliberated on the defendant's mental illness and having “rejected” it in the form of the insanity defense, will improperly dismiss or discount it at the penalty phase.

6. The Crime's “Brutality” and the Mentally Ill Defendant

Part of Roper's finding of unreliability rested on the grounds that “the brutality or cold-blooded nature of any particular crime would overpower . . . even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death.” 196 The danger is especially acute for a mentally ill defendant, because the illness sometimes will result in crimes being committed in a particularly bizarre, brutal, or sadistic manner.

One need not search far in the case reports to find capital crimes committed by mentally ill defendants in particularly frightening or gruesome ways that would make for sensationalistic headlines: A defendant who heard voices through clocks uttering Old Testament apocalyptic warnings; one who consumed his own bodily wastes; another who cut out the organs of his two little children and wife in order to kill the demons living inside them, and who then placed the organs in his pockets and returned home and tried to commit suicide. 197 And although a juror is likely to react to these crimes by thinking to themselves, that is “sick” or “crazy,” the pure repugnancy of the crime and the fear that is triggered may “overpower” the mitigation. And, of course, the brutality and bizarreness of the crime is especially likely to raise the double-edged sword dilemma of the mitigating evidence

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 16 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill... playing directly into the jurors' fears over future dangerousness. 198 The Roper Court's worry that a crime's brutality would overpower the mitigation of a defendant's juvenile status, therefore, is an even greater concern with the mentally ill defendant.

*523 B. Defining Mental Illness as a Categorical Exclusion from the Death Penalty

Application of the unreliability principle to mentally ill defendants demonstrates that once Atkins and Roper are properly understood as a natural progression in the Woodson-Lockett individualized consideration line of cases, other categories of mitigation become subject to the unreliability inquiry regardless of national consensus. Freed from the national consensus threshold, the inquiry becomes one focused entirely on whether the constitutionally protected class of mitigation can be reliably assessed by the sentencer based on the six Atkins-Roper factors.

As with most categorical exclusions, the boundaries of the mental illness category will need to be defined and refined as it is implemented. The experience with Atkins and intellectual disability has shown that the lack of a bright-line boundary like age is not an insurmountable barrier to implementing the exclusion. The Court in Hall v. Florida 199 was able to look at various standards for defining intellectual disability, draw upon expertise in the field establishing that intellectual disability is not simply an IQ number applied in cookie cutter fashion, and provide further guidance as states work at implementing Atkins. 200

That the need will exist to define what constitutes mental illness and that the definition will engender both legislative and judicial debate is thus not an objection in itself. Moreover, as Professor Slobogin has pointed out, despite the elasticity of the phrase “mental illness” as a general term, when the focus is on psychosis with gross impairments, diagnostic agreement is relatively high. 201 Questions of fact may exist in any one case as to whether a defendant has crossed the threshold of mental illness, but as Atkins illustrates, fact finding and litigation is the inevitable byproduct of any line drawing endeavor.

Nor will states be starting from scratch in fashioning a mental illness exclusion as several standards already have been proposed or utilized. Prior to abolishing capital punishment, Connecticut by statute excluded an individual whose “mental capacity was *524 significantly impaired or [his] ability to conform [his] conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution.” 202 The American Bar Association has recommended barring the death penalty from being imposed on those who “had a severe mental disorder or disability that significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law.” 203 From the perspective of the unreliability principle, the key is that whatever standard is ultimately adopted, the legislative (or judicial) line be drawn in a manner that always excludes defendants whose mental illness poses a risk that the jury's “reasoned moral response” cannot reliably assess the defendant's individual culpability.

III. The Unreliability Principle and the Unraveling of the Death Penalty

The focus up to this point has been on how the Atkins-Roper constitutional prohibition against imposing the death penalty because of the unreliability principle applies to categories of mitigation in addition to intellectual disability and juvenile status. What is particularly intriguing about the unreliability principle, however, is that it also holds the possibility of allowing a global challenge to the death penalty in a manner that has not been available since McCleskey v. Kemp 204 in 1987. It was Justice Scalia in Roper who saw this logical endpoint to where the Court's reasoning leads: The Court concludes . . . that juries cannot be trusted with the delicate task of weighing a defendant's youth along with the other mitigating and aggravating factors of his crime. This startling conclusion undermines the very foundations of our capital sentencing system, which entrusts juries with “mak[ing] the difficult and uniquely human judgments that defy codification and that ‘buil[d] discretion, equity, and flexibility into a legal system.”’ McCleskey, supra, at 311 (quoting H. Kalven & H. Zeisel, The American Jury 498 (1966)). The Court says, . . . that juries will be unable to appreciate the significance of a defendant's youth when faced with details of a brutal crime. . . .

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 17 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

Nor does the Court suggest a stopping point for its reasoning. If juries cannot make appropriate determinations in cases involving murderers under 18, in what other kinds of cases will the Court find jurors deficient? We have already held that no jury may consider whether a mentally deficient defendant can receive the death penalty, irrespective of his crime. See *525 Atkins, 536 U.S., at 321. Why not take other mitigating factors, such as considerations of childhood abuse or poverty, away from juries as well? Surely jurors “overpower[ed]” by “the brutality or cold-blooded nature” of a crime, . . . could not adequately weigh these mitigating factors either. 205 And Justice Scalia is correct: Atkins and Roper's reasoning calls into question the Court's most fundamental post-Furman promise that reliability can be assured because jurors are able to give full individualized consideration to each defendant.

By recognizing that the death penalty cannot be imposed if mitigation is beyond the sentencer's ability to reliably assess the evidence, Atkins and Roper call for re-examination of all aspects of the “delivery” and “receipt” of mitigation for reliability and consistency. 206 Justice Scalia's dissent raises an initial question to be explored: if empirical research shows that jurors are often not giving mitigation full consideration once they have convicted the defendant of a brutal crime, how can the constitutional promise of Woodson and Lockett be seen as being kept? 207 Numerous other questions come readily to mind: Do particular types of cases in aggravation, for example the murder of a child, “overpower” the jurors' ability to be receptive to mitigation? 208 Is the aggravator of future dangerousness that the Court sanctioned over thirty years ago despite the lack of reliability in predicting dangerousness now ripe for reconsideration? 209 Or might the systemic lack of resources for the investigation and presentation of mitigation provide a viable claim under the unreliability principle since the Woodson-Lockett cases are premised upon the idea that juries in all capital cases are hearing a full and effective presentation of mitigation before deciding to impose the death penalty? 210

These are but a few possible avenues of exploration that arise once the jury's ability to reliably consider mitigation is placed under constitutional scrutiny, and the *526 issues that need to be explored will only expand as scientific knowledge of how we make decisions reveals problems that were not even anticipated at the time that Furman and Gregg were decided. As just one example, the burgeoning research on implicit bias (also referred to as “unconscious prejudice”) raises serious questions about whether jurors can provide the “reasoned moral response” that is the essential linchpin of the Court's post-Furman cure to arbitrariness. 211

Research on implicit bias has revealed through a variety of techniques in a wide range of situations how decisions that we very much would like to believe are purely “rational” and fact-based are often influenced by unconsciously held attitudes on matters such as race, gender, and age. 212 In fact, emerging evidence shows that the decision-making locus in our brains actually shifts between different regions depending on how strongly we can identify with the person who is being judged or evaluated. 213 Consequently, without any conscious recognition that they are doing so, individuals will vary their judgments and decisions based on whom they are judging or assessing. As researchers in the area have demonstrated, the role of implicit bias in decisionmaking has significant implications for important everyday decisions such as who is hired, 214 how talent is assessed, 215 or even how medical treatment is dispensed. 216

The implications of implicit bias for capital decisionmaking are far reaching, and already some studies have begun to pull back the veil on how sentencers are affected. While a comprehensive examination is beyond this Article's scope, one *527 study gives a sense of how findings in the area eventually may force courts to step back and reassess the assumptions underlying the reliability of post-Furman capital punishment schemes. In the study, researchers obtained photographs of African-American males who had been convicted of murdering white victims. 217 They then showed the photos to subjects who were unaware that the photos were of convicted murderers and asked the subjects to rate the photographs based on “the stereotypicality of

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 18 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill... each Black defendant's appearance and were told they could use any number of features (e.g., lips, nose, hair texture, skin tone) to arrive at their judgments.” 218 After controlling for variables such as severity of the murder and the strength of mitigating circumstances, the study found that defendants who had murdered a white victim and who had been rated by the subjects in the top half of being stereotypically black had double the chance of receiving a death sentence than those defendants who were in the bottom half of appearing stereotypically black. 219 As the researchers concluded, “[t]he present research demonstrates that in actual sentencing decisions, jurors may treat [Black physical] traits as powerful cues to deathworthiness.” 220

Studies like this emphasize not only the need to readdress the role of race in the death penalty, they come at a time when new constitutional tools exist that can better incorporate the findings of unconscious bias. The Court's last effort to directly address the role of race was in 1987 when, in McCleskey v. Kemp, it refused by a slender 5-4 margin to provide constitutional relief despite strong statistical evidence that the race of the victim was influencing capital outcomes. 221 Driven in part by a deep distrust of statistics, Justice Powell for the majority refused to infer that bias was at work and instead required individual defendants to make the almost impossible showing that his sentencer was affirmatively acting out of racial animus. 222

With the insights provided by implicit bias research, the empirical basis now exists to connect the statistical dots that the McCleskey majority declined to connect because it said it lacked a reason to believe that the statistics were explained by *528 jurors' biases. 223 Moreover, the Atkins-Roper unreliability principle now makes it constitutionally clear that intentional racial animus is not necessary for a constitutional violation: If a jury is unable to give effect to constitutionally protected evidence because of bias, whether conscious or unconscious, then the system has failed to provide the reliability and consistency that the Woodson-Lockett line of cases promised was the fundamental cure for Furman arbitrariness. In short, the unreliability principle provides an express constitutional invitation to revisit McCleskey.

Conclusion

Atkins v. Virginia and Roper v. Simmons have been lauded as important cases under the Court's Eighth Amendment disproportionality analysis. And the cases are undoubtedly significant milestones along the “evolving standards of a civilized society” continuum. This Article has argued, however, that the cases' more lasting impact may very well come from a different constitutional direction that looks not towards disproportionality, but to the Court's long-standing emphasis on the constitutional relationship between individualized consideration and reliability. By articulating what this Article has called the “unreliability principle,” the cases take the Woodson-Lockett line of cases to their next logical step: if a category of mitigation is constitutionally protected because it is necessary to individualized consideration but the sentencer is unable to reliably assess and consider the mitigation, then categorical exclusion is constitutionally required.

It is this aspect of Atkins and Roper's reasoning that places individuals with serious mental illness beyond the death penalty's jurisdiction, whether or not a national consensus against such executions exists. The six Atkins-Roper factors that identify when mitigation is beyond reliable assessment apply to mentally ill defendants with equal if not greater force. The potential impact of the Atkins-Roper unreliability principle, however, extends beyond mental illness and other categories of constitutionally protected mitigation. 224 The reasoning behind the principle calls into question the reliability of the entire system in a manner that has not been examined for decades and opens a constitutional door for the courts to begin taking into account the advances over the past forty years in our understanding of the dynamics of human decisionmaking. And this may prove to be the true legacy of Atkins v. Virginia and Roper v. Simmons: the raising of old questions about the reliability of the capital punishment system with a new vigor and a new perspective.

Footnotes

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 19 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

a1 Professor of Law and Dean's Distinguished Scholar, University of Miami School of Law. In addition to the Symposium participants, I would like to thank David Bruck, Mark Olive, Chris Slobogin and Jordan Steiker for their comments. I also benefited greatly from the students' feedback in the Criminal Law/Procedure Workshop at Washington & Lee School of Law.

1 See generally 408 U.S. 238 (1972).

2 John C. Jeffries, Jr., Justice Lewis F. Powell, Jr. 413-14 (1994) (noting Justices Stewart and White believed states would not enact new death penalty statutes); see also Corinna Barrett Lain, Furman Fundamentals, 82 Wash. L. Rev. 1, 33-34 (2007) (documenting the ebbing public support for the death penalty leading up to Furman).

3 See Gregg v. Georgia, 428 U.S. 153, 179-80 (1976).

4 See Furman, 408 U.S. at 256-57, 295 (Brennan, J., concurring) (describing these fundamental flaws).

5 See, e.g., infra notes 7-33.

6 McGautha v. California, 402 U.S. 183, 204 (1971). In making this statement, the Court was using the impossibility of the task to explain why it was not requiring the states to provide guidance to capital sentencers to meet Due Process, i.e., the task was “beyond present human ability.” Id. The Court's decision a year later in Furman that the failure to provide such guidance violated the Eighth Amendment, meant, therefore, that the states now had to undertake the very task that McGautha had declared “beyond present human ability” in order to meet Furman's objections.

7 See, e.g., Godfrey v. Georgia, 446 U.S. 420 (1980) (ruling that the aggravating circumstance that murder “was outrageously or wantonly vile, horrible or inhumane in that it involved torture, depravity of mind, or an aggravated battery to the victim” was impermissibly vague as applied).

8 See, e.g., Lockett v. Ohio, 438 U.S. 586 (1978) (requiring that the sentencer be allowed to consider all mitigating evidence concerning the defendant or the crime that might serve as a “basis for a sentence less than death”).

9 See, e.g., Boyde v. California, 494 U.S. 370 (1990) (approving jury instruction that told the jury “[i]f you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death”).

10 See, e.g., Payne v. Tennessee, 501 U.S. 808 (1991) (finding victim impact evidence, which tells the sentencer about the victim and the impact of the victim's loss, constitutionally permissible).

11 See Coker v. Georgia, 433 U.S. 584 (1977) (holding the death penalty invalid for the rape of an adult without murder).

12 See Kennedy v. Louisiana, 554 U.S. 407 (2008) (holding the death penalty unconstitutional for the rape of a child under the age of twelve without death or the intent to result in death).

13 See Enmund v. Florida, 458 U.S. 782 (1982) (ruling the death penalty unconstitutional for felony-murder where defendant neither kills nor knew death was highly likely to occur).

14 See Atkins v. Virginia, 536 U.S. 304 (2002) (holding the death penalty unconstitutional for the intellectually disabled).

15 See Roper v. Simmons, 543 U.S. 551 (2005) (concluding that “evolving standards” of decency barred imposition of the death penalty on juveniles).

16 See Baze v. Rees, 553 U.S. 35 (2008) (holding that lethal injection did not constitute cruel and unusual punishment unless gratuitously painful).

17 See Barefoot v. Estelle, 463 U.S. 880 (1983) (concluding that future dangerousness as an aggravator was not impermissible despite risk of error).

18 See Ford v. Wainwright, 477 U.S. 399 (1986) (establishing that, to be executed, the condemned must be aware of “the punishment [he is] about to suffer and why [he is] to suffer it”).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 20 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

19 See, e.g., Wainwright v. Witt, 469 U.S. 412 (1985) (holding that a juror can be dismissed only if the juror's beliefs would “substantially impair” ability to follow the law).

20 See, e.g., Morgan v. Illinois, 504 U.S. 719 (1992) (ruling that defendant has right during voir dire to inquire whether venire persons would automatically impose the death penalty).

21 See Turner v. Murray, 476 U.S. 28 (1986) (defendant has right to question prospective jurors about racial bias when accused of an interracial capital crime).

22 See, e.g., Mills v. Maryland, 486 U.S. 367 (1988) (jury unanimity requirements for considering mitigating evidence violate Lockett).

23 See Caldwell v. Mississippi, 472 U.S. 320 (1985) (jury's “sense of responsibility” for death penalty must not be diminished).

24 See Jones v. United States, 527 U.S. 373 (1999) (no constitutional right exists for jury instruction on what happens if the jury cannot agree on a sentence, unless there is a “reasonable likelihood” the jury will be “affirmatively misled” as to the consequence).

25 See Lowenfield v. Phelps, 484 U.S. 231 (1988) (concluding that dynamite charges, if directed at furthering deliberation, do not violate the Constitution when the jury is deadlocked on the sentence).

26 See, e.g., Beck v. Alabama, 447 U.S. 625 (1980) (a capital defendant is entitled to jury instruction on possible lesser-included offenses).

27 See McCleskey v. Kemp, 481 U.S. 279 (1987) (requiring a showing of intentional discrimination for equal protection violation).

28 See Estelle v. Smith, 451 U.S. 454 (1981) (ruling that Miranda warnings apply to a psychiatric exam to be used at death penalty sentencing).

29 See, e.g., Schlup v. Delo, 513 U.S. 298 (1995) (claim of constitutional error, normally barred because of procedural default, can be heard if newly discovered evidence of fact exists such that “no reasonable juror would have found [him] guilty beyond a reasonable doubt”).

30 See, e.g., Strickland v. Washington, 466 U.S. 668 (1984) (announcing standard for ineffective assistance).

31 See, e.g., Darden v. Wainwright, 477 U.S. 168 (1986) (prosecutor's comments constitute violation if rendered sentencing fundamentally unfair).

32 See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998) (concluding that clemency processes are subject to at least “minimal procedural safeguards” of Due Process).

33 To provide examples of how a case announcing a constitutional rule governing the death penalty is then elaborated upon in numerous later cases might result in the longest footnote in the history of law reviews. In fact, the Court's capital decisionmaking could be used by a mathematics teacher to illustrate the concept of exponential growth. To provide just one example, the holding in Godfrey v. Georgia, 446 U.S. 420 (1980), invalidating the “wantonly vile” aggravator as too vague, in turn begat Maynard v. Cartwright, 486 U.S. 356 (1988) (concluding that “especially heinous, atrocious or cruel” was too vague as applied); Shell v. Mississippi, 498 U.S. 1 (1990) (Marshall, J., concurring) (per curiam) (merely explaining that “heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means to inflict a high degree of pain with indifference to, or even enjoyment of[,] the suffering of others” does not adequately narrow terms); Walton v. Arizona, 497 U.S. 639 (1990) (holding Arizona's “heinous and cruel” aggravating circumstances constitutional where limited to intended or foreseeable infliction of mental anguish or physical abuse”); and Arave v. Creech, 507 U.S. 463 (1993) (upholding an “utter disregard for human life” factor as constitutional when interpreted as meaning a “cold-blooded, pitiless slayer”). This process of elaboration has been repeated for almost every case the Court has decided.

34 536 U.S. 304 (2002). In keeping with the changing terminology as used by mental health professionals, this Article will use the term “intellectually disabled” rather than “mentally retarded” unless “mentally retarded” is the phrase used in a quotation. See Hall v. Florida 134 S. Ct. 1986 (2014) (“Previous opinions of this Court have employed the term “mental retardation.” This opinion uses the term “intellectual disability” to describe the identical phenomenon.”).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 21 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

35 543 U.S. 551 (2005).

36 Strong arguments have been made that Atkins's and Roper's reasoning requires a finding that the death penalty cannot be applied to the mentally ill. These arguments tend to be focused on Atkins and Roper as proportionality cases and the lack of a legitimate retributive or deterrent effect in applying the death penalty to mentally ill defendants. See, e.g., Bethany C. Bryant, Comment, Expanding Atkins and Roper: A Diagnostic Approach to Excluding the Death Penalty as Punishment for Schizophrenic Offenders, 78 Miss. L.J. 905, 911-12 (2009) (discussing the Court's approach to the principle of proportionality and arguing that the death penalty for mentally ill defendants could not advance the penological goal of deterrence); Laurie T. Izutsu, Applying Atkins v. Virginia to Capital Defendants with Severe Mental Illness, 70 Brook. L. Rev. 995, 999-1000 (2005) (noting that the Court has found the death penalty has little deterrent effect against defendants with reduced capacity for reasoned choice); Helen Shin, Is the Death of the Death Penalty Near? The Impact of Atkins and Roper on the Future of Capital Punishment for Mentally Ill Defendants, 76 Fordham L. Rev. 465, 477-78, 480-81 (2007) (discussing how excessive punishments are judged by currently prevailing standards and how defendants with diminished capacity are not likely to be deterred); Bruce J. Winick, The Supreme Court's Evolving Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier, 50 B.C. L. Rev. 785 (2009) (discussing how the death penalty is a disproportionate punishment for defendants with mental illness because it does not meet the penological goals of retribution and deterrence). Professor Christopher Slobogin has made important arguments using Equal Protection and Due Process principles to expand Atkins to mentally ill defendants. See Christopher Slobogin, Mental Illness and the Death Penalty, 24 Mental & Physical Disability L. Rep. 667 (2000) (discussing the death penalty for the mentally ill through the lens of equal protection and due process); Christopher Slobogin, What Atkins Could Mean for People with Mental Illness, 33 N.M. L. Rev. 293 (2003) [hereinafter Slobogin, What Atkins Could Mean] (2003) (viewing Atkins through the lens of an Equal Protection argument). For a comprehensive bibliography on materials regarding mental illness and the death penalty, see Jean Mattimoe, The Death Penalty and the Mentally Ill: A Selected and Annotated Bibliography, 5 Critical Legal Stud. J. 1 (2012).

37 492 U.S. 302 (1989).

38 See generally id. (holding that a death sentence imposed on an intellectually disabled defendant was not a per se violation of the Eighth Amendment).

39 492 U.S. 361 (1989).

40 Id. (citing Trop v. Dulles, 356 U.S. 86, 101 (1958)).

41 The doctrinal roots of the Eighth Amendment principle that a punishment must be proportional traces to a 1910 case where the Court held “that it is a precept of justice that punishment for crime should be graduated and proportioned to offense.” Weems v. United States, 217 U.S. 349, 367 (1910) (striking down the punishment of cadena temporal, hard labor in chains, for the crime of falsifying records). Chief Justice Warren first tied the Eighth Amendment into an “evolving standards” analysis when he stated in Trop v. Dulles, 356 U.S. at 100-01, “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. . . . The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

42 See Gregg v. Georgia, 428 U.S. 153, 197 (1976) (upholding Georgia's new statutory scheme as adequately guiding the jury in its exercise of discretion).

43 Most states used the Model Penal Code as a blueprint to hammer together “guided discretion” statutes that attempted to meet Furman's critique. These statutes tried to constrain sentencer discretion by specifying certain “aggravating factors” that had to be found before a defendant became eligible for the death penalty (for example, that the killing was of a police officer during the course of her duties), and by then requiring the aggravating factors to be weighed against mitigating factors that also were often specified in the statute. See generally Scott E. Sundby, The Lockett Paradox: Reconciling Guided Discretion and Unguided Mitigation in Capital Sentencing, 38 UCLA L. Rev. 1147, 1152-53 (1991) (examining the Court's Eighth Amendment jurisprudence in relation to guided discretion statutes).

44 Atkins v. Virginia, 536 U.S. 304, 311-14 (2002).

45 Id. at 312.

46 Id.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 22 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

47 Id. at 313.

48 See Enmund v. Florida, 458 U.S. 782 (1982) (holding the death penalty unconstitutional for felony-murder where the defendant neither kills nor knew death was highly likely to occur); Coker v. Georgia, 433 U.S. 584 (1977) (holding the death penalty invalid for rape of an adult without murder). The Court also had held that the Eighth Amendment barred executing a condemned defendant who did not understand “the punishment [he is] about to suffer and why [he is] about to suffer it.” Ford v. Wainwright, 477 U.S. 399, 422 (1986). An individual under Ford, however, would have been sentenced to death for a crime for which he could be executed were it not for later becoming mentally incompetent.

49 Atkins, 536 U.S. at 310-12.

50 Roper v. Simmons, 543 U.S. 551, 567 (2005) (quoting Atkins, 536 U.S. at 316).

51 The Atkins dissenters, for instance, objected to the majority's reliance on opinion polls and the views of professional organizations. 536 U.S. at 322-23 (Rehnquist, C.J., dissenting). In Roper, the dissent objected to the majority's references to the rarity of the juvenile death penalty among other nations. 543 U.S. at 626-28 (Scalia, J., dissenting).

52 Atkins, 536 U.S. at 319.

53 Id. at 319-20.

54 Roper, 543 U.S. at 569, 589.

55 Id. at 572 (quoting Thompson v. Oklahoma, 487 U.S. 815, 837 (1988) (plurality opinion)).

56 Atkins, 536 U.S. at 320-21 (footnote omitted).

57 See infra notes 102-26 and accompanying text.

58 Roper, 543 U.S. at 572.

59 Id. at 573.

60 Id. at 573-74 (citations omitted).

61 Id. at 572.

62 428 U.S. 153 (1976).

63 See supra note 43 (examining states' response to Furman).

64 See Roberts v. Louisiana, 428 U.S. 325, 329 (1976); Woodson v. North Carolina, 428 U.S. 280, 286 (1976).

65 Woodson, 428 U.S. at 304-05 (citation omitted).

66 428 U.S. 325 (holding Louisiana's mandatory death penalty statute unconstitutional).

67 Woodson, 428 U.S. at 304.

68 Imagine, for instance, how such a holding might be placed in a capital punishment treatise's index by a professional indexer unfamiliar with death penalty law: “Well, of course I cross-indexed it under ‘compassion’ and ‘diverse human frailties,’ where else would you have had me put it?”

69 438 U.S. 586 (1978).

70 As the Lockett Court explained, Once a verdict of aggravated murder with specifications had been returned, the Ohio death penalty statute required the trial judge to impose a death sentence unless, after “considering the nature and circumstances of the offense” and Lockett's “history, character, and condition,” he found by a preponderance of the evidence that (1) the victim had induced or facilitated the offense, (2) it was unlikely

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 23 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

that Lockett would have committed the offense but for the fact that she “was under duress, coercion, or strong provocation,” or (3) the offense was “primarily the product of [Lockett's] psychosis or mental deficiency.” Id. at 593-94 (alteration in original).

71 Id. at 599-600 n.7.

72 Id. at 606.

73 Id. at 604 (emphasis added).

74 Id.

75 See generally Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, 36 Hofstra L. Rev. 677 (2008).

76 See Porter v. McCollum, 558 U.S. 30, 39 (2009) (“It is unquestioned that under the prevailing professional norms at the time of Porter's trial, counsel had an ‘obligation to conduct a thorough investigation of the defendant's background.”’ (quoting Williams v. Taylor, 529 U.S. 362, 396 (2000))).

77 Id. (internal quotation marks omitted). The Court elaborated, “The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases. A variety of flexible techniques-probation, parole, work furloughs, to name a few-and various postconviction remedies may be available to modify an initial sentence of confinement in noncapital cases.” Id. at 605.

78 Id.

79 Id. (emphasis added).

80 455 U.S. 104 (1982).

81 Id. at 109, 117.

82 Id. at 112.

83 Id.

84 476 U.S. 1 (1986).

85 Id. at 3.

86 Id. at 4 (internal quotation marks omitted). The Court showed similar impatience in striking down a Florida death sentence where the trial court had viewed itself as limited to a list of statutory mitigating factors. Hitchcock v. Dugger, 481 U.S. 393 (1987). Hitchcock evidences how entrenched Lockett had become by this point. After the Court found that the record made clear that the judge had viewed himself as limited to only statutory mitigating factors, Justice Scalia for a unanimous Court treated the finding as constitutional game, set, and match: We think it could not be clearer that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances, and that the proceedings therefore did not comport with the requirements of Skipper v. South Carolina, 476 U.S. 1 (1986), Eddings v. Oklahoma, 455 U.S. 104 (1982), and Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion). Id. at 398-99.

87 Skipper, 476 U.S. at 7.

88 Id. at 5.

89 Id. (quoting Jurek v. Texas, 428 U.S. 262, 275 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 24 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

90 492 U.S. 302 (1989).

91 Id. at 312.

92 Id. at 320.

93 Id. at 310.

94 The prosecutor, in fact, argued to the jury that Penry's psychiatric history made him a danger in prison. Id. at 323-24 (quoting prosecutor's closing argument).

95 Id. at 328.

96 Id.

97 The opinion explained that “[u]nderlying Lockett and Eddings is the principle that punishment should be directly related to the personal culpability of the criminal defendant” and that such “individualized assessment” turns upon the “defendant's background and character.” Id. at 319.

98 Id. (emphasis added).

99 Id. (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring). Justice O'Connor first coined the phrase “reasoned moral response” in a case that initially might appear at odds with the evolutionary theme of broad mitigation. She invoked the concept as a way of explaining why an “anti-sympathy” instruction at the penalty phase did not undermine Lockett's mandate of broad mitigation. Brown, 479 U.S. at 545 (arguing such an instruction did not violate the Eighth Amendment because mitigation was meant to be evaluated as a “reasoned moral response” rather than an emotional or sympathetic response). The idea of a “reasoned moral response,” however, is quite congruous with the idea that individualized consideration is crucial to reliability, since a sentencer cannot begin to have a “reasoned,” let alone a “moral,” response unless she is in possession of complete information about the defendant and personally capable of considering it.

100 Penry, 492 U.S. at 327-28 (citations omitted); see also Penry v. Johnson, 532 U.S. 782, 797 (2001) (Penry II) (describing the “give effect to” language of the other Penry case as “the key” to that decision).

101 A bit astonishingly, given the clear mandate of the Lockett line of cases through Penry, the Court still had to clarify the point for the Fifth Circuit in the case of Tennard v. Dretke, 542 U.S. 274 (2004). The Fifth Circuit had upheld the Texas courts' and lower federal court's finding that the inability of the jury to give effect to the defendant's evidence that he had an IQ of 67 was not sufficient to warrant a certificate of appealability. Id. at 279-81. The Fifth Circuit had imposed a threshold requirement requiring mitigating evidence to be “‘constitutionally relevant’ . . . that is, evidence of a ‘uniquely severe permanent handicap with which the defendant was burdened through no fault of his own,’ and evidence that ‘the criminal act was attributable to this severe permanent condition.”’ Id. at 281 (quoting the Fifth Circuit opinion) (internal quotation marks omitted). The Supreme Court made clear that the Fifth Circuit's restrictive standard “has no foundation in the decisions of this Court,” and, in fact, was contrary to the Court's cases, which had always spoken of mitigation in the “most expansive terms.” Id. at 284.

102 492 U.S. at 340.

103 See supra notes 92-95 and accompanying text.

104 Atkins v. Virginia, 536 U.S. 304, 320-21 (2002).

105 Roper v. Simmons, 543 U.S. 551, 573 (2005).

106 “While this sort of overreaching [of the prosecutor arguing youth as an aggravator] could be corrected by a particular rule to ensure that the mitigating force of youth is not overlooked, that would not address our larger concerns.” Id.

107 Id.

108 Id. at 572-73.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 25 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

109 130 S. Ct. 2011 (2010). Professor Richard Bierschbach has written an excellent piece arguing that Graham is more of an individualized-consideration case than a proportionality case in a manner that is very compatible with this Article's reading. Richard A. Bierschbach, Proportionality and Parole, 160 U. Pa. L. Rev. 1745 (2012). Because he is primarily focused on how parole plays a role in fulfilling the requirement of individualized consideration, he does not view Atkins and Roper as having a similar connection to Woodson and Lockett. Id. at 1749, 1766-67 (“Parole thus conceptually severs Graham from Roper, Atkins, and other classic proportionality cases . . . .”). Once the unreliability principle of Atkins and Roper is recognized, however, Graham in fact becomes a conceptual extension of Atkins and Roper, rather than a severance, through its recognition that no procedural rule can guarantee sufficient reliability in the context of life without parole for juveniles. See also Richard A. Bierschbach & Stephanos Bibas, Constitutionally Tailoring Punishment, 112 Mich. L. Rev. 397 (2013) (drawing connection between Graham, Miller, Apprendi, and Woodson-Lockett); Janet C. Hoeffel, The Jurisprudence of Death and Youth: Now the Twain Should Meet, 46 Tex. Tech L. Rev. 29, 51-53 (2013) (drawing connection between Graham, Miller, and Woodson-Lockett).

110 Graham, 130 S. Ct. at 2032. The case-by-case approach was advocated by Chief Justice Roberts in his concurrence. Id. at 2037 (Roberts, C.J., concurring).

111 Id. at 2032 (internal citation omitted). The majority at this point provided a “cf.” citation to Atkins. Id. (“Cf. Atkins, 536 U.S., at 320, 122 S. Ct. at 2242 (“Mentally retarded defendants may be less able to give meaningful assistance to their counsel”)”).

112 Id. (alteration in original) (internal citations omitted). The Graham majority additionally observed that barring life without parole“gives all juvenile non-homicide offenders a chance to demonstrate maturity and reform.” Id. Although not as self-evident, this justification also ties into the unreliability principle, because it highlights the inability to predict in the future whether the defendant might in fact change: Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope. Maturity can lead to that considered reflection which is the foundation for remorse, renewal and rehabilitation . . . A categorical rule against life without parole for juvenile nonhomicide offenders avoids the perverse consequence in which the lack of maturity that led to an offender's crime is reinforced by the prison term. Id. at 2032-33.

113 In the next juvenile defendant case, Miller v. Alabama, 132 S. Ct. 2455 (2012), the Court expressly invoked the Woodson-Lockett line of individualized sentencing cases. The sentence at issue was a mandatory sentence of life without parole for a juvenile convicted of homicide, making, as the Court noted, “relevant . . . a second line of our precedents, demanding individualized sentencing when imposing the death penalty.” Miller, 132 S. Ct. at 2467. The Court's opinion is important for expressly importing the Woodson- Lockett line of cases into a non-capital context, but because the sentence was mandatory, the Court was able to strike down the mandatory nature of the life without parole sentence without addressing underlying issues of unreliability in the discretionary setting. Indeed, because the Court found that striking down the mandatory sentencing feature was “sufficient” to decide the cases before it, they did not “consider [the petitioners'] alternative argument that the Eighth Amendment requires a categorical bar.” Id. at 2469. The Court then added that given “children's diminished culpability and heightened capacities for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Id.

114 134 S. Ct. 1986 (2014).

115 Id. at 1993 (quoting Atkins as to the “special risks” that intellectually disabled defendants face at trial and sentencing).

116 Id. at 1990.

117 Whether or not deliberate, the majority's manner of recounting the facts in Hall has the rhetorical effect of making Atkins's point about the dangers of erroneously imposed death sentences on the intellectually disabled. After recounting Hall's intellectual struggles from childhood on through adulthood and how those interacting with him daily clearly viewed him as intellectually disabled, Justice Kennedy notes, “Hall's upbringing appeared to make his deficits in adaptive functioning all the more severe.” Id. at 1991. The opinion then relates “the most horrible family circumstances imaginable,” including how “retardation did not garner any sympathy from his mother, but rather caused much scorn to befall him.” Id. Hall was “[c]onstantly beaten because he was ‘slow’ or because he made simple mistakes.” His mother “would strap [Hall] to his bed at night, with a rope thrown over a rafter. In the morning, she would awaken Hall by hoisting him up and whipping him with a belt, rope, or cord.” Hall was beaten “ten or fifteen times a week sometimes.” His mother tied him “in a ‘croaker’ sack, swung it over a fire, and beat him,” “buried him in the sand up to his neck to ‘strengthen his legs,’ ” and “held a gun on Hall . . . while she poked [ [him] with sticks.”

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 26 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

Id. at 1990 (alterations in original) (quoting from lower court opinions and findings). After such a recounting, one is tempted to read Justice Kennedy's next line, “The jury, notwithstanding this testimony, voted to sentence Hall to death, and the sentencing court adopted the jury's recommendation,” id. at 1991 (emphasis added), as a tacit suggestion that the Court got it right in Atkins, i.e., if this type of evidence could not persuade a jury to return a life sentence, there simply is too great a “risk ‘that the death penalty will be imposed in spite of factors which may call for a less severe penalty.”’ Atkins v. Virginia, 536 U.S. 304, 320 (quoting Lockett).

118 As notedearlier, supra notes44-48 and accompanyingtext, under theCourt's conventional proportionality analysis, the Court's second step of an “independent” analysis follows a threshold inquiry of whether a national consensus has developed against a practice. The first step is intended to provide “objective evidence” that the practice is excessive based on evolving standards. Atkins, 536 U.S. at 311-12.

119 Furman v. Georgia, 408 U.S. 238, 274 (1972) (Brennan, J., concurring).

120 See supra note 36.

121 Atkins, 536 U.S. at 320-21; see also Graham v. Florida, 130 S. Ct. 2011, 2032 (2010).

122 Atkins, 536 U.S. at 321.

123 Graham, 130 S. Ct. at 2032.

124 Roper v. Simmons, 543 U.S. 551, 573 (2005).

125 Atkins, 536 U.S. at 308-09.

126 Roper, 543 U.S. at 573.

127 See Ellen Fels Berkman, Note, Mental Illness as an Aggravating Circumstance in Capital Sentencing, 89 Colum. L. Rev. 291, 297-98 (1989) (detailing “[t]he high percentage of statutory mitigating circumstances that have mental illness components”).

128 See Va. Code Ann. §19.2-264.3:1 (West 2014).

129 Ake v. Oklahoma, 470 U.S. 68 (1985) (defendant entitled to appointment of a psychiatrist “when the State has made the defendant's mental condition relevant to his criminal culpability and to the punishment he might suffer”).

130 See Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, supra note 75.

131 See Stephen P. Garvey, Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98 Colum. L. Rev. 1538, 1559 (1998) (detailing Capital Jury Project findings that when asked how “a history of mental illness” would affect their decision, 26.7% of capital jurors stated it would make them “much less” likely to impose a death sentence and 29.5% said “slightly less likely”).

132 See id. at 1564.

133 Id. at 1559 (29.5% stating “slightly less” likely and 44.3% stating “much less”). The strongest mitigator identified by jurors was not a defendant characteristic but a “lingering doubt” over the defendant's guilt. Id. (16.8% stating lingering doubt would make them “slightly less” likely and 60.4% stating they would be “much less” likely to vote for death). Jurors, however, rarely had lingering doubts in the cases that they sat on. See Scott E. Sundby, The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 Cornell L. Rev. 1557 (1998).

134 Garvey, supra note 131, at 1559 (defendant being under eighteen would make 27.9% of jurors “slightly less” likely and 13.6% “much less” likely to impose the death penalty).

135 See Atkins v. Virginia, 536 U.S. 304, 320-21 (2002).

136 Id. at 320.

137 See Graham v. Florida, 130 S. Ct. 2011, 2032 (2010).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 27 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

138 Id. (citations omitted).

139 Atkins, 536 U.S. at 320.

140 For a remarkably insightful look at the practical and ethical issues facing an attorney representing a mentally ill defendant, see John D. King, Candor, Zeal, and the Substitution of Judgment: Ethics and the Mentally Ill Criminal Defendant, 58 Am. U. L. Rev. 207 (2008).

141 Godinez v. Moran, 509 U.S. 389, 410, 416-17 (1993) (Blackmun, J., dissenting) (explaining how the defendant's depression caused him to fire his lawyers and seek the death penalty).

142 See United States v. Kaczynski, 239 F.3d 1108, 1111-13 (9th Cir. 2001) (recounting the numerous times the defendant prevented his lawyers from rasing the defense).

143 See id.

144 See id.

145 For a summary of the events surrounding his guilty plea, see generally id. Kaczynski challenged his plea as involuntarily entered and as a violation of his rights to pro se representation under Faretta v. California. Id.

146 Riggins v. Nevada, 504 U.S. 127, 144 (1992) (Kennedy, J., concurring) (citation omitted).

147 Atkins v. Virginia, 536 U.S. 304, 320-21 (2002).

148 State v. LeGrande, 487 S.E.2d 727, 730 (N.C. 1997).

149 See Sundby, supranote 133, at 1563 & n.22 (describing jurors' reactions to defendants who had outbursts during trial). As one capital juror explained, watching the defendant engage in shouting matches with the judge led him to conclude that the defendant was “utterly remorseless.” Id.

150 Atkins, 536 U.S. at 321.

151 See Sundby, supra note 133, at 1563-65.

152 Jurors' typically described the defendant's demeanor as emotionless, which shocked them given that the evidence often was gruesome and highly emotional. As one juror described it, the defendant was “blase, an expressionless person. When we were ready to go out and give the verdict, I was almost ready to cry, and yet there was never any expression from him. It was like doing a trial on a wooden plank.” Id. at 1563.

153 Id. at 1564-65.

154 Riggins v. Nevada, 504 U.S. 127, 143-44 (1992) (Kennedy, J., concurring) (“As any trial attorney will attest, serious prejudice could result if medication inhibits the defendant's capacity to react and respond to the proceedings and to demonstrate remorse or compassion. The prejudice can be acute during the sentencing phase of the proceedings, when the sentencer must attempt to know the heart and mind of the offender and judge his character, his contrition or its absence, and his future dangerousness. In a capital sentencing proceeding, assessments of character and remorse may carry great weight and, perhaps, be determinative of whether the offender lives or dies.”) In one rather remarkable case, the following exchange took place during trial: Counsel Crow: Do any of the drugs that are used to treat paranoid schizophrenics make them sleepy? Dr. Quijano: Yes. Counsel Crow: And that sleep would be pronounced if the drug were taken within the recent past? Dr. Quijano: Yes. These antipsychotic medications have a sedating effect. So agitated people like in jail you would inject them to give them a good night's rest for a day or two. Counsel Crow: Judge, can I approach the bench a minute, please? The Court: Yes, Sir. (Whereupon the following was had at the bench) Counsel Crow: Judge, I don't know that it matters, but I think I need a break to walk my client around the room a little bit. He's snoring kind of loud-

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 28 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

Counsel Stover: They apparently injected him last time night (sic) to calm him down and I appreciate it. But he's sleeping right now. Counsel Crow: I don't know if it's going to matter too much, but I think it would be better if we had a minute to walk him around to wake him up. Colburn v. Cockrell, 37 Fed. Appx. 90, at *6 n.10 (5th Cir. 2002). In part what is remarkable is the defense counsel expressing “appreciation” that his client has been drugged to “calm him down” even though the effect was to have his client loudly during the trial. The Fifth Circuit dismissed Colburn's “sleepiness” as evidence of incompetence to stand trial without any recognition that Colburn was in that condition because of the state's medical treatment or of the likely effect that Colburn's sleeping and snoring had on those observing him. Id. at *6.

155 Graham v. Florida, 130 S. Ct. 2011, 2032 (2010).

156 509 U.S. 389 (1993).

157 Id. at 391.

158 Id. at 410 (Blackmun, J., dissenting).

159 Id. (Blackmun, J., dissenting)

160 See id. at 396-402. Indeed, if one read only Justice Thomas's majority opinion, the reader would barely be aware of the full factual context that raises the question whether the death penalty was reliable. Although Justice Blackmun's dissent also is focused on the proper standard for competency, his dissent provides a far fuller factual accounting. See generally id. at 409-12 (Blackmun, J., dissenting).

161 Id. at 410, 417 (Blackmun, J., dissenting).

162 Graham v. Florida, 130 S. Ct. 2011, 2032 (2010).

163 See supra notes 156-59 and accompanying text.

164 See supra notes 97-99 and accompanying text.

165 See Riggins v. Nevada, 504 U.S. 127, 142 (1992) (Kennedy, J., concurring).

166 Id. at 144. (Kennedy, J., concurring).

167 See Sundby, supra note 133, at 1590 n.78 (discussing that jurors are most concerned with a defendant's future dangerousness).

168 See Riggins, 504 U.S. at 145 (Kennedy, J., concurring).

169 See supra notes 150-54 and accompanying text.

170 Atkins v. Virginia, 536 U.S. 304, 321 (2002) (citing Perry v. Lynaugh, 492 U.S. 302, 323-25 (1989)).

171 Id. The concern over constitutionally protected mitigation being improperly turned into aggravationfirst arose in Penry.See supra notes 90-95and accompanying text. As described earlier, under Texas's three-question scheme, Penry's intellectual disability actually made the jury more likely to sentence him to death by funneling the use of his disability towards a “yes” answer to whether he posed a future danger. See supra notes 90-95 and accompanying text.

172 Roper v. Simmons, 543 U.S. 551, 573 (2005).

173 Id. at 558.

174 For an insightful discussion of the “two-edged sword” problem, see Ralph Reisner & Christopher Slobogin, Law and the Mental Health System 580-83 (2d ed. 1990).

175 By a significant margin, jurors cited the concern that “the defendant might pose a future danger to society” as the factor that made them most likely to impose a death sentence. See Garvey, supra note131, at 1559 (37.9% stating it wouldmake them “much more likely” and 20% “slightly more likely” to vote for death).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 29 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

176 Scott E. Sundby, A Life and Death Decision: A Jury Weighs the Death Penalty 36-37 (2005) (examining how jurors focus on the concern that the defendant will kill again).

177 See supra notes 84-87 and accompanying text.

178 See Scott E. Sundby, The Jury as Critic: An Empirical Look at How Capital Juries Perceive Expert and Lay Testimony, 83 Va. L. Rev. 1109, 1165-66 (1997).

179 Id. at 1167.

180 Id.

181 See id. at 1165-70.

182 See Roper v. Simmons, 543 U.S. 551, 573 (2005).

183 Id.

184 470 U.S. 68 (1985).

185 Id. at 81.

186 The Ake Court was careful to not be seen as endorsing the use of psychiatric experts, but as only reacting to the reality of the growing use of experts: “In so saying, we neither approve nor disapprove the widespread reliance on psychiatrists but instead recognize the unfairness of a contrary holding in light of the evolving practice.” Id. at 82.

187 Id. at 81.

188 See generally Sundby, supra note 178, at 1125-44; Richard J. Bonnie & Christopher Slobogin, The Role of Mental Health Professionals in the Criminal Process: The Case for Informed Speculation, 66 Va. L. Rev. 427, 477 (1980) (“The factfinder is likely to view with considerable skepticism the defendant's claim that he did not function as would a normal person under the circumstances.”).

189 Sundby, supra note 178, at 1126-30 (discussing prosecutorial advantage in presentation of experts at capital sentencing phase).

190 It may be that, as Ake suggested, it is unavoidable having a jury determine the legitimacy of a diagnosis of schizophrenia or bipolar at the guilt-innocence phase in order to implement an insanity defense. The Court, however, has repeatedly stressed that a risk of error that is tolerable in a non-capital case can become unconstitutional in the capital sentencing context. As the Lockett Court observed early on, “[t]he need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases,” and the Court has built on that premise repeatedly over the ensuing years. See Lockett v. Ohio, 438 U.S. 586, 605 (1978).

191 Atkins v. Virginia, 536 U.S. 304, 320 (2002) (quoting Lockett, 438 U.S. at 605).

192 See Clark v. Arizona, 548 U.S. 735, 774 (2006) (justifying Arizona's restrictions on the insanity defense because of “the controversial character of some categories of mental disease, . . . the potential of mental-disease evidence to mislead, and . . . the danger of according greater certainty to capacity evidence than experts claim for it”).

193 Intellectual disability could possibly be an issue at the guilt-innocence phase if the state recognizes diminished capacity. See id. at 772-73.

194 See id. at 750-51 (reviewing different states' approaches to the insanity defense).

195 See John H. Blume, Sheri Lynn Johnson & Scott E. Sundby, Competent Capital Representation: The Necessity of Knowing and Heeding What Jurors Tell Us About Mitigation, 36 Hofstra L. Rev. 1035, 1063-64 & n.117 (2008) (explaining the potential difficulties posed by statutory mitigating factors).

196 Roper v. Simmons, 543 U.S. 551, 573 (2005).

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 30 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

197 See Marc Bookman, 13 Men Condemned to Die Despite Severe Mental Illness, Mother Jones (Feb. 12, 2013, 7:02 AM), http:// www.motherjones.com/politics/2013/01/death-penalty-cases-mental-illness-clemency (summarizing cases where mentally ill defendants have been sentenced to death).

198 See supra notes 174-75 and accompanying text.

199 134 S. Ct. 1986 (2014) (striking down Florida's rule that a defendant could not make an Atkins claim unless he had an IQ test of seventy or below).

200 See id. at 1994-95, 2000-01.

201 Slobogin, What Atkins Could Mean, supra note 36, at 307-08 & n.101. The relatively high agreement on diagnosis does not undermine the fifth Atkins-Roper factor concerning the uncertainty surrounding the use of psychiatric evidence. Even with intellectual disability, mental health professionals often disagree over whether a defendant has, say, an IQ of sixty or sixty-five, but that disagreement would not change the fact that an IQ of that level would constitute “intellectual disability” placing the defendant outside the death penalty; as Atkins makes clear, once beyond the threshold of “intellectual disability,” even if disagreement might exist over the effects of the disability on the individual defendant, the risk of mistaken application of the death penalty is simply too great. Likewise, with mental illness, once the determined threshold has been crossed, the risk of confusion when psychiatrists present conflicting opinions about the effects of a mental illness on the defendant would present too great a risk of error for the death penalty to be considered. Cf. Atkins v. Virginia, 536 U.S. 304, 320 (2002).

202 Conn. Gen. Stat. § 53a-46a(h)(3) (2009).

203 ABA Comm. on Mental and Physical Disability Law, Res. 122A (2006).

204 481 U.S. 279 (1987).

205 Roper v. Simmons, 543 U.S. 551, 620-21 (Scalia, J., dissenting). Justice Scalia's awareness of the implications of the majority's reasoning may result from his own candid acknowledgement as far back as McCleskey that, “it is my view that the unconscious operation of irrational sympathies and antipathies including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable.” See Scott E. Sundby, The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure, 10 Ohio St. J. Crim. L. 5, 33 (2012).

206 See generally Roper, 543 U.S. 551 (2005); Atkins, 536 U.S. 304 (2002).

207 See generally Sundby, supra note 176, at 125-29(describing how some jurors after hearing about brutality of crime are not receptive to mitigation).

208 The Capital Jury Project, for instance, has found that jurors find a crime involving a child victim as extremely aggravating. See Garvey, supra note 131, at 1556 tbl. 3.

209 See Barefoot v. Estelle, 463 U.S. 880, 899 (1983) (rejecting challenge to predictions of dangerousness because the majority was not convinced such evidence was “almost entirely unreliable,” a drastically lower standard than the Atkins-Roper unreliability standard would require to pass constitutional muster).

210 Cf. Maples v. Thomas, 132 S. Ct. 912, 917-18 (2012) (detailing the shortcomings in Alabama's system of capital representation).

211 See supra notes 99-100 and accompanying text.

212 See generally Irene V. Blair, Implicit Stereotypes and Prejudice, in Cognitive Social Psychology 359 (Gordon B. Moskowitz ed., 2001) (reviewing the relevant literature); Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 Calif. L. Rev. 945, 946 (2006).

213 See generally Sergi G. Costafreda, Michael J. Brammer, Anthony S. David & Cynthia H. Y. Fu, Predictors of Amygdale Activation during the Processing of Emotional Stimuli: A Meta-Analysis of 385 PET and fMRI Studies, 58 Brain Res. Rev. 57 (2008); Frank Van Overwalle, Social Cognition and the Brain: A Meta-Analysis, 30 Hum. Brain Mapping 829 (2009); Elizabeth A. Phelps, Kevin J.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 31 THE TRUE LEGACY OF ATKINS AND ROPER: THE..., 23 Wm. & Mary Bill...

O'Connor, William A. Cunningham, E. Sunnie Funayama, J. Christopher Gatenby, John C. Gore & Mahzarin R. Banaji, Performance on Indirect Measures of Race Evaluation Predicts Amygdala Activation, 12 J. Cognitive Neuroscience 729 (2000).

214 See, e.g., Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, 94 Am. Econ. Rev. 991, 998 (2004) (job applicants with white-sounding names such as Emily or Greg were 50% more likely to receive callback job interviews in Boston and 49% more likely in Chicago than applicants with black-sounding names like Jamal).

215 See, e.g., Claudia Goldin & Cecilia Rouse, Orchestrating Impartiality: The Impact of “Blind” Auditions on Female Musicians, 90 Am. Econ. Rev. 715, 738 (2000) (having musicians audition behind a screen increases by 50% the chances that a female musician will advance out of preliminary rounds).

216 See, e.g., Anthony G. Greenwald & Mahzarin R. Banaji, Implicit Social Cognition: Attitudes, Self-Esteem, and Stereotypes, 102 Psychol. Rev. 4, 19-20 (1995) (calling for a method to detect unconscious stereotyping and exploring potential methods).

217 Jennifer L. Eberhardt, Paul G. Davies, Valerie J. Purdie-Vaughns & Sheri Lynn Johnson, Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes, 17 Psychol. Sci. 383, 384 (2006).

218 Id.

219 Id. By contrast, a heightened death sentencing rate did not exist where the victim was also African-American; an outcome that the researchers suggest might be due to the jury viewing a black-on-black killing as more of an interpersonal rather than intergroup conflict. Id. at 385.

220 Id. An intriguing body of research consistent with the capital sentencing study is finding that it is Afrocentric features more than race that appears to be influencing sentencing generally. See generally William T. Pizzi, Irene V. Blair & Charles M. Judd, Discrimination in Sentencing on the Basis of Afrocentric Features, 10 Mich. J. Race & L. 327 (2005) (finding bias in criminal sentencing against persons who had facial features culturally marked as Afrocentric, regardless of whether they were racially identified as white or black).

221 481 U.S. 279 (1987).

222 See id. at 297; Sundby, supra note 205, at 6-7 (using Justice Powell's papers to examine the writing of the McCleskey opinion).

223 Interestingly, it was Justice Scalia who, of the McCleskey majority, was willing to candidly acknowledge thatimplicit biases were at work. Seesupra note 205 (recounting Justice Scalia's proposed concurrence in McCleskey).

224 If mentally ill individuals are removed from the pool of death-eligible defendants, the number of death sentences will shrink yet again. In a capital punishment system that already is imposing significantly fewer than 100 death sentences annually, Justice Scalia may well be proven correct in predicting that we are in the process of the “incremental abolition” of capital punishment. Atkins v. Virginia, 536 U.S. 304, 353 (2002) (Scalia, J., dissenting). 23 WMMBRJ 487

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 32

Strategic Communications for Clemency Campaigns Capital Litigation Communications Project

Introduction: Strategic Communications Initiatives For Clemency Campaigns:

In the right circumstances, a well-designed strategic communications initiative to engage the media can make a tremendous difference in a clemency effort. By creating materials that elevate the key litigation themes, and by working with unlikely and prominent messengers, communications work can focus media attention on helpful aspects of your client’s case, and ultimately support a decision-maker’s ability to grant clemency.

The most important principle of any clemency campaign:

Every decision must be made through the lens of what matters to the decision-makers who hold the power of life and death in their hands: the parole board members, the governor and the governor’s advisors.

It is essential that any public communications campaign in support of clemency be partnered with quiet, behind-the-scenes efforts to secure the best possible outcome; while the communications outreach publicly promotes helpful messages drawn from the clemency petition and provides a favorable climate and political cover for the decision- makers, private communications with advisors to the decision-makers are critical and will help inform the public strategy.

Properly undertaken, a clemency campaign is both a major communications and organizing initiative.

You will want to assess whether you have the resources to devote to communications during this sensitive time. Some strategic communications initiatives require months, while some evolve over the course of a year or more. In general, the more time you devote to developing and working on a clemency campaign, the more you will increase your chances for a favorable outcome. It’s important to assess whether you will need outside support from a communications professional with experience in the area of clemency work in order to achieve your goals.

The Six Key Elements of A Strategic Communications Plan To Support Clemency:

When developing clemency campaigns, it’s essential to draft a document that identifies and fleshes out six key elements:

1) Goals: The goal of communications in support of a clemency is to create a climate favorable to a recommendation of commutation by a parole board and / or governor.

010-8094-0402/1/AMERICAS

2) Target Audience: As noted earlier, all communications efforts will be tailored to your targets: the decision-makers who can grant clemency. Identify the decision- makers in your case, typically parole board members and governors, (and while litigation is ongoing, state and federal courts, including the U.S. Supreme Court). Craft a strategic plan to reach this audience; don’t try to educate the public.

3) Strategy: Utilize a sophisticated and targeted communications strategy designed to reach the decision-makers who have the power to grant relief to your client: prominent, influential and unlikely messengers from across the political spectrum in multiple public and private forums who, at strategic key moments, will highlight the most helpful facts in your client’s case. The goal in using these messengers is to give cover to or persuade your targets – the decision-makers who can grant clemency.

4) Framing the Message: The goal is to develop messages that will resonate with your targets, tapping into their existing value system. The messages will be drawn from themes in the clemency petition, redirecting focus away from the bad facts of the case and giving decision-makers their most powerful reasons for granting clemency. For many clients, the clemency phase is the first opportunity to have the totality of the case reviewed, including facts that were procedurally barred, mitigation information, proportionality arguments, or claims of innocence that have not been considered at earlier points in the legal process.

• Fairness is a positive and persuasive theme, and can frame your arguments (e.g. Mr. Smith did not receive a fair trial because the jury never heard about his intellectual disability).

• It’s always helpful to keep your opposition on the defense, so they can’t advance their messages but have to refute your messages. You will want to anticipate their messaging and develop messages that undercut the opposition message.

5) Messengers: As noted above, a cornerstone of a successful communications strategy is often the utilization of unlikely allies, supporters beyond the usual suspects, who may matter to your targets. These people bring credibility to the legal claims and have a unique capacity to grab the attention of the targets and the media. Ideal messengers for a clemency effort include jurors from your client’s original trial who may be willing to say that new information changes their minds, members of the victim’s family who support mercy or have doubts about the case, law enforcement professionals, and former prosecutors or judges, among others.

6) Tactics and Timing: How and when you deliver your messages will be determined by news hooks such as the filing of your clemency petition. Here are essential materials that will need to be developed:

010-8094-0402/1/AMERICAS

• One-Two-Page Overview of your case with your most sympathetic narrative, which will be drawn from your clemency petition and provide a favorable framing. This executive summary will be shared with media as background, as well as circulated to your internal legal team, potential messengers, advocacy organizations and others.

• Talking Points are essential for anyone who is designated as an on-the-record spokesperson for the media. The talking points help provide a consistent message and are used to inform written materials. The overview and talking points are your two most important documents for strategic communications in a clemency effort.

• Pitch Memos used to make contact with and frame stories for print and broadcast journalists, editorial boards, online outlets and other appropriate media outlets.

• Press Lists with contact information for the journalists who have covered the case or are likely to cover the case sympathetically. You will find that media from your client’s state will likely be your main targets, but you may also benefit from select national media attention. Helpful national media, including online media, can influence local media and decision-makers, as well as potentially reaching higher court judges and their clerks. If the media in the jurisdiction where the crime occurred is not friendly, you may have to explore outlets in neighboring cities. It is vitally important to understand the views of any editorial board before reaching out to them.

• Opinion Pieces and Letters to the Editor that echo your talking points and overview are the best way to control your message in the media. Although your efforts can shape news coverage of your client, there is no way to control or predict news pieces, so it’s essential to develop opinion pieces and letters to the editor bylined by prominent messengers to reach your targets who have the power to grant clemency.

Conclusion: Communicating With Media In General During A Clemency Campaign

Whether you have decided to engage with the media through a fully developed strategic communications initiative or not, you may find it helpful to take a few simple steps to increase chances that media coverage will be favorable to your client. Any time you communicate with the media, it’s important to stick to your talking points and repeat your key messages over and over. Use any media opportunity to communicate with decision- makers in your case rather than speaking to the journalist or the general public. Assume anything you say can be quoted or shared with your opponents.

As litigators, you are already wonderful storytellers and great communicators. We wish you all success in communications work that supports your clemency cases.

-Laura Burstein and Tristin Aaron -Capital Litigation Communications Project -July 2015

010-8094-0402/1/AMERICAS

JOINT TASK FORCE TO REVIEW THE ADMINISTRATION OF OHIO’S DEATH PENALTY

FINAL REPORT & RECOMMENDATIONS APRIL 2014

SUBMITTED FOR CONSIDERATION TO:

Chief Justice Maureen O’Connor Supreme Court of Ohio 65 South Front Street Columbus, Ohio 43215

Jonathan Hollingsworth, President Ohio State Bar Association 1700 Lake Shore Drive Columbus, Ohio 43204

Dear Chief Justice O’Connor and Mr. Hollingsworth,

Enclosed please find the final report of the Jointask T Force to Review the Administration of Ohio’s Death Penalty. The Task Force was appointed by Chief Justice O’Connor and former Ohio State Bar Association President Carol Seubert Marx in September 2011.

As requested, the Joint Task Force conducted a thorough review of the 2007 ABA report titled, “Evaluating Fairness and Accuracy in State Death Penalty Systems: The Ohio Death Penalty Assessment Report” and considered the current laws regarding the death penalty, the practices in other jurisdictions, the data, and the costs associated with the death penalty. The appropriateness of the death penalty as a punishment in Ohio was never considered by the Joint Task Force. Based upon its review the Joint Task Force submits recommendations that, if implemented, will improve the administration of capital punishment in Ohio.

Oh behalf of the Joint Task Force, I thank you for the opportunity to assist the Supreme Court of Ohio and the Ohio State Bar Association in the consideration of these issues. We are available to respond to any questions that you may have regarding the findings and recommendations contained in this report.

Sincerely,

Enclosure

ACKNOWLEDGEMENTS

The Joint Task Force would like to acknowledge all those who attended meetings of the Joint Task Force, provided information to the Joint Task Force, or otherwise contributed to the work of the Joint Task Force. Of particular note, the Joint Task Force would like to thank Nancy Petro, former Attorney General Jim Petro, former Supreme Court of Ohio Justice Evelyn Lundberg Stratton, Dr. Thomas Brewer, Catherine Grosso, Barbara O’Brien, Robin Maher, and Tom Roberts for appearing before the Joint Task Force and providing insight into various issues. In addition, The Joint Task Force also acknowledges the staff of the Office of the State Public Defender for their assistance in gathering statistical data.

A special thank you to all of the members of the Joint Task Force who, for various reasons, were unable to complete their terms as members: Representative Ted Celeste, Representative Carlton Weddington, Dennis Watkins, and Sam Porter.

Finally, the Joint Task Force would like to thank the staff for the Joint Task Force: Jo Ellen Cline (Supreme Court of Ohio), Jessica Tobias (Ohio State Bar Association), and Kalpana Yalamanchili (Ohio State Bar Association).

DEDICATION

The Joint Task Force to Review the Administration of Ohio’s Death Penalty would like to dedicate this final report to the memory of Sam Porter. Mr. Porter served as a member of the Joint Task Force from its beginnings until his passing in May 2013. Mr. Porter served on several subcommittees of the Joint Task Force and never failed to contribute to the work of each of them. An attorney in private practice and a former Chair of the Ohio Public Defender Commission, Mr. Porter was a dedicated member of the Joint Task Force who was always willing and able to simplify the most difficult concepts, ask the difficult questions, and advocate for his beliefs.

JOINT TASK FORCE TO REVIEW THE ADMINISTRATION OF OHIO’S DEATH PENALTY

Judge Jim Brogan (ret.) CHAIR

Judge Stephen L. McIntosh VICE CHAIR

Sara Andrews Richard Bell Professor Doug Berman Representative Margaret Conditt Professor Phyllis L. Crocker Joe Deters Judge Michael P. Donnelly Judge Linda J. Jennings Judge Kathleen Keough Ron O’Brien John P. Parker Jon Paul Rion Sheriff Tim Rodenberg Judge John J. Russo Stephen Schumaker Senator Bill Seitz Senator Shirley Smith Judge John Solovan Representative Michael Stinziano Judge Roger Wilson Tim Young

SUMMARY OF RECOMMENDATIONS

VOTE PAGE RECOMMENDATION COUNT NUMBER

1) Custodial interrogations, as defined byMiranda v. Arizona, shall be recorded 13-5 3 and, if not recorded, then the statements made during the interrogation should be presumed “involuntary.”

2) The Joint Task Force recommends that each coroner’s office be required 18-1 3 to become accredited by the National Association of Medical Examiners (NAME), or have at least one person on staff or under contract who is a fellow of that organization (and who performs the procedure in the case), or have in place a contract with an accredited crime lab.

3) The Joint Task Force also recommends that, subject to the special rule 17-2 3 specified below, if evidence of the sort customarily subject to testing in a laboratory in a death penalty case is not originally reviewed by an accredited lab, then the defendant shall have the right to have the evidence reviewed a second time by an accredited lab. More specifically, any prosecution evidence that has not been tested in an accredited lab shall be retested in an accredited lab, at the request of the defendant and at the state’s expense. If such a request is made, there will be no reference at trial to the first test (in a non-accredited lab) except as may be necessary to establish chain of custody. Defense forensic experts shall also be required, by Supreme Court rule, to rely on testing by accredited labs, at the request of the prosecution, in death penalty cases.

4) The Joint Task Force recommends that legislation be enacted to require 10-6 4 all crime labs in Ohio be certified by a recognized agency as defined by the Ohio General Assembly.

5) The Joint Task Force recommends that the legislature enact legislation to 10-7 4 require prospective proportionality review in death penalty cases to include cases where the death penalty was charged in the indictment or information but was not imposed

6) The Joint Task Force also recommends that the Supreme Court of Ohio 15-1 5 mandate by court rule that, prospectively, all death eligible homicides be reported to a central data warehouse both at the charging stage and at the conclusion of the case at the trial level.

7) The Joint Task Force recommends that the Ohio Legislature amend R.C. 15-1 5 2929.03(F) to include the necessity for a prosecutor’s rationale for a proposed plea agreement, on the record, for any indicted capital offense that results in a plea for a penalty less than death VOTE PAGE RECOMMENDATION COUNT NUMBER

8) Enact legislation to consider and exclude from eligibility for the death 15-2 6 penalty defendants who suffered from “serious mental illness,” as defined by the legislature, at the time of the crime.

Appropriate questions for the legislature to consider include:

1. Whether “serious mental illness” is causally related to the crime?

2. Whether the determination of “serious mental illness” should be considered before trial or at some other time as determined by the legislature?

3. Whether this issue is already adequately addressed by current law?

9) Enact legislation to exclude from eligibility for the death penalty defendants 12-7 6 who suffer from “serious mental illness” at the time of execution.

10) Adoption of an order, in the case of a pro se defendant who is competent to 11-1 7 stand trial but may not be competent to represent himself or herself because of a mental health illness or developmental disability, directing either the appointment of counsel to conduct the trial or to act as “stand-by counsel” or “co-counsel” to assist the pro se defendant, or to assume or resume to proceed with trial as counsel of record, in the event the defendant changes their mind about proceeding as a pro se litigant.

11) Adopt the 2003 American Bar Association Guidelines for the Appointment 12-2 7 and Performance of Defense Counsel in Death Penalty Cases.

12) Adopt the Supplementary Guidelines for the Mitigation Function of Defense 13-4 8 Team in Death Penalty Cases. This recommendation is not meant, however, to alter the standard adopted in Strickland v. Washington.

13) Enact and fund a Capital Litigation Fund to pay for all costs, fees, and 19-0 8 expenses for the prosecution and defense of capital murder cases.

14) It is specifically recommended that increased funding be provided to the 20-0 9 Office of the Ohio Public Defender, by statute, to allow for additional hiring and training of qualified capital case defense attorneys, who could be made available to all Ohio counties, except in circumstances where a conflict of interest occurs, at which time a separate list of prospective appointed counsel would be provided. VOTE PAGE RECOMMENDATION COUNT NUMBER

15) The Ohio legislature and Supreme Court of Ohio should implement and 13-3 9 fund a statewide public defender system for representation of indigent persons in all capital cases for trials, appeals, post-conviction, and clemency except where a conflict of interest arises. In cases of conflicts of interest, qualified Rule 20 counsel shall then be appointed.

16) Enact legislation to provide that private defense counsel appointed to 16-0 9 represent death eligible defendants or those sentenced to death are equally paid throughout the state regardless of the location of the offense.

17) Enact legislation that maintains that a death sentence cannot be considered 12-6 10 or imposed unless the state has either: 1) biological evidence or DNA evidence that links the defendant to the act of murder; 2) a videotaped, voluntary interrogation and confession of the defendant to the murder; or 3) a video recording that conclusively links the defendant to the murder; or 4) other like factors as determined by the General Assembly.

18) Enact legislation that does not permit a death sentence where the State relies 19-0 10 on jailhouse informant testimony that is not independently corroborated at the guilt/innocence phase of the death penalty trial.

19) The legislature should study how to best support families of murder/ 19-0 12 homicide victims in the short and long term.

20) Enact legislation that allows a defendant to withdraw his or her waiver of a 11-7 12 jury trial in either the guilt or penalty phase if either phase is reversed by a reviewing court.

21) Amend Rule 20 of the Rules of Superintendence for Ohio Courts in the 18-0 12 manner attached to these final recommendations asAppendix B.

22) The Ohio Rules of Practice and Procedure shall be amended so that a 18-0 12 properly presented motion must be accepted for filing for a ruling by the court in a death penalty case. VOTE PAGE RECOMMENDATION COUNT NUMBER

23) Amend Sup.R. 20, adding Section (E). Section (E) would read as follows: 18-0 12

E. Post-Conviction Counsel. Post-conviction counsel shall satisfy all of the following qualifications:

1. Be admitted to the practice of law in Ohio or admitted to practice pro hac vice;

2. Have at least three years of civil or criminal litigation or post- conviction experience in Ohio;

3. Have specialized training, as approved by the committee, on subjects that will assist counsel in the post-conviction of cases in which the death penalty was imposed in the two years prior to making the application;

4. Have experience as counsel in the post-conviction proceedings of at least three felony convictions in the seven years prior to making the application.

24) The time frame for filing a post-conviction motion should be extended from 17-0 13 one hundred eighty (180) days after the filing of the trial record to three hundred sixty five (365) days after the filing of the trial record.

25) The judge hearing the post-conviction proceeding must state specifically 19-0 13 why each claim was either denied or granted in the findings of fact and conclusions of law.

26) The common pleas clerk shall retain a copy of the original trial file in 19-0 13 the common pleas clerk’s office even though it sends the originals to the Supreme Court of Ohio in connection with the direct appeal.

27) There shall be no page limits in post-conviction petitions for death penalty 14-3 13 cases in either the petition filed with the common pleas court or on appeal from the denials of such petition.

28) Amend R.C. §2953.21, as attached to this final report inAppendix C, to 13-3 13 provide for depositions and subpoenas during discovery in post-conviction relief. VOTE PAGE RECOMMENDATION COUNT NUMBER

29) Mandate through the Rule 20 Committee that all attorneys who practice 12-2 13 capital litigation must take a certain number of CLE hours on the issue of racial bias. Mandate mandatory CLE for prosecutors who prosecute death penalty cases to educate them on how to protect against racial bias in the arrest, charging and prosecution of death penalty cases. Mandate that Judges assigned to death penalty cases must also attend specialized training regarding racial bias in death cases and how to protect against it.

30) Mandate that any judge who reasonably believes that any state actor has 12-2 14 acted on the basis of race in a capital case be reported to the Office of Disciplinary Counsel or, if not an attorney, to the appropriate supervisory authority.

31) Mandate through the Rule 20 Committee that all Rule 20 approved trainings 13-1 14 must include at least one hour of training regarding the development of discrimination claims in death penalty cases and how to preserve Batson issues for appellate review.

32) Mandate that an attorney must seek the recusal of any judge where “a 8-5 14 reasonable basis for concluding that the judge’s decision making could be affected by racially discriminatory factors” and should the judge not recuse, if the attorney still believes there is a reasonable basis for concluding that the judge’s decision making could be affected by racially discriminatory factors, then the attorney shall file an affidavit of bias with the Chief Justice of the Supreme Court of Ohio.

33) Based upon data showing that prosecutors and juries overwhelmingly do 12-2 14 not find felony murder to be the worst of the worst murders, further finding that such specifications result in death verdicts 7% of the time or less when charged as a death penalty case, and further finding that removal of these specifications will reduce the race disparity of the death penalty, it should be recommended to the legislature that the following specifications be removed from the statutes: Kidnapping, Rape, Aggravated Arson, Aggravated Robbery, and Aggravated Burglary.

34) To address cross jurisdictional racial disparity, it is recommended that Ohio 8-6 14 create a death penalty charging committee at the Ohio Attorney General’s Office. It is recommended that the committee be made up of former county prosecutors, appointed by the Governor, and members of the Ohio Attorney General’s staff. County prosecutors would submit cases they want to charge with death as a potential punishment. The Attorney General’s office would approve or disapprove of the charges paying particular attention to the race of the victim(s) and defendant(s). VOTE PAGE RECOMMENDATION COUNT NUMBER

35) Enact legislation allowing for racial disparity claims to be raised and 13-1 15 developed in state court through a Racial Justice Act with such a claim being independent of whether the client has any other basis for filing in that court.

36) To ensure a more representative jury pool, enact legislation that requires 12-2 15 every jurisdiction to create jury pools from the lists of all registered voters and all licensed drivers, who are U.S. citizens, rather than only the voter registration list.

37) Enact a court rule that allows prosecutors and defendant’s attorneys in death 17-0 15 penalty cases full and complete access to all documents, statements, writings, photographs, recordings, evidence, reports or any other file material in possession of the state, any agent or agency of the state, or any police agency involved in the case, or in the possession of the defendant’s attorneys which is known to exist or which, with due diligence, can be determined to exist and to allow the attorneys to inspect, test, examine, photograph or copy the same. This shall not be construed to require the disclosure of attorney work product or privileged matters, nor to the disclosure of inculpatory information possessed by the defendant’s attorneys described in Crim.R. 16 (H)(3), nor to materials protected by Crim.R. 16.

38) Enact legislation to require a prosecutor to present to the Grand Jury 10-9 16 available exculpatory evidence of which the prosecutor is aware.

39) Adoption of an order requiring implementation of mandatory on the record 10-5 16 pre-trial conferences. Further, the Joint Task Force recommends appropriate Judicial College education to emphasize the necessity for conducting such conferences, all of which must be on the record, to begin at the earliest stages of the case and to address issues pertaining to discovery, Brady disclosures, and appointment of experts. The pre-trial conference shall be ex parte upon the request of defense counsel and upon good cause shown as to matters related to defense experts but shall be on the record. After inquiry by Court as to status of discovery, counsel for state and defendant shall be ordered to declare their compliance with all discovery obligations and the State shall affirmatively assert disclosure of all exculpatory matters pursuant to Brady.

40) The Ohio statute providing for attorney-client privilege should be amended 18-0 16 to provide that a claim of ineffective assistance waives the privilege in order to allow full litigation of ineffectiveness claims. The waiver will be limited to the issue raised. VOTE PAGE RECOMMENDATION COUNT NUMBER

41) The Task Force voted to urge all parties involved to work on procedures to 12-6 16 remove any impediments to a fair and timely resolution of death penalty cases in the Ohio courts.

42) There should be a codification of the right to have counsel present at the 15-0 17 clemency hearing.

43) Enact legislation or administrative regulation to provide that death penalty 17 clemency proceedings in Ohio include:

A. The parole board hearing must be recorded by audio, video or 17-1 court stenographer and be a public record.

B. The interview of the condemned inmate must be recorded by 16-2 audio, video or court stenographer and be a public record.

C. The inmate’s counsel must be allowed to counsel the client in the 11-8 interview;

D. The parole board must reveal to counsel for the defendant and 18-1 the state all documents, witnesses and information it will consider in reaching its decision;

E. The inmate’s “master file” must be released to his/her counsel at 18-0 least 6 months before the parole board hearing;

F. Counsel for the inmate and the State must disclose and exchange 18-0 all information to be relied upon at the parole hearing at least 30 days before the hearing with attorney certification and a continuing duty to disclose.

G. Identify a funding mechanism, such as a capital litigation fund, for 12-2 inmate’s mental health expert or state expert so that an expert can be hired in a timely manner for the parole board hearing.

H. The legislature should ensure adequate funding, such as a capital 11-1 litigation fund, for private counsel who prepare for and represent a condemned inmate at a Parole board hearing;

I. Require annual mandatory training of all Parole Board members 18-0 for a minimum of six hours by mental health and forensic science experts and by other experts relevant to death penalty issues. VOTE PAGE RECOMMENDATION COUNT NUMBER

44) The Ohio Judicial Conference shall, on an annual basis, work with attorneys 16-0 19 and judges to review and revise, as necessary, the jury instructions in death penalty cases to ensure that jurors understand applicable law. In particular, the Conference shall request, on an annual basis, input from the Ohio Prosecuting Attorney’s Association, the Ohio Association of Criminal Defense Lawyers, Ohio Public Defender, and the members of the Ohio Judicial Conference.

45) The Ohio Judicial Conference shall review and revise as necessary the Ohio 14-1 20 Jury Instructions to institute the use of “plain English” and “plain English” shall be used throughout capital trials.

46) In capital cases, jurors shall receive written copies of “court instructions” (the 16-0 20 judge’s entire oral charge) to consult while the court is instructing them and while conducting deliberations.

47) The Ohio Judicial Conference shall study the Ohio Jury Instructions to 10-8 20 make clear that a jury must always be given the option of extending mercy that arises from the evidence as cited in Justice Scalia’s dissent in Morgan v. Illinois, 504 U.S. 719, 751 citing to Woodson v. North Carolina, 428 U.S. 303- 305.

48) The Ohio Judicial Conference shall ensure the Ohio Jury Instructions make 13-4 20 clear the weighing process for considering aggravating circumstances and mitigating factors should not be conducted by determining whether there are a greater number of aggravating circumstances than mitigating factors.

49) Implementation of enhanced mandatory, educational and minimum 21-0 21 experience and/or certification requirements for all participating legal counsel (appointed and retained) and all Ohio judges (including Common Pleas, Appellate, and Supreme Court) to allow for their participation in a capital case. The Ohio Judicial College could be utilized as the vehicle to implement the mandatory educational requirements for judges. Certain minimum standards for the appointment and performance of legal counsel (appointed and retained) in capital cases should be set forth in the rules and could, in exceptional circumstances, be waived, with the consent of the Supreme Court of Ohio, if it is determined that the attorney’s ability or the judge’s qualification otherwise exceeds the standards required by the rule. The adoption of this rule would require some amendment or modification to Sup.R. 20. VOTE PAGE RECOMMENDATION COUNT NUMBER

50) The Joint Task Force recommends implementation of educational guidance 17-4 21 for presiding judges as to when and how to intervene in situations of potential ineffective lawyering. Additional guidance should also be emphasized to assure effective utilization of the recusal process by participating legal counsel, when incurring issues of preconceived opinions or otherwise prejudicial positions of trial judges. For clarification, the education guidance would highlight procedures for recognizing these issues in such a way that the trial court would not damage or undermine the client’s confidence in his or her legal counsel; however, the Joint Task Force also recognizes that if ineffective assistance of counsel is found, the court has a duty to step in and address the issue.

51) Adoption of a rule directing that a presiding trial judge, or the 14-5 21 Administrative Judge, in conformity with Sup.R. 20, is the appropriate authority to appoint legal counsel in a capital case.

52) Adoption of a rule directing that the trial judge is the appropriate authority 13-5 21 for the appointment of experts for indigent defendants. The rule should further provide that the decision pertaining to the appointment of experts shall be made, on the record, at one of the prescribed Pre-Trial Conferences.

If defense counsel requests, the demand for appointment of the expert shall be made in-camera ex parte, and the order concerning the appointment shall be under seal.

Upon establishing counsels’ respective compliance with discovery obligations, the question of the appointment of experts (including determination of projected expert fees based upon analysis of expert’s time to be applied to the case as well as consideration of incremental payment of expert fees as case progresses) would be decided by the court, which decision would be subject to immediate appeal, under seal, to the appropriate Court of Appeals. The trial court judge shall make written findings as to the basis for any denial. Although concerns have been raised as to the ability of the Appellate Court to provide the anticipated, necessary expedited hearing within a reasonable time-frame, the Joint Task Force suggests that this issue be elevated to the status of a final appealable order and that the necessary expedited appellate process be spelled out in the statute.

53) The Supreme Court should take the lead to adopt a uniform process for the 20-0 22 selection of indigent counsel in capital cases, including the establishment of a uniform fee and expense schedule, all of which would be included in the proposed Criminal Rule for Capital Cases (discussed below). VOTE PAGE RECOMMENDATION COUNT NUMBER

54) Should the present process of appointment of indigent counsel by the 21-0 22 judiciary continue, the main objective should always be to assure the best educationally experienced and qualified candidate, who is available (within the county or outside the county), and who is otherwise willing to take on the responsibilities associated with the case for an appropriate fee and accompanying expenses, is appointed. A uniform fee schedule for such services across the State of Ohio must be a necessary consideration to assure the equal protection and due process for the accused in a capital case.

55) Adoption of reporting standards to provide complete transparency of record, 16-0 22 including requirements to ensure better record keeping by the trial judge and the provision of additional, detailed resource information necessary to assure strict compliance with due process, which information shall be submitted to the Supreme Court upon completion of the case. Such resource information may include unique Constitutional issues, unique evidentiary issues, significant motions, plea rationale, pre-sentence investigation, and any additional information required by the Rule 20 Committee or the Supreme Court of Ohio. Additional types of resource information could be developed as part of the mandated educational process conducted by the Ohio Judicial College.

56) The Joint Task Force believes that some of the recommendations above 16-0 22 could be accomplished by the adoption of a separate Criminal Rule for Capital Cases. The Joint Task Force recommends that such a rule be adopted and provide for the mandatory training of attorneys and judges (Recommendation 49), the selection and appointment of indigent counsel in capital cases (Recommendation 51), and the enforcement of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases and the Supplementary Guidelines for the Mitigation Function of Defense Teams (Recommendations 11 and 12). FINAL REPORT AND RECOMMENDATIONS • 1

INTRODUCTION

In 1997, the American Bar Association (ABA) called for a national moratorium on executions until serious flaws it had identified in the criminal justice system were eliminated. The ABA urged capital jurisdictions to ensure that death penalty cases be administered fairly and impartially in accord with due process and to minimize the risk that innocent persons would be executed.

In the autumn of 2001, the ABA, through the Section of Individual Rights and Responsibilities, created the Death Penalty Moratorium Implementation Project (now the ABA Death Penalty Review Project) (the Project). The Project collects and monitors data on domestic and international death penalty developments; conducts analyses of governmental and judicial responses to death penalty administration issues; publishes periodic reports; encourages lawyers and bar associations to press for moratoriums and reforms in their jurisdictions; convenes conferences to discuss issues relevant to the death penalty; encourages state government leaders to establish moratoriums; undertakes detailed examinations of capital punishment laws and processes; and implements reforms.

To assist the majority of capital jurisdictions that had not yet conducted comprehensive examinations of their death penalty systems, the Project decided, in February 2003, to examine several U.S. jurisdictions’ death penalty systems and preliminarily determine the extent to which they achieve fairness and provide due process. In addition to the Ohio assessment, the Project has released state assessments of Alabama, Arizona, Florida, Georgia, Indiana, Kentucky, Missouri, Tennessee, Texas, and Virginia. The assessments were not designed to replace the comprehensive state-funded studies necessary in capital jurisdictions, but instead were intended to highlight individual state systems’ successes and inadequacies.

All of these assessments of state law and practice use, as a benchmark, the protocols set out in the ABA Section of Individual Rights and Responsibilities’ 2001 publication, Death without Justice: A Guide for Examining the Administration of the Death Penalty in the United States (the Protocols). While the Protocols were not intended to cover exhaustively all aspects of the death penalty, they did cover seven key aspects of death penalty administration: defense services, procedural restrictions and limitations on state post-conviction and federal habeas corpus proceedings, clemency proceedings, jury instructions, an independent judiciary, racial and ethnic minorities, and mental retardation and mental illness. Additionally, the Project added five new areas to be reviewed as part of the assessments: preservation and testing of DNA evidence, identification and interrogation procedures, crime laboratories and medical examiners, prosecutors, and the direct appeal process.

Each assessment was conducted by a state-based assessment team. The teams were comprised of, or had access to, current or former judges, state legislators, current or former prosecutors, current or former defense attorneys, active state bar association leaders, law school professors, and anyone else who the Project felt was necessary. Members were not required to support or oppose the death penalty or a moratorium on executions.

The state assessment teams were responsible for collecting and analyzing various laws, rules, procedures, standards, and guidelines relating to the administration of the death penalty. In an effort to guide the teams’ research, the Project created an Assessment Guide that detailed the data to be collected. 2 • JOINT TASK FORCE TO REVIEW THE ADMINISTRATION OF OHIO’S DEATH PENALTY

The ABA issued the “Ohio Death Penalty Assessment Report” in 2007. The Ohio Death Penalty Assessment Team (hereafter referred to as the “ABA Ohio Assessment Team”) identified a number of areas in which Ohio’s death penalty system falls short in the effort to afford every capital defendant fair and accurate procedures. (See Appendix A) The ABA Ohio Assessment Team noted that while it identified individual problems in the system, their harms were cumulative. The ABA Ohio Assessment Team also noted that problems in one area can undermine sound procedures in others.

The Supreme Court of Ohio and Ohio State Bar Association Joint Task Force to Review the Administration of Ohio’s Death Penalty was created by the Chief Justice of the Supreme Court of Ohio and the President of the Ohio State Bar Association to review the ABA Ohio Assessment Team’s Assessment Report and determine if the administrative and procedural mechanisms for the administration of the death penalty are in proper form or in need of adjustment. According to the charge given to the Joint Task Force, the purpose of the task force is to review the 2007 American Bar Association report titled “Evaluating Fairness and Accuracy in State Death Penalty Systems: The Ohio Death Penalty Assessment Report” and offer an analysis of its findings; assess whether the death penalty in Ohio is administered in the most fair and judicious manner possible; and determine if the administrative and procedural mechanisms for the administration of the death penalty in Ohio are in proper form or in need of adjustment. The Joint Task Force was specifically instructed not to review whether Ohio should or should not have the death penalty. The Joint Task Force was comprised of twenty- two members including members of the General Assembly, law enforcement, prosecutors, defense lawyers, the Department of Rehabilitation and Correction, trial court judges, Court of Appeals judges, and law professors. The Joint Task Force met bi-monthly over a two year period to review the ABA Ohio Assessment Team report and formulate recommendations to be presented to the Supreme Court of Ohio and the Ohio State Bar Association.

The Joint Task Force operated through subcommittees who conducted research between meetings and made their recommendations to the full Joint Task Force for their consideration. Under Joint Task Force operating guidelines, recommendations were required to be submitted to the appropriate subcommittee for consideration before being considered by the full Joint Task Force. When a subcommittee submitted a recommendation to the full Joint Task Force, the subcommittee was required to include the vote for each recommendation and the research in support of the recommendation. If the recommendation was passed by a majority of the subcommittee but was not unanimous, the recommendation was to include the minority position and support.

Final recommendations were approved by a majority vote of the full Joint Task Force. As might be expected from a diverse group considering a controversial topic like capital punishment, unanimity was difficult to achieve. Joint Task Force members were instructed that a dissenting report could be prepared for any or all recommendations of the full Joint Task Force, and such report is submitted under separate cover from these recommendations. Commentary accompanies some of the Joint Task Force recommendations. The commentary was not voted on by the full Joint Task Force but is provided to help the reader understand the reasoning behind the recommendation.

In all, the Joint Task Force has made over fifty recommendations to improve the administration of Ohio’s death penalty. FINAL REPORT AND RECOMMENDATIONS • 3

RECOMMENDATION 1: Custodial interrogations, as defined byMiranda v. Arizona, shall be recorded and, if not recorded, then the statements made during the interrogation should be presumed “involuntary”.

A majority of the Task Force found provisions in Substitute Senate Bill 77 of the 128th General Assembly (hereinafter “Sub. S.B. 77”) regarding custodial interrogation inadequate to protect the rights of the accused in a criminal investigation. In a number of cases involving death row exonerees, for example, the defendant allegedly confessed to committing the capital crime. Recently, Damon Thibodeaux became the eighteenth death row inmate exonerated in the United States on the basis of DNA evidence. Thibodeaux confessed to the brutal rape and murder of his 14-year-old step-cousin after an intense nine hour interrogation by police officers who threatened he would die by lethal injection if he did not admit to the crime. Fifteen states and the District of Columbia presently require that custodial interrogations be audio or videotaped to be admissible in court against the accused. Although some Task Force members believe confessions should not be admissible if not recorded, a majority of the Task Force recommended that unrecorded statements made during an interrogation should be presumed involuntary.

RECOMMENDATION 2: The Joint Task Force recommends that each coroner’s office be required to become accredited by the National Association of Medical Examiners (NAME), or have at least one person on staff or under contract who is a fellow of that organization (and who performs the procedure in the case), or have in place a contract with an accredited crime lab.

Such a requirement would not require the coroner to refer all post mortems, and would preserve the coroner’s judgment as to which ones involved criminal activity. However, it would guarantee that the office either has successfully sought accreditation or has in place contracts with properly trained people to perform these kinds of specialized services when in the coroner’s judgment the need arises.

RECOMMENDATION 3: The Joint Task Force also recommends that, subject to the special rule specified below, if evidence of the sort customarily subject to testing in a laboratory in a death penalty case is not originally reviewed by an accredited lab, then the defendant shall have the right to have the evidence reviewed a second time by an accredited lab. More specifically, any prosecution evidence that has not been tested in an accredited lab shall be retested in an accredited lab, at the request of the defendant and at the state’s expense. If such a request is made, there will be no reference at trial to the first test (in a non-accredited lab) except as may be necessary to establish chain of custody. Defense forensic experts shall also be required, by Supreme Court rule, to rely on testing by accredited labs, at the request of the prosecution, in death penalty cases.

The Joint Task Force recommended that the following rules should apply to death-penalty eligible cases in which testing of evidence is performed under circumstances that will likely entail the total consumption or destruction of the evidence to be tested: 4 • JOINT TASK FORCE TO REVIEW THE ADMINISTRATION OF OHIO’S DEATH PENALTY

i. Where the testing is performed prior to indictment, the testing must be performed in the first instance by an accredited lab;

ii. Where the testing is performed subsequent to indictment, the testing must be performed by an accredited laboratory and the court to which the case is assigned must grant prior permission, with notice to the parties, for the test.

In the event the foregoing rules are not observed, the results of the test shall be presumptively inadmissible, but the presumption may be overcome by good cause shown to the court to which the case is assigned, and if the court deems such evidence to be admissible, the court shall appropriately instruct the jury on the weight that it may choose to give that evidence. This recommendation does not apply to fingerprint evidence. “Accredited lab” means a lab that is accredited by any of the following: American Society of Crime Laboratory Accreditation Board; Forensic Quality Services, A.K.A. National Forensic Science Technology Center; or the American Association for Laboratory Accreditation (AALA).

RECOMMENDATION 4: The Joint Task Force recommends that legislation be enacted to require all crime labs in Ohio be certified by a recognized agency as defined by the Ohio General Assembly.

This is one of the reforms former Ohio Attorney General Jim Petro and his wife Nancy Petro endorse in FALSE JUSTICE 129 (2010). As the Petros note, this reform comes from a “congressionally mandated report” by the National Research Council. See Strengthening Oversight of Forensic Science Practice (Chapter 7) in Strengthening Forensic Sciences in the United States: A Path Forward, Committee on Identifying the Needs of the Forensic Sciences Community, National Research Council, National Academies of Science (2009), at http://www.nap.edu/catalog.php?record_id.

RECOMMENDATION 5: The Joint Task Force recommends that the legislature enact legislation to require prospective proportionality review in death penalty cases to include cases where the death penalty was charged in the indictment or information but was not imposed.

The majority of states require some form of proportionality review for every death sentence even though it is not constitutionally required. Thirteen jurisdictions, including Ohio, compare the case in which the death sentence was imposed to other similar cases in which a death sentence was imposed.1 Seven states compare the case to other similar cases in which the state sought a death sentence.2

1 Ohio Rev. Code 2929.05(A): “In determining whether the sentence of death is appropriate, the court of appeals, in a case in which a sentence of death was imposed for an offense committed before January 1, 1995, and the supreme court shall consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases.” See e.g., State v. Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585 (comparing case to other death sentence cases). The thirteen jurisdictions are: Alabama, Florida, Georgia, Kentucky, Missouri, Mississippi, North Carolina, Nebraska, South Carolina, Utah, Washington, and the federal government.

2 Delaware, Louisiana, Montana, New Hampshire, South Dakota, Tennessee and Virginia. Each of these states has a statute that requires a proportionality review of other “similar cases.” In each state, the state supreme court interpreted “similar cases” to encompass not only cases in which the death penalty was imposed, but cases in which the jury imposed a life sentence. See e.g., State v. Bland, 958 S.W.2d. 651, 662 (Tenn. 1997). FINAL REPORT AND RECOMMENDATIONS • 5

Since 1981 the Ohio legislature has required consideration of whether “the sentence is excessive or disproportionate to the penalty imposed in similar cases.” Id. The current practice of the Ohio Supreme Court is to compare only cases in which a death sentence was imposed. This appears inconsistent with the intent of the Ohio legislature and the initial practice of the Court. In 1981 the legislature also enacted Rev. Code 2929.03(F) which requires the trial court to submit to the Ohio Supreme Court a statement of the reasons for the life or death sentence imposed. These opinions would provide a means for an effective comparison of life and death sentences by the Ohio Supreme Court. As the Ohio Supreme Court noted in 1986:

The fundamental purpose behind proportionality review is to ensure that sentencing authorities do not retreat to the pre-Furman era when sentences were imposed arbitrarily, capriciously and indiscriminately…. The system currently in place in Ohio enables this court to obtain a vast quantity of information with which to effectuate proportionality review, beginning with data pertinent to all capital indictments and concluding with the sentence imposed on the defendant....

State v. Jenkins, 473 N.E.2d, 264, 279 (Ohio 1986) (emphasis in original). The Court described the materials legislatively mandated “to aid the courts in conducting their proportionality review” and referenced Ohio Rev. Code 2929.03(F). Nonetheless, since 1987, the Court has deemed death sentenced cases the only cases relevant to the proportionality review. See State v. Stumpf, 32 Ohio St.3d 95, 108 (1987).

RECOMMENDATION 6: The Joint Task Force also recommends that the Supreme Court of Ohio mandate by court rule that, prospectively, all death eligible homicides be reported to a central data warehouse both at the charging stage and at the conclusion of the case at the trial level. (Also see Recommendation 55).

RECOMMENDATION 7: The Joint Task Force recommends that the Ohio Legislature amend R.C. 2929.03(F) to include the necessity for a prosecutor’s rationale for a proposed plea agreement, on the record, for any indicted capital offense that results in a plea for a penalty less than death.

The Joint Task Force believes that a more robust proportionality review is necessary. In 1987, the Ohio Supreme Court decided to exclude from proportionality review any case where the defendant was indicted with capital specifications, but was sentenced to less than death.State v. Steffen, 509 N.E.2d 383, 395 (Ohio 1987). Offenders whose criminal behavior was arguably more reprehensible than those sentenced to death may not have been indicted or found guilty with death specifications. 6 • JOINT TASK FORCE TO REVIEW THE ADMINISTRATION OF OHIO’S DEATH PENALTY

RECOMMENDATION 8: Enact legislation to consider and exclude from eligibility for the death penalty defendants who suffered from “serious mental illness,” as defined by the legislature, at the time of the crime.

Appropriate questions for the legislature to consider include:

1. Whether “serious mental illness” is causally related to the crime?

2. Whether the determination of “serious mental illness” should be considered before trial or at some other time as determined by the legislature?

3. Whether this issue is already adequately addressed by current law?

RECOMMENDATION 9: Enact legislation to exclude from eligibility for the death penalty defendants who suffer from “serious mental illness” at the time of execution.

The ABA Ohio Assessment Team recommended that Ohio adopt a law or rule excluding individuals with serious mental disorders, other than mental retardation, from being sentenced to death and/or executed. The ABA Ohio Assessment Team noted that Ohio has a significant number of people with severe mental disabilities on death row, some of whom were disabled at the time of the offense and others whom became seriously ill after conviction and sentence. Recently, former Ohio Supreme Court Justice Evelyn Stratton expressed the case for banning execution of persons with severe mental illness. She stated that if executing persons with mental retardation/developmental disabilities or executing juveniles offends “evolving standards of decency”, then she could not “comprehend why these same standards of decency have not yet evolved to also prohibit execution of persons with severe mental illness at the time of their crimes”. See State v. Lang, 129 Ohio St. 3d 512 at 565 (2012).

Justice Stratton wrote:

“Using language from the American Bar Association’s Recommendation 122A, legislators in Kentucky and North Carolina have introduced bills to bar the execution of defendants who, at the time of the offense, “had a severe mental disorder or disability that significantly impaired their capacity to (a) appreciate the nature, consequences, or wrongfulness of their conduct, (b) exercise rational judgment in relation to conduct, or (c) conform their conduct to the requirements of the law.” Kentucky H.B. No. 446, introduced in the 2009 regular session, and North Carolina H.B. 553/S.B. No. 1075 use nearly identical language.

In addition, Indiana established the Bowser Commission to examine the execution of the mentally ill. The Bowser Commission issued a report in November 2007 recommending the exemption of the severely mentally ill from the death penalty. Final Report of the Bowser Commission, Indiana Legislative Services Agency, November 2007, www.in.gov/legislative/ interim/committee/reports/BCOMAB1.pdf, p.3. In 2009, Indiana’s S.B. No. 22 was introduced to prohibit the imposition of the death penalty on an individual judicially determined to have had a severe mental illness, defined as schizophrenia, schizoaffective disorder, bipolar disorder, major depression, or delusional disorder, at the time of the crime. www. deathpenaltyinfo.org. See Entzeroth at 564. FINAL REPORT AND RECOMMENDATIONS • 7

Finally, the Tennessee Disability Coalition reports that in 2011, Tennessee legislators introduced H.B. No. 2064 and S.B. No. 1692 to prohibit the execution of a person who had severe and persistent mental illness at the time of committing murder in the first degree. http://tn.disability.org.

Moreover, at least five leading professional associations, the American Bar Association, the American Psychiatric Association, the American Psychological Association, the National Alliance on Mental Illness, and Mental Health America, have adopted policy statements recommending prohibition of execution of persons with severe mental illness at the time of the offense. Winick, The Supreme Court’s Evolving Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier (2009), 50 B.C.L. Rev. 785, 789.”

Justice Stratton urged the Ohio General Assembly to consider the criteria for determining when a person with severe mental illness should be excluded from the penalty of death. In conclusion she wrote:

“‘A society that denies mental health care to those who need it the most and then subsequently executes them is cruel and inhumane at its very core. All of us need to be asking: “Is this the kind of society that we envision for ourselves?” My answer is that we can and must do better.’” Sue Gunawardena-Vaughn, Director of Amnesty International USA’s Program to Abolish the Death penalty, quoted in Malone, Cruel and Inhumane: Executing the Mentally Ill, Amnesty International Magazine, http://www.amnestyusa.org/node/87240.

RECOMMENDATION 10: Adoption of an order, in the case of a pro se defendant who is competent to stand trial but may not be competent to represent himself or herself because of a mental health illness or developmental disability, directing either the appointment of counsel to conduct the trial or to act as “stand-by counsel” or “co-counsel” to assist the pro se defendant, or to assume or resume to proceed with trial as counsel of record, in the event the defendant changes their mind about proceeding as a pro se litigant.

In Indiana v. Edwards, 554 U.S. 164, the United States Supreme Court held that the Federal Constitution does not forbid a state from insisting that a criminal defendant proceed to trial with counsel, where the state court has found the defendant mentally competent to stand trial if represented by counsel, but not mentally competent to conduct such trial. The Joint Task Force was confronted with the issue of what constitutes a finding of “not mentally competent to conduct the trial.” The Joint Task Force also recognized that the concept of “stand-by counsel” refers to an attorney providing assistance to a pro se defendant who has chosen to try his or her case; however, it is also apparent that a mentally competent pro se defendant may not be competent to conduct his or her own trial or, at some stage of the proceeding, said pro se defendant may recognize their ineffectiveness and desire the assistance of counsel. Therefore, this recommendation attempts to address each of the above-stated alternatives.

RECOMMENDATION 11: Adopt the 2003 American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. 8 • JOINT TASK FORCE TO REVIEW THE ADMINISTRATION OF OHIO’S DEATH PENALTY

RECOMMENDATION 12: Adopt the Supplementary Guidelines for the Mitigation Function of Defense Team in Death Penalty Cases. This recommendation is not meant, however, to alter the standard adopted in Strickland v. Washington.

In the event that the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases and the Supplementary Guidelines for the Mitigation Function of Defense Teams are adopted, in their entirety, it will be necessary to determine whether the ABA Guidelines are merely guides for defense counsel to follow or if they are to be applied as standards to be monitored and enforced by the trial court. In either event, the trial court, in accord with Rule 20.03 of the Rules of Superintendence for the Courts of Ohio, shall take appropriate steps, on the record, to monitor and/or enforce a checklist of guidelines. Due to the number of guidelines, their complexity, issues pertaining to attorney-client privilege and the propriety of court inquiry, the degree of monitoring and/or enforcement and the manner of proceeding must be addressed by the Supreme Court of Ohio and the Ohio Judicial College in the Capital Crimes Seminar.

The Supplementary Guidelines provide more detailed guidance for judges and defense counsel about the purpose of mitigating evidence, mitigation specialists, and the work of the defense team. Created in conjunction with the ABA Death Penalty Representation Project, the Guidelines follow and incorporate by reference the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.

RECOMMENDATION 13: Enact and fund a Capital Litigation Fund to pay for all costs, fees, and expenses for the prosecution and defense of capital murder cases.

The ABA Ohio Assessment Team found there was insufficient compensation for defense counsel representing indigent capital defendants and inmates. The Office of the Ohio Public Defender sets the statewide maximum hourly rate and case fee cap, but each county is authorized to and does set its own reimbursement amounts and requirements. The indigent defense system used in each county is determined by the local Board of County Commissioners although judges have sole responsibility for appointing counsel. The Ohio Public Defender provides indigent defendants’ counsel in most capital case post-conviction proceedings. Compensation for appointed counsel in death penalty cases varies widely in Ohio. In some small Ohio counties, the maximum fee for defense counsel is as low as $5,000 while in other larger counties compensation can exceed $50,000 per counsel. Effective capital case representation requires that full and fair compensation be provided for defense investigators and experts. Maximum amounts differ widely throughout Ohio in this area as well.

The Illinois Commission on Capital Punishment in April 2002 recommended a similar fund. Illinois eventually abolished the death penalty in 2011. A capital litigation fund eliminates the possibility a death penalty prosecution could bankrupt a small county. A capital litigation fund can insure that court appointed counsel and experts receive appropriate compensation for their services. Lastly, the Fund can establish with some precision the actual costs of prosecuting death penalty cases in Ohio. FINAL REPORT AND RECOMMENDATIONS • 9

RECOMMENDATION 14: It is specifically recommended that increased funding be provided to the Office of the Ohio Public Defender, by statute, to allow for additional hiring and training of qualified capital case defense attorneys, who could be made available to all Ohio counties, except in circumstances where a conflict of interest occurs, at which time a separate list of prospective appointed counsel would be provided.

RECOMMENDATION 15: The Ohio legislature and Supreme Court of Ohio should implement and fund a statewide public defender system for representation of indigent persons in all capital cases for trials, appeals, post-conviction, and clemency except where a conflict of interest arises. In cases of conflicts of interest, qualified Rule 20 counsel shall then be appointed.

RECOMMENDATION 16: Enact legislation to provide that private defense counsel appointed to represent death eligible defendants or those sentenced to death are equally paid throughout the state regardless of the location of the offense.

There is no area of criminal law that is more complex, more subject to constant change, or fraught with more mistakes than death penalty litigation. It is not an area of law that can be occasionally practiced. The quality of representation, the available resources, and ultimate outcome cannot continue to depend upon the vagaries of which political subdivision within Ohio where one is indicted. Death penalty litigation, to be done well, must be done professionally, full-time by those who do the work day in and day out with access to the proper resources both in terms of available funding and support services including investigators, mitigation specialists, social workers, experts, and many others.

Death penalty work should not be done occasionally. The time requirements alone will dictate that most appointed counsel will be faced with the choice of working on the death case or working on a case with a paying client to maintain his or her practice. Appointing a lawyer who only handles a death penalty case once every few years is a disservice to the client, to the court, and to the justice system. This is all the more true when one considers that only a small percentage go to trial. This means a lawyer appointed to a death penalty case may only try a death penalty case once every 10 years or less. This is true in the county public defender offices as well. Most do not do death penalty work at all and those that do have very little death penalty work. For example, Hamilton County almost exclusively appoints private counsel; Franklin County does the same. Also, the Montgomery County Public Defender office only handles death penalty work as second chair and then only rarely. The Summit County Public Defender Office only handles misdemeanors. The Cuyahoga County system employs a combination of a public defender office and assigned private counsel.

For comparison, imagine a medical system that operated this way. When given a choice, no one with a heart problem would see a doctor who does heart surgery once every 10 years. In fact, there are no hospitals in this nation that would give privileges to such a doctor to do heart surgery. Everyone, without exception would instead go to a doctor who dedicates his or her time and practice exclusively to heart treatment. The reasons are self-evident. The same should be true when dealing with death penalty work. We must create a system that has trained full-time, professional staff. With a reduction in death indictments, there will be on average 30-35 death penalty indictments statewide each year. If Ohio wants to raise the quality 10 • JOINT TASK FORCE TO REVIEW THE ADMINISTRATION OF OHIO’S DEATH PENALTY

of representation it must fund and staff a group of dedicated professionals who will and can do the work full-time, not occasionally.

Finally, nothing about Recommendation 15 is new or novel. For over 40 years, national professional groups that study criminal justice issues have advocated that defense services be organized on a state-wide basis. Specifically, the ABA Standards for Criminal Justice endorse state-wide organization as the best means for service provision. Jurisdiction-wide organization and funding can address local disparities in resources and quality of representation. See NAT’L LEGAL AID & DEFENDER ASS’N, NAT’L STUDY COMMISSION ON DEFENSE SERVS., GUIDELINES FOR LEGAL DEFENSE SYSTEMS IN THE UNITED STATES FINAL REPORT (1976); Nat’l Conf. of Commissioners on Unif. State Laws, Prefatory Note to UNIFORM LAW COMMISSIONERS MODEL PUBLIC DEFENDER ACT, in HANDBOOK OF THE NAT’L CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS 267-268 (1970); TASK FORCE ON THE ADMIN. OF JUSTICE, PRESIDENT’S COMMISSION ON LAW ENFORCEMENT & ADMIN. OF JUSTICE, TASK FORCE REPORT: THE COURTS 52- 53 (1967); ABA STANDARDS FOR CRIMINAL JUSTICE: PROVIDING DEFENSE SERVICES Standard (3d ed. 1992).

RECOMMENDATION 17: Enact legislation that maintains that a death sentence cannot be considered or imposed unless the state has either: 1) biological evidence or DNA evidence that links the defendant to the act of murder; 2) a videotaped, voluntary interrogation and confession of the defendant to the murder; or 3) a video recording that conclusively links the defendant to the murder; or 4) other like factors as determined by the General Assembly.

Since 1973, 143 people have been exonerated of the capital crime from which they were convicted. Anthony Porter was falsely identified as a multiple killer by two people who had often seen him around his Chicago neighborhood. Porter came within five days of being executed in Illinois when Northwestern journalism students found the real killer in Milwaukee, Wisconsin, who confessed to the crimes. Everyone on the Joint Task Force expressed their concern over wrongful convictions in death penalty cases regardless of their individual views of the merits of the death penalty. Everyone agreed that there should be enhanced reliability of the evidence presented in a death penalty case.

RECOMMENDATION 18: Enact legislation that does not permit a death sentence where the State relies on jailhouse informant testimony that is not independently corroborated at the guilt/innocence phase of the death penalty trial.

The Illinois Commission on Capital Punishment in 2002 recommended that capital punishment not be available when a conviction is based solely upon the testimony of a single eyewitness or of an in-custody informant, or an uncorroborated accomplice. (Illinois later abolished the death penalty in 2011). Texas recently introduced legislation which would bar the use of “snitch” testimony in death penalty cases if it was obtained from a witness or accomplice in return for favorable treatment or leniency.

In 2005, the American Bar Association House of Delegates adopted the following resolution: “That the American Bar Association urges federal, state, local and territorial governments to reduce the risk of convicting the innocent, while increasing the likelihood of convicting FINAL REPORT AND RECOMMENDATIONS • 11

the guilty, by ensuring that no prosecution should occur based solely upon uncorroborated jailhouse informant testimony.”3 Informants were involved in more than 15 percent of wrongful convictions overturned due to DNA. As the ABA Report accompanying the Resolution on Jailhouse Informants noted, “Problems with jailhouse informants, however, predated the recent DNA exonerations. One of the most notorious examples involved Leslie Vernon White, an inmate incarcerated in Los Angeles. “In his appearance on 60 Minutes, White admitted to consistently fabricating confessions of fellow inmates and offering perjured testimony to courts.’”4

The ABA report related that judges have warned against the use of such testimony, including former prosecutor, Judge Trott of the Ninth Circuit, in a 2001 case:

Never has it been more true than it is now that a criminal charged with a serious crime understands that a fast and easy way out of trouble with the law is not only to have the best lawyer money can buy or the court can appoint, but to cut a deal at someone else’s expense and to purchase leniency from the government by offering testimony in return for immunity, or in return for reduced incarceration. . . .

[B]ecause of the perverse and mercurial nature of the devils with whom the criminal justice system has chosen to deal, each contract for testimony is fraught with the real peril that the proffered testimony will not be truthful, but simply factually contrived to “get” a target of sufficient interest to induce concessions from the government. Defendants or suspects with nothing to sell sometimes embark on a methodical journey to manufacture evidence and to create something of value, setting up and betraying friends, relatives, and cellmates alike. Frequently, and because they are aware of the low value of their credibility, criminals will even go so far as to create corroboration for their lies by recruiting others into the plot, a circumstance we appear to confront in this case.5

The United States Supreme Court in 1909 made similar comments concerning accomplices: “[T]he evidence of such a witness ought to be received with suspicion, and with the very greatest care and caution, and ought not to be passed upon by the jury under the same rules governing other and apparently credible witnesses.”6 Justice Jackson stated in a 1952 case: “The use of informers, accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility.”7

3 http://www.americanbar.org/content/dam/aba/migrated/leadership/2005/midyear/daily/108B.doc.

4 Id. at 3, quoting ROBERT M. BLOOM, RATTING: THE USE AND ABUSE OF INFORMANTS IN THE AMERICAN JUSTICE SYSTEM 65 (2002).

5 Commonwealth of N. Mariana Islands v. Bowie, 243 F.3d 1109, 1123-24 (9th Cir. 2001) (quoted in the ABA Report on Jailhouse Informants at 4).

6 Crawford v. United States, 212 U.S. 183, 204 (1909) (quoted in the ABA Report on Jailhouse Informants at 4).

7 On Lee v. United States, 343 U.S. 747, 757 (1952). ) (quoted in the ABA Report on Jailhouse Informants at 4). 12 • JOINT TASK FORCE TO REVIEW THE ADMINISTRATION OF OHIO’S DEATH PENALTY

The ABA Report defined a jailhouse informant as “someone who is purporting to testify about admissions made to him or her by the accused while incarcerated in a penal institution contemporaneously.”8 The ABA resolved that independent corroboration should be required in jailhouse informant cases; “no person should lose liberty or life based solely on the testimony of such a witness.”9

RECOMMENDATION 19: The legislature should study how to best support families of murder/homicide victims in the short and long term.

The needs of families of murder/homicide victims, especially when the death penalty may be sought, are an area that warrants special attention. Our justice system should ensure that their needs—from the immediate aftermath of a death to the longer term—are fully addressed, be that counseling, financial, or other support services. The Ohio Attorney General has a Victim Compensation Fund, which is a valuable resource. An important step would be to assess victims’ families’ needs by surveying and talking with victims’ families across the state.

RECOMMENDATION 20: Enact legislation that allows a defendant to withdraw his or her waiver of a jury trial in either the guilt or penalty phase if either phase is reversed by a reviewing court.

RECOMMENDATION 21: Amend Rule 20 of the Rules of Superintendence for Ohio Courts in the manner attached to these final recommendations as Appendix B.

The result of adoption of this recommendation will be a significant increase in the number of continuing legal education hours for defense attorneys under Sup.R. 20.

RECOMMENDATION 22: The Ohio Rules of Practice and Procedure shall be amended so that a properly presented motion must be accepted for filing for a ruling by the court in a death penalty case.

RECOMMENDATION 23: Amend Sup.R. 20, adding Section (E). Section (E) would read as follows:

E. Post-Conviction Counsel. Post-conviction counsel shall satisfy all of the following qualifications:

1. Be admitted to the practice of law in Ohio or admitted to practice pro hac vice;

2. Have at least three years of civil or criminal litigation or post-conviction experience in Ohio;

8 ABA Report on Jailhouse Informants at 4.

9 Id. at 6. FINAL REPORT AND RECOMMENDATIONS • 13

3. Have specialized training, as approved by the committee, on subjects that will assist counsel in the post-conviction of cases in which the death penalty was imposed in the two years prior to making the application;

4. Have experience as counsel in the post-conviction proceedings of at least three felony convictions in the seven years prior to making the application.

RECOMMENDATION 24: The time frame for filing a post-conviction motion should be extended from one hundred eighty (180) days after the filing of the trial record to three hundred sixty five (365) days after the filing of the trial record.

Section 2953.21(A)(1)(c)(2) would read as follows:

Except as otherwise provided in section 2953.23 of Revised Code, a petition under division (A)(1) of this section shall be filed no later than three hundred sixty-five (365) days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. If no appeal is taken, except as otherwise provided in section 2953.23 of the Revised Code, the petition shall be filed no later than three hundred sixty five (365) days after the expiration of the time for filing the appeal.

RECOMMENDATION 25: The judge hearing the post-conviction proceeding must state specifically why each claim was either denied or granted in the findings of fact and conclusions of law.

RECOMMENDATION 26: The common pleas clerk shall retain a copy of the original trial file in the common pleas clerk’s office even though it sends the originals to the Supreme Court of Ohio in connection with the direct appeal.

RECOMMENDATION 27: There shall be no page limits in post-conviction petitions for death penalty cases in either the petition filed with the common pleas court or on appeal from the denials of such petition.

RECOMMENDATION 28: Amend R.C. §2953.21, as attached to this final report in Appendix C, to provide for depositions and subpoenas during discovery in post-conviction relief.

RECOMMENDATION 29: Mandate through the Rule 20 Committee that all attorneys who practice capital litigation must take a certain number of CLE hours on the issue of racial bias. Mandate mandatory CLE for prosecutors who prosecute death penalty cases to educate them on how to protect against racial bias in the arrest, charging and prosecution of death penalty cases. Mandate that Judges assigned to death penalty cases must also attend specialized training regarding racial bias in death cases and how to protect against it. 14 • JOINT TASK FORCE TO REVIEW THE ADMINISTRATION OF OHIO’S DEATH PENALTY

In 1999, The Ohio Commission on Racial and Ethnic Fairness recognized that “a perpetrator is geometrically more likely to end up on death row if the homicide victim is white rather than black”. Despite these statements, the ABA Ohio Assessment Team found that the State of Ohio has not further studied the issue of racial bias in capital sentencing or implemented reforms designed to help eliminate the impact of race on capital sentencing. The ABA Ohio Assessment Team conducted a racial and geographic disparity study confirming the existence of racial bias in the State’s capital system, finding that those who kill whites are 3.8 times more likely to receive a death sentence than those who kill blacks.

RECOMMENDATION 30: Mandate that any judge who reasonably believes that any state actor has acted on the basis of race in a capital case be reported to the Office of Disciplinary Counsel or, if not an attorney, to the appropriate supervisory authority.

RECOMMENDATION 31: Mandate through the Rule 20 Committee that all Rule 20 approved trainings must include at least one hour of training regarding the development of discrimination claims in death penalty cases and how to preserve Batson issues for appellate review.

RECOMMENDATION 32: Mandate that an attorney must seek the recusal of any judge where “a reasonable basis for concluding that the judge’s decision making could be affected by racially discriminatory factors” and should the judge not recuse, if the attorney still believes there is a reasonable basis for concluding that the judge’s decision making could be affected by racially discriminatory factors, then the attorney shall file an affidavit of bias with the Chief Justice of the Supreme Court of Ohio.

RECOMMENDATION 33: Based upon data showing that prosecutors and juries overwhelmingly do not find felony murder to be the worst of the worst murders, further finding that such specifications result in death verdicts 7% of the time or less when charged as a death penalty case, and further finding that removal of these specifications will reduce the race disparity of the death penalty, it should be recommended to the legislature that the following specifications be removed from the statutes: Kidnapping, Rape, Aggravated Arson, Aggravated Robbery, and Aggravated Burglary. (See Sentence Comparison looking at Defendant and Victim’s Race & Specs Chart, Appendix D).

RECOMMENDATION 34: To address cross jurisdictional racial disparity, it is recommended that Ohio create a death penalty charging committee at the Ohio Attorney General’s Office. It is recommended that the committee be made up of former county prosecutors, appointed by the Governor, and members of the Ohio Attorney General’s staff. County prosecutors would submit cases they want to charge with death as a potential punishment. The Attorney General’s office would approve or disapprove of the charges paying particular attention to the race of the victim(s) and defendant(s).

The Illinois Commission on Capital Punishment in April 2002 recommended that their death penalty sentencing statute be revised to include a mandatory review of death eligibility undertaken by a state-wide review committee. The Commission recommended that in the FINAL REPORT AND RECOMMENDATIONS • 15

absence of legislative action, the Governor should make a commitment to setting up a voluntary review process, supported by the presumption that the Governor would commute the death sentences of defendants when the prosecutor has not participated in the voluntary review process, unless the prosecutor can offer a compelling explanation, based on exceptional circumstances, for the failure to submit the case for review.

The Illinois state-wide review committee was to be composed of five members, four of whom would be prosecutors. The committee would develop standards to implement the legislative intent of the General Assembly with respect to death eligible cases.

The powers of the county prosecutor in Ohio are set out in R.C. 309.08. The statute would have to be amended to provide for a state-wide review committee.

RECOMMENDATION 35: Enact legislation allowing for racial disparity claims to be raised and developed in state court through a Racial Justice Act with such a claim being independent of whether the client has any other basis for filing in that court.

RECOMMENDATION 36: To ensure a more representative jury pool, enact legislation that requires every jurisdiction to create jury pools from the lists of all registered voters and all licensed drivers, who are U.S. citizens, rather than only the voter registration list.

The Sixth Amendment right to jury trial includes the right to a jury chosen from a fair cross section of the community, in particular the representation of a distinctive group in venires from which jurors are selected should be fair and reasonable in relation to the number of such persons in the community. Duren v. Missouri, 439 U.S. 357, 364 (1979). Ohio Rev. Code 2313.06 allows two annual jury lists to be compiled - one from voter registration and the other from driver’s license registration. However, while the final jury list must include all registered voters, it is discretionary whether it includes those with driver’s licenses. The failure to include driver’s license holders on annual lists reduces minority participation in jury service, and creates inconsistencies among counties with regard to these distinctive groups being included in venires. Minorities are historically underrepresented in voter registration, and motor vehicle registrations provide greater assurance of their participation, as well as a more diverse socio-economic representation.

RECOMMENDATION 37: Enact a court rule that allows prosecutors and defendant’s attorneys in death penalty cases full and complete access to all documents, statements, writings, photographs, recordings, evidence, reports or any other file material in possession of the state, any agent or agency of the state, or any police agency involved in the case, or in the possession of the defendant’s attorneys which is known to exist or which, with due diligence, can be determined to exist and to allow the attorneys to inspect, test, examine, photograph or copy the same. This shall not be construed to require the disclosure of attorney work product or privileged matters, nor to the disclosure of inculpatory information possessed by the defendant’s attorneys described in Crim.R. 16 (H)(3), nor to materials protected by Crim.R. 16. 16 • JOINT TASK FORCE TO REVIEW THE ADMINISTRATION OF OHIO’S DEATH PENALTY

RECOMMENDATION 38: Enact legislation to require a prosecutor to present to the Grand Jury available exculpatory evidence of which the prosecutor is aware.

The U.S. Department of Justice requires federal prosecutors to present exculpatory evidence to the Grand Jury for its consideration.10 Ohio should enact similar rules or legislation in death penalty cases to include a requirement that exculpatory evidence concerning guilt or innocence and concerning the appropriate penalty also be presented to the Grand Jury. Examples of exculpatory evidence include, but are not limited to, inconsistent eyewitness identifications of the suspect(s), inconclusive forensic testing of evidence, evidence of the suspect’s mental illness or low intelligence, or other recognized mitigating factors.

RECOMMENDATION 39: Adoption of an order requiring implementation of mandatory on the record pre-trial conferences. Further, the Joint Task Force recommends appropriate Judicial College education to emphasize the necessity for conducting such conferences, all of which must be on the record, to begin at the earliest stages of the case and to address issues pertaining to discovery, Brady disclosures, and appointment of experts. The pre-trial conference shall be ex parte upon the request of defense counsel and upon good cause shown as to matters related to defense experts but shall be on the record. After inquiry by Court as to status of discovery, counsel for state and defendant shall be ordered to declare their compliance with all discovery obligations and the State shall affirmatively assert disclosure of all exculpatory matters pursuant to Brady.

RECOMMENDATION 40: The Ohio statute providing for attorney-client privilege should be amended to provide that a claim of ineffective assistance waives the privilege in order to allow full litigation of ineffectiveness claims. The waiver will be limited to the issue raised.

RECOMMENDATION 41: The Task Force voted to urge all parties involved to work on procedures to remove any impediments to a fair and timely resolution of death penalty cases in the Ohio courts.

10 U.S Attorneys’ Manual 9-11.233, Presentation of Exculpatory Evidence: In United States v. Williams, 112 S.Ct. 1735 (1992), the Supreme Court held that the Federal courts’ supervisory powers over the grand jury did not include the power to make a rule allowing the dismissal of an otherwise valid indictment where the prosecutor failed to introduce substantial exculpatory evidence to a grand jury. It is the policy of the Department of Justice, however, that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person. While a failure to follow the Department’s policy should not result in dismissal of an indictment, appellate courts may refer violations of the policy to the Office of Professional Responsibility for review (emphasis added). FINAL REPORT AND RECOMMENDATIONS • 17

RECOMMENDATION 42: There should be a codification of the right to have counsel present at the clemency hearing.

The Ohio Constitution gives the Governor the exclusive authority to grant reprieves, commutations, and pardons for all offenses including capital crimes. This power is exercised after receipt of a non-binding recommendation from the Ohio Parole Board. While Ohio does not provide for counsel to be appointed in clemency proceedings, the federal courts have held that federal habeas corpus counsel may represent the defendant in clemency proceedings.

RECOMMENDATION 43: Enact legislation or administrative regulation to provide that death penalty clemency proceedings in Ohio include:

A. The parole board hearing must be recorded by audio, video or court stenographer and be a public record.

B. The interview of the condemned inmate must be recorded by audio, video or court stenographer and be a public record.

C. The inmate’s counsel must be allowed to counsel the client in the interview;

D. The parole board must reveal to counsel for the defendant and the state all documents, witnesses and information it will consider in reaching its decision;

E. The inmate’s “master file” must be released to his/her counsel at least 6 months before the parole board hearing;

F. Counsel for the inmate and the State must disclose and exchange all information to be relied upon at the parole hearing at least 30 days before the hearing with attorney certification and a continuing duty to disclose.

G. Identify a funding mechanism, such as a capital litigation fund, for inmate’s mental health expert or state expert so that an expert can be hired in a timely manner for the parole board hearing.

H. The legislature should ensure adequate funding, such as a capital litigation fund, for private counsel who prepare for and represent a condemned inmate at a Parole board hearing;

I. Require annual mandatory training of all Parole Board members for a minimum of six hours by mental health and forensic science experts and by other experts relevant to death penalty issues.

The federal courts have placed a burden on state clemency systems to operate as a safeguard for the judicial system. Herrera v. Collins, 506 U.S. 390, 415 (1993). The National Governor’s Association’s Center for Policy Research in its Guide to Executive Clemency Among the American States in 1998, at 177, emphasized the need to acquire complete and accurate 18 • JOINT TASK FORCE TO REVIEW THE ADMINISTRATION OF OHIO’S DEATH PENALTY

information in making clemency decisions. A plurality of the Supreme Court agreed that minimal due process is to be accorded in these proceedings. Woodard v. Ohio, 523 U.S. 272 (1998).

Reform of our present system is both appropriate and essential. “The information sorely needed in advance of clemency decisions in death penalty cases – reliable and comprehensive facts about the offender’s past and present circumstances, and all matters relevant to his or her crime – can only be ensured if regular fact-finding procedures are adopted. Procedural reforms would enhance rather than constrain or undermine the prudent exercise of executive discretion.” Note, A Matter of Life and Death: Due Process Protections in Capital Clemency Proceedings, 90 Yale L .J. 889, 908 n. 56 (1980-1982).

The ABA Standards for the Appointment and Performance of Counsel 1.1 comt.c (2003) urge defense counsel to press legal claims asserting the right to a fuller and fairer clemency process, understanding that the clemency process’ previous deference to earlier appellate court rulings regarding death-sentenced inmates “undermines the nonjudicial purposes of clemency and is a perversion of the Governor’s clemency power.” Alyson Dinsmore, “Clemency in Capital Cases: The Need to Ensure Meaningful Review”, 2002 UCLA L. Rev. 1825, 1843 (2002).

Some states have already adopted such practices by statute or administrative regulation. Both Pennsylvania and Montana explicitly require recording of proceedings of the Parole Board. Pennsylvania also requires recording of the inmate interview. Pennsylvania and another few states also explicitly provide for the inmate’s attorney to be present during the interview.

Tennessee provides for a psychiatric or psychological examination whenever the inmate was convicted of a sex-related offense. Tennessee, Illinois, Maryland and Montana delineate that members of the Parole Board should be trained in medicine, psychiatry, or other behavioral sciences (and other fields) or some combination thereof. (Utah provides for the Board to appoint a mental health advisor whose responsibilities include preparing reports and recommendations on all persons adjudicated guilty but mentally ill. Louisiana also authorizes the Board to employ staff with psychiatric and psychological expertise.)

The recommended reforms will assist in ensuring that clemency provides the needed ‘fail-safe’ in our criminal justice system. FINAL REPORT AND RECOMMENDATIONS • 19

RECOMMENDATION 44: The Ohio Judicial Conference shall, on an annual basis, work with attorneys and judges to review and revise, as necessary, the jury instructions in death penalty cases to ensure that jurors understand applicable law. In particular, the Conference shall request, on an annual basis, input from the Ohio Prosecuting Attorney’s Association, the Ohio Association of Criminal Defense Lawyers, Ohio Public Defender, and the members of the Ohio Judicial Conference.

Research has long indicated that capital jurors commonly have difficulty understanding jury instructions.11 Interviews with jurors from death penalty cases across the country confirm this lack of understanding. In 1990 researchers at SUNY Albany, with funding from the National Science Foundation, began the Capital Jury Project, a multi-year study of actual jurors who heard and deliberated in capital cases. The researchers conducted in-depth interviews, (two to four hours) that followed a 92-page interview protocol, of more than 1,000 jurors in 354 capital trials in fourteen death-penalty states.12 The interviews explored jurors understanding of their instructions and how and when they made their sentencing decision.13

The Capital Jury Project found that in every state in the study a significant percentage of capital jurors failed to follow the constitutional parameters of death penalty law including:

• Jurors did not understand their sentencing instructions, including the meaning of mitigation and its legally prescribed role in their sentencing decision;

• Jurors decided the defendant’s punishment during the guilt-or-innocence phase;

• Jurors did not consider mitigation because they believed death was the only acceptable punishment and were biased in favor of guilt and the death penalty by the jury selection process;

• Jurors believed the death penalty was mandatory;

• Jurors did not see themselves or the jury as a whole as primarily responsible for the sentencing decision; and

• Jurors voted for death because they underestimated the severity of the sentencing alternative.

11 Susie Cho, Capital Confusion: The Effect of Jury Instructions on the Decision to Impose Death, 85 J. CRIM. L. & CRIMINOLOGY 532, 549-551 (1994) (discussing juror comprehension, or lack thereof, of jury instructions); Shari Seidman Diamond & Judith N. Levi, Improving Decisions on Death by Revising and Testing Jury Instructions, 79 JUDICATURE 224, 225 (1996); Theodore Eisenberg & Martin T. Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 CORNELL L. REV. 1, 12-15 (1993); Peter Meijes Tiersma, Dictionaries and Death: Do Capital Jurors Understand Mitigation?, 1995 UTAH L. REV. 1, 7 (1995) (discussing jurors understanding of the concept of mitigation evidence, including the scope, applicable burden of proof, and the required number of jurors necessary to find the existence of a mitigating factor).

12 They included Alabama, California, Florida, Georgia, Indiana, Kentucky, Louisiana, Missouri, North Carolina, Pennsylvania, South Carolina, Tennessee, Texas, and Virginia. William J. Bowers & Wanda D. Foglia, Still Singularly Agonizing: Law’s Failure to Purge Arbitrariness from Capital Sentencing, 39 CRIM.L. BULL. 51, 55 (2003).

13 See generally William Bowers, The Capital Jury Project: Rationale, Design, and Preview of Early Findings, 70 IND. L. J. 1043 (1995). 20 • JOINT TASK FORCE TO REVIEW THE ADMINISTRATION OF OHIO’S DEATH PENALTY

RECOMMENDATION 45: The Ohio Judicial Conference shall review and revise as necessary the Ohio Jury Instructions to institute the use of “plain English” and “plain English” shall be used throughout capital trials.

In 2004 the Supreme Court of Ohio Task Force on Jury Service made a similar recommendation. The Supreme Court of the State of Ohio, Report and Recommendations of the Supreme Court of Ohio Task Force on Jury Service 11-12 (2004), available at http://www.sconet.state.oh.us/publications/ juryTF/jurytf_proposal.pdf. The Task Force made this recommendation based on its own survey of jurors that indicated that a significant portion had difficulty understanding legal terminology. The findings of the Capital Jury Project, see above, document that the need for plain English jury instructions is particularly critical in death penalty cases.

RECOMMENDATION 46: In capital cases, jurors shall receive written copies of “court instructions” (the judge’s entire oral charge) to consult while the court is instructing them and while conducting deliberations.

This recommendation would require revision of both Ohio Rule of Criminal Procedure 30(A) and Ohio Rev. Code § 2945.10(G): Rule 30(A) permits, but does not require, the jury to receive a written copy or recording for use in deliberations; the Ohio statute says the final jury charge must be reduced to writing “if either party requests it before the argument to the jury is commenced.”

Making the provisions of written jury instructions automatic would make trial practice consistent across the state and would help jurors be better able to deliberate. This recommendation is consistent with the Ohio Supreme Court’s Task Force on Jury Service recommendation that jurors should be “entitled to be provided a copy of written instructions, including any preliminary instructions and final instructions.” The Supreme Court of the State of Ohio, Report and Recommendations of the Supreme Court of Ohio Task Force on Jury Service 12- 13 (2004), available at http://www.sconet.state.oh.us/publications/juryTF/jurytf_proposal.pdf. The Task Force on Jury Service noted that this would increase jury comprehension, reduce the questions jurors have during their deliberations and make their deliberations more efficient.

RECOMMENDATION 47: The Ohio Judicial Conference shall study the Ohio Jury Instructions to make clear that a jury must always be given the option of extending mercy that arises from the evidence as cited in Justice Scalia’s dissent in Morgan v. Illinois, 504 U.S. 719, 751 citing to Woodson v. North Carolina, 428 U.S. 303-305.

RECOMMENDATION 48: The Ohio Judicial Conference shall ensure the Ohio Jury Instructions make clear the weighing process for considering aggravating circumstances and mitigating factors should not be conducted by determining whether there are a greater number of aggravating circumstances than mitigating factors.

The State of Ohio requires jurors to weigh whether the aggravating circumstances outweigh the mitigating factor(s) beyond a reasonable doubt in order to sentence the defendant to death.14 The Ohio Criminal Jury Instructions advise that any mitigating factor, standing alone,

14 OHIO REV. CODE § 2929.04(B) (West 2007); see also 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(12). FINAL REPORT AND RECOMMENDATIONS • 21

is sufficient to support a sentence of life imprisonment if the aggravating factor(s) is/are not sufficient to outweigh the mitigating factor beyond a reasonable doubt.15 Furthermore, the instructions inform jurors that “[i]t is the quality of the evidence regarding aggravating circumstance(s) and mitigating factors that must be given primary consideration by you. The quality of the evidence may or may not be the same as the quantity of the evidence; that is, the number of witnesses or exhibits presented in this case.”16 While this instruction could serve to inform jurors that it is not to weigh the number of aggravators against the number of mitigators to determine if the defendant should be sentenced to death, the instructions do not explicitly state that the jury should not count the aggravators against the mitigators in determining whether the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt.

RECOMMENDATION 49: Implementation of enhanced mandatory, educational and minimum experience and/or certification requirements for all participating legal counsel (appointed and retained) and all Ohio judges (including Common Pleas, Appellate, and Supreme Court) to allow for their participation in a capital case. The Ohio Judicial College could be utilized as the vehicle to implement the mandatory educational requirements for judges. Certain minimum standards for the appointment and performance of legal counsel (appointed and retained) in capital cases should be set forth in the rules and could, in exceptional circumstances, be waived, with the consent of the Supreme Court of Ohio, if it is determined that the attorney’s ability or the judge’s qualification otherwise exceeds the standards required by the rule. The adoption of this rule would require some amendment or modification to Sup.R. 20.

RECOMMENDATION 50: The Joint Task Force recommends implementation of educational guidance for presiding judges as to when and how to intervene in situations of potential ineffective lawyering. Additional guidance should also be emphasized to assure effective utilization of the recusal process by participating legal counsel, when incurring issues of preconceived opinions or otherwise prejudicial positions of trial judges. For clarification, the education guidance would highlight procedures for recognizing these issues in such a way that the trial court would not damage or undermine the client’s confidence in his or her legal counsel; however, the Joint Task Force also recognizes that if ineffective assistance of counsel is found, the court has a duty to step in and address the issue.

RECOMMENDATION 51: Adoption of a rule directing that a presiding trial judge, or the Administrative Judge, in conformity with Sup.R. 20, is the appropriate authority to appoint legal counsel in a capital case.

RECOMMENDATION 52: Adoption of a rule directing that the trial judge is the appropriate authority for the appointment of experts for indigent defendants. The rule should further provide that the decision pertaining to the appointment of experts shall be made, on the record, at one of the prescribed Pre-Trial Conferences.

15 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(10).

16 4 OHIO CRIMINAL JURY INSTRUCTIONS 503.011(12). 22 • JOINT TASK FORCE TO REVIEW THE ADMINISTRATION OF OHIO’S DEATH PENALTY

If defense counsel requests, the demand for appointment of the expert shall be made in- camera ex parte, and the order concerning the appointment shall be under seal.

Upon establishing counsels’ respective compliance with discovery obligations, the question of the appointment of experts (including determination of projected expert fees based upon analysis of expert’s time to be applied to the case as well as consideration of incremental payment of expert fees as case progresses) would be decided by the court, which decision would be subject to immediate appeal, under seal, to the appropriate Court of Appeals. The trial court judge shall make written findings as to the basis for any denial. Although concerns have been raised as to the ability of the Appellate Court to provide the anticipated, necessary expedited hearing within a reasonable time-frame, the Joint Task Force suggests that this issue be elevated to the status of a final appealable order and that the necessary expedited appellate process be spelled out in the statute.

RECOMMENDATION 53: The Supreme Court should take the lead to adopt a uniform process for the selection of indigent counsel in capital cases, including the establishment of a uniform fee and expense schedule, all of which would be included in the proposed Criminal Rule for Capital Cases (discussed below).

RECOMMENDATION 54: Should the present process of appointment of indigent counsel by the judiciary continue, the main objective should always be to assure the best educationally experienced and qualified candidate, who is available (within the county or outside the county), and who is otherwise willing to take on the responsibilities associated with the case for an appropriate fee and accompanying expenses, is appointed. A uniform fee schedule for such services across the State of Ohio must be a necessary consideration to assure the equal protection and due process for the accused in a capital case.

RECOMMENDATION 55: Adoption of reporting standards to provide complete transparency of record, including requirements to ensure better record keeping by the trial judge and the provision of additional, detailed resource information necessary to assure strict compliance with due process, which information shall be submitted to the Supreme Court upon completion of the case. Such resource information may include unique Constitutional issues, unique evidentiary issues, significant motions, plea rationale, pre-sentence investigation, and any additional information required by the Rule 20 Committee or the Supreme Court of Ohio. Additional types of resource information could be developed as part of the mandated educational process conducted by the Ohio Judicial College.

RECOMMENDATION 56: The Joint Task Force believes that some of the recommendations above could be accomplished by the adoption of a separate Criminal Rule for Capital Cases. The Joint Task Force recommends that such a rule be adopted and provide for the mandatory training of attorneys and judges (Recommendation 49), the selection and appointment of indigent counsel in capital cases (Recommendation 51), and the enforcement of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases and the Supplementary Guidelines for the Mitigation Function of Defense Teams (Recommendations 11 and 12). CONCLUSION

The Joint Task Force to Review the Administration of Ohio’s Death Penalty presents this report and recommendations to the Supreme Court of Ohio and the Ohio State Bar Association for their consideration. The Joint Task Force believes that the recommendations made by this report will promote fairness in capital cases for both the state and the defendant. In addition, the recommendations would respond to the majority of the American Bar Association’s proposals from its 2007 report.

APPENDICES

APPENDIX A 2007 ABA Death Penalty Assessment Report - Recommendations

APPENDIX B Proposed Amendments to Sup.R. 20

APPENDIX C Proposed Amendments to Post-Conviction Statues

APPENDIX A • 27

APPENDIX A 2007 ABA OHIO DEATH PENALTY ASSESSMENT REPORT RECOMMENDATIONS

COLLECTION, PRESERVATION, AND TESTING OF DNA AND OTHER TYPES OF EVIDENCE

ABA Ohio Assessment Team Recommendations:

1. The State of Ohio should require that all biological evidence be preserved for as long as the defendant is incarcerated.

2. All biological evidence should be made available to defendants and convicted persons upon request and in regard to such evidence, such defendants and convicted persons may seek appropriate relief notwithstanding any other provision of the law.

3. Every law enforcement agency should establish and enforce written procedures and policies governing the preservation of biological evidence.

4. Every law enforcement agency should provide training programs and disciplinary procedures to ensure that investigative personnel are prepared and accountable for their performance.

5. Ensure that there is adequate opportunity for citizens and investigative personnel to report misconduct in investigations.

6. Provide adequate funding to ensure the proper preservation and testing of biological evidence. (See later discussion of Capital Litigation Fund recommendation).

In 2001, the Center on Wrongful Convictions at Northwestern Law School analyzed the causes of the wrongful convictions of 86 death row exonerees. The Center found that 45% of these wrongful convictions resulted from eyewitness error resulting from confusion or faulty memory, 8% from false confessions, and 9% from the introduction of junk science.

In January 2012, in response to a request from the Joint Task Force, the Ohio Legislative Service Commission released a research memorandum reviewing the changes Ohio had made in response to the ABA Ohio Assessment Team’s Assessment Report. The Commission noted that Substitute Senate Bill 77 of the 128th General Assembly (hereinafter “Sub. S.B. 77”) enacted provisions that generally require the preservation of “biological evidence” for specified periods of time by “governmental retention entities”. The biological evidence-preservation provisions apply to evidence likely to contain biological material that was in the possession of any governmental evidence-retention entity during the investigation and prosecution of aggravated murder.

Biological evidence is defined as a number of items which typically produce biological material. “Biological material” is defined as any product of a human body containing DNA. The law now contains a broad definition of who is a governmental-retention entity. The law requires that entity to secure that biological evidence in relation to the investigation or prosecution of aggravated murder for the period of time that the offense remains unsolved, or if a person is convicted of or pleads guilty to aggravated murder, for the latest of the following periods of time: the period of time the person is incarcerated or dies. The retention entity that possesses the biological evidence must retain the evidence in an amount sufficient to develop a DNA “profile”. 28 • APPENDIX A

The law also amended Revised Code provisions concerning post-conviction DNA testing. Eligible prison inmates have the opportunity to submit to DNA testing to obtain evidence that may be used to establish clear and convincing evidence of the inmate’s innocence in an offense, or if the inmate is sentenced to death, actual innocence of an aggravating circumstance that was the basis of the death sentence. Sub. S.B. 77 further amended the requirements for the maintenance of DNA samples, adding provisions that would be applicable if an offender who was under a death sentence is no longer incarcerated.

The ABA Ohio Assessment Team’s Assessment Report expressed concern that death sentenced post-conviction applicants seeking DNA testing must comply with extremely stringent requirements to have their application granted and DNA testing performed to prove their innocence. Provisions of the Revised Code provide that the Code’s sections regulating post-conviction DNA testing “are not the exclusive means by which an offender may obtain post-conviction DNA testing”. See R.C. 2953.84.

Sub. S.B. 77 established a Preservation of Biological Evidence Task Force (Task Force) within the Bureau of Criminal Identification and Investigation of the Attorney General’s office. The Task Force must consist of officers and employees of the Bureau; a representative from the Ohio Prosecutors Association; a representative from the Ohio State Coroners Association; a representative from the Ohio Association of Chiefs of Police; a representative from the Ohio Public Defenders office, in consultation with the Ohio Innocence Project; and a representative from the Buckeye State Sheriffs Association. The law requires the Task Force to establish a system regarding the proper preservation of biological evidence in Ohio and specifies that, in establishing the system, the Task Force must do all of the following:

1. Devise standards regarding the proper collection, retention, and cataloguing of biological evidence for ongoing investigations and prosecutions.

2. Recommend practices, protocols, models, and resources for the cataloguing and accessibility of preserved biological evidence already in the possession of governmental evidence-retention entities.

The law does not mandate law enforcement agencies to adopt the system established by the Task Force. The law requires, in consultation with the Preservation of Biological Evidence Task Force, the Office of the Attorney General to administer and conduct training programs for law enforcement officers and other relevant employees who are charged with preserving and cataloguing biological evidence regarding the methods and procedures that require or relate to the preservation of biological evidence.

Sub. S.B. 77 enacted a provision that requires governmental evidence-retention entities, including, but not limited to law enforcement agencies, that possess biological evidence to prepare an inventory of the biological evidence that has been preserved in connection with the defendant’s criminal case or the alleged delinquent child’s delinquent child case upon written request by the defendant in any criminal case or the alleged delinquent child in any delinquent child case involving aggravated murder. The act does not require the evidence-retention facility adopt written procedures for these requests.

The ABA Ohio Assessment Team’s recommendation regarding training programs and disciplinary procedures is not restricted to training and disciplinary procedures connected to the investigation and enforcement of capital cases. The ABA Ohio Assessment Team report stated that Ohio is in partial compliance with Recommendation #4, stating that law enforcement investigative personnel, including law enforcement officers, receive mandatory basic training and some law enforcement agencies are required to keep performance evaluations. The report stated that APPENDIX A • 29

the extent to which the training courses and performance evaluations ensure that investigative personnel are prepared and accountable for their performances is unknown. The report did not contain specific recommendations for training programs and disciplinary procedures that would ensure that investigative personnel are prepared and accountable for their performance or a method for determining whether programs and disciplinary procedures are in compliance with the recommendation.

Continuing law in Ohio requires the Ohio Peace Officer Training Commission to recommend rules to the Ohio Attorney General with respect, but not limited, to the following:

1. Minimum courses of study at approved peace officer training schools;

2. Requirements of minimum basic training for peace officers;

3. Classification of advanced in-service training programs for peace officers.

The ABA Ohio Assessment Team’s fifth recommendation is not restricted to reports of misconduct in capital cases. The recommendation does not state what would constitute an adequate opportunity for citizens and investigative personnel to report misconduct in investigations. The Revised Code and Ohio Administrative Code do not contain provisions pertaining to reporting misconduct in criminal investigations. The Ohio Rules for Professional Conduct require that attorneys, such as prosecuting attorneys and defense counsel, report professional misconduct which they discover in the course of the prosecution.

LAW ENFORCEMENT IDENTIFICATIONS AND INTERROGATIONS ABA Ohio Assessment Team Recommendations:

(1) Law enforcement agencies should adopt guidelines for continuity line-ups and photo spreads in a manner that maximizes their likely accuracy.

(2) Law enforcement officers and prosecutors should receive periodic training on how to implement the guidelines for conducting lineups and photo spreads, as well as training on non- suggestive techniques for interviewing witnesses.

(3) Law enforcement agencies and prosecutors’ offices should periodically update the guidelines for conducting lineups and photo spreads to incorporate advances in social scientific esearchr and in the continuing lessons of practical experience.

(4) Videotape the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impracticable, audiotape the entirety of such custodial interrogations.

(5) Ensure adequate funding to ensure proper development, implementation and updating of policies and procedures relating to identifications and interrogations.

(6) Courts should have the discretion to allow a properly qualified expert to testify both pre-trial and at trial on the factors affecting eyewitness accuracy.

(7) Whenever there has been an identification of the defendant prior to trial, and identity is a central issue in a case tried before a jury, courts should use a specific instruction, tailored to the needs of the individual case, explaining the factors to be considered in gauging the lineup accuracy. The ABA Ohio Assessment Team’s recommendations indicated that these guidelines should adopt the American Bar Association Best Practices for Promoting the Accuracy of Eyewitness Identification Procedures. Sub. S.B. 77 enacted laws requiring Ohio law enforcement agencies and criminal justice entities to adopt special procedures for conducting live lineups and photo lineups. These procedures essentially follow the ABA Best Practices, such as blind administration and a folder system, for conducting a photo lineup.

No changes to the Revised Code, Ohio Administrative Code, Rules of Criminal Procedure, or Rules of Evidence have been adopted or amended since the issuance of the ABA Ohio Assessment Team report that requires law enforcement officers and prosecutors to receive periodic training related to lineups, photo spreads, and non-suggestive techniques for interviewing witnesses. As noted above, the Attorney General has the authority to adopt and promulgate training rules and regulations recommended by the Ohio Peace Officer Training Commission.

While Sub. S.B. 77 enacted law requiring Ohio law enforcement agencies and criminal justice entities to adopt specific provisions for conducting live lineups and photo line ups, the act did not contain provisions pertaining to updating these procedures. No changes to the Revised Code, Ohio Administrative Code, Rules of Criminal Procedure, or Rules of Evidence have been adopted or amended since the issuance of the ABA Ohio Assessment Team report that requires law enforcement officers and prosecutors to periodically update the guidelines adopted by the law enforcement agency or prosecutor’s office for conducting lineups and photo spreads.

Sub. S.B. 77 enacted law governing custodial interrogations. The act defined a “custodial interrogation” as any interrogation involving a law enforcement officer’s questioning that is reasonably likely to elicit incriminating responses and in which a reasonable person in the subject’s position would consider himself or herself to be in custody, beginning when a person should have been advised of the person’s right to counsel and to remain silent and of the fact that anything the person says could be used against the person, as specified by the United States Supreme Court in Miranda v. Arizona (1966), 384 U.S. 436, and subsequent decisions, and ending when the questioning has completely finished.

As relevant to capital cases, under Sub. S.B. 77, all statements made by a person, who is the suspect of a violation of or possible violation of the offense of aggravated murder, are presumed to be voluntary if the statements are made by the person during a custodial interrogation at a “place of detention” and those statements are electronically recorded. The person making the statements during the electronic recording of a custodial interrogation has the burden of proving that any statements made during the custodial interrogation were not voluntary. There is no penalty against the law enforcement agency that employs a law enforcement officer if the law enforcement officer fails to electronically record a custodial interrogation as required. Sub. S.B. 77 defined a “place of detention” as a jail, police or sheriff’s station, holding cell, “state correctional institution”, “local correctional facility”, “detention facility,” or DYS facility. A place of detention does not include a law enforcement vehicle.

As enacted by Sub. S.B. 77, the law requires law enforcement personnel to clearly identify and catalogue every electronic recording of a custodial interrogation that is recorded pursuant to the act. If a criminal or delinquent child proceeding is brought against a person who was the subject of a custodial interrogation that was electronically recorded, law enforcement personnel must preserve the recording until the later of when all appeals, post-conviction relief proceedings, and habeas corpus proceedings are final and concluded or the expiration of the period of time within which such appeals and proceedings must be brought. Upon motion by the defendant in a criminal proceeding or the alleged delinquent child in a delinquent child proceeding, the court may order that a copy of an electronic recording of a custodial interrogation of the person be APPENDIX A • 31

preserved for any period beyond the expiration of all appeals, post-conviction relief proceedings, and habeas corpus proceedings. If no criminal or delinquent child proceeding is brought, law enforcement personnel are not required to preserve the related recording.

The Ohio Supreme Court has held that expert testimony of an experimental psychologist concerning the variables or factors that may impair the accuracy of atypical eyewitness identification is admissible under the Rules of Evidence, unless the expert testifies regarding the credibility of a particular witness. “The decision to admit the expert opinion testimony, however, is within the sound discretion of the trial court.” State v. Buell, Ohio St. 3d 124, 133 (1986).

Ohio courts have the discretion to appoint an eyewitness-identification expert for an indigent defendant. Ohio appellate court decisions have found, under certain conditions, a court’s denial to appoint an eyewitness-identification expert for an indigent defendant to be an abuse of discretion. State v. Bradley 181 Ohio App.3d 40, 43-44 (2009).

The General Assembly requested the Ohio Judicial Conference, in Sub. S.B. 77, to review existing jury instructions regarding eyewitness identification for compliance with the act. Sub. S.B. 77 did not require courts to adopt new jury instructions regarding eyewitness identification. Sub. S.B. 77 provides that when such evidence is presented at trial, if law enforcement fails to comply with the act’s lineup provisions, the jury must be instructed that it may consider credible evidence of non-compliance in determining the reliability of any eyewitness identification resulting from the lineup.

It is noteworthy that recently the New Jersey Supreme Court, a year after issuing a sweeping ruling aimed at resolving the “troubling lack of reliability in eyewitness identifications”, issued a number of instructions for judges to give jurors to help them better evaluate such evidence in criminal trials. For instance, in cases involving cross-racial identifications, judges were directed to tell jurors that “research has shown that people may have great difficulty in accurately identifying members of a different race.” The New Jersey Supreme Court’s ruling was widely heralded for containing the most exhaustive review of decades of scientific research on eyewitness identification. See State v. Henderson, 27 A. 3d 872 (N.J. 2011).

Although the Ohio Supreme Court in Buell spoke concerning expert testimony at trial, nothing in the law prohibits the court from conducting a pre-trial reliability hearing with the use of expert testimony on the identification issue. The United States Supreme Court recently held that due process does not require a preliminary judicial inquiry into the reliability of eyewitness testimony when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement. Perry v. New Hampshire, 132 S. Ct. 716 at 730 (2012).

CRIME LABORATORIES AND MEDICAL EXAMINER OFFICES ABA Ohio Assessment Team Recommendations:

1. Crime laboratories and medical examiner offices should be accredited, examiners should be certified, and procedures should be standardized and published to ensure the validity, reliability and timely analysis of forensic evidence.

2. Crime laboratories and medical examiner offices should be adequately funded. 32 • APPENDIX A

MENTAL RETARDATION AND MENTAL ILLNESS ABA Ohio Assessment Team Recommendations:

1. Jurisdictions should bar the execution of individuals who have mental retardation, as defined by the American Association of Mental Retardation. Whether the definition is satisfied in a particular case should be based upon a clinical judgment, not solely upon a legislatively prescribed IQ measure, and judges and counsel should be trained to apply the law fully and fairly. No IQ maximum lower than 75 should be imposed in this regard. Testing used in arriving at this judgment need not have been performed prior to the crime.

2. All actors in the criminal justice system should be trained to recognize mental retardation in capital defendants and death-row inmates.

3. The jurisdiction should have in place policies that ensure that persons who may have mental retardation are represented by attorneys who fully appreciate the significance of their client’s mental limitations. These attorneys should have training sufficient to assist them in recognizing mental retardation in their clients and understanding its possible impact on their clients’ ability to assist with their defense, on the validity of their “confessions” (where applicable) and on their eligibility for capital punishment. These attorneys should also have sufficient funds and resources (including access to appropriate experts, social workers and investigators) to determine accurately and prove the mental capacities and adaptive skill deficiencies of a defendant who counsel believes may have mental retardation.

4. For cases commencing after Atkins v. Virginia or the state’s ban on the execution of the mentally retarded (the earlier of the two), the determination of whether a defendant has mental retardation should occur as early as possible in criminal proceedings, preferably prior to the guilt/innocence phase of a trial and certainly before the penalty stage of a trial.

5. The burden of disproving mental retardation should be placed on the prosecution, where the defense has presented a substantial showing that the defendant may have mental retardation. If, instead, the burden of proof is placed on the defense, its burden should be limited to proof by a preponderance of the evidence.

6. During police investigations and interrogations, special steps should be taken to ensure that the Miranda rights of a mentally retarded person are sufficiently protected and that false, coerced, or garbled confessions are not obtained or used.

7. The jurisdiction should have in place mechanisms to ensure that, during court proceedings, the rights of mentally retarded persons are protected against “waivers” that are the product of their mental disability.

8. All actors in the criminal justice system, including police officers, court officers, prosecutors, defense attorneys, judges, and prison authorities, should be trained to recognize mental illness in capital defendants and death-row inmates.

9. The jurisdiction should have in place policies that ensure that persons who may have mental illness are represented by attorneys who fully appreciate the significance of their client’s mental disabilities. These attorneys should have training sufficient to assist them in recognizing mental illness in their clients and understanding its APPENDIX A • 33

possible impact on their clients’ ability to assist with their defense, on the validity of their “confessions” (where applicable) and on their eligibility for capital punishment. These attorneys should also have sufficient funds and resources (including access to appropriate experts, social workers and investigators) to determine accurately and prove the mental capacities and adaptive skill deficiencies of a defendant who counsel believes may have mental disabilities.

10. Prosecutors should employ, and trial judges should appoint, mental health experts on the basis of their qualifications and relevant professional experience, not on the basis of the expert’s prior status as a witness for the state. Similarly, trial judges should appoint qualified mental health experts to assist the defense confidentially according to the needs of the defense, not on the basis of the expert’s current or past status with the state.

11. Jurisdictions should provide adequate funding to permit the employment of qualified mental health experts in capital cases. Experts should be paid in an amount sufficient to attract the services of those who are well trained and who remain current in their fields. Compensation should not place a premium on quick and inexpensive evaluations, but rather should be sufficient to ensure a thorough evaluation that will uncover pathology that a superficial or cost-saving evaluation might miss.

12. Jurisdictions should forbid death sentences and executions for everyone who, at the time of the offense, had significant limitation in intellectual functioning and adaptive behavior as expressed in conceptual, social, and practical adaptive skills, resulting from mental retardation, dementia, or a traumatic brain injury.

13. The jurisdiction would forbid death sentences and executions with regard to everyone who, at the time of the offense, had a severe mental disorder or disability that significantly impaired the capacity (a) to appreciate the nature, consequences or wrongfulness of one’s conduct, (b) to exercise rational judgment in relation to conduct, or (c) to conform one’s conduct to the requirements of the law.

14. To the extent that a mental disorder or disability does not preclude imposition of the death sentence pursuant to a particular provision or law, jury instructions should communicate clearly that a mental disorder or disability is a mitigating factor, not an aggravating factor, in a capital case; that jurors should not rely upon the factor of a mental disorder or disability to conclude that the defendant represents a future danger to society; and that jurors should distinguish between the defense of insanity and the defendant’s subsequent reliance on mental disorder or disability as a mitigating factor.

15. Jury instructions should adequately communicate to jurors, where applicable, that the defendant is receiving medication for a mental disorder or disability, that this affects the defendant’s perceived demeanor, and that it should not be considered in aggravation.

16. The jurisdiction should have in place mechanisms to ensure that, during court proceedings, the rights of persons with mental disorders or disabilities are protected against “waivers” that are the product of a mental disorder or disability. In particular, the jurisdiction should allow a “next friend” acting on a death-row inmate’s behalf to initiate or pursue available remedies to set aside the conviction or death sentence, where the inmate wishes to forego or terminate post-conviction proceedings but has a mental disorder or disability that significantly impairs his or her capacity to make a rational decision. 34 • APPENDIX A

17. The jurisdiction should stay post-conviction proceedings where a prisoner under sentence of death has a mental disorder or disability that significantly impairs his or her capacity to understand or communicate pertinent information, or otherwise to assist counsel, in connection with such proceedings and the prisoner’s participation is necessary for a fair resolution of specific claims bearing on the validity of the conviction or death sentence. The jurisdiction should require that the prisoner’s sentence be reduced to the sentence imposed in capital cases when execution is not an option if there is no significant likelihood of restoring the prisoner’s capacity to participate in post-conviction proceedings in the foreseeable future.

18. The jurisdiction should provide that a death-row inmate is not “competent” for execution where the inmate, due to a mental disorder or disability, has significantly impaired capacity to understand the nature and purpose of the punishment or to appreciate the reason for its imposition in the inmate’s own cases. It should further provide that when such a finding of incompetence is made after challenges to the conviction’s and death sentence’s validity have been exhausted and execution has been scheduled, the death sentence shall be reduced to the sentence imposed in capital cases when execution is not an option.

19. Jurisdictions should develop and disseminate – to police officers, attorneys, judges, and other court and prison officials – models of best practices on ways to protect mentally ill individuals within the criminal justice system. In developing these models, jurisdictions should enlist the assistance of organizations devoted to protecting the rights of mentally ill citizens.

DEFENSE SERVICES ABA Ohio Assessment Team Recommendation:

1. Ohio should comply with the ABA Guidelines for the appointment and performance of defense counsel in death penalty cases. The ABA Ohio Assessment Team noted that the responsibility for training, selecting, and monitoring attorneys who represent indigent individuals charged with or convicted of a capital felony in Ohio does not rest in one statewide appointing authority.

STATE POST-CONVICTION PROCEEDINGS ABA Ohio Assessment Team Recommendations

1. All post-conviction proceedings at the trial court level should be conducted in a manner designed to permit adequate development and judicial consideration of all claims. Trial courts should not expedite post-conviction proceedings unfairly; if necessary, courts should stay executions to permit full and deliberate consideration of claims. Courts should exercise independent judgment in deciding cases, making findings of fact and conclusions of law only after fully and carefully considering the evidence and applicable law.

2. The state should provide meaningful discovery in post-conviction proceedings. Where courts have discretion to permit such discovery, the discretion should be exercised to ensure full discovery. APPENDIX A • 35

3. Trial judges should provide sufficient time for discovery and should not curtail discovery as a means of expediting the proceedings.

4. When deciding post-conviction claims on appeal, state appellate courts should address explicitly the issues of fact and law raised by the claims and should issue opinions that fully explain the basis for disposition of claims.

5. On the initial state post-conviction application, state post-conviction courts should apply a “knowing, understanding and voluntary” standard for waivers of claims of constitutional error not preserved properly at trial or on appeal.

6. When deciding post-conviction claims on appeal, state appellate courts should apply a “knowing, understanding and voluntary” standard for waivers of claims of constitutional error not raised properly at trial or on appeal and should liberally apply a plain error rule with respect to errors of state law in a capital case.

7. The state should establish post-conviction defense organizations, similar in nature to the capital resources centers de-funded by Congress in 1996, to represent capital defendants in state post-conviction, federal habeas corpus, and clemency proceedings.

8. The state should appoint post-conviction defense counsel whose qualifications are consistent with the ABA Guidelines on the Appointment and Performance of Counsel in Death Penalty Cases. The state should compensate appointed counsel adequately and, as necessary, provide sufficient funds for investigators and experts.

9. State courts should give full retroactive effect to U.S. Supreme Court decisions in all proceedings, including second and successive post-conviction proceedings, and should consider in such proceedings the decisions of federal appeals and district courts.

10. State courts should permit second and successive post-conviction proceedings in capital cases where counsels’ omissions or intervening court decisions resulted in possibly meritorious claims not previously being raised, factually or legally developed, or accepted as legally valid.

11. In post-conviction proceedings, state courts should apply the harmless error standard of Chapman v. California, requiring the prosecution to show that a constitutional error is harmless beyond a reasonable doubt.

12. During the course of a moratorium, a “blue ribbon” commission should undertake a review of all cases in which individuals have been either wrongfully convicted or wrongfully sentenced to death and should recommend ways to prevent such wrongful results in the future.

The ABA Ohio Assessment Team noted that while Ohio requires counsel to be certified to represent indigent death row inmates in post-conviction proceedings, it does not set forth any requirements that are specific to post-conviction representation. R.C. 2953.21 provides for post-conviction relief and it directs the trial court not to appoint the same attorneys who represented the defendant at trial. The law provides that the court should appoint counsel properly certified under Sup.R. 20.

The ABA Ohio Assessment Team recommended that all post-conviction proceedings at the trial level be conducted in a manner designed to permit adequate development and judicial consideration of all claims. The Team recommended that the state should provide meaningful discovery in these 36 • APPENDIX A

proceedings and adequate time for counsel to pursue evidence developed in the discovery process. The Team recommended that appellate courts should address explicitly the issues of fact and law raised by the claims and issue opinions explaining the disposition of those claims. The Team recommended that the State should amend its law to allow petitioners to use the public records laws to obtain materials in support of their claims.

RACIAL AND ETHNIC MINORITIES ABA Ohio Assessment Team Recommendations:

1. Jurisdictions should fully investigate and evaluate the impact of racial discrimination in their criminal justice systems and develop strategies that strive to eliminate it.

2. Jurisdictions should collect and maintain data on the race of defendants and victims, on the circumstances of the crime, on all aggravating and mitigating circumstances, and on the nature and strength of the evidence for all potential capital cases (regardless of whether the case is charged, prosecuted, or disposed of as a capital case). This data should be collected and maintained with respect to every stage of the criminal justice process, from reporting of the crime through execution of the sentence.

3. Jurisdictions should collect and review all valid studies already undertaken to determine the impact of racial discrimination on the administration of the death penalty and should identify and carry out any additional studies that would help determine discriminatory impacts on capital cases. In conducting new studies, states should collect data by race for any aspect of the death penalty in which race could be a factor.

4. Where patterns of racial discrimination are found in any phase of the death penalty administration, jurisdictions should develop, in consultation with legal scholars, practitioners, and other appropriate experts, effective remedial and prevention strategies to address the discrimination.

5. Jurisdictions should adopt legislation explicitly stating that no person shall be put to death in accordance with a sentence sought or imposed as a result of the race of the defendant or the race of the victim. To enforce this law, jurisdictions should permit defendants and inmates to establish prima facie cases of discrimination based upon proof that their cases are part of an established racially discriminatory pattern. If a prima facie case is established, the state should have the burden of rebutting it by substantial evidence.

6. Jurisdictions should develop and implement educational programs applicable to all parts of the criminal justice system to stress that race should not be a factor in any aspect of death penalty administration. To ensure that such programs are effective, jurisdictions also should impose meaningful sanctions against any state actor found to have acted on the basis of race in a capital case.

7. Defense counsel should be trained to identify and develop racial discrimination claims in capital cases. Jurisdictions also should ensure that defense counsel are trained to identify biased jurors during voir dire.

8. Jurisdictions should require jury instructions indicating that it is improper to consider any racial factors in their decision making and that they should report any evidence of racial discrimination in jury deliberations. APPENDIX A • 37

9. Jurisdictions should ensure that judges recuse themselves from capital cases when any party in a given case establishes a reasonable basis for concluding that the judge’s decision making could be affected by racially discriminatory factors.

10. States should permit defendants or inmates to raise directly claims of racial discrimination in the imposition of death sentences at any stage of judicial proceedings, notwithstanding any procedural rule that otherwise might bar such claims, unless the state proves in a given case that a defendant or inmate has knowingly and intelligently waived the claim.

PROSECUTORIAL PROFESSIONALISM ABA Ohio Assessment Team Recommendations:

1. Each prosecutor’s office should have written policies governing the exercise of prosecutorial discretion to ensure the fair, efficient, and effective enforcement of criminal law.

2. Each prosecutor’s office should establish procedures and policies for evaluating cases that rely on eyewitness identification, confessions, or the testimony of jailhouse snitches, informants, and other witnesses who receive a benefit.

3. Prosecutors should fully and timely comply with all legal, professional, and ethical obligations to disclose to the defense information, documents, and tangible objects and should permit reasonable inspection, copying, testing, and photographing of such disclosed documents and tangible objects.

4. Each jurisdiction should establish policies and procedures to ensure that prosecutors and others under the control or direction of prosecutors who engage in misconduct of any kind are appropriately disciplined, that any such misconduct is disclosed to the criminal defendant in whose case it occurred, and that the prejudicial impact of any such misconduct is remedied.

5. Prosecutors should ensure that law enforcement agencies, laboratories, and other experts under their direction or control are aware of and comply with their obligation to inform prosecutors about potentially exculpatory or mitigating evidence.

6. The jurisdiction should provide funds for the effective training, professional development, and continuing education of all members of the prosecution team, including training relevant to capital prosecutions.

The ABA Ohio Assessment Team recommended that the State of Ohio more vigorously enforce the rule requiring prosecutors to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates punishment. In Brady v. Maryland, 373 U.S. 83 (1963) the United States Supreme Court held that “the suppression by the prosecutor of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or punishment.” The Northwestern study indicated that seventeen percent of the wrongful death penalty convictions were caused by police or prosecutor misconduct.

In Kyles vs. Whitley, 514 U.S. 419 (1995) the state contended that a more lenient standard of materiality should apply where the “favorable evidence in issue was known only to police investigators and not to the prosecutor.” Rejecting that contention, the Court noted that: “No one doubts that police investigators sometimes fail to inform a prosecutor of all they know, but neither is there any serious 38 • APPENDIX A

doubt that procedures and regulations can be established to carry the prosecutors’ burden and to ensure communication of all relevant information on each case to every lawyer who deals with it.”

Many prosecuting attorneys provide “open discovery” whereby everything they are provided by the police they provide to defense counsel. This mitigates a later claim of prosecutorial misconduct in the discovery phase of the prosecution. These prosecutors recognize they may obtain protection from providing certain discovery under Crim.R. 16(D) upon a proper showing

In 1989, the Alabama Supreme Court held that capital cases are by their nature sufficiently different from other cases to justify the exercise of judicial authority to order the State to maintain an on-going “open file” policy in regard to discovery subject to the safeguard of the state’s criminal rules. Ex parte Monk, 557 So. 2d 832 (Ala. 1989). Texas and North Carolina have recently passed “open discovery” laws and recently Tennessee’s death penalty study committee recommended unanimously an “open file discovery act”. S.B. 1402/H.B. 1456.

CLEMENCY ABA Ohio Assessment Team Recommendations:

1. The clemency decision making process should not assume that the courts have reached the merits on all issues bearing on the death sentence in a given case; decisions should be based upon an independent consideration of facts and circumstances.

2. The clemency decision making process should take into account all factors that might lead the decision maker to conclude that death is not the appropriate punishment.

3. Clemency decision makers should consider any pattern of racial or geographic disparity in carrying out the death penalty in the jurisdiction, including the exclusion of racial minorities from the jury panels that convicted and sentenced the death-row inmate.

4. Clemency decision makers should consider the inmate’s mental retardation, mental illness, or mental competency, if applicable, the inmate’s age at the time of the offense, and any evidence of lingering doubt about the inmate’s guilt.

5. Clemency decision makers should consider an inmate’s possible rehabilitation or performance of positive acts while on death row.

6. Death-row inmates should be represented by counsel and such counsel should have qualifications consistent with the ABA Guidelines on the Appointment and Performance of Counsel in Death Penalty Cases.

7. Prior to clemency hearings, counsel should be entitled to compensation, access to investigative and expert resources and provided with sufficient time to develop claims and to rebut the State’s evidence.

8. Clemency proceedings should be formally conducted in public and presided over by the Governor or other officials involved in making the determination.

9. If two or more individuals are responsible for clemency decisions or for making recommendations to clemency decision makers, their decisions or recommendations should be made only after in- person meetings with petitioners. APPENDIX A • 39

10. Clemency decision makers should be fully educated and should encourage public education about clemency powers and limitations on the judicial system’s ability to grant relief under circumstances that might warrant grants of clemency.

11. To the maximum extent possible, clemency determinations should be insulated from political considerations or impacts.

CAPITAL JURY INSTRUCTIONS ABA Ohio Assessment Team Recommendations:

1. Jurisdictions should work with attorneys, judges, linguists, social scientists, psychologists and jurors to evaluate the extent to which jurors understand instructions, revise the instructions as necessary to ensure that jurors understand applicable law, and monitor the extent to which jurors understand revised instructions to permit further revision as necessary.

2. Jurors should receive written copies of court instructions to consult while the court is instructing them and while conducting deliberations.

3. Trial courts should respond meaningfully to jurors’ requests for clarification of instructions by explaining the legal concepts at issue and meanings of words that may have different meanings in everyday usage and, where appropriate, by directly answering jurors’ questions about applicable law.

4. Trial courts should instruct jurors clearly on available alternative punishments and should, upon the defendant’s request during the sentencing phase, permit parole officials or other knowledgeable witnesses to testify about parole practices in the state to clarify jurors’ understanding of alternative sentences.

5. Trial courts should instruct jurors that a juror may return a life sentence, even in the absence of any mitigating factor and even where an aggravating factor has been established beyond a reasonable doubt, if the juror does not believe that the defendant should receive the death penalty.

6. Trial courts should instruct jurors that residual doubt about the defendant’s guilt is a mitigating factor. Jurisdictions should implement Model Penal Code section 210.3(1)(f), under which residual doubt concerning the defendant’s guilt would, by law, require a sentence less than death.

7. In states where it is applicable, trial courts should make clear in jury instructions that the weighing process for considering aggravating and mitigating factors should not be conducted by determining whether there are a greater number of aggravating factors than mitigating factors.

The ABA Ohio Assessment Team noted that due to the complexities inherent in capital proceedings, trial judges must present fully and accurately, through instructions, the applicable law to be followed. The Team also recommended that trial courts should instruct jurors that residual doubt about the defendant’s guilt is a mitigating factor. The Team recommends that Ohio implement the Model Penal Code’s provision that residual doubt concerning the defendant’s guilt would, by law, 40 • APPENDIX A

require a sentence less than death. Lastly, the Team recommends that the judge explain the terms “life without parole”, “life imprisonment”, and “parole”.

JUDICIAL INDEPENDENCE ABA Ohio Assessment Team Recommendations:

1. States should examine the fairness of their judicial election/appointment process and should educate the public about the importance of judicial independence and the effect of unfair practices on judicial independence.

2. A judge who has made any promise regarding his/her prospective decisions in capital cases that amounts to prejudgment should not preside over any capital case or review any death penalty decision in the jurisdiction.

3. Bar associations and community leaders should speak out in defense of judges who are criticized for decisions in capital cases; bar associations should educate the public concerning the roles and responsibilities of judges and lawyers in capital cases; bar associations and community leaders should publicly oppose any questioning of candidates for judicial appointment or re-appointment concerning their decisions in capital cases, and purported views on the death penalty or on habeas corpus should be litmus tests or important factors in the selection of judges.

4. A judge who observes ineffective lawyering by defense counsel should inquire into counsel’s performance and, where appropriate, take effective actions to ensure the defendant receives a proper defense.

5. A judge who determines that prosecutorial misconduct or other unfair activity has occurred during a capital case should take immediate action to address the situation and to ensure the capital proceeding is fair.

6. Judges should do all within their power to ensure that defendants are provided with full discovery in capital cases.

The ABA Ohio Assessment Team recommended that Ohio examine the fairness of the judicial elections/appointment process and should educate the public about the importance of judicial independence and the effect of unfair practices on judicial independence. The Team noted that Ohio’s partially partisan, partially non-partisan judicial election format for judges, combined with the high cost and increasingly political nature of judicial campaigns, has called into question the fairness of the judicial selection process in Ohio.

Numerous judges and judicial candidates have run advertisements touting their experience in death penalty cases, their support of the death penalty, and their being “tough on crime”. A ballot initiative in Ohio in 1987 for a judicial merit selection system lost 2-1 at the ballot box. The Joint Task Force took no position regarding the wisdom of merit selection. The ABA Ohio Assessment Team recommended that a judge who observes ineffective lawyering by defense counsel should inquire into counsel’s performance and where appropriate take action to ensure the defendant receives a proper defense. APPENDIX B • 41

APPENDIX B PROPOSED AMENDMENTS TO SUP.R. 20

RULE 20. Appointment of Counsel for Indigent Defendants in Capital Cases.

I. Scope of rules

(A) Rules 20 through 20.05 of the Rules of Superintendence for the Courts of Ohio shall apply in cases where an indigent defendant has been charged with aggravated murder and the indictment includes one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code. These rules shall apply in cases where a juvenile defendant is indicted for a capital offense, but because of the juvenile’s age, cannot be sentenced to death.

(B) The provisions for the appointment of counsel set forth in Sup. R. 20 through 20.05 apply only in cases where the defendant is indigent and counsel is not privately retained by or for the defendant.

(C) If the defendant is entitled to the appointment of counsel, the court shall appoint two attorneys certified pursuant to Sup. R. 20 through 20.05. If the defendant engages one privately retained attorney, the court shall not appoint a second attorney pursuant to this rule then the appointing authority shall follow ABA Guideline 4.1(B).

(D) The provisions of Sup. R. 20 through 20.05 apply in addition to the reporting requirements created by section 2929.021 of the Revised Code.

II. Appointment of counsel for indigent defendants in capital cases

(A) Trial counsel

At least two attorneys shall be appointed by the court to represent an indigent defendant charged with aggravated murder and the indictment includes one or more specifications of aggravating circumstances listed in R.C. 2929.04(A). At least one of the appointed counsel shall maintain a law office in Ohio and have experience in Ohio criminal trial practice. The counsel appointed shall be designated “lead counsel” and “co-counsel” and must meet the qualifications set forth in Sup. R. 20.01.

(B) Appellate counsel

At least two attorneys shall be appointed by the court to appeal cases where the trial court has imposed the death penalty on an indigent defendant. At least one of the appointed counsel shall maintain a law office in Ohio. Appointed counsel shall meet the qualifications for appellate counsel set forth in Sup. R. 20.01.

(C) Post Conviction Counsel

Attorneys appointed to represent an indigent capitally convicted person shall meet the requirements of Sup.R. 20 unless an institutional organization such as the Ohio Public Defender represents such person; in such a situation, at least one supervising attorney shall meet the requirements of Sup.R. 20. 42 • APPENDIX B

(D) Exceptional circumstances

If an attorney does not satisfy the requirements of divisions (A) or (B) of this section, the attorney may be certified as lead counsel, co-counsel, or appellate counsel if it can be demonstrated to the satisfaction of the Committee on the Appointment of Counsel for Indigent Defendants in Capital Cases that competent representation will be provided to the defendant. In so determining, the committee may consider all of the factors in Sup. R. 20.01 and any other relevant considerations.

III. Procedures for court appointments of counsel

(A) Appointing counsel

Only counsel who have been certified by the committee shall be appointed to represent indigent defendants charged with aggravated murder and the indictment includes one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code. Each court may adopt local rules establishing qualifications in addition to and not in conflict with those established by Sup. R. 20.01. Appointments of counsel for these cases should be distributed as widely as possible among the certified attorneys in the jurisdiction of the appointing court.

(B) Workload of appointed counsel

(1) In appointing counsel, the court shall consider the nature and volume of the workload of the prospective counsel to ensure that counsel, if appointed, could direct sufficient attention to the defense of the case and provide competent representation to the defendant.

(2) Attorneys accepting appointments shall provide each client with competent representation in accordance with constitutional and professional standards. [See Sup.R. 20.03(A) and the ABA Guidelines] Appointed counsel shall not accept workloads that, by reason of their excessive size, interfere with the rendering of competent representation or lead to the breach of professional obligations.

(C) Notice to the committee

(1) Within two weeks of appointment, the appointing court shall notify the committee secretary of the appointment on a form prescribed by the committee. The notice shall include all of the following:

(a) The court and the judge assigned to the case;

(b) The case name and number;

(c) A copy of the indictment;

(d) The names, business addresses, telephone numbers, and certification of all attorneys appointed;

(e) Any other information considered relevant by the committee or appointing court.

(2) Within two weeks of disposition, the trial court shall notify the committee secretary of the disposition of the case on a form prescribed by the committee. APPENDIX B • 43

The notice shall include all of the following:

(a) The outcome of the case;

(b) The title and section of the Revised Code of any crimes to which the defendant pleaded or was found guilty;

(c) The date of dismissal, acquittal, or that sentence was imposed;

(d) The sentence, if any;

(e) A copy of the judgment entry reflecting the above;

(f) If the death penalty was imposed, the name of counsel appointed to represent the defendant on appeal;

(g) Any other information considered relevant by the Committee or trial court.

(D) Support services

The appointing court shall provide appointed counsel, as required by Ohio law or the federal Constitution, federal statutes, and professional standards, with the investigator, mitigation specialists, mental health professional, and other forensic experts and other support services reasonably necessary or appropriate for counsel to prepare for and present an adequate defense at every stage of the proceedings including, but not limited to, determinations relevant to competency to stand trial, a not guilty by reason of insanity plea, cross-examination of expert witnesses called by the prosecution, disposition following conviction, and preparation for and presentation of mitigating evidence in the sentencing phase of the trial. Lead counsel bears overall responsibility for the performance of the defense team and shall allocate, direct, and supervise the work in accordance with Sup. R. 20 through 20.04 and professional standards. In addition, all counsel bear a responsibility to comply with Sup. R. 20 through 20.04 and professional standards.

RULE 20.01. Qualifications Required for Appointment as Counsel for Indigent Defendants in Capital Cases.

(A) Generally Every attorney representing a capital defendant shall have all of the following:

(1) Demonstrated commitment to providing high quality legal representation in the defense of capital cases;

(2) Substantial knowledge and understanding of the relevant state, federal, and international law, both procedural and substantive, governing capital cases;

(3) Skill in the management and conduct of complex negotiations and litigation;

(4) Skill in legal research, analysis, and the drafting of litigation documents; 44 • APPENDIX B

(5) Skill in oral advocacy;

(6) Skill in the use of expert witnesses and familiarity with common areas of forensic investigation, including fingerprints, ballistics, arson, forensic pathology, and DNA evidence;

(7) Skill in the investigation, preparation, and presentation of evidence bearing upon mental status;

(8) Skill in the investigation, preparation, and presentation of mitigating evidence;

(9) Skill in the elements of trial advocacy, such as jury selection, cross- examination of witnesses, and opening and closing statements.

(B) Lead counsel

Lead counsel shall satisfy all of the following:

(1) Be admitted to the practice of law in Ohio or admitted to practice pro hac vice;

(2) Have at least five years of civil or criminal litigation or appellate experience;

(3) Have specialized training, as approved by the committee, on subjects that will assist counsel in the defense of persons accused of capital crimes as provided in Sup.R. 20.01(A)(6), (7), and (8) in the two- year period prior to making application;

(4) Have at least one of the following qualifications:

(a) Experience as “lead counsel” for the defense in the jury trial of at least one capital case;

(b) Experience as “co-counsel” for the defense in the jury trial of at least two capital cases.

(5) Have at least one of the following qualifications:

(a) Experience as “lead counsel” in the jury trial of at least one murder or aggravated murder case;

(b) Experience as “lead counsel” in ten or more criminal or civil jury trials, at least three of which were felony jury trials;

(c) Experience as “lead counsel” in three murder or aggravated murder jury trials; one murder or aggravated murder jury trial and three felony jury trials; or three aggravated or first- or second-degree felony jury trials in a court of common pleas in the three years prior to making application. APPENDIX B • 45

(C) Co-counsel

Co-counsel shall satisfy all of the following:

(1) Be admitted to the practice of law in Ohio or admitted to practice pro hac vice;

(2) Have at least three years of civil or criminal litigation or appellate experience;

(3) Have specialized training, as approved by the committee, on subjects that will assist counsel in the defense of persons accused of capital crimes as provided in Sup.R. 20(A)(6), (7), and (8) in the two years prior to making application;

(4) Have at least one of the following qualifications:

(a) Experience as “co-counsel” in one murder or aggravated murder jury trial;

(b) Experience as “lead counsel” in one first-degree felony jury trial;

(c) Experience as “lead” or “co-counsel” in at least two felony jury or civil jury trials in a court of common pleas in the three years prior to making application.

(D) Appellate counsel

Appellate counsel shall satisfy all of the following qualifications:

(1) Be admitted to the practice of law in Ohio or admitted to practice pro hac vice;

(2) Have at least three years of civil or criminal litigation or appellate experience in Ohio;

(3) Have specialized training, as approved by the committee, on subjects that will assist counsel in the appeal of cases in which the death penalty was imposed as provided in Sup.R. 20.01(A)(6), (7), and (8) in the two years prior to making application;

(4) Have experience as counsel in the appeal of at least three felony convictions in the three years prior to making application.

(E) Post Conviction

Post conviction counsel shall satisfy all of the following:

(1) Be admitted to the practice of law in Ohio or admitted to the practice pro hac vice;

(2) Have at least three years of civil or criminal litigation or appellate experience in Ohio unless employed by an institutional office such as the Ohio Public Defender and then shall be supervised by an otherwise qualified Sup.R. 20 attorney. 46 • APPENDIX B

(3) Have specialized training, as approved by the committee, as provided in Sup.R. 20.01(A)(6), (7), and (8).

(F) Definition

As used in this rule, “trial” means a case concluded with a judgment of acquittal under Rule 29 of the Ohio Rules of Criminal Procedure or submission to the trial court or jury for decision and verdict.

RULE 20.02 Committee on the Appointment of Counsel for Indigent Defendants in Capital Cases.

(A) Committee creation

There shall be a Committee on the Appointment of Counsel for Indigent Defendants in Capital Cases.

(B) Appointment of committee members

The committee shall be composed of five attorneys. Three members shall be appointed by a majority vote of all members of the Supreme Court of Ohio; one shall be appointed by the Ohio State Bar Association; and one shall be appointed by the Ohio Public Defender Commission.

(C) Eligibility for appointment to the committee

Each member of the committee shall satisfy all of the following qualifications:

(1) Be admitted to the practice of law in Ohio;

(2) Have represented criminal defendants for not less than five years;

(3) Demonstrate a knowledge of the law and practice of capital cases;

(4) Currently not serving as a prosecuting attorney, city director of law, village solicitor, or similar officer or their assistant or employee, or an employee of any court.

(D) Overall composition

The overall composition of the committee shall meet both of the following criteria:

(1) No more than two members shall reside in the same county;

(2) No more than one shall be a judge.

(E) Terms; vacancies

The term of office for each member shall be five years, each term beginning on the first day of January. Members shall be eligible for reappointment. Vacancies shall be filled in the same manner as original appointments. Any member appointed to fill a vacancy occurring prior to the expiration of a term shall hold office for the remainder of the term. APPENDIX B • 47

(F) Election of chairperson

The committee shall elect a chairperson and such other officers as are necessary. The officers shall serve for two years and may be reelected to additional terms.

(G) Powers and duties of the committee

The committee shall do all of the following:

(1) Prepare and notify attorneys of procedures for applying for certification to be appointed counsel for indigent defendants in capital cases;

(2) Certify attorneys as qualified to be appointed to represent defendants in capital cases;

(3) Periodically provide all common pleas and appellate court judges and the Ohio Public Defender with a list of all attorneys who are certified to be appointed counsel for indigent capital defendants;

(4) Periodically review the list of certified counsel, all court appointments given to attorneys in capital cases, and the result and status of those cases;

(5) Develop criteria and procedures for retention of certification including, but not limited to, mandatory continuing legal education on the defense and appeal of capital cases;

(6) Monitor the performance of attorneys providing representation in capital proceedings on a monthly basis once the committee is notified of an appointment under Sup.R. 20(3)(C) to ensure high quality legal representation;

(7) Investigate and maintain records concerning complaints about the performance of attorneys providing representation in capital cases and take appropriate corrective action pursuant to Rule 20.03 of the Rules of Superintendence;

(8) Expand, reduce, or otherwise modify the list of certified attorneys as appropriate and necessary;

(9) Review and approve specialized training programs on subjects that will assist counsel in the defense and appeal of capital cases;

(10) Recommend to the Supreme Court of Ohio amendments to this rule or any other rule or statute relative to the defense or appeal of capital cases;

(11) Adopt best practices for representation of indigent defendants in capital cases and disseminate those best practices appropriately.

(12) Investigate and maintain records concerning whether counsel applying or re-applying for certification has been found constitutionally ineffective in any criminal case by any reviewing court and take appropriate corrective action pursuant to Sup.R. 20.03. 48 • APPENDIX B

(H) Meetings

The committee shall meet at the call of the chairperson, at the request of a majority of the members, or at the request of the Supreme Court of Ohio. A quorum consists of three members. A majority of the committee is necessary for the committee to elect a chairperson and take any other action.

(I) Compensation

All members of the committee shall receive equal compensation in an amount to be established by the Supreme Court of Ohio.

RULE 20.03. Monitoring of Counsel; Removal.

(A) Duty of court

The appointing court shall monitor the performance of all defense counsel to ensure that the client is receiving representation that is consistent with the American Bar Association’s “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases” and referred to herein as “high quality representation.” The court, in addition to any other action it may take, shall report an attorney to the Committee on the Appointment of Counsel for Indigent Defendants in Capital Cases who has not provided high quality representation. Where there is a complaint from a judge that an attorney has not provided high quality representation, the committee shall investigate the complaint. The committee will not start an investigation while counsel is still appointed in the matter.

(B) Investigation of complaint

The chairperson shall appoint a member of the committee or appoint an attorney qualified as lead counsel under this rule, who will investigate complaints made by a judge that defense counsel appointed pursuant to this rule failed to provide high quality representation under this rule.

(1) As part of the investigation of a complaint from a judge, the attorney shall be notified and given an opportunity to respond.

(2) After an investigation and after the attorney has been given an opportunity to respond to the factual allegations, the members of the committee, excluding the investigator and chairperson, will meet and vote whether a violation of rules 20 through 20.05 has occurred and whether the violation requires removal from the list of qualified attorneys.

Before taking action making an attorney ineligible to receive additional appointments, the committee shall provide written notice that such action is being contemplated, and give the attorney an opportunity to respond. If there is no apparent merit to the allegation the complainant will be advised and the matter will be closed.

(3) If an attorney is deemed ineligible to remain on the list of attorneys qualified to accept appointments, the attorney may appeal the decision of the committee to the chairperson. Upon appeal, the chairperson will review all applicable allegations, findings, and responses and determine whether a violation has occurred and whether appropriate action was taken and issue a decision. The decision of the chairperson is final. APPENDIX B • 49

(C) Revocation

An attorney whose certification has been revoked pursuant to this rule shall be restored to the roster only in exceptional circumstances. The findings made by the committee are not related to or part of the grievance process governing all attorneys in Ohio and the findings made by the committee are only for the purpose of determining continued eligibility for appointment.

RULE 20.04. Programs for Specialized Training.

(A) Programs for specialized training in the defense of persons charged with a capital offense

(1) Attorneys seeking to qualify to receive appointments shall be required to satisfactorily complete a comprehensive training program, approved by the Committee on the Appointment of Counsel for Indigent Defendants in Capital Cases, in the defense of capital cases. To be approved a program should include, but not be limited to, presentations and training in the following areas:

(a) Relevant state, federal, and international law;

(b) Pleading and motion practice;

(c) Pretrial investigation, preparation, and theory development regarding trial and sentencing;

(d) Jury selection;

(e) Trial preparation and presentation, including the use of experts;

(f) Ethical considerations particular to capital defense representation;

(g) Preservation of the record and of issues for post-conviction review;

(h) Counsel’s relationship with the client and his family;

(i) Post-conviction litigation in state and federal courts;

(j) The presentation and rebuttal of scientific evidence, and developments in mental health fields and other relevant areas of forensic and biological science;

(k) The unique issues relating to the defense of those charged with committing capital offenses when under the age of eighteen;

(l) The best practices for representing an indigent capital defendant adopted by the committee pursuant to division (G)(11) of Rule 20.02 of the Rules of Superintendence for the Courts of Ohio;

(m) Death penalty appellate and post-conviction litigation in state and federal courts. 50 • APPENDIX B

(B) Programs for specialized training in the appeal of cases in which the death penalty has been imposed

(1) To be approved by the committee, a death penalty appeals seminar shall include instruction devoted to the appeal of a case in which the death penalty has been imposed.

(2) The curriculum for an approved death penalty appeal seminar should include, but is not limited to, specialized training in the following areas:

(a) An overview of current developments in death penalty law;

(b) Completion, correction, and supplementation of the record on appeal;

(c) Reviewing the record for unique death penalty issues;

(d) Motion practice for death penalty appeals;

(e) Preservation and presentation of constitutional issues;

(f) Preparing and presenting oral argument;

(g) Unique aspects of death penalty practice in the courts of appeals, the Supreme Court of Ohio, and the United States Supreme Court;

(h) The relationship of counsel with the appellant and the appellant’s family during the course of the appeals;

(i) Procedure and practice in collateral litigation, extraordinary remedies, state post-conviction litigation, and federal habeas corpus litigation;

(j) The best practices for representing an indigent capital defendant adopted by the committee pursuant to Sup. R. 20.02(G)(11).

(C) Application for training approval

The sponsor of a program for specialized training under division (A) or (B) of this rule shall apply for approval from the committee at least sixty days before the date of the proposed seminar. An application for approval shall include the curriculum for the seminar and include biographical information of each member of the seminar faculty.

(D) Verification of attendance

The committee shall obtain a list of attendees from the Supreme Court Commission on Continuing Legal Education that shall be used to verify attendance and grant credit for each committee-approved seminar. Credit for purposes of this rule shall be granted to instructors using the same ratio provided in Rule X of the Supreme Court Rules for the Government of the Bar of Ohio.

(E) Accreditation of other programs

The committee may accredit programs other than those approved pursuant to divisions (A) and (B) of this rule. To receive accreditation, the program shall include instructions in all areas set forth in divisions (A) and (B) of this rule. Application for accreditation of an in-state program may be made by the program sponsor or a program attendee and shall be made prior to the program. Application for accreditation of an out-of-state program may be submitted by the program sponsor or a program attendee and may be made prior to or after completion of the program. The request for credit from a program sponsor APPENDIX B • 51

shall include the program curriculum and individual faculty biographical information. The request for credit from a program attendee shall include all of the following:

(1) Program curriculum;

(2) Individual faculty biographical information;

(3) A written breakdown of sessions attended and credit hours received if the seminar held concurrent sessions;

(4) Proof of attendance.

(F) Specialized Training for Sup. R. 20 certification

(1) To be certified as lead or co-counsel or to retain certification, an attorney shall complete at least twelve twenty-four hours of committee-approved specialized training every two years. To maintain certification as lead counsel or co-counsel, the twelve hours shall be devoted to instruction in the trial of capital cases.

(2) To be certified as appellate or post conviction counsel or to retain certification as appellateor post conviction counsel, an attorney shall complete at least twelve twenty-four hours of committee-approved training every two years. At least six of the twelve twenty-four hours shall be devoted to instruction in the appeal of capital cases or post conviction matters in capital cases.

(3) To obtain or maintain certification as lead counsel, co-counsel, appellate counsel or post conviction counsel at least two hours of the required twenty-four hours must be devoted to instruction in compliance with Sup.R. 20.01(A)(6), (7), and (8) each reporting period for a total of six hours.

(4) On or before the last day of December, each certified counsel shall complete the applicable specialized training requirements of divisions (A) and (B) of this rule. The committee shall review the list of certified counsel for the prior two years and revoke the certification of any attorney who has not complied with the specialized training requirements of this rule. An attorney whose certification has been revoked shall not be eligible to accept future appointment as counsel for an indigent defendant charged with or convicted of an offense for which the death penalty can be or has been imposed.

(4)(5) The committee may accredit an out-of-state program that provides specialized instruction devoted to the investigation, preparation, and presentation of a death penalty trial or specialized instruction devoted to the appeal of a case in which the defendant received the death penalty, or both. Requests for credit for an out-of-state program may be submitted by the seminar sponsor or a seminar attendee. The request for credit from a program sponsor shall include the program curriculum and individual faculty biographical information. The request for credit from a program attendee shall include all of the following:

(a) Program curriculum;

(b) Individual faculty biographical information;

(c) A written breakdown of sessions attended and credit hours received if the seminar held concurrent sessions;

(d) Proof of attendance. 52 • APPENDIX B

(5) (6) An attorney who has previously been certifiedbut whose certification has been revoked for failure to comply with the specialized training requirements of this rule must, in order to regain certification, submit a new application that demonstrates that the attorney has completed twelve hours of committee approved specialized training in the two year period prior to making application for recertification. APPENDIX C • 53

APPENDIX C PROPOSED AMENDMENTS TO POST-CONVICTION STATUTES

2953.21 Post conviction relief petition.

(A)(1)(a) Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the person’s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States which creates a reasonable probability of an altered verdict, and any person who has been convicted of a criminal offense that is a felony and who is an offender for whom DNA testing that was performed under sections 2953.71 to 2953.81 of the Revised Code or under former section 2953.82 of the Revised Code and analyzed in the context of and upon consideration of all available admissible evidence related to the person’s case as described in division (D) of section 2953.74 of the Revised Code provided results that establish, by clear and convincing evidence, actual innocence of that felony offense or, if the person was sentenced to death, establish, by clear and convincing evidence, actual innocence of the aggravating circumstance or circumstances the person was found guilty of committing and that is or are the basis of that sentence of death, may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.

(b) As used in division (A)(1)(a) of this section, “actual innocence” means that, had the results of the DNA testing conducted under sections 2953.71 to 2953.81 of the Revised Code or under former section 2953.82 of the Revised Code been presented at trial, and had those results been analyzed in the context of and upon consideration of all available admissible evidence related to the person’s case as described in division (D) of section 2953.74 of the Revised Code, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted, or, if the person was sentenced to death, no reasonable factfinder would have found the petitioner guilty of the aggravating circumstance or circumstances the petitioner was found guilty of committing and that is or are the basis of that sentence of death.

(c) As used in divisions (A)(1)(a) and (b) of this section, “former section 2953.82 of the Revised Code” means section 2953.82 of the Revised Code as it existed prior to the effective date of this amendment.

(d) At any time prior to or in conjunction with the filing or litigation of a petition for post conviction, the petitioner is entitled to discovery in seeking post conviction relief. In addition to discovery provided by Rule 16 of the Rules of Criminal Procedure, the Petitioner is entitled to depositions and the right to issue subpoenas in the following circumstances:

(i) For witnesses who testified at trial, or were disclosed by the state prior to trial, except this does not apply if the witness was unavailable for trial or would not voluntarily be interviewed by the defendant: the petitioner must show clear and convincing evidence that a witness is material and that a deposition of a witness or the issuing of a subpoena is of assistance in order to substantiate petitioner’s claim that there is a reasonable probability of an altered verdict.

(ii) For all other witnesses, the petitioner must show good cause that a witness is materials and that a deposition of a witness or the issuing of a subpoena is of assistance in order to substantiate petitioner’s claim that there is a reasonable probability of an altered verdict. 54 • APPENDIX C

(e) Within ten (10) days after the docketing of the request for post conviction discovery, or within any other time that the court may set for good cause shown, the prosecuting attorney shall respond by answer or motion.

(2) Except as otherwise provided in section 2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than one hundred eighty days year after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. If no appeal is taken, except as otherwise provided in section 2953.23 of the Revised Code, the petition shall be filed no later than onehundred eighty days year after the expiration of the time for filing the appeal.

(3) In a petition filed under division (A) of this section, a person who has been sentenced to death may ask the court to render void or voidable the judgment with respect to the conviction of aggravated murder or the specification of an aggravating circumstance or the sentence of death.

(4) A petitioner shall state in the original or amended petition filed under division (A) of this section all grounds for relief claimed by the petitioner. Except as provided in section 2953.23 of the Revised Code, any ground for relief that is not so stated in the petition is waived.

(5) If the petitioner in a petition filed under division (A) of this section was convicted of or pleaded guilty to a felony, the petition may include a claim that the petitioner was denied the equal protection of the laws in violation of the Ohio Constitution or the United States Constitution because the sentence imposed upon the petitioner for the felony was part of a consistent pattern of disparity in sentencing by the judge who imposed the sentence, with regard to the petitioner’s race, gender, ethnic background, or religion. If the supreme court adopts a rule requiring a court of common pleas to maintain information with regard to an offender’s race, gender, ethnic background, or religion, the supporting evidence for the petition shall include, but shall not be limited to, a copy of that type of information relative to the petitioner’s sentence and copies of that type of information relative to sentences that the same judge imposed upon other persons.

(B) The clerk of the court in which the request for post conviction discovery and the petition is filed shall docket the request for post conviction discovery and the petition and bring it promptly to the attention of the court. The clerk of the court in which the request for post conviction discovery and the petition is filed immediately shall forward a copy of therequest for post conviction discovery and the petition to the prosecuting attorney of that county.

(C) If a court grants a petitioner’s request for a deposition under division (D)(2) of this section, the court shall notify the petitioner or petitioner’s counsel and the prosecuting attorney. The deposition shall be conducted pursuant to divisions (B) through (E) of Rules 15 of the Rules of Criminal Procedure. The prosecuting attorney shall be allowed to attend and participate in any deposition.

(C) (D) The court shall consider a petition that is timely filed under division (A)(2) of this section even if a direct appeal of the judgment is pending. Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court’s journal entries, the journalized records of the clerk of the court, and the court reporter’s transcript. The court reporter’s transcript, if ordered and certified by the court, shall be taxed as court costs. APPENDIX C • 55

If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal.

(D) (E) Within ten days after the docketing of the petition, or within any further time that the court may fix for good cause shown, the prosecuting attorney shall respond by answer or motion. Within twenty days from the date the issues are raised, either party may move for summary judgment. The right to summary judgment shall appear on the face of the record.

(E) (F) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues even if a direct appeal of the case is pending. If the court notifies the parties that it has found grounds for granting relief, either party may request an appellate court in which a direct appeal of the judgment is pending to remand the pending case to the court.

(F) (G) At any time before the answer or motion is filed, the petitioner may amend the petition with or without leave or prejudice to the proceedings. The petitioner may amend the petition with leave of court at any time thereafter.

(G) (H) If the court does not find grounds for granting relief, it shall make and file findings of fact and conclusions of law and shall enter judgment denying relief on the petition. If no direct appeal of the case is pending and the court finds grounds for relief or if a pending direct appeal of the case has been remanded to the court pursuant to a request made pursuant to division (E) (F) of this section and the court finds grounds for granting relief, it shall make and file findings of fact and conclusions of law and shall enter a judgment that vacates and sets aside the judgment in question, and, in the case of a petitioner who is a prisoner in custody, shall discharge or resentence the petitioner or grant a new trial as the court determines appropriate. The court also may make supplementary orders to the relief granted, concerning such matters as rearraignment, retrial, custody, and bail. If the trial court’s order granting the petition is reversed on appeal and if the direct appeal of the case has been remanded from an appellate court pursuant to a request under division (E) (F) of this section, the appellate court reversing the order granting the petition shall notify the appellate court in which the direct appeal of the case was pending at the time of the remand of the reversal and remand of the trial court’s order. Upon the reversal and remand of the trial court’s order granting the petition, regardless of whether notice is sent or received, the direct appeal of the case that was remanded is reinstated.

(H) (I) Upon the filing of a petition pursuant to division (A) of this section by a person sentenced to death, only the supreme court may stay execution of the sentence of death.

(I) (J)(1) If a person sentenced to death intends to file a petition under this section, the court shall appoint counsel to represent the person upon a finding that the person is indigent and that the person either accepts the appointment of counsel or is unable to make a competent decision whether to accept or reject the appointment of counsel. The court may decline to appoint counsel for the person only upon a finding, after a hearing if necessary, that the person rejects the appointment of counsel and understands the legal consequences of that decision or upon a finding that the person is not indigent.

(2) The court shall not appoint as counsel under division (I)(J)(1) of this section an attorney who represented the petitioner at trial in the case to which the petition relates unless the person and the attorney expressly request the appointment. The court shall appoint as counsel under division (I)(J)(1) of this section only an attorney who is certified under Rule 20 of the Rules of Superintendence for the Courts of Ohio to represent indigent defendants charged with or convicted 56 • APPENDIX C

of an offense for which the death penalty can be or has been imposed. The ineffectiveness or incompetence of counsel during proceedings under this section does not constitute grounds for relief in a proceeding under this section, in an appeal of any action under this section, or in an application to reopen a direct appeal.

(3) Division (I) (J) of this section does not preclude attorneys who represent the state of Ohio from invoking the provisions of 28 U.S.C. 154 with respect to capital cases that were pending in federal habeas corpus proceedings prior to July 1, 1996, insofar as the petitioners in those cases were represented in proceedings under this section by one or more counsel appointed by the court under this section or section 120.06 , 120.16 , 120.26 , or 120.33 of the Revised Code and those appointed counsel meet the requirements of division (I)(J)(2) of this section. (J) (K) Subject to the appeal of a sentence for a felony that is authorized by section 2953.08 of the Revised Code, the remedy set forth in this section is the exclusive remedy by which a person may bring a collateral challenge to the validity of a conviction or sentence in a criminal case or to the validity of an adjudication of a child as a delinquent child for the commission of an act that would be a criminal offense if committed by an adult or the validity of a related order of disposition.

The Supreme Court of Ohio & the Ohio State Bar Association April 30, 2014