Death Row Watch: Are These Innocent Men Who Are About to be Executed?

1.  Larry Ray Swearingen, Texas Death Row

Larry Swearingen maintains his innocence and his attorneys are fighting to have some tribunal hear what they are arguing is new evidence, uncovered since his trial, that proves Larry Swearingen is innocent of the killing of a Texas coed, Melissa Trotter - this includes both DNA evidence and circumstantial evidence.  Bottom line, lots of forensic folk opine that Swearingen was in jail at the time of the murder, which seems like a pretty darn good alibi. 

Still, he's remain on Texas' Death Row for years. 

This week, the United States Supreme Court was asked by Swearingen a new question for the High Court: is executing an innocent person a form of "cruel and unusual punishment" under the federal constitution?

On February 27, 2012, the High Court denied Swearingen's Petition for Writ of Certiorari.  Which means they have shown Mr. Swearingen the door without ruling on his case. 

His execution date has been stayed.  Follow what happens next at his advocate web site

To read commentary on his situation, check out this recent piece in Bloomberg and an earlier piece by Grits for Breakfast. 

2.  Thomas Arthur,  Alabama Death Row

Thomas Arthur will be executed on March 29, 2012, by the State of Alabama unless something is done to stop the legal process.  This, despite the fact that he was also in jail at the time of the murder; another man has confessed to the murder; there is no DNA evidence connecting Arthur to the crime; the list goes on.

Read a summary of the situation here at the New York Times and a great overview of the case here at the Atlantic.. 

Follow what happens next at his advocate web site. 

3.  Read How These Two Cases Are Impacted by the AEDPA Here

Yesterday, we posted about the AEDPA and the recent U.S. Supreme Court case that came down with the statement that the federal appellate courts were "overreaching" to try and find a way around this federal statute, and "burdening" the high court.  Clearly, SCOTUS wants the federal appellate courts to limit their state court review in these sorts of cases. 

The pending executions of Thomas Arthur and Larry Swearingen are two examples of how the implementation of the AEDPA is arguably putting form over substance - especially in death penalty cases - with justice being lost in the process.

For more information:

AEDPA and Thomas Arthur

AEDPA and Larry Swearingen

Wetzel v. Lambert: Another US Supreme Court Decision on the Frustrating AEDPA

Many have come to know about the AEDPA (Anti-terrorism and Effective Death Penalty Act of 1996 ) because of the Troy Davis case (read our earlier post here).  The AEDPA, however, impacts many, many capital punishment cases here in the United States, since it ties the hands of federal court judges to act in reviewing death penalty cases coming out of state courts. 

What the AEDPA Does

What the AEDPA does is limit the ability or power of habeas corpus laws.  For many, this translates to risking innocent men and women being executed in this country. 

This month, another AEDPA ruling has come down from the United States Supreme Court.  The matter involved the highest court in the country reviewing the determinations of the highest court for the State of Pennyslvania as well as the U.S. Third Circuit Court of Appeals.

The Story of Wetzel v Lambert

The case of Wetzel v Lambert was decided by the U.S. Supreme Court per curiam on February 21, 2012, with three justices dissenting (Breyer; Ginsburg; Kagan).  You can read the opinion and follow its aftermath here. 

Here's the backstory:  in Pennsylvania back in 1984, a man named James Lambert was convicted and sentenced to death for the murder of two bar patrons during a robbery of a place called Prince's Lounge in Philadelphia.  At the murder trial, one of the robbers took the stand for the prosecution and pointed the finger at Mr. Lambert along with another man, Bruce Reese, as being in cahoots with him in robbing the bar. 

Lambert is convicted, the death penalty is imposed, and the appellate process begins.  Twenty years later, Lambert's attorneys advance an argument that error has occurred because the prosecution never disclosed to the defense at trial of the "police activity sheet."  It's a big deal. 

If the state attorneys had done this, then this would fly in the face of longstanding Supreme Court precedent, Brady v. Maryland, 373 U. S. 83 (1963). 

What's in the "police activity sheet"?  In that sheet, a photo of a man named Lawrence Woodlock was shown to two people who were at the bar during the robbery.  Woodlock was named as a co-defendant by the state attorneys on the sheet in the Prince's Lounge robbery.  Woodlock had a record of over 13 armed robberies of bars.  Woodlock was already in custody at the time of trial on other charges.

It also had the names of two police investigators in the Lambert case and the names of those who died during the robbery with their corresponding case numbers.  Finally, it had Jackson - Lambert's buddy who took the stand against him - as stating that Woodlock had been involved in the Prince's Lounge job. 

For all these years, much less during the trial, the Commonwealth of Pennsylvania had not notified the defense of this document much less provided it to Lambert.  Lambert's counsel was never notified that known armed robber Larry Woodlock had ever been investigated, or had his photo shown to a Prince's Lounge witness. 

Why did this matter now?

It matters because if that police activity sheet were available at trial, Lambert's attorneys could have argued that someone other than Lambert committed the armed robbery at Prince's Lounge - or that there were more people involved in the robbery that the state had been suggesting. 

Additionally, Lambert argued that his trial counsel could have used the sheet in their examination of the finger-pointing Jackson when he was on the witness stand.  Why wasn't Jackson mentioning Woodlock in his trial testimony? 

In sum, the police document is argued to be "exculpatory evidence" under federal law and accordingly, pursuant to Brady v. Maryland, the state prosecutor must provide material exculpatory information that it has in its possession, custody, or control to the defense attorneys.

How the AEDPA Comes In - Frustrations of the Federal Courts

The AEDPA limits the power of the federal courts - even the United States Supreme Court (outside of de novo cert) - to review state court decisions.   Federal appellate courts, faced with clear injustice and with hands tied by the AEDPA, will push the edge of the envelope to try and do the right thing - particularly when a death penalty case comes before them.

However, the United States Supreme Court writes in Wetzel that this is "overreaching" that "...continues to occupy an undue portion of the Supreme Court's docket."

What Happens Now in Wetzel v. Lambert

On this issue of the unshared police document, the Pennsylvania Supreme Court unanimously decided in favor of the state attorneys:  (1) the ambiguous notation on a police activity sheet regarding a suspect's identification of a "co-defendant" was not material and (2) using the sheet to impeach Jackson's testimony would have been cumulative, no big addition to the case.

The issue was then taken to the federal courts, since the state high court had ruled and state remedies were exhausted.  The Federal District Court agreed with the Pennsylvania Supreme Court.   Habeas request denied. 

The Third Circuit Court of Appeals did not.  It found that the state court's second ground for its decision,  the cumulative nature of the impeachment, was unreasonable.  The appellate court did not voice an opinion on the other ground.  

The United States Supreme Court has now found that the Third Circuit Court of Appeals has to rule on both grounds, and has sent the case back to the lower federal appellate court for additional work.  With its reversal, this caveat:

Any retrial here would take place three decades after the crime, posing the most daunting difficulties for the prosecution. That burden should not be imposed unless each ground supporting the state court decision is examined and found to be unreasonable under AEDPA.  

Cantero and Schlakman Op-Ed on Unanimous Juries in Death Penalty Cases - Need for Florida Legislation

This week, the Miami Herald published the opinion piece written by Raoul Cantero, former Florida Supreme Court justice, and Mark R. Schlakman, senior program director for the Center for the Advancement of Human Rights at Florida State University. 

Mr Schlakman also participated in the American Bar Association's Florida Death Penalty Assessment. You can read that report in its entirety online in pdf format.

It's worth your time to read their article entitled " Florida ignores ‘unanimous jury’ legislation in death penalty cases at its peril."

Here's why: 

Florida allows death penalty juries to recommend the death penalty by a majority vote.  Every other state in the country that allows for capital punishment requires a jury to be unianimous in their decision to punish with death.

The Florida Supreme Court doesn't like this and back in 2005, it asked the Florida Legislature to change Florida law and require juries to be unanimous in their death penalty recommendations. 

Nothing happened in the statehouse. Although last year, State Senator Thad Altman (a Republican representing the Melbourne area) drafted legislation that would change Florida law and require juries to be unanimous in their recommendations of the death penalty.  You can follow that bill online here - it died in committee.

Over in the Florida House of Representatives, State Representative John Patrick Julien (a Democrat out of North Miami Beach), introduced a similar bill for the House's consideration in tandem with Altman's bill. Follow it here - it didn't survive committee either.

Cantero and Schlakman go into detail on the hows and whys of this situation. Whether or not they have any impact up in Tallahassee, time will tell. 

Will Florida Execute Robert Brian Waterhouse Tomorrow? Two Men Decide: Scott and Thomas

Florida's Execution Schedule has tomorrow, February 15, 2012, as the day that Robert Brian Waterhouse will die for the murder of Deborah Kammerer back in September 1980.  Yes, if you do the math you'll find that it has been over 30 years since Waterhouse was convicted of this crime and this latest execution date.

Will Waterhouse be executed by lethal injection this week? 

Right now, as this post is being typed, we can imagine that he is in the process of meeting his fate on that table, after living year after year after year, mostly alone, in a small cell (six by nine) at Starke's Florida State Prison.

He's now 65 years old.  Decades, literally, in a room smaller than most of our bathrooms and maybe around the same size as many walk-in closets.  Six by nine isn't a big space.  So much for all that chatter about the cushy life on a state death row - Florida isn't California. 

He's already a footnote in Florida criminal history, since he's been on Florida's Death Row longer than anyone else who has been executed by the state (though there are others who have resided on Death Row longer than Waterhouse). 

It's All Up To Governor Scott and Justice Thomas

Last month, Governor Rick Scott signed the death warrant for Robert Brian Waterhouse, setting the execution in motion.  Now,  a group of Catholic Bishops have written Governor Scott asking for clemency.

It's Tuesday evening and no clemency so far.  The execution is scheduled for six o'clock on the evening of February 15, 2012. 

Last Friday, Waterhouse's lawyers filed a last minute request for stay with the United States Supreme Court.   You can watch that docket online, the decision rests with Justice Clarence Thomas.

The prison already has media updates scheduled for tomorrow afternoon, before and after the execution. It's not looking good. 

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