california

How evidence once thought destroyed helped free a man after 39 years behind bars for murder he didn’t commit


Decades into a life prison sentence without the possibility of parole, Craig Coley continued to insist he was innocent.

The former restaurant night manager had fought unsuccessfully for years to overturn a conviction for a grisly double murder that had shocked Simi Valley in 1978.

But when police recently reopened the case, they faced a daunting obstacle. After Coley lost his final appeal years ago, a judge had issued an order permitting the destruction of the crime scene evidence.

A cold-case detective began what some expected to be a fruitless search. He tried to contact the two laboratories that had performed rudimentary tests on the crime scene evidence in the 1970s and found that both had gone out of business. A Northern California lab had acquired their contents.

That’s when the detective discovered that the evidence boxes had not been destroyed but were sitting forgotten, intact and in storage.

New tests found that a key piece of evidence used to convict Coley did not carry any of his DNA, investigators said.

“We had thought it was destroyed,” Michael Schwartz, Ventura County special assistant district attorney, said in an interview Thursday. “Whether we’d reached the same conclusion without that, I don’t know.”

Gov. Jerry Brown pardoned Coley on Wednesday, writing that the DNA evidence and a painstaking re-investigation of the case proved his innocence.

Coley was 31 when he was arrested, and 70 when he was released Wednesday. A former Simi Valley police officer who was convinced of Coley’s innocence plans to help him “get acclimated to freedom” in San Diego, the officer wrote on a GoFundMe page.

It was a relative who came across the bodies of Rhonda Wicht and her son on Nov. 11, 1978. Suspicions had been raised when Wicht, 24, had not arrived for a family get-together.

Police said she had been beaten, raped and strangled with a macrame rope. Her 4-year-old son, Donald, had been smothered in his bed, presumably because he might have identified his mother’s killer.

Wicht had dated Coley for two years, but they were “in the process of breaking up,” officials said this week. Coley was held for questioning the same day.

He was ultimately charged with the two murders.

Defense attorneys criticized Simi Valley police for failing to investigate three other possible suspects, according to news accounts at the time. And the Simi Valley Mirror, a weekly tabloid, published reports asserting that investigators had focused on an innocent man.

At Coley’s first trial, jurors spent four weeks deliberating before announcing they were hopelessly deadlocked 10 to 2 in favor of guilt.

A second jury convicted him of two counts of first-degree murder in 1980, and he was sentenced to life in prison without the possibility of parole.

But last fall, Simi Valley Police Chief David Livingstone was going through old news clippings about his department and came across some from the Wicht murders. He reached out to a retired detective who had expressed concerns in the past about whether Coley was guilty. With his interest piqued, Livingstone decided to reopen the case.

Schwartz, the Ventura County prosecutor, said the recent investigation determined that the original detectives decided too quickly that Coley was their man and did not fully investigate other possible suspects — a phenomenon known in wrongful conviction cases as “tunnel vision.”

Three current and former police officers told Brown’s office that the detective at the time had “mishandled the investigation or framed Mr. Coley,” the pardon said. The district attorney’s office has not decided if the detective committed misconduct, Schwartz said, but the investigation is continuing.

“ ‘Framed’ is a strong word,” Schwartz said. “That implies that someone knowingly blamed the wrong person. I doubt that occurred.”

Still, the re-investigation of the case turned up several inconsistencies.

An upstairs neighbor had reported seeing Coley’s truck parked outside Wicht’s apartment around the time of the murder, and saw it drive away shortly afterward. The witness noted the driver’s medium-length hair and the pinstripes along the side of the truck, which matched the description of Coley’s.

That testimony was key to Coley’s conviction, The Times reported at the time.

Exactly 39 years later, on the anniversary of Wicht’s murder, Simi Valley police returned to the apartment complex in the early morning hours and stared out the same window.

“They could see very little,” Schwartz said. “They could see vehicles, but the idea that someone could identify markings on the side of a vehicle is very unlikely. They couldn’t see inside it at all.”

Another neighbor initially told police the murder had been committed at 4:30 a.m. At that same time, Coley was carpooling home with a coworker from his restaurant job, which Schwartz described as “an airtight alibi.”

The second neighbor later testified that the murder had taken place at 5:30 a.m. and denied saying he thought it had happened an hour earlier. Years later, he began to vacillate again.

“That was an indication that the timing may not have been as firm as we thought,” Schwartz said.

Coley was a model prisoner during his 38 years and 10 months of incarceration, Brown wrote. He avoided gangs and drugs, and earned his bachelor’s degree.

“I understand that he’s not bitter, that he has a positive attitude, which I think is quite remarkable,” Schwartz said. “This whole case is tragic. The murder was tragic, and this is a waste of a person’s life.”

Wrongly Imprisoned for Killing His Infant Daughter, a Father Could Go Free This Week


December 5,2017

The science on shaken baby syndrome, it turns out, was not actually sound and should not have been used for putting this father behind bars.

This story was originally published by The Chronicle of Social Change, a nonprofit news publication that covers issues affecting vulnerable children, youth and their families, and has been republished here with permission.

There was no doubt about the horror of the situation: A 4-month-old baby girl was dead.

The question facing the jurors was less clear-cut: Was the tiny girl’s death accidental, or had she been murdered by her own father?

On the afternoon of Nov. 24, 2001, in Sacramento, California, 18-year-old Zavion Johnson had called an ambulance. His baby daughter Nadia had been sleepy all day and then had stopped breathing.

Responding paramedics gave her CPR, pushed a breathing tube down her throat, and rushed her to the hospital. There, doctors discovered Nadia had terrible internal head injuries, including a fractured skull. Suspecting abuse, they called the police.

ohnson would later tell his family that earlier that morning, he had accidentally dropped Nadia while showering with her. The girl had hit her head on the back of the cast-iron bathtub but had seemed to recover. Questioned by police, the frightened teenager at first didn’t say anything about the accident. That impulse backfired horribly on him.

Nadia died two days later. On the day of her funeral, Johnson was arrested and charged with her murder.

At trial, Johnson’s lawyer told the court about the fall in the shower, and more than a dozen people testified that he was a gentle and loving father who had never mistreated the baby.

None of the prosecution’s witnesses said anything to the contrary. Instead, the deputy district attorney held up Johnson’s inconsistent statements as evidence of his guilt. The clincher, however, was the testimony of three medical experts, who all declared that the nature and pattern of Nadia’s injuries could not have been caused by a short fall, but only by violent shaking.

“This is a classic case of shaken baby syndrome,” Deputy District Attorney Chris Cosca told the jury. “We know that this little girl lost her life because of a brutally violent shaking, the violent acceleration-deceleration, the rotational injury, and the impact against a hard surface. That’s the only way it can be explained. And there is no way on earth that she suffered these injuries by virtue of a simple drop in the tub. No way.”

Johnson was convicted of second-degree murder and sentenced to 25 years to life. Sixteen years later, he is still in prison.

But it turns out Cosca was wrong.

In the past year, two of the key medical witnesses who supported the shaken baby diagnosis at Johnson’s trial have disavowed their testimony, and the district attorney’s office now supports Johnson’s attempt to have his conviction overturned. On Dec. 8, Johnson and his legal team are hoping to learn whether he’ll now be able to go home.

There used to something close to a medical consensus that certain patterns of injuries can only be caused by shaking. In particular, a “triad”—swelling of the brain, bleeding on the brain’s surface, and bleeding behind the retinas—was believed to be solid proof that a baby had been abused in this way. The theory was put forward in the early 1970s by doctors trying to explain the deaths of infants and children with no outward signs of abuse. The diagnosis soon became accepted as scientific fact and has since been used to convict hundreds of people of harming or killing children.

But over the past 20 years, a body of new research has shown how diseases, genetic conditions and accidents—including short falls—can produce the same constellation of injuries. As a result, faith in shaken baby syndrome is unraveling.

The American Academy of Pediatrics recommended in 2009 that doctors stop using the term. A 2015 investigation by the Washington Post found at least 16 shaken baby syndrome murder convictions that have been overturned.

Scores of other cases that collapsed before trial because of the doubts around the “triad” as evidence. One of those cases was another Sacramento County father convicted of killing his 4-month-old son.

Dr. Norman Guthkelch, a pediatric neurosurgeon who was one of the first to advance the hypothesis behind shaken baby syndrome, recently stated that it is “high time every case of a parent in [prison] for this had his or her case reviewed” because “we went badly off the rails … on this matter.”

“Our decision … was not a difficult one,” Chief Deputy District Attorney Steve Grippi wrote in an email. “Had the information currently available on the topic been available then, there is a reasonable probability that the outcome of the trial could have been different.”

That doesn’t mean Johnson goes free automatically; the DA could still ask for a retrial, though that seems unlikely. Johnson is now awaiting a judge’s order to let him go. After spending nearly half his life behind bars, he is hoping to be back with his family in time for Christmas.

There is no definitive accounting of how many people are prosecuted and incarcerated on the basis of this questionable science, but the number is certainly substantial.

database maintained by the Northwestern University’s Medill Justice Project, last updated in 2015, includes more than 3,000 shaken baby syndrome criminal cases in the United States over the past 20 years, though not all of them are still current. The Washington Post’s investigation estimated hundreds of parents and caregivers were being prosecuted each year, and tallied 1,600 convictions since 2001. At least three such convictions have landed people on death row, according to a recent New Scientist article.

The Innocence Project, a national network of advocates for prisoners who are wrongfully convicted, is reviewing about 100 cases involving shaken baby syndrome.

Some medical experts still support the use of the diagnosis, now more commonly called “abusive head trauma,” as at least one form of evidence that can help determine whether a child’s death was accidental or the result of violence. Nobody disputes that violently shaking a baby can injure or kill; the tricky part is figuring out whether that actually happened. And once someone has been convicted of lethal child abuse, convincing a court to undertake that task again is not easy.

The collateral damage for mistaking an accident for maltreatment can extend beyond a jail term. Parents accused of contributing to a child’s death can face the removal of all children from the home.

2010 study published in the journal Child Abuse and Neglect notes that “little data are available about what happens to these siblings after the victim’s death.” Using records from Oklahoma’s child fatality review, the study concluded that the presence of young siblings, previous maltreatment reports and the nature of the fatal incident were predictors of removal after a death.

In an essay published in the in the American Academy of Pediatrics News, two physicians argued that the recent controversy over shaken baby syndrome should not take away from correctly diagnosing cases of child abuse.

“Like the back-and-forth over childhood immunizations, this is a false debate,” Howard Dubowitz and Errol Alden wrote in the 2015 piece. “The truth is that child abuse, including abusive head trauma, is a real problem that terribly injures and sometimes kills children.”

From his cell in a state prison in central California, Johnson struggled for years to get judges to take another look at his case, filing appeal after appeal, to no effect. Finally, in 2014, he got in touch with the Northern California Innocence Project, where attorney Paige Kaneb took the case.

“I’d been on another shaken baby case, so I’m a bit obsessed with the issue,” she said.

Over the next couple of years, she gathered materials and got in touch with the experts whose testimony had sent Johnson to prison. In early 2017, two of them came declared they could no longer stand behind that testimony.

“I was following my training and experience, in conjunction with the consensus opinions at the time, in classifying Nadia’s death as having resulted from abuse,” wrote Dr. Gregory Reiber, the forensic pathologist who performed Nadia’s autopsy, in a letter to the court. “However … because of the significant changes in the understanding of childhood head injury that have developed since trial, my opinion about the cause of Nadia’s injuries has also changed.”

Nadia’s injuries, he now concluded, “are consistent with the accidental fall in the bathtub described by Zavion Johnson.”

University of California–Davis neuropathologist Claudia Greco also walked back her testimony, writing that the damage she focused on “does not prove that Nadia Johnson was violently shaken or that her injuries were intentionally inflicted.” A third expert who didn’t testify at trial but reviewed the case later also stated that Nadia’s injuries could have been caused by the fall Johnson described.

Kaneb and her colleagues filed a petition to have his conviction struck down. On Oct. 31, the district attorney’s office threw their support behind it.

Johnson is still in occasional touch with Nadia’s mother, but she now has two other kids and a fiancée, Johnson told me via a letter from prison. He’s gotten training as an electrician while locked up and wants to do community advocacy when he gets out.

“I’m excited and nervous, but scared of failing,” Johnson writes. “All the people that have helped me, I don’t want to disappoint anyone.”

He still thinks often about Nadia, whose picture he has tattooed on his chest.

“I can’t wait to visit her grave,” he writes. “I haven’t been able to do that yet.”

Thanksgiving on Death Row


                                                            “Free Me,” a painting by Kevin Cooper. (Kevin Cooper)

Kevin Cooper was convicted of a 1983 quadruple murder in a trial in which evidence that might have exonerated him was withheld from the defense. His case was scrutinized in a June 19 New York Times column by Nicholas Kristof. Visit savekevincooper.org for more information.

DEATH ROW, SAN QUENTIN, Calif.—As I sit here in a 4½-by-11-foot cage on Thanksgiving Day, I first and foremost am thankful to be alive. On Feb. 10, 2004, I came within 3 hours and 42 minutes of being strapped down to a gurney, tortured with lethal poison and murdered by volunteer prison-guard executioners. So, yes, I am very thankful to be alive. I am also very thankful for all the people—my legal team, friends, family, supporters and activists working to end the death penalty—who have helped make my being alive possible.

I have been in a cage like this, with two feet of space between the side of the bed and the wall, for most of my adult life, for murders I did not commit. I eat prison slop for breakfast, lunch and dinner, and the guards look up my butt at least once a day to make sure I don’t have contraband when I leave this cage.

I have been on death row in the state of California for more than 32 years, having come to this place in May 1985, and I have been fighting for my life ever since. This modern-day plantation in which I am forced to live is a very dirty and inhumane place for any human being.

After my stay of execution in 2004, I went on to suffer from post-traumatic stress for years due to that sick ritual of death this prison put me through. No human being should ever have to endure what I have, not even if they are guilty of the crime they were convicted of committing.

I am innocent, and my fate now lies in the hands of Gov. Jerry Brown. On Feb. 17, 2016, Norman Hile, my pro bono attorney from the prestigious law firm of Orrick, Herrington & Sutcliffe, filed my petition for clemency in the office of Gov. Brown. I have respectfully asked the governor and others to look at my case with an open mind, outside the legal box that has me close to being killed for murders of which I am innocent. Doing this is truly important, especially now that many Americans are learning from frequent news reports the truth about America’s criminal justice system and some of the people who work within it.

People have learned that this system is dishonest, and that some of its investigators, prosecutors and judges cannot be trusted and are more concerned with winning cases or with following their political ideology than with truth or justice. This is especially true in my case.

Start with the fact that for the first time in the history of the death penalty in California, as well as within the history of the 9th Circuit Court of Appeals, 11 federal circuit court judges dissented in one death penalty case—mine.

To show their concern as to why my case should be heard on its merits before I am executed, six of the 11 stated these words of dissent in my last appeal: “Public confidence in the proper administration of the death penalty depends on the integrity of the process followed by the state. … [Twenty-four] years of flawed proceedings are as good as no proceedings at all.”

The other five judges, showing their concern about the truth not being told in my case, stated: “The state of California may be about to execute an innocent man.” (One of them, Judge William Fletcher, later said in a speech at New York University Law School: “[Kevin Cooper] is on death row because the San Bernardino Sheriff’s Department framed him.”)

A 12th judge wrote in a separate opinion: “Significant evidence bearing on Cooper’s culpability has been lost, destroyed or left unpursued, including, for example, blood-covered coveralls belonging to a potential suspect who was a convicted murderer, and a bloody t-shirt discovered alongside the road near the crime scene. … Countless other alleged problems with the handling and disclosure of evidence and the integrity of the forensic testing and investigation undermine confidence in the outcome.”

There have been many judges in other cases who have turned a blind eye to the truth and let a poor person get executed, even when there were serious doubts about that person’s guilt, but it is rare for judges to speak out against a possible execution. If these 12 judges are ignored, what will happen to me will not be my execution but my murder at the hands of the state of California.

The political ideology of many judges allows them to ignore truth and injustice. Politics—the politics of life and death—do play a very real part in this country’s criminal justice system. That is why Republicans in Washington, D.C., would not allow President Obama to replace Antonin Scalia on the Supreme Court [after his death]. This truth may never be admitted in words, but actions speak louder than words. Among these actions are the continuing oppression of people like me, who are poor and fighting for our lives from within this rotten criminal justice system.

So while finality, rather than justice, may be what certain judges are more concerned with, it is my hope that others in positions of authority—in particular the governor—will see the miscarriage of justice in my case and stand up and speak out to prevent this state from murdering me.

What makes my case unique in many ways is the fact that a dozen federal judges did just that—they stood up and spoke out against my questionable conviction—based on all the evidence and not just what the state claims after hiding, lying, destroying, tampering with, withholding and manipulating the evidence, all of which is exposed in my clemency petition to Gov. Brown.

Just because other judges in my case chose not to acknowledge the truth about it doesn’t mean I’m guilty. This can be said for all the people who have been exonerated for crimes, including murder, they did not commit. Certain judges in their cases upheld bogus convictions and then closed the cases.

I am respectfully asking you, no matter who you are, no matter your religion, your political party, your skin color or your sexual orientation, no matter what your job is, your economic class, or anything else that makes you the individual you are, to please get involved in this fight to save my life, as well as the fight for our collective humanity.

While I may indeed be murdered by the state of California in the not-too- distant future, this fight is not just about me. It is much bigger than me or any one person. It is about us as a people bringing to an end the historic and horrific crime against humanity that is only done against America’s poor people, especially its black people like me.

My legal team and I have petitioned the governor to grant me an innocence investigation so that he and everyone else can learn the truth about the law enforcement misconduct in my case, as well as DNA testing that we hope will reveal the real killer’s DNA and exonerate me.

We are asking the governor to grant me a reprieve so that if this state resumes executions, I will not be executed. The state has me marked for death and has me at the top of the execution list, in part because it did not torture and murder me in 2004, and subsequently because of the attention my case is now receiving, with many people, including several jurors who convicted me, believing in my innocence.

There is entirely too much sadness and pain and inhumanity inside these modern-day prison/plantations to go into any one essay. Just know that I am thankful on this Thanksgiving Day that my spirit has endured and is keeping me alive, when all around me is death.

Stays of Execution 2017



Date of Scheduled Execution State Prisoner Reason for Stay
January
11 OH Anthony Kirkland Stay granted by Ohio Supreme Court on October 16, 2014 “pending disposition of available state remedies …. It is further ordered that this stay shall remain in effect until exhaustion of all state post-conviction proceedings, including any appeals.”
12 OH James Hanna Reprieve granted by Gov. John Kasich because Ohio did not have execution drugs.^^
12 OH Ronald Phillips Stay granted by magistrate judge in U.S. District Court on December 19, 2016 to permit litigation of challenge to Ohio lethal injection protocol; on December 21, 2016, governor then rescheduledexecution for February 15, 2017.
23 OR Gary Haugen Reprieve in place, Gov. John Kitzhaber imposed a moratorium on all executions in Oregon. Current Gov. Kate Brown has requested a report on the status of the death penalty and indicated the report will inform future policy decisions.
25 TX Kosoul Chanthakoummane Execution date rescheduled to July 19, 2017.
February
2 TX John Ramirez Stay granted by U.S. District Court on January 31, 2017 to permit new counsel to file a petition seeking clemency for Ramirez. On February 1, the United States Court of Appeals for the Fifth Circuit deniedthe Texas Attorney General’s motion to vacate the District Court’s stay order.
7 TX Tilon Lashon Carter Stay granted by the Texas Court of Criminal Appeals on February 3, 2017 on a 5-4 vote. The Court ruled that Texas had failed to timely serve the death warrant upon the Texas Office of Capital and Forensic Writs.
15 OH Ronald Phillips Stay granted by U.S. District Court magistrate judge on January 26, 2017 as part of preliminary injunction order declaring Ohio’s execution protocol unconstitutional. Then rescheduled for May 10, 2017 by Gov. John Kasich on February 10, 2017.*
19 OH Ramond Tibbetts Stay granted by U.S. District Court magistrate judge on December 19, 2016 to permit litigation of challenge to Ohio lethal injection protocol; on December 21, 2016, Gov. John Kasich rescheduledexecution for April 12, 2017.
March
2 PA Wayne Smith Stay granted by U.S. District Court for the Eastern District of Pennsylvania on January 25, 2017 to provide Smith to vindicate his right to pursue state and federal post-conviction challenges to his conviction and sentence that are available to all criminal defendants.
3 PA Richard Poplawski Stay granted by the Allegheny County Court of Common Pleas on February 17, 2017 to provide Poplawski the opportunity to pursue state post-conviction challenges to his conviction and sentence that are available to all criminal defendants.
4 PA Aric Woodard Stay granted by the York County Court of Common Pleas on February 9, 2017 to provide Woodard the opportunity to pursue state post-conviction challenges to his conviction and sentence that are available to all criminal defendants.
6 PA Patrick Haney Stay granted by U.S. District Court for the Western District of Pennsylvania on February 8, 2017 to provide Haney the opportunity to pursue state and federal post-conviction challenges to his conviction and sentence that are available to all criminal defendants.
15 OH Gary Otte Stay granted by U.S. District Court magistrate judge on January 26, 2017 as part of preliminary injunction order declaring Ohio’s execution protocol unconstitutional. Then rescheduled for June 13, 2017 by Gov. John Kasich on February 10, 2017.*
22 OH Jeremiah Jackson Stay granted by Ohio Supreme Court until exhaustion of all state post-conviction proceedings.
April
12 OH Ramond Tibbetts Stay granted by U.S. District Court magistrate judge on January 26, 2017 as part of preliminary injunction order declaring Ohio’s execution protocol unconstitutional. Then rescheduled for July 26, 2017 by Gov. John Kasich on February 10, 2017.*
12 TX Paul Storey Stay granted by Texas Court of Criminal Appeals.
17 AR Bruce Ward Stay granted by the Arkansas Supreme Court on April 14 to permit counsel to litigate whether Ward is mentally competent to be executed. Temporary restraining order granted by Pulaski County court on April 14 in litigation brought by pharmaceutical company seeking to bar Arkansas from using vecuronium bromide in scheduled execution. Restraining order lifted by Arkansas Supreme Court. Stay granted by the Arkansas Supreme Court on April 17 pending decision by the United States Supreme Court in McWilliams v. Dunn on questions concerning the right to an independent mental health expert that may affect the resolution of similar issues in Ward’s case.
17 AR Don Davis Temporary restraining order granted by Pulaski County court on April 14 in litigation brought by pharmaceutical company seeking to bar Arkansas from using vecuronium bromide in scheduled execution. Restraining order lifted by Arkansas Supreme Court. Stay granted by the Arkansas Supreme Court on April 17 pending decision by the United States Supreme Court in McWilliams v. Dunn on questions concerning the right to an independent mental health expert that may affect the resolution of similar issues in Davis’s case.
20 AR Stacey Johnson Temporary restraining order granted by Pulaski County court on April 14 in litigation brought by pharmaceutical company seeking to bar Arkansas from using vecuronium bromide in scheduled execution. Restraining order lifted by Arkansas Supreme Court. Stay issued by Arkansas Supreme Court on April 19 to allow hearing on postconviction DNA testing.
25 VA Ivan Teleguz Death sentence commuted by Gov. Terry McAuliffe on April 20 to life in prison, with no chance for parole.
27 AR Jason McGehee Preliminary inunction granted by U.S. District Court for the Eastern District of Arkansas staying McGehee’s execution until Arkansas Parole Board complies with 30-day period for public comment on its 6-1 recommendation for clemency and Gov. Asa Hutchinson decides whether to issue clemency.
May
10 OH Alva Campbell, Jr. Execution rescheduled for September 13, 2017 by Gov. John Kasich on February 10, 2017.*
10 OH Ronald R. Phillips Execution rescheduled for July 26, 2017 by Gov. John Kasich on May 1, 2017.**
17 OH Donald Ketterer Stay granted by Ohio Supreme Court until exhaustion of all state post-conviction proceedings.
16 TX Tilon Carter Stay granted by Texas Court of Criminal Appealson May 12 to permit the court to consider claim that new evidence shows that Carter’s conviction was a product of scientifically erroneous and false forensic testimony that the victim had been smothered.
24 TX Juan Castillo Execution rescheduled for September 7, 2017.
June
13 OH William Montgomery Execution rescheduled for October 18, 2017 by Gov. John Kasich on February 10, 2017.*
13 OH Gary Otte Execution rescheduled for September 13, 2017 by Gov. John Kasich on May 1, 2017.**
28 TX Steven Long Execution rescheduled for August 30, 2017.
July
19 OH Mark Pickens Stay granted by Ohio Supreme Court until exhaustion of all state post-conviction proceedings.
19 TX Kosoul Chanthakoummane Stay granted by Texas Court of Criminal Appealson June 7, 2017, to review claims of discredited forensic science.
26 OH Robert Van Hook Execution rescheduled for November 15, 2017 by Gov. John Kasich on February 10, 2017.*
26 OH Raymond Tibbetts Execution rescheduled for October 18, 2017 by Gov. John Kasich on May 1, 2017.**
August
15 PA Omar Shariff Cash Stay granted by U.S. District Court for the Eastern District of Pennsylvania on June 28, 2017 to provide Cash the opportunity to pursue state and federal post-conviction challenges to his conviction and sentence that are available to all criminal defendants.
22 MO Marcellus Williams Stay granted by Governor Greitens on August 22, 2017. The Governor appointed a Gubernatorial Board of Inquiry to further consider Marcellus Williams’ request for executive clemency.
30 TX Steven Long Stay granted by the Texas Court of Criminal Appeals on August 21, 2017 to permit Long to re-litigate his claim of intellectual disability under Moore v. Texas. The Texas courts had previously denied his claim, applying the “Briseno factors” that were declared unconstitutional in Moore.
September
7 TX Juan Castillo On August 30, 2017, the Bexar County District Court granted the Bexar County District Attorney’s motion to withdraw Juan Castillo’s execution date. The request was made after Governor Abbott declared a state of disaster for 30 Texas counties because of Hurricane Harvey. The court also issued an order setting a new execution date for December 14, 2017.
13 OH Jeffrey A. Wogenstahl Stay granted by the Ohio Supreme Court on May 4, 2016 on motion to vacate execution date and to reopen direct appeal. Execution rescheduled for April 17, 2019 by Gov. John Kasich on February 10, 2017.*
13 OH Alva Campbell, Jr. Execution rescheduled for November 15, 2017 by Gov. John Kasich on May 1, 2017.**
26 GA Keith Tharpe Stay granted by the U.S. Supreme Court on September 26, 2017 “pending the disposition of [Tharpe’s] petition for a writ of certiorari” seeking review of a decision by the 11th Circuit denying him an appeal of his habeas corpus claim that his death sentence was unconstitutionally tainted by the participation of a racially biased juror.
October
5 AL Jeffrey Borden Injunction granted by U.S. Court of Appeals for the 11th Circuit on September 29 staying Borden’s execution through October 19, 2017, but vacated by the U.S. Supreme Court on October 4. Stay grantedby U.S. District Court for the Middle District of Alabama on October 5, 2017
18 OH Melvin Bonnell Rescheduled for April 11, 2018 by Gov. John Kasich on February 10, 2017.*
18 OH William Montgomery Rescheduled for January 3, 2018 by Gov. John Kasich on May 1, 2017.**
18 OH Raymond Tibbetts Rescheduled for February 13, 2018 by Gov. John Kasich on September 1, 2017.^
18 TX Anthony Shore 90-day stay of execution granted by Harris County trial court to permit prosecutors to investigate claim that Shore was colluding with another death-row prisoner to confess to the murder in that case. Execution rescheduled for January 18, 2018.
19 AL Torrey McNabb Injunction granted by U.S. District Court for the Middle District of Alabama on October 16, 2017 astaying McNabb’s execution, and affirmed by the U.S. Court of Appeals for the 11th Circuit on October 18. Injunction vacated by U.S. Supreme Court on October 19, 2017 and stay lifted. EXECUTED.
26 TX Clifton Lee Young Stay granted by the Texas Court of Criminal Appeals on October 18, 2017 and evidentiary hearing ordered on Young’s claim that newly discovered evidence (gunshot residue on the gloves of the prosecution’s key witness and affidavits of four prisoners that this witness had bragged about committing the killing and framing Young) shows that his conviction and sentence were obtained with false or perjured testimony.
November
9 AR Jack Greene Stay granted by the Arkansas Supreme Court on November 7, 2017 on petition raising issue related to Arkansas procedures for determining competency to be executed.
14 NV Scott Dozier Stay granted by the Clark County District Court on November 9, 2017 to permit the prosecution to appeal its ruling barring the use of a paralytic drug in Nevada’s execution protocol.
15 OH Alva Campbell Gov. John Kasich called off the execution on November 15, 2017 after personnel of the Ohio Department of Corrections failed five times to find a suitable vein to insert an intravenous execution line.
15 OH Robert Van Hook Rescheduled for February 13, 2018 by Gov. John Kasich on May 1, 2017.**
16 TX Larry Swearingen Stay granted by trial court on October 27 because of clerk’s error in serving notice of execution.

Executions Scheduled for 2018


Executions Scheduled for 2018


Month State Prisoner
January
2 PA Sheldon Hannibal — STAYED
3 OH John Stumpf — RESCHEDULED
3 OH William Montgomery — RESCHEDULED
18 TX Anthony Shore
25 AL Vernon Madison
30 TX William Rayford
February
1 TX John Battaglia
13 OH Warren K. Henness — RESCHEDULED
13 OH Robert Van Hook — RESCHEDULED
13 OH Raymond Tibbetts
22 TX Thomas Whitaker
March
14 OH Douglas Coley — RESCHEDULED
14 OH Warren K. Henness — RESCHEDULED
20 MO Russell Bucklew
27 TX Rosendo Rodriguez
April
11 OH Melvin Bonnell — RESCHEDULED
11 OH William Montgomery
May
30 OH Stanley Fitzpatrick — RESCHEDULED
June
27 OH Angelo Fears — RESCHEDULED
July
18 OH Robert Van Hook
August
1 OH David A. Sneed — RESCHEDULED
September
13 OH Cleveland R. Jackson
October
10 OH James Derrick O’Neal — RESCHEDULED
November
14 OH John David Stumpf — RESCHEDULED

California Death Penalty, Struck Down Over Delays, Faces Next Test


August 29,2015 (NYT)

Whether California’s application of the death penalty is so drawn out and arbitrary that it amounts to cruel and unusual punishment will be argued on Monday before a federal appeals court in Pasadena.

If the lawyers for a condemned man are victorious, the case could bring a reprieve to more than 740 prisoners now on death row at San Quentin State Prison and send legal ripples across the country. Either way, legal experts say, it raises issues about the administration of capital punishment that are likely to reach the Supreme Court over time.

In Monday’s hearing before a three-judge panel of the United States Court of Appeals for the Ninth Circuit, California officials will seek to overturn a surprise ruling last year by a lower federal court, which declared the state’s “death penalty system” to be unconstitutional

Hailed by death penalty opponents as a breakthrough and attacked by others as unwise and legally out of line, the decision was issued on July 16, 2014, by Judge Cormac J. Carney of Federal District Court in Santa Ana. It focused not on disparities in the meting out of death sentences in the first place — the more familiar charge — but on the decades of tangled and prolonged reviews that follow and the rarity of actual executions.

In a scathing account of what he called a dysfunctional system, Judge Carney noted that of the more than 900 people who had been sentenced to death in California since 1978, when the current legal structure was established, only 13 had been executed.

Citing growing delays in a judicial review process that can take 25 years or more, far above the national norm, Judge Carney said death sentences had been transformed, in effect, into “life in prison, with the remote possibility of death.”

The “random few” who are put to death, he said, “will have languished for so long on death row that their execution will serve no retributive or deterrent purpose and will be arbitrary.”

Judge Carney ruled on the appeal of Ernest Dewayne Jones, who was condemned to die in 1995 for a murder and rape and made a last-ditch plea to a federal court after his appeals to the California Supreme Court had been denied. The judge vacated Mr. Jones’s death sentence as he declared California’s capital-punishment process to be generally unconstitutional.

The decision was a stunning one, and California officials have sharply challenged it on both procedure and substance. They say it was illegitimate because Mr. Jones’s arguments about the arbitrariness of the review system — issues going beyond the long delays alone — had not first been considered in the California courts, as required.

Beyond that, according to the brief from the state’s attorney general, Kamala D. Harris, a Democrat, the delays and rarity of executions do not reflect random quirks. Rather, it says, they are a product of California’s effort to be scrupulously fair, ensuring that condemned prisoners have high-quality lawyers and every opportunity to question the legality of their sentences.

California legislators have required such exhaustive reviews and procedures as “an important safeguard against arbitrariness and caprice,” the state holds, quoting from a 1976 Supreme Court decision.

In a plebiscite in 2012, California voters affirmed the death penalty by a narrow margin, with 52 percent voting to keep it and 48 percent voting to replace it with life in prison without parole.

California inmates normally wait three to five years just for the appointment of a qualified defense lawyer, a delay that may be repeated as convicts pursue two successive state appeals and then a federal one. Beyond the prolonged process of reviewing death sentences, California has had a de facto moratorium on executions since 2006 because of disputes over the method of lethal injection.

The questions of arbitrariness and extreme delay that are raised by the Jones case are important and may well gain purchase in the courts, said Eric M. Freedman, a professor of constitutional law and death penalty expert at Hofstra University.

“But that does not necessarily mean that this particular litigation will be the vehicle by which the courts resolve these issues,” he added, noting that procedural or other questions could lead the appeals panel to overrule the Jones decision.

The arguments made by Mr. Jones’s lawyers — and echoed by Judge Carney — are similar in part to those made in June by Justice Stephen G. Breyer of the Supreme Court. In a sweeping dissent, joined by Justice Ruth Bader Ginsburg, Justice Breyer went beyond the lethal-injection issue at hand to ask whether the death penalty was so marred by unreliable decisions, arbitrary application and delays that it should be abolished.

But conservative justices responded that death penalty opponents, in their zeal to erect obstacles to executions, were responsible for inordinate delays and unpredictability.

If the Ninth Circuit and even the Supreme Court should uphold Judge Carney’s ruling, this would not necessarily cause the death penalty to unravel nationwide, said Douglas A. Berman, an expert on criminal law at the Ohio State University Moritz College of Law.

Judge Carney’s decision turned on details specific to California, and with its high number of condemned prisoners and very low pace of executions, the state is in a class by itself, Mr. Berman said. Still, he added, a similar critique might succeed in a few other states, including Pennsylvania and Florida.

Given the deep divisions within California over the death penalty, Mr. Berman added, the state may, in an odd way that has nothing to do with constitutional principles, be well served by the status quo.

“Voters, and perhaps the executive branch, too, are not that troubled with a system that has lots of death sentences and few executions,” Mr. Berman said.

California: Six inmates on San Quentin death row sue over time in solitary


A group of death row inmates has sued the state for keeping them in solitary confinement for years or even decades, locked in windowless cells with no phone calls or human contact. It’s treatment, they said, that “amounts to torture.”
The suit was filed in federal court Wednesday by 6 condemned prisoners, who said they were among about 100 inmates, out of 750 on death row, who are kept in isolation in the Adjustment Center at San Quentin State Prison as suspected gang members or associates. The suit said they are held in their cells 21 to 24 hours a day, with no natural light, no access to education or work programs, no phone calls and no contact visits from family members, who must speak to them by phone across a glass barrier.
One of the men has been in solitary confinement for 26 years, and 2 others for more than a decade, the suit said. Condemned prisoners in California spend an average of nearly 25 years on death row while their cases are appealed. A federal judge cited the duration of their confinement, though not the conditions, in a ruling last year that declared the state’s death penalty unconstitutional. The state has appealed the ruling.
The suit is similar to a case scheduled for trial in December in federal court in Oakland over the solitary confinement of thousands of inmates in various prisons’ Security Housing Units, the maximum-security lockups that house prisoners suspected of gang affiliations. The San Quentin suit was filed separately because the adjustment center isn’t classified as a Security Housing Unit, although the conditions are similar, said Daniel Siegel, lawyer for the death row inmates.
Inmates in both cases claim their isolation violates the constitutional ban on cruel and unusual punishment and denies them due process of law. Until recently, they said, the only way out of the isolation unit was to become an informant. Prison officials say they now conduct case-by-case reviews of each inmate’s gang status or affiliations, and have released some inmates into the general prison population. But inmates say they are still kept in solitary confinement because of books they’ve read or cartoons found in their cells.
Siegel said release from isolation is even harder to win on death row. He said some inmates have been kept in the Adjustment Center solely because their capital crimes were gang-related.
Terry Thornton, spokeswoman for the Department of Corrections and Rehabilitation, said officials haven’t seen the suit and can’t comment on it. But she said no inmates are held in the cells for 24 hours a day, because they’re entitled to 10 hours a week in the prison exercise yard.
Source: Associated Press, June 19, 2015

Justice Kennedy practically invites a challenge to solitary confinement

Courts ‘may be required’ to decide if prisons need to find alternatives to solitary, Kennedy says

Supreme Court Justice Anthony M. Kennedy, in an unusual separate opinion in a case wrote that it may be time for judges to limit the use of long-term solitary confinement in prisons.

His comments accompanying a decision issued Thursday marked a rare instance of a Supreme Court justice virtually inviting a constitutional challenge to a prison policy.

“Years on end of near-total isolation exacts a terrible price,” he wrote. He cited the writings of Charles Dickens and 19th century Supreme Court opinions that recognized “even for prisoners sentenced to death, solitary confinement bears ‘a further terror and a peculiar mark of infamy.'”

Sentencing judges and the high court have largely ignored the issue, Kennedy said, focusing their attention on questions of guilt or innocence or on the constitutionality of the death penalty.

“In a case that presented the issue, the judiciary may be required,” he wrote, “to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.”

Amy Fettig, an attorney for the ACLU’s National Prison Project, said Kennedy’s comments came as a welcome surprise.

“It’s a remarkable statement. The justice is sending a strong signal he is deeply concerned about the overuse and abuse of solitary confinement,” she said.

States such as Virginia and Texas routinely put death-row inmates in solitary confinement, she said. “They are automatically placed there. It has nothing to do with their being violent or their level of dangerousness,” she said.

This month, a federal judge in Virginia is weighing a “cruel and unusual punishment” claim brought by inmates on death row there, she noted.

Kennedy usually joins with the court’s conservatives in cases involving crime and punishment, but he has also voiced concern over prison policies that he deems unduly harsh. These include life terms for juveniles and long mandatory prison terms for nonviolent drug crimes. 4 years ago, he spoke for a 5-4 majority that condemned overcrowding in California’s prisons and said it resulted in unconstitutionally cruel conditions.

Both sides of Kennedy’s views were evident in Thursday’s decision. He joined a 5-4 majority to reject a San Diego murderer’s bid for a new trial, but wrote separately to raise the issue of possible constitutional limits to solitary confinement.

The case before the court involved Hector Ayala, who had been convicted and sentenced to die for shooting to death 3 men in the attempted robbery of an auto body shop in 1985. A 4th man had been shot, but survived and identified Ayala as the shooter.

Ayala has been on California’s death row ever since his conviction a generation ago. The California courts upheld his conviction and death sentence, but 2 years ago a U.S. 9th Circuit Court of Appeals panel overturned both. In a 2-1 decision, the appeals court cited the trial judge’s decision permitting prosecutors to remove all seven of the blacks and Latinos who were considered for the jury.

The Supreme Court reversed that decision and restored Ayala’s conviction and death sentence. Justice Samuel A. Alito Jr. said the “conscientious trial judge” had spoken to each of the potential jurors and decided the prosecutor was justified in removing them. “His judgment was entitled to great weight,” he concluded.

In his separate opinion, Kennedy said he agreed Alito’s opinion was “complete and correct,” but said he was nonetheless troubled to learn Ayala had been kept in solitary confinement. This means he has “been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day,” he wrote. An estimated 25,000 inmates in the United States are being held in solitary confinement without regard to their conduct in prison, he added.

Kennedy’s comments drew a short, but sharp retort from Justice Clarence Thomas.

“The accommodations in which Ayala is housed are a far sight more spacious than those in which his victims … now rest. And, given that his victims were all 31 years or age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth,” Thomas wrote.

Source: Los Angeles Times, June 19, 2015

Jason Michael Hann has been convicted of killing his 2-month-old son and 10-month old daughter and hiding their bodies in storage units.


february 21, 2014

INDIO, Calif. — A man who has been convicted of killing two of his infant children and hiding their plastic-wrapped bodies in storage units in Arkansas and Arizona was sentenced to death Friday in a California courthouse.

Jason Michael Hann, 39, who is already serving a 30-year sentence for the murder of his 2-month-old son, Jason, received the death penalty for the slaying of his 10-month-old daughter, Montana.

“These kids never had a chance of life,” said Bruce Price, an alternate juror who supported the death penalty decision. “This guy was trying to cover up his crimes as he went along.”

Some jurors initially resisted sending Hann to his death, but they eventually agreed to recommend that he die for his crimes. Riverside Superior Court Judge James Hawkins upheld the death sentence, denying a defense motion to reduce the sentence to life without parole.

Hann did not speak in his own defense. He sat in court, wearing an orange prison jumpsuit, showing no signs of emotion.

Montana’s mother, Krissy Lyyn Werntz, was also charged in the killing. Her trial is scheduled to start on March 17.

Hann killed his infant daughter with a blow to head in Desert Hot Springs in 2001. Prosecutors said Hann wrapped her body in duct tape and plastic bags, then hid it in a blue “Tupperware-type” container stashed in a storage unit in Arkansas.

The body was found a year later after Hann stopped making payments on the storage unit. The contents of the unit were auctioned off, and the body was discovered by the new owner.

Hann and Wertz were arrested in 2002 at a motel in Portland, Maine. A day after the arrest, investigators found the body of the second infant, Jason, in a storage unit in Lake Havasu, Ariz. The boy, who had been killed in Vermont in 1999, and was also in a rubber container.

When the couple was arrested in Maine, they had in their custody a new child, a month old boy who also showed signs of abuse, including broken ribs, bleeding under his skin and internal injuries.

After the court hearing Friday, Price said the abused child was more proof that Hann deserved death. If the boy had not been saved, he likely would have suffered the same fate as his siblings, the juror said.

“(Hann) had already committed a crime against someone and he was in the process of doing the same thing,” Price said. “He got what he deserved.”

CALIFORNIA : Death sentence upheld for Montebello woman who murdered her husband – Angelina Rodriguez


february 20, 2014(latimes)

Angelina Rodriguez during her 2004 sentencing for murder. Her death sentence was upheld Thursday by the California Supreme CourtSAN FRANCISCO — The California Supreme Court unanimously upheld the death penalty Thursday for a Montebello woman convicted of murdering her husband for life insurance and implicated in the choking death years earlier of her baby daughter.

 

Angelina Rodriguez fatally poisoned her husband, a special education teacher, by serving him drinks laced with oleander and antifreeze in 2000, a few months after persuading him to take out joint life insurance policies, the court said.

It was her second attempt, according to the ruling written by Justice Ming W. Chin.  She had previously tried to kill him by loosening natural gas valves in their garage, the court said.

Rodriguez had married Jose Francisco Rodriguez several months before his death.

During her murder trial, the prosecution also presented evidence implicating her in the 1993 death of her 13-month-old daughter, Alicia. Rodriguez was married to another man at the time.

The baby died after choking on the rubber nipple of a pacifier. Two months earlier, Rodriguez had taken out a $50,000 life insurance policy on the baby—without her then-husband’s knowledge—and made herself the beneficiary, the court said.

Rodriguez and Alicia’s father also sued the manufacturer of the pacifier, which had been recalled based on five consumer complaints that it had broken apart. The company paid a $710,000 settlement.

While behind bars for the murder of her husband, Rodriguez  tried to dissuade a witness from testifying against her, the court said. The jury convicted of her interfering with the witness but failed to reach a verdict on a charge that she tried to have the witness murdered.

In challenging her conviction and sentence, Rodriguez argued, among other things, that the jury should not have been told she killed her daughter.  Rodriguez was not charged or convicted in connection with the death, but law enforcement reexamined it after the poisoning of her husband.

The court said the jury was entitled to hear about the child’s death during the penalty phase of deliberations.

“There was ample evidence that defendant murdered her daughter,” Chin wrote.

Karen Kelly, who is representing Rodriguez on appeal, said she would ask the U.S. Supreme Court to review the decision.

California supreme court /opinion : click to read, pdf file

Ex-governors want California death penalty reform


february 14, 2014

LOS ANGELES — Three former California governors announced a proposed ballot initiative Thursday designed to speed up the state’s lengthy death penalty process.

Former Govs. George Deukmejian, Pete Wilson and Gray Davis said they were launching a signature-gathering effort for the measure that would limit appeals available to death row inmates, remove the prisoners from special death row housing, and require them to work at prison jobs in order to pay restitution to victims.

The former governors, appearing with law enforcement officials at a news conference, made it clear they want executions to begin as soon as possible. There are more than 700 prisoners on California’s death row.

“Old age should not be the leading cause of death on death row,” former Gov. Pete Wilson said.

They agreed the death penalty system is crippled by waste and inefficiency.

“We all know the death penalty system is broken at the appellate level,” said former Los Angeles County District Attorney Steve Cooley.

His predecessor in that job, Gil Garcetti, is leading the opposition to the initiative and was a proponent of Proposition 34, the 2012 ballot measure that would have repealed the death penalty in California. The vote was 48 percent in favor and 52 percent opposed, one of the closest votes ever on a death penalty referendum.

A statement from the former governors said “Californians overwhelmingly reaffirmed their support for the death penalty” with the vote on Prop. 34.

Executions have been halted since 2006 because of lawsuits in federal and state courts over changing a three-drug lethal-injection method that had been used to carry out death sentences.

Asked about the availability of drugs to carry out executions, the governors said they could not comment and that would be an issue for the California Department of Corrections.

Two relatives of victims spoke and decried the length of time it takes to resolve a death penalty appeal. Phyllis Loya said it took four years for an attorney to be assigned to a man convicted of killing her son.

Davis said it can take 10 years before a federal application for review of a death penalty case is resolved and another 10 years to clear state appellate courts.

San Bernardino County District Attorney Michael Ramos, representing the California District Attorneys Association, said if the initiative passes there would be no frivolous appeals and the state would see enormous fiscal savings.

With the initiative, backers want to bypass automatic appeals to the California Supreme Court and instead distribute them to other appeals courts unless it is necessary for a case to be heard by the high court.

Absent from the press conference were former Gov. Arnold Schwarzenegger and current Gov. Jerry Brown. Brown is personally opposed to the death penalty but has said he would abide by the law.

He declined comment on the proposed initiative Thursday.

Garcetti called the initiative a misguided effort and predicted legal challenges would take decades to resolve.

Anna Zamora of the American Civil Liberties Union of Northern California later issued a statement saying: “This flawed proposal will only make matters worse. It will create more delays and overburden our already strained court system. Worst of all, it will greatly increase the risk that California could execute an innocent person.”

(Source: AP, Sacramento Bee)