After an outcry from judges, professors, and other community leaders about the unjust and discriminatory imposition of the death penalty in Colorado, Gov. John Hickenlooper (D) agreed to indefinitely grant reprieve to death row inmate Nathan Dunlap, citing his uncertainty about the death penalty generally, and not his opposition to this particular execution. His order reads:

It is a legitimate question whether we as a state should be taking lives. Because the question is about the use of the death penalty itself, and not about Offender No. 89148, I have opted to grant a reprieve and not clemency in this case.

Hickenlooper also said Colorado’s system is flawed, citing a study that showed the death penalty was applied inconsistently. Hickenlooper’s announcement comes several months after the failure of a bill to abolish the death penalty. Ironically, the bill died after Hickenlooper suggested he might veto it, but the movement to expose Colorado’s broken death penalty system did not. In letters imploring Hickenlooper to commute Dunlap’s sentence, members of the NAACP exposed statistics that the three individuals on Colorado’s death row are all black, all from the same one county, and all committed their crimes before they turned 21. A group of judges lamented that Dunlap’s trial was rife with error, with Dunlap’s lawyer never even raising his history of bipolar disorder and psychotic tendencies.

Hickenlooper’s grant of a reprieve rather than clemency means that John Dunlap’s execution will be on hold until another executive order, according to the Denver Post. But Hickenlooper said it was “highly unlikely” he would revisit the decision, although another governor might. The decision means that Colorado is, in effect, not imposing the death penalty, and Hickenlooper’s public opposition may lead to a revival of legislation to officially abolish it. Eighteen other states have abolished the punishment, which data shows is disproportionately and arbitrarily applied and does not deter violent crime.

In March, Colorado came close to becoming the 19th state to abolish the death penalty, but the bill failed after Gov. John Hickenlooper (D) voiced opposition and suggested a possible veto. A few months later, Colorado’s death penalty is still firmly in place, and the state is poised to complete what would be only the second execution in 45 years (the last was in 1997). Few dispute that Nathan Dunlap committed a horrific crime and murdered several people at a Chuck E. Cheese. But judges, university professors, and other prominent state leaders are urging Gov. Hickenlooper to commute Dunlap’s sentence, both because crucial errors that defined his trial may have led him to get a harsher sentence than others, and because killing anyone under the perverted state system would be a miscarriage of justice. According to letters filed with Hickenlooper’s office:

• All three people on death row are black men. In a state that is only 4.3% African American, Colorado’s death row is 100% African American.
• All three men on death are from the same one county, out of Colorado’s 64.
• All three men committed their crime when they were under the age of 21.
• Two law professors who studied Colorado’s application of the death penalty concluded it was unconstitutional, after finding that prosecutors pursue the death penalty in less than one percent of the cases where it is an option, and that the state failed to set “clear statutory standards for distinguishing between the few who are executed and the many who commit murder.”

“It appears that race, geography and youth largely determines who gets the death penalty in Colorado,” wrote a group of NAACP leaders in a letter urging Gov. Hickenlooper to grant clemency. They note that not a single black juror served on the panel that sentenced Dunlap to death.

In addition to the injustices that define the Colorado system, a group of former Colorado judges also point out that Dunlap’s bipolar disorder and psychotic tendencies were not even mentioned at trial. In fact, according to their letter, Dunlap’s lawyer told the jury that there was no explanation for his violence.

The judges add that “no clear evidence exists that the death penalty deters violent crime. What it does in our current system, as in this case, is to drain our judicial system of millions of dollars as mandatory appeals drag on for decades.” Studies have shown that the death penalty does not lower the homicide rate. In fact, the murder rate is lower in states without the death penalty. Hickenlooper says he continues to wrestle with the death penalty, and whether to commute Dunlap’s sentence.

Several exonerated men whose innocence of murder was proven years after they were sentenced to death are imploring Gov. Rick Scott (R-FL) not to sign a Florida bill that would set automatic timelines for imposing the death penalty, and likely would have resulted in the execution of these and other innocent people.

The bill, known as the “Timely Justice Act,” was passed last month amid legislator sentiments that “timely justice” is more important than “guilt or innocence,” with one legislator saying, “Only God can judge. But we can sure set up the meeting.”

Now, as the deadline approaches for Gov. Scott to sign the bill, former inmates who escaped the death penalty are coming forward to demonstrate the extraordinary costs of the law’s passage, in a state with the highest number of exonerations, and more people on death row than any state but California.

“If Governor Scott would just sit with me and others like me, I know he will veto this bill that, if it had been law, would have ended my life – I am innocent,” said Seth Penalver, who sat on death row for 18 years before exonerating evidence emerged. “If he signs this bill into law, I fear other people who are innocent like me, will be unjustly executed by the State of Florida.”

Exoneree Juan Melendez wrote in the Huffington Post:

The “Timely Justice Act” would speed up a system we know has already sent innocent men, like myself, to death row. Some of these prisoners may be men like me, who have exhausted their legal appeals, yet keep trying to find a way to prove their innocence.

In multiple cases of current death row prisoners, we don’t know exactly what the legal claims are. Some of the men on Florida’s death row ran out of legal options simply because their attorneys missed filing deadlines.

In those instances, no court had the opportunity to evaluate the claims and determine whether they have merit. How can we possibly justify speeding up the execution of prisoners in those cases?

According to logic of the “Timely Justice Act,” any prisoner who has exhausted his appeals and been through a clemency process has had every opportunity and is ready for an execution date, regardless of the specific questions and issues that surround his case.

I am living proof that each case is unique and that the system must allow ample time for the truth to emerge.
Given Florida’s troubling track record on wrongful convictions, this legislation ensures the unthinkable — the execution of an innocent person.

Although the final version of the bill eliminated timelines for filing appeals and post-conviction motions, it would require the governor to issue an execution warrant to those who have exhausted their legal remedies within 30 days, and require execution within 180 days of the warrant. The problem is that when it comes to the death penalty, cases are reopened years later when new evidence finally emerges or defendants obtain the resources to uncover new evidence. In several recent instances, crucial errors in FBI analysis were not revealed until years after hundreds of individuals’ cases had been completed and decided.

Just this week in Florida, a man who was sentenced to death in 2006 is just now requesting a retrial, after he obtained lawyers in 2011 that secured testing of crucial DNA evidence.

Montez Spradley (Credit: AL.com)

In 2008, Montez Spradley was convicted for the murder of a grandmother shot dead in Center Point, Alabama. Although the jury recommended a sentence of life in prison without parole, an Alabama trial judge rejected the recommendation and sentenced Spradley to death. But that death sentence was struck down along with the conviction, when an appeals panel deemed the trial so error- and bias-ridden that it was a “miscarriage of justice.”

Now, as Spradley’s case enters the early stages of retrial, the ACLU has uncovered even more potentially damning evidence about prosecutors’ handling of his case, revealing yet another way in which commonplace prosecutor misconduct can lead to improper sentences to death. Spradley’s ex-girlfriend testified this week that she was offered a $10,000 reward in exchange for testifying against Spradley, and that prosecutors threatened to take away her children and prosecute her for perjury if she did not do so. AL.com reports:

At the court hearing today Alisha Booker testified that she lied at the 2008 trial that Spradley had confessed to her in a church about killing Jason.

Booker testified that after having denied any knowledge of the murder to police in 2004, she stepped forward later to tell police that Spradley had admitted it because she was mad at him. She said that at the time she stepped forward she was pregnant with her and Spradley’s third child. She said she learned he was cheating on her.

“I just felt he was doing me wrong at the moment,” Booker said.

As she began to testify that she had lied in her 2008 testimony, Wallace asked her if she knew that she could possibly be charged with perjury. After meeting in the judge’s office with her attorney for a few minutes she returned to the stand and continued her testimony. [...]

Booker said she had told law enforcement that she had lied and didn’t want to testify. She said they told her it was too late and that she had to stick to the story or she could go to jail for a long time and her kids put in foster homes. She said the detectives had told her she was a single mother and should take the reward money.

A prosecutor and the lead detective in the homicide case denied the allegations during today’s hearing.

The rewards offered to Booker were part of two local programs to incentivize witnesses to come forward with information about the crime. These rewards programs can be a helpful crime-fighting resource, when used properly. But they also create perverse incentives to provide false information, particularly when a witness merely provides testimony that is not corroborated by others or accompanied by physical evidence. Because prosecutors maintain primary control over access to this and other crucial information about a case, they are constitutionally required to divulge to defendants the existence of such a reward, or of any other exculpatory evidence, even though it may undercut prosecutors’ case. In this case, prosecutors dispute many facts, but they do not dispute that Booker was given a reward, nor that they failed to disclose that reward.

The under-appreciated U.S. Supreme Court decision that articulated this prosecutor obligation celebrated its 50th anniversary this week, but punishment for prosecutors who fail to comply with Brady v. Maryland remains largely non-existent, meaning those inclined to withhold evidence are still unlikely to be deterred by the law, and perhaps even less likely to be discovered.  This is one of several cases to reveal these blatant Brady violations even in instances where a defendant’s life is at stake, and in which judges subject to the politics of re-election use a dangerous Alabama policy to “override” jury decisions about the death penalty. And while Spradley earned a retrial, another judge exercising judicial override could once again sentence him to death.

Earlier this week, a Mississippi man escaped death by just a few hours when the state Supreme Court agreed to block his execution, scheduled for that Tuesday evening. Although hair sample evidence was available for testing, and Willie Manning’s conviction had hinged on unreliable jailhouse informant testimony, the court had just a week earlier refused to order DNA testing, and was prepared to allow the execution to go forward. It was only after the FBI revealed that its own analysis of key evidence was unscientific and invalid just days before Manning’s conviction that a court agreed, without comment, to block his execution.

Now, in another murder case involving similar FBI error, a man who spent 32 years in prison for a Maryland murder has been granted a new trial after DNA testing performed in March discredited key FBI statements that linked him to hair samples at the crime scene, and refuted statements about the origins of both the bullets and the gun used at the crime scene. The Washington Post reports:

The genetic testing contradicted testimony by an agent with the FBI Laboratory who said that he found [John Norman] Huffington’s hair in the bed where one victim was killed, claiming an accuracy rate of 99.98 percent.

“Due to the substantial weight given to the microscopic hair analysis by the jury . . . as well as the results of the DNA test . . . there is a significant possibility that the outcome of Petitioner’s case may have been different,” Dwyer wrote in a May 1 order that Huffington’s lawyers received Wednesday. […]

Huffington’s case was among those featured in a series of articles last year in The Washington Post, which reported that government officials knew for years that flawed forensic testimony and false hair matches may have led to hundreds of wrongful convictions. […]

Huffington’s lawyers said they did not know of specific problems with the FBI hair examination until informed by The Post that in July 1997, [Prosecutor] Cassilly considered and then rejected having the FBI review the case because the hair expert involved, FBI Special Agent Michael P. Malone, had been discredited.

Huffington was initially sentenced to death, before an appeals court lowered the punishment to two life sentences. The conviction hinged on both the FBI’s flawed data and the testimony of Huffington’s friend that he said he intended to use his gun to commit the crime. Huffington says he went home before the violent shooting and stabbing occurred.

Huffington’s case is one of potentially hundreds of cases in which prosecutors relied upon flawed evidence, according to a 2012 Washington Post investigation. Even in those cases in which the Department of Justice had already determined the FBI analysis was flawed, it only disclosed that fact to the defendants in 30 of 137 cases. Following the Washington Post report, the DOJ expanded the scope of its review to thousands of FBI analyses, and revealed the critically flawed evidence in Manning’s and Huffington’s cases. Only after the DOJ’s review did the FBI commit to testing Huffington’s DNA evidence. It is still unknown whether Manning’s DNA evidence will be tested.
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Hours before his scheduled execution at 6 p.m. today, the Mississippi Supreme Court has issued a stay to Willie Jerome Manning, whose death sentence was upheld in a 5-4 court ruling last week even though the state refused to test available DNA evidence, and the FBI deemed major pieces of evidence in the case “unscientific” and “invalid.” As a consequence, Manning will not be executed tonight and will have more time to continue arguing his case.

Late Tuesday afternoon, an 8-1 majority granted Manning’s last-ditch motion, which included new letters from the Department of Justice describing how crucial hair samples were improperly tested, and testimony improperly linked bullets near Manning’s home to bullets at the crime scene. Manning was convicted in the 1992 abduction and murder in part based on testimony that the hair samples were likely his because both he and the hair strands were African American. The trial also featured testimony from a jailhouse informant, which studies have shown is particularly unreliable.

Mississippi is set to execute a man Tuesday night without testing available DNA evidence from a hair sample in his case. ThinkProgress reported last week that a 5-4 court upheld the decision not to test the evidence, in spite of a prosecutor’s inconclusive logic linking the hair sample to Willie Jerome Manning simply because they were both deemed African American. Now, as the Atlantic’s Andrew Cohen reports, the Department of Justice has intervened to point out that even prosecutors’ conclusion that the hair sample was African American was unscientific and invalid. A letter Manning’s lawyers filed in court reads:

We have determined that the microscopic hair comparison analysis testimony or laboratory report presented in this case included additional statements that exceeded the limits of science and was, therefore, invalid. In response to inquiries regarding whether the errors identified in the notification letter had any bearing on the examiner’s opinion regarding the racial classification of the hair, the FBI states the following: The scientific analysis of hair evidence permits an examiner to offer an opinion that a questioned hair possesses certain traits that are associated with a particular racial group. However, since a statistical probability cannot be determined for classification of hair into a particular racial group, it would be error for an examiner to testify that he can determine that the questioned hairs were from an individual of a particular racial group. Thus, an examiner cannot testify with any statement of probability whether the hair is from a particular racial group, but can testify that a hair exhibits traits associated with a particular racial group.

By not testing available DNA evidence using new scientific techniques that were not available at the time of his 1994 trial, Mississippi is choosing to ignore readily available scientific evidence in favor of flawed conclusions based on shaky racially charged testimony, as well as jailhouse informant testimony, which studies have found is particularly susceptible to manipulation. But as Cohen points out, there’s something else the DNA would do. If it is not Bryant’s, it is likely somebody else’s and that person will be identified only by testing the hair sample. Failure to do so reflects the deep institutional government interest in preserving the integrity of completed convictions, even at the expense of finding a different dangerous perpetrator or sparing an innocent person’s life. Manning is still awaiting word on whether Gov. Phil Bryant will grant clemency, and a court could still respond to the most recent motions by Manning’s lawyers.

Maryland became the 18th state to abolish the death penalty Thursday, as Gov. Martin O’Malley (D) signed the bill he vied for into law. The law will not affect five prisoners currently on death row, but O’Malley will consider whether to commute their sentences, according to the Associated Press.

While Maryland is the sixth state to eliminate the penalty in as many years and the first to do so south of the Mason Dixon line, other southern states are headed in the opposite direction. Florida just passed a bill (not yet signed into law) to speed up the death penalty, with legislators saying, “this is not about guilt or innocence,” while Mississippi is slated to execute an inmate next week without having tested available DNA from the crime scene. Nonetheless, the general trend away from the death penalty may have constitutional implications.

Mississippi has set an execution date for Willie Jerome Manning next week, without ever having tested readily available DNA from the scene of the abduction and murder in which Manning was convicted. In a 5-4 decision Thursday, the Mississippi Supreme Court said DNA testing was not necessary due to the “overwhelming evidence in his case.”  The Innocence Project provides background about the nature of that evidence:

Manning was convicted of the abduction and murder of Jon Steckler and Tiffany Miller in 1992 on mostly circumstantial evidence, including the testimony of a jailhouse informant who had previously given a statement implicating another person. No physical evidence has ever linked him to the crime, and he has consistently maintained his innocence. He has been seeking post-conviction DNA testing for years, insisting that technological strides made in the past 20 years could prove him innocent of the crime.

During trial, the prosecutor reasoned that a hair sample found in the victim’s car belonged to Manning because both Manning and the hair sample were African American. Dissenting Justice Leslie King pointed out, ”Should a DNA test demonstrate that the African-American hairs found in Miller’s cart did not belong to Manning, then the infirmity in the prosecution’s emphasis on the importance of the evidence would be exposed. And it would certainly raise reasonable questions regarding Manning’s guilt.” But the majority nonetheless held such testing would not change the outcome of the case, disregarding the substantial evidence that informant testing is susceptible to bias and manipulation, and that the death penalty system is fraught with racial bias.

Even though DNA would supplant the prosecutor’s speculation about the hair sample with definitive scientific evidence, both the majority in Thursday’s ruling and the U.S. Supreme Court have refused to stand up for defendants’ right to raise the most robust defense possible. In a 2009 decision, the U.S. Supreme Court ruled 5-4 that a defendant who was willing to pay for a DNA test at his own expense was not entitled to the test, because allowing William Osburne to prove his potential innocence risks “unnecessarily overthrowing the established system of criminal justice.”

Manning’s inability to access evidence in his own case is alarmingly common. Because it is law enforcement officers who investigate crimes, prosecutors are the gatekeepers to evidence that should be equally available to both parties, and they are institutionally positioned to block evidence that might threaten the convictions they’ve secured. Nonetheless, some states and law enforcers recognize that it is in everybody’s best interests to have all available evidence. Nine states have laws granting defense lawyers access to a national DNA database. And even Texas’ conservative attorney general recently came out in support of mandatory DNA testing. Manning’s execution is now scheduled for May 7, but his attorney has filed another motion asking the Supreme Court to reconsider its decision.

The Florida legislature passed a bill this week to impose new obstacles on challenging the death penalty in a state with the greatest number of exonerations. The bill’s intent was to shorten the time inmates wait for execution by imposing time limits for appeals and post-conviction motions, but DNA and other evidence often emerges years after a crime is committed – a concern that didn’t seem to faze Republican proponents of the bill who said swift justice is “not about guilt or innocence”:

“Is swift justice fair justice?” asked Democratic party Senator Arthenia Joyner, a Tampa attorney who voted against the bill. “We have seen cases where, years later, convicted people were exonerated,” she said. […]

But Republican Senator Rob Bradley said, “this is not about guilt or innocence, it’s about timely justice.” Frivolous appeals designed only for delay are not fair to victims and their families, he said. [...]

“Only God can judge,” Matt Gaetz, a Republican who sponsored the bill in the House of Representatives, said last week during House debate. “But we sure can set up the meeting.”

Florida has more people on death row than any other state except California. Since the state reinstituted the death penalty in the 1970s, one fourth of those sentenced to death were later exonerated. The initial bill set strict timelines for post-conviction motions and appeals that would have likely led to the execution of many of these exonereees, who were facing a death sentence for well over ten years before new evidence emerged in their case. But after several amendments, the most recent version passed by both houses states only that capital cases should be resolved “as soon as possible.” The changes may have been motivated by concerns over a legal challenge. A similar 2000 law was struck down by the state Supreme Court as a violation of separation of powers. Perhaps more alarming than the text of the final version is the intent of the legislators who proposed it to facilitate quick deaths without regard to guilt or innocence, particularly in a system rife with error and racial bias.