Robert “Rider” Dewey was released from prison today after spending seventeen years of a life sentence for a murder and rape that he did not commit. Advanced DNA testing proved that the blood found on Dewey’s shirt was his own, not that of the victim. Previous DNA examination had proved that the semen found at the scene was not Dewey’s. DNA testing also lead to a warrant being issued for Douglas Thames who is currently imprisoned in Colorado for a similar rape/murder conviction.

Colorado does not have a death penalty. All people convicted of first degree murder are automatically sentenced to life in prison without parole. If the state had a death penalty Dewey may have been executed before modern advances in DNA exonerated him.

The Eleventh Circuit Court of Appeals remanded the death sentence conviction of Vernon Madison to the Alabama courts for a proper determination of his Batson objection. Madison who is African American has had three trials for the murder of a White police officer. The first trial was reversed for Batson error. In Batson v. Kentucky the Supreme Court set a three step procedure to deal with claims of using race as a determinate in jury selection. First the party making the claim must make a prima facie case that the opposing party used race in making peremptory strikes. Second the other party must give a race neutral explanation of the strikes. Finally the objecting party must prove purposeful racial discrimination.

In Madison’s third trial the court denied his Batson objection after the defense made its initial prima facie case and without the prosecutor giving any race neutral explanation, saying that the defense had not proved “bias on the part of the State.” But at that stage the defense is not required to prove bias. It is only required to make a prima facie case. Among the factors that a court must look to in determining whether a prima facie case has been made are the prosecutor’s pattern of strikes against black jurors, the prosecutor’s questions and statements during voir dire examination, the failure of a prosecutor to ask meaningful questions to the struck jurors, and whether or not the case is racially or ethnically sensitive,” and evidence of past discrimination in jury selection. Here the appellate court found sufficient evidence that the defense presented a prima facie case. The venire consisted of 60 potential jurors. Fifteen of them were African American. Two of the African Americans were excused for cause. The prosecutor used six of his eighteen peremptory challenges to challenge African Americans. He did not ask any of them significant questions and he failed to voir dire three of them. It was a racially sensitive case since Madison is African American and he is accused of killing a White police officer.

For these reasons the appellate court found that a prima facie case had been made and remanded the case to the state courts to complete the Batson process.

California voters submitted over 800,000 signatures placing an initiative on the November ballot which if passed will abolish the death penalty in the state.

If the initiative is approved in November California will join five other states ¹ which have abolished the death penalty in the last five years. But it will be the first state to abolish the death penalty through an initiative since Oregon voters abolished the death penalty in the 1960′s. Currently 17 states and the District of Columbia do not have the death penalty. California’s initiative, unlike the recent legislation abolishing the death penalty in Connecticut commutes the death sentence for those on death row. But like the Connecticut legislation, the California initiative would replace the death sentence with a sentence of life in prison without the possibility of parole.

Since the reinstatement of the death penalty in 1976 only thirteen people have been executed in California. It has cost four billion dollars to execute the thirteen people and there are over 720 people still on death row. The death penalty costs an additional $183 million dollars over what it would cost to sentence individuals to life in prison without the possibility of parole.

But getting the signatures is only the first step. Now opponents of the death penalty need to get people to vote for the initiative. This will be difficult since polls have shown that 68 per cent of California voter support the death penalty.

A North Carolina Judge revoked the death penalty for Marcus Reymond Robinson and sentenced him to life in prison without parole after finding that “race was a materially, practically and statistically significant factor in the decision to exercise preemptory challenges during jury selection by prosecutors ….” North Carolina’s Racial Justice Act provides for statistical evidence to be used to establish that “race was the basis for seeking or obtaining the death penalty in any case.” Under the law those on death row can challenge their sentence claiming “that a death sentence was more likely to be sought or imposed on defendants of one race, that it was more likely when the victim was a certain race or that racial bias influenced jury selection.”

In the 1987 Supreme Court case McCleskey vs. Kemp the Supreme Court ruled that the Constitution did not require states to permit the use of statistical evidence to show bias in sentencing but it left the door open for states to legislatively or judicially require such.

In North Carolina a defendant is three and a half times more likely to receive a death penalty if the decedent is white. Furthermore prosecutors use peremptory challenges to remove African Americans from juries twice as often as they use challenges to remove Whites. While the state is appealing the decision we can expect to see more death row inmates win motions under the Racial Justice Act. Out of 158 people on North Carolina’s death row 151 have filed challenges.

But what I don’t get is if the jury selection process was tainted by racial prejudice why does the conviction remain. If the prejudice only affected the sentencing the decision makes sense but jury selection affects not only the sentencing but the conviction, also. Shouldn’t Robinson be granted a new trial?

The Connecticut House of Representatives has approved a a bill to abolish the death penalty. The bill was previously approved by the State Senate. Governor Daniel Malloy has promised to sign it. With Governor Malloy’s signature Connecticut will become the fifth state in the last five years to abolish the death penalty.

Five states may not seem to be strong evidence that support for the death penalty is declining since the death penalty still exists in 33 states. However the number of executions peaked in 1999 when 98 people were in executed. Last year less than half as many people were executed when 43 people were put to death. While there have been 13 executions in California 56 death row inmates have either committed suicide or died from natural causes since the death penalty was reinstated.

The current financial crunch is leading many states to realized that the cost of the death penalty is too great. Before New Jersey abolished the death penalty in 2007 it had spent a quarter of a billion dollars more on the death penalty than it would have spent on sentencing defendants to life without parole. A New Jersey Policy Perspectives report found that “From a strictly financial perspective, it is hard to reach a conclusion other than this: New Jersey taxpayers over the last 23 years have paid more than a quarter billion dollars on a capital punishment system that has executed no one.” California spends $185 million a year on the death penalty. This has lead many people to rethink the death penalty and abolition is heading towards the ballot this year. California has spent $4 billion dollars on the death penalty and only 13 people have been executed.

Robert Jeffery Farmer was convicted of two murders in separate trials in Nevada and sentenced to death. Four circumstances in aggravation were alleged. But the three judge panel only made findings as to two statutory aggravating circumstances, both of which involved claims that the murder occurred during the commission of other felonies. ¹ It found both of these to be true. After he was sentenced the death penalty was vacated when the Nevada Supreme Court found the circumstance in aggravation unconstitutional. The prosecutors then tried to reinstate the two circumstances in aggravation for which the panel did not make findings. Farmer appealed alleging a violation of the Fifth Amendment’s ban on double jeopardy.

The Supreme Court has ruled that an aggravating circumstance in a capital case, like a criminal charge is subject to the double jeopardy clause.

If the three judge panel’s failure to make a holding on the two indicated that it found the allegations not true double jeopardy would prevent a retrial on the allegations. But if no such holding can be implied double jeopardy is not applicable.

In a case with similar facts, Poland v. Arizona, The Supreme Court held that where neither the trial court or the appellate court finds that the prosecution failed to meet its burden and where the trial court sentenced the defendant to death, the double jeopardy clause is not violated by retrying an alleged circumstance in aggravation where there was no finding on the circumstance in the trial court.

Mumia Abu-Jamal, the former Black Panther convicted of the 1981 killing of Philadelphia police Officer Daniel Faulkner will no longer face the death penalty. In 2008 a Federal court ordered a new penalty phase trial. Facing another trial and the possibility of another thirty years of appeals Philadelphia District Attorney Seth Williams decided against another penalty phase trial. Abu-Jamal will spend the rest of his life in prison without the chance for parole.

Not only are many of the witnesses now deceased or unavailable but the cost of the litigation would be significant. Even proponents of the death penalty must question must question whether the last thirty years of appeals were worth it.

But this may not be the end of the litigation. There are serious questions as to whether Abu-Jamal was guilty in the first place.

Michael Allen and Cleamon Johnson were convicted of murder in California. During jury deliberation, two jurors, one of whom was the foreperson complained that Juror No. 11 had prejudged the case prior to the beginning of deliberation.

They pointed to a statement that Juror No. 11 allegedly made during deliberation that the prosecution at the end of its case had not proved the defendant’s guilt. But as the California Supreme Court pointed out the statement made during deliberation does not mean that Juror No. 11 had decided the case prior to the beginning of deliberation. Juror No. 11 continued to participate in the deliberation and voted “undecided” in the first trial vote. Therefore the trial court incorrectly ruled that Juror No. 11 decided the case prior to deliberation.

The trial court also ruled that Juror No. 11 based the decision in part on evidence that was not before the jury. A major witness at trial said he saw Michael Allen shoot the victims. However the defense showed that the witness was logged in at work at the time of the job. The witness testified that a coworker, Jose, logged him in. Juror No. 11 said he did not believe the witness. Based upon his experience Hispanic workers never log in other people. The Court ruled that while jurors cannot not bring in exterior expert knowledge, into the deliberation, particularly if it differs with the court’s instructions, it is expected that they will bring into the deliberations their life experience and that is what Juror No. 11 did.

As a result the court reversed the convictions and gave the prosecution a chance to retry the case. This was the first reversal, in 25 murder cases, by the Supreme Court this year.

Oregon governor John Kitzhaber suspended the scheduled execution of Gary Haugen and he vowed to do the same for any other planned execution during his term of office. He called the death penalty morally wrong and promised to fight to change Oregon law to abolish the death penalty. Furthermore he said the system is expensive and unworkable.

Two men have been executed in Oregon since it reinstated the death penalty in 1984. Both of the executions occurred during Kizhhaber’s first term in office. As in the case of Haugen both of the prior executions happened after the men requested that no further appeals occur and requested execution. The system is so backlogged that no one has lived to complete the appeals and to be executed.

The trend in this country is certainly away from using the death penalty. In the last four years New Jersey, Illinois and New Mexico have abolished the death penalty. Nationwide the number of executions are decreasing. Last year 112 people were sentenced to death.while in the 1990′s there were approximately 300 each year. Last year there were only 46 people executed. The abolition of the death penalty may be on the California ballot. Maryland and Connecticut are also considering measures to end executions.

Rodney Acala was convicted of killing four women and a young girl in California and was sentenced to death. He is now fighting extradition to New York where he faces two more murder cases. He says he needs to stay in California to prepare his appeal. The claim may be unique but he may have reasonable grounds for his request. He served as his own attorney in the murder trials and therefore he is the only one who can review the transcript and prepare for certification of the transcript. In a death penalty case this is a major task. It may require any number of court appearance which may be difficult to accomplish if he is extradited to New York.

Also of interest is why does New York want him back to try him for two murders that happened over thirty years ago. Manhattan District Attorney Cyrus R. Vance Jr. says he wants Acala back in order to obtain justice. This is a rather vague and meaningless claim. But there are reasons. What happens if Acala wins his appeal. ¹It may take ten years and by then any witnesses to the 1970′s New York murders may be dead.

But in the end the Vance needs to balance his desire to prosecute Acala against the cost and the resources necessary to prosecute a 68 year old man who is likely to spend the rest of his life in a California prison fighting the death penalty.