Is Oklahoma Fit to Kill?

Is Oklahoma fit to kill? That’s the question we will be examining in the coming months.

Why this focus on Oklahoma, which currently has a moratorium on executions?

Back in April, the Oklahoma Death Penalty Review Commission released a report that is an indictment of capital punishment in Oklahoma and throughout the United States. The report is a crisp 272-page document. Have you read it yet? Don’t worry, we have, and over the coming months, we’re going to break the report down into bite-sized chunks for you to consume. There are 46 recommendations in the report divided into 10 chapters. We’ll cover one chapter every week. You can expect us to tell you what the recommendations really mean, provide some background and context, and explain how the recommendations would impact the justice system as a whole.

Scant hours after the report was published, Oklahoma’s Attorney-General, Mike Hunter, announced that he would not be following the Commission’s recommendations and would recommence executions as soon as a new execution protocol was established. This was clearly a cavalier dismissal of a bipartisan report which unanimously recommended that the state extend its current moratorium on executions until “significant reforms” were accomplished.

We believe the Commission’s findings deserve more than an off-hand dismissal from an official who presides within an administration which has seriously bungled executions in recent years. And so, we will be examining each of the report’s recommendations. We invite you to follow along as we work our way through the report and, if you know anyone in Oklahoma, please share this information with them. We’ll be tweeting and posting on Facebook as well, so if you prefer to get your information that way, please join Sister Helen Prejean’s Facebook community and Twitter followers.

 

The killing-est state

Since the death penalty was reinstated in 1976, Oklahoma has executed more people per capita than any other state. Its death machine proceeded unimpeded until it botched not one, but two executions in 2014-2015 and came close to executing a third man, Richard Glossip, with the wrong drugs in September 2015. Since then, a moratorium has been in place. We believe that moratorium should continue and that Oklahoma should adopt all the recommendations of the Death Penalty Review Commission.

“Summary of the [Executive] Summary”

The Commission studied every nook and cranny of Oklahoma’s death penalty system – all the way from arrest to execution. The Commission’s report indicates that its members were disturbed and disheartened by what they found. Not only did the Commission unanimously recommend a continued moratorium on executions “until significant reforms are accomplished,” but the Commission’s members also were led to question “whether the death penalty can be administered in a way that ensures no innocent person is put to death.” The Commission added that, “It is undeniable that innocent people have been sentenced to death in Oklahoma.” Just ask the 10 former Oklahoma death row prisoners who have been exonerated after their initial convictions and freed from death row. Richard Glossip could very well be the 11th.

The Commission also determined that “the death penalty, even in Oklahoma [emphasis ours], has not always been imposed and carried out fairly, consistently, and humanely, as required by the federal and state constitutions.” Think about that for a minute. The Commission admitted that Oklahoma has violated the Constitution through its death penalty system in the past. Even if every recommendation the Commission made is implemented, there’s no fixing the constitutional violations that those who have already been executed suffered in Oklahoma.

The report’s executive summary notes that the shortcomings of Oklahoma’s death penalty system “have severe consequences for the accused and their families, for victims and their families, and for all citizens of Oklahoma.” No doubt all of this is true. Those accused of capital crimes in Oklahoma face a severely broken justice system. Victims’ families suffer through delays and uncertainty about guilt due to repeated errors in the system. Even if an execution date does finally arrive and even if there is no question of innocence, these families will still go home to a table with an empty chair where their loved one once sat. None of this comes cheap, either. Oklahoma taxpayers are paying millions of dollars every year for a system based on a failed public policy that just doesn’t work.

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Background on the Commission

The Oklahoma Death Penalty Review Commission arose after the botched executions of Clayton Lockett and Charles Warner and the last-minute abandonment of the execution of Richard Glossip due to a drugs mix-up (and cover-up). The Commission included 11 members, all Oklahomans. Five members were women and six members were men. The members represented both Oklahoma’s urban and rural populations. The members came from diverse professional and political backgrounds: there were Republicans and Democrats, prosecutors and defense attorneys, people from all three branches of government, and victims’ advocates.

The Oklahoma Death Penalty Review Commission is an initiative of The Constitution Project, which sponsors independent, bipartisan committees to address a variety of important constitutional issues and to produce consensus reports and recommendations. We are grateful to The Constitution Project for allowing us to publish extracts from the report.

Exploring the recommendations

Below we’ve listed each of the 46 recommendations contained in the report, followed by a note or comment to give background and context to those recommendations. These comments are ours, not the Commission’s.

Chapter 1: Overall recommendation
Recommendation: In light of the extensive information gathered from this year-long, in-depth study, the Commission members unanimously recommend that the current moratorium on the death penalty be extended until significant reforms have been accomplished.

Comment: The Commission studied Oklahoma’s death penalty in great detail and depth for over a year. The Commission members unanimously agreed that Oklahoma should not execute anybody “until significant reforms have been accomplished.” This is particularly noteworthy because the Commission included members who support the death penalty, including prosecutors and victims’ advocates. For such a diverse group of people to unanimously agree that Oklahoma should not go ahead with executions is very significant. If even ardent supporters of capital punishment can acknowledge that the system is deeply flawed, perhaps the conclusion that it isn’t worth fixing is close at hand.

Chapter 2: Forensics

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Forensics Recommendations

Recommendation 1: Oklahoma should adopt the forensics reform recommendations of the 2013 Oklahoma Justice Commission report that have not yet been implemented.

Recommendation 2: Oklahoma should follow best practices with respect to certification of forensics experts.

Recommendation 3: With respect to capital cases, the Legislature should amend Oklahoma law to require that all biological evidence, and any evidence that may be the source of biological evidence, be retained until 60 days after the death of the inmate. Sources of biological evidence that may fall outside of the existing statute include, but are not limited to, clothing, ligatures, bedding, drinking containers, and cigarettes.

Recommendation 4: The Oklahoma Supreme Court’s judicial training sessions for judges should include forensics training, including updates regarding developments in commonly used forensics fields.

Recommendation 5: Oklahoma should provide an avenue for post-conviction relief based on changing science that casts doubt on either the accuracy of an inmate’s conviction or the evidence used to obtain a sentence of death.

Forensics chapter summary

What is forensic science?

Forensic science is the application of science to legal problems. Contrary to popular perception, however, forensic science is not a magic bullet. Studies performed in recent years reveal that despite improvements in reliability, there are still major weaknesses in several forensic science disciplines. These issues have serious consequences when the freedom or even the life of a person is on the line. Over-reliance on forensic analysis without substantiating empirical evidence, along with unintentional errors and intentional bad actors, can and has led to innocent people being convicted, sent to death row, and likely executed.

Forensic science is an umbrella term that covers a large number of disciplines, some with higher levels of reliability and validity than others. Here’s just a smattering of the types of evidence that might fall under the forensics umbrella: DNA, paint, toxicology, fibers, fire evidence, fingerprints, firearms, tire and shoe impressions, bite marks, hair, handwriting, and digital evidence. Some of these – such as DNA and toxicology – are grounded in applied sciences. These are objective, laboratory-tested forms of forensic evidence. Others, such as bite marks, tire treads, and fingerprints, are subjective and based on the interpretation of a forensic practitioner.

Our justice system would collapse if the evidence that is used to support or debunk prosecutions was not empirically reliable.

Not all science

In 2006, the National Academies of Science (NAS) conducted a study and issued a report on the state of forensic science across the United States. Their conclusion was that, except for DNA analysis, “no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” In other words, outside of DNA evidence, forensics have not been shown to reliably connect evidence to people.

The NAS report detailed several major reasons why forensic evidence has proven to be unreliable.

Coziness with law enforcement

The first is the fact that most forensic laboratories operate as an arm of law enforcement agencies. This is true in Oklahoma with the exception of the Office of the Chief Medical Examiner, which is an independent agency.

The lack of laboratory independence can lead to conscious and subconscious bias, pressure on analysts to testify in a manner supportive to the prosecution, and a lack of transparency. The controversy surrounding disgraced Oklahoma City Police Department forensic analyst Joyce Gilchrist is a case in point. Gilchrist worked on thousands of police investigations and testified in dozens of death penalty cases, including 11 that resulted in executions. It later came out that Gilchrist had been exaggerating the certainty of her forensic evidence and falsifying her test results. This resulted in several exonerations and an unknown number of wrongful executions.

Junk science

The issue of unscientific forensics has also been a problem in Oklahoma. One of the starkest examples is the use of bite mark evidence. Gregory Wilhoit was sent to Oklahoma’s death row based on bite mark evidence only to be freed in 1993 after 11 forensic dentists testified that the bite mark was not a match after all. A White House commission has since characterized bite mark analysis as “junk science.” Only California and Texas specifically allow prisoners to challenge a death sentence based on changed or new forensic science.

Lack of accreditation

Another issue identified by the NAS report was a lack of centralized accreditation and certification in the forensic science field. In this regard, Oklahoma was a pioneer in requiring all forensic labs in the state to gain national accreditation (with the exception of latent fingerprint and digital evidence analysis). Unfortunately, the independent Oklahoma Office of the Chief Medical Examiner had its accreditation revoked in 2009. This was primarily due to antiquated facilities and chronic understaffing as a result of a lack of funding.

Unjustified certainty

Along with issues related to transparency is the problem of exaggeration in testimony by forensics experts. Many of these experts will testify that there is a virtual 100% certainty – and by extension a virtually 0% chance of error – regarding the matching of evidence to suspects. This is completely incompatible with widely accepted scientific standards. Moreover, the long record of errors, mismatches, and wrongful convictions demonstrates that there is definitely not 100% certainty about any forensic matches.

Take, for example, the decades-long gung-ho testimony of FBI experts regarding hair analysis. In 2015, the FBI admitted its experts had exaggerated in over 3,000 cases in 41 states. Thirty-five of those cases involved the death penalty and errors were found in 33 of those 35 cases. Nine of those defendants had already been executed at the time of the review in 2016 while four had died in prison and four had already been exonerated.

Error rates undocumented

Lastly, the NAS found that there is very little research on error rates in forensic sciences. Until we know how often forensics are misleading or flat-out wrong, it’s hard to trust the results given the demonstrated track record.

Wrongful convictions

So, we’ve seen that there are some major weaknesses to forensic evidence. What happens to defendants who are wrongfully convicted? Oklahoma was the last state to adopt a post-conviction DNA testing statute (in 2013). The statute has five very stringent conditions and all five must be met before a court will order new DNA testing. Beyond that, there is the simple statistical truth that the vast majority of wrongful convictions and exonerations are not connected to DNA evidence. Out of 1,600 exonerations between 1989 and 2015, only 398 (or about 25%) were related to DNA evidence. In Oklahoma, three death row prisoners have been freed due to DNA testing.

When push comes to shove, forensic science reforms are an important piece of larger-scale criminal justice reform, but no reform could ever remove the possibility of executing a person only to discover his or her innocence later.

Chapter 3: Innocence Protection

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Innocence Protection Recommendations

Recommendation 1: Courts should exercise their gatekeeping authority to permit, in appropriate cases, qualified expert testimony on the limitations and use of eyewitness testimony.

Recommendation 2: In cases in which expert testimony on eyewitness identification is allowed, the Oklahoma Uniform Jury Instructions should be amended to direct the jury to consider such expert testimony.

Recommendation 3: Law enforcement agencies should have written procedures that follow best practices techniques called for by current scientific research. These best practices techniques should, at a minimum, include the following:

  • Law enforcement agencies should use double-blind procedures or the official should be “blinded” when conducting photo arrays and live
  • In lineups and photo arrays, non-suspect fillers should resemble the suspect (clothing, build, characteristics, ).
  • In lineups and photo arrays, officials should be required to document the procedure (by video, or if video is not possible, by audio recording), and the procedure should include written instructions

for the official to read to the eyewitness. The written instructions should seek a statement from the eyewitness (either a written or recorded verbal statement) noting his or her degree of confidence at the time of any identification.

  • Law enforcement agencies should use sequential—not simultaneous—lineups and photo
  • Law enforcement agencies should eliminate the use of show-ups (when a single suspect is presented).

Recommendation 4: Training on the limitations of eyewitness identification should be required of law enforcement, prosecutors, and defense counsel. Law enforcement agencies should regularly schedule ongoing training and update procedures (at least annually) according to the latest studies and research regarding eyewitness  identification.

Recommendation 5: Law enforcement officials should record the entire interrogation of any suspect or potential suspect in a homicide case, including any representations or promises made to the person interviewed. There should be a rebuttable presumption of inadmissibility if an entire interrogation is not recorded.

Recommendation 6: Law enforcement officials should receive training that is consistent with best practices for interrogation techniques to help prevent wrongful convictions, such as “information gathering” interrogation methods, and should encourage a culture that enforces following best practices.

Recommendation 7: When the state intends to offer testimony from a jailhouse informant, the trial court should hold a pre-testimony reliability hearing to determine the admissibility of the jailhouse informant’s testimony.

Such testimony should be excluded in its entirety if it is found to be unreliable by the trial court. If the trial court finds that the proposed jailhouse informant testimony is reliable and admissible, the judge should still give the appropriate cautionary jury instruction.

Recommendation 8: Training on reliability issues surrounding jailhouse informant testimony and the discovery requirements for jailhouse informants—as set forth by the Oklahoma Court of Criminal Appeals in State v. Dodd—should be provided for defense attorneys, prosecutors, and judges.

Recommendation 9: The Legislature should create a system of adequate compensation, separate from The Governmental Tort Claims Act, for those who have been convicted of murder and sentenced to death and who are subsequently exonerated. Compensation for those wrongfully convicted and placed on death row should be indexed to the federal level. The current cap on compensation should be eliminated. The compensation should be available regardless of the plea entered in the case, and the compensation should be exempt from state taxes. The compensation should apply to future exonerations, regardless of the date of conviction. Any compensation for a wrongful conviction should be filed as a public record.

Recommendation 10: Legislation should be enacted to require the immediate update of an exonerated defendant’s government records, including immediate expungement of any conviction that has been vacated, set aside, or overturned,  notwithstanding  existing statutes.

Innocence Chapter Summary

In 1981, Justice Brennan commented on the “powerful impact on juries” from eyewitness testimony.12 Quoting
Dr. Elizabeth Loftus, a pioneer in the field of cognitive psychology, he wrote: “There is almost nothing more
convincing than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the
one!’”

Across the USA, 159 people have been exonerated from death rows since 1973. Of those 159 exonerations, 10 occurred in Oklahoma – placing it in the top five states with the highest number of people freed from death row due to innocence. Common sense tells us that these 159 men and women are just the tip of the iceberg. There are a lot more innocent people on death rows across the country and, sadly, some have almost certainly already been executed.

Innocence issues are disproportionately tied to the death penalty. Death sentences represent less than 0.1% of all prison sentences in the United States, but they account for 12% of known exonerations – a ratio of 130 to 1. The old saying goes, “Better ten guilty people go free than one innocent person suffer.” That’s all the more true when the penalty is that innocent person’s life.

Demographically, about 50% of death row exonerees are Black, 40% are white, 8% are Latino, and 2% are of mixed ancestry. In Oklahoma five of the ten death row exonerees are black and five are white.

The Commission notes that there is no one reason behind wrongful convictions. A combination of internal and external factors are the root causes. Some of the institutional problems that have been revealed in Oklahoma include false confessions, mistaken eyewitness identification, false or misleading forensics, the use of jailhouse informants, official misconduct, ineffective assistance of counsel, or (most frequently) some combination of these factors.

The Oklahoma Justice Commission was formed in 2011 to address the issue of wrongful convictions and issued a report two years later. Only some of those recommendations have been implemented, leaving us to again question whether Oklahoma is actually committed to fair and accurate justice and whether Oklahoma will implement the recommendations of the Death Penalty Review Commission.

Eyewitness Identifications

The Supreme Court has addressed the issue of eyewitness identification in the past. In the 1981 case Watkins v. Sowders, the Supreme Court held that a trial court is not required to hold a hearing to determine the reliability of eyewitness testimony. Justice Brennan, writing in a dissent, paraphrased the opinion of Dr. Elizabeth Loftus, an expert on eyewitness identification: “There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’” Eyewitness identification is extremely damning when presented in a jury trial and should be subject to serious scrutiny, notwithstanding the Supreme Court’s 1981 opinion.

In Oklahoma, Don Roberts and Glynn Simmons were sentenced to death on the basis of one eyewitness identification for the 1974 murder of liquor store clerk Carolyn Rogers. During the offense, an 18-year-old customer, Belinda Brown, suffered a gunshot wound to the head. Police interviewed her at the hospital three days after the crime, along with a sketch artist who developed a composite sketch. Brown picked several different suspects out of at least nine police line-ups. A month after the murder, there were still no suspects. Eventually, Brown picked Roberts and Simmons out of an in-person line-up, though both men maintained that they did not know one another at the time of the murder. There was no physical evidence linking the men to the case; the two men were convicted on the basis of Brown’s identification. Another witness testified that she only saw the gun and not the perpetrators. Both men’s death sentences were later converted to life sentences.

 

In recent years, the trial prosecutors have expressed doubts about Roberts’ and Simmons’ culpability, and the Oklahoma County District Attorney’s Office has been reviewing the case. The Edmond Police Department issued a statement in 2014 stating that another juvenile witness identified Roberts in a line-up, and that other circumstantial evidence pointed to the two men, including that Roberts bought a gun matching the description of the murder weapon days before the murder. Police reports indicate that a fingerprint and a bullet were found at the scene, though detectives testified at trial that no fingerprints were developed from the scene. Roberts was released on parole after serving 33 years. Simmons was denied parole in 2014 and remains in prison.

An experiment performed by Dr. Loftus in the 1970s just goes to show how damaging eyewitness testimony really is. The experiment had 150 mock jurors split into three groups. One group was told there was no eyewitness to a crime, another group was told that there was an eyewitness but the defense lawyer did not believe the witness, and the third group was told that there was an eyewitness who was discredited based on very poor eyesight. 82% of the mock jurors who were not presented with eyewitness testimony voted not guilty, 72% of the group that was presented with credible eyewitness testimony voted guilty, and 68% of the mock jurors who were presented with discredited eyewitness testimony still voted guilty.

Several decades worth of research reveals that eyewitness testimony is unreliable and influenced by stress, the witness’ physical condition, and suggestion from law enforcement. Mistaken identifications played a role in 72% of the 300+ wrongful convictions that have been overturned later due to DNA evidence. Studies have also found that, due to no fault of their own, eyewitnesses are significantly less able to accurately identify a suspect that is of a different race than themselves. Suggestive law enforcement techniques also lead to mistaken identifications. These can include subtle verbal hints about which individual in a line-up is the suspect, a color photo of the suspect in a photo array full of black-and-white filler photos, show-up identifications (in which only the suspect is presented with no fillers), and many others.

The Commission notes that standardized procedures and unbiased instructions to potential eyewitness should be utilized by law enforcement agencies. This would help to cut down on mistaken identifications, but at the end of the day, we will always be left with the fact that memories fade quickly after an event has occurred and that when faced with a line-up of suspects, an eyewitness is likely to pick one even if the actual perpetrator is not present in the line-up. This is an unacceptable level of risk because, as noted previously, eyewitness testimony is among the most damning types of evidence that can be presented at a criminal trial.

False and Coerced Confessions

If eyewitness testimony is damaging, then a confession is much, much worse. Jurors, and most people in general, weigh confessions very heavily against defendants. After all, no one really believes that a person would admit to a crime that they didn’t actually commit. The pressure to confess placed on defendants, especially from vulnerable populations, is extreme.

Here’s what a false confession is: “a false admission of guilt followed by a postadmission narrative, which includes details about how or why the crime was committed.” In other words, a false confession happens when a defendant admits to committing a crime and provides some details about what happened or why it happened. The Oklahoma Justice Commission estimated that 27% of all wrongful convictions are the result of false confessions.

Here’s an example of the Supreme Court’s abject negligence in guaranteeing equal justice: Prior to 1991, a finding that a defendant’s conviction was the based at least in part on a false confession resulted in an automatic new trial. The Supreme Court’s ruling in Arizona v. Fulminante changed all that. Courts are now directed to apply “harmless error analysis” to false confessions. It is now possible that a defendant’s conviction can be upheld despite a due process violation.

There are three types of false confessions:

  • Voluntary false confession: False confession made in the absence of police interrogation, usually by mentally ill individuals.
  • Coerced-compliant false confession: A person confesses to a crime despite knowing that they are innocent because of the pressures of coercive interrogation techniques.
  • Coerced-internalized false confession: An innocent suspect, even if only temporarily, believes that they committed the offense. This necessarily requires deception on the part of the interrogator.

Coercion can come in many forms. The days of physical abuse and sleep deprivation are, for the most part, over. The primary means of coercing false confessions are now through psychological manipulation, deception, and investigative errors. These errors can happen when law enforcement investigators incorrectly assume a suspect is guilty or when law enforcement investigators inadvertently provide information about the crime to the suspect.

Interrogation techniques are a large part of the problem. The Reid Technique is used by most law enforcement agencies in the United States. The Reid Technique is predicated on an assumption of guilt and a refusal to accept any assertion of innocence. Interrogators keep going at a suspect until he or she breaks down and confesses, but this coercive technique brings the reliability of these confessions into serious question. Some law enforcement agencies, including some American federal agencies and European law enforcement, have moved to an information gathering method. This allows law enforcement to gather facts about a crime in a confrontational way. Believe it or not, the Los Angeles Police Department has adopted an information gathering interrogation method and the previously skeptical detectives have embraced it fully.

One way to rectify false confessions is to record all interrogations in full. This is not a universal requirement, unfortunately. If a defense attorney is able to show a judge or jury the coercive nature of a defendant’s interrogation and point to the steps involved in forming a false confession, then that defendant will have much better odds. This allows the system to fix false confessions in after-the-fact, but a change in interrogation methods is the only to avoid false confessions in the first place.

Jailhouse Informants

Sometimes, when someone in a jail has nothing to lose, he or she becomes a snitch in exchange for privileges or a reduction in sentence. This type of jailhouse testimony is inherently unreliable, but is frequently used by prosecutors. A 2004 report by the Center on Wrongful Convictions found that jailhouse informants are the leading cause of wrongful convictions in the United States. It’s not hard to see why.

The Supreme Court issued a strong statement on this topic but the Court has done very little to actually solve the problem. In 1952, the justices wrote that, “the use of informers, accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility.” Yet, to this very day, prosecutors across the country continue to use these types of witnesses and present their testimony to the jury if it was God’s honest word itself.

Robert Miller, Jr., was convicted and sentenced to [two] murders and was eventually exonerated on the basis of DNA evidence. His conviction was based in large part on his false confession. A drug user, it is likely that Miller was under the influence at the time of his confession. His interrogation lasted roughly 12 hours, and Miller’s confession was given in the form of a dream vision, with him channeling the killer. At trial, the prosecution relied on the fact that Miller knew details only known by the true killer. However, Miller’s interrogation shows multiple guesses as to an object left behind at the scene and the way the killer entered the residences, as well as consistent assertions by Miller that he did not commit the murders.

We’ve seen this first hand. Richard Glossip is a man on death row in Oklahoma who we believe is innocent. Richard was convicted based solely on the word of a young meth addict named Justin Sneed. Justin said that Richard paid him to kill their boss at a motel. Here’s the problem: Justin has told 8 different versions of the story of the years and avoided the death penalty in exchange for his testimony. Richard has come within minutes of the death chamber multiple times while Justin lives at a medium security prison.

Costs of Wrongful Convictions

The Commission’s report brings up a lot of good points in this area, but we’d like to make it a bit more personal. We invite you to visit the website of Witness to Innocence, an organization made up of death row survivors who are working together to abolish the death penalty. Witness to Innocence has set up a page where you can read about many of their members. Look for the common threads among these heartbreaking stories and imagine the immense personal costs of wrongful conviction for both the exonerees and on society as a whole.

Chapter 4: Role of the Prosecution
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Prosecution Chapter Summary

Prosecutors have an ethical responsibility not merely to convict, but to ensure that justice prevails. Sometimes, this responsibility means admitting mistakes or even dropping charges against innocent suspects. Prosecutors have a huge advantage over defense lawyers in criminal proceedings. Prosecutors decide who to charge with what offenses and control the flow of evidence. These are not small matters when a person’s life or liberty is on the line. There are very limited checks on these massive powers afforded to prosecutors.

Duty to Disclose Evidence in Capital Cases

Law Governing Disclosure of Evidence in Capital Cases

The U.S. Supreme Court held that the government has a constitutional obligation to produce exculpatory, or innocence-indicating, evidence and impeachment evidence, or evidence that hurts the credibility of the prosecution’s case, to the defense. The Supreme Court’s decision in Brady v. Maryland established that that state violates a defendant’s right to due process when it withholds evidence that is favorable to the defense and material to guilt or sentencing.

In Oklahoma, evidence disclosure is governed by the Oklahoma Criminal Discovery Rule (OCDC). Upon request of the defense, the prosecution is required to disclose:

  • Names and addresses of witness the state intends to call at trial, together with any statements the witness has already made.
  • Law enforcement reports in connection with a particular case.
  • Any statements made by the accused or a co-defendant.
  • Any reports or statements made by experts in connection with the particular case.
  • Any books, papers, documents, photographs, tangible objects, buildings, or places the prosecution intends to use.
  • Any record of prior criminal convictions of the defendant or a co-defendant.
  • A background check on any witness listed by the prosecution or defense.

The Code also reiterates that the state will disclose any evidence favorable to the defendant if such evidence is material to guilt or punishment. These requirements are also included in the Oklahoma Rules of Professional Conduct for lawyers.

Worth noting is the fact that Oklahoma law does not recognize any right to discovery during post-conviction proceedings. If you didn’t get the evidence at trial, you will never get it. This does not bode well for defendants who are stuck with incompetent or sub-par trial lawyers. No matter how good his or her appellate lawyer is, they are still stuck with just the evidence obtained at trial.

Discovery Practices in Oklahoma Capital Cases

Oklahoma district attorneys have varying policies for discovery in capital cases. Some allow open-file discovery, which allows defense counsel access to all unprivileged material in the prosecution’s possession. Others only specify that defense counsel will receive all discoverable material without open-file access. Most Oklahoma district attorneys turn over evidence at or before preliminary hearings.

The Import of Discovery in Capital Cases

The second most-common reversible error found in capital cases was the “prosecutorial suppression of evidence that the defendant is innocent or does not deserve the death penalty.” This has happened in Oklahoma. [See report document for highlighted stories] Later discovery of exculpatory evidence withheld by prosecutors has led to wrongful convictions in death penalty cases, including in Oklahoma.

For example:

In separate but related cases out of Oklahoma County—those of Yancy Lyndell Douglas and his co-defendant, Paris LaPriest Powell—prosecutors failed to disclose to defense counsel a deal between the state and its key witness in the cases against Mr. Douglas and Mr. Powell. The attorney who prosecuted Mr. Douglas denied offering the witness assistance on pending parole revocation proceedings. However, “the day after Mr. Douglas was sentenced to death, [the prosecutor] wrote a letter recommending that [the witness] receive parole.” The federal district court reviewing Mr. Powell’s case during federal habeas review found that the witness was “the key to the successful prosecution of Mr. Powell” and summarized the facts underlying the Brady claim: “[A]t a minimum, [the witness] used his identification testimony in an effort to benefit himself, [the prosecutor] was aware of [the witness’s] requests for assistance, had acted on his request, and that this information was not known by or conveyed to [Mr. Powell’s] trial counsel.” Both convictions were vacated by the Tenth Circuit Court of Appeals, and the attorney who prosecuted both cases was suspended for 180 days.

And this:

More recently, the ongoing case of Donnie Lee Harris Jr. raises concerns about prosecutors’ adherence to the requirements of the OCDC. Mr. Harris was sentenced to death in LeFlore County in December 2013 for allegedly pouring gasoline from a bottle of Crown Royal on his girlfriend, Kristi Ferguson, and then igniting the gasoline with a cigarette lighter. Through the course of the investigation, the state fire marshal collected portions of a liquor bottle and articles of clothing from Mr. Harris’s bedroom, where the crime was alleged to have taken place. That evidence was subsequently lost, prior to trial, although photographs of the evidence were admitted at Mr. Harris’s capital trial. On post-conviction review, and following an evidentiary hearing, the district court found that “[t]rial counsel never actually viewed these items” and that the fire marshal had “violated the policies of the State Fire Marshall’s [sic] Office” by “fail[ing] to obtain a receipt for these items.” The district court later found, following a second evidentiary hearing, that other physical evidence—a lighter, admitted at trial as the prosecution’s exhibit—also had been lost. No chain of custody documents concerning the evidence could be located.

Exercise of Prosecutorial Discretion in Death Penalty Cases

There are 77 counties in Oklahoma and 27 district attorneys. The district attorney offices are funded in part by county funds and in part by state funds. The average starting salary for a prosecutor in Oklahoma is $44,543 – below the national average – with workloads averaging around 297 new cases per year. The high caseloads lead to insufficient time to do legal review, meet with victims, and prepare cases for trial. Almost half of Oklahoma’s assistant district attorneys have less than five years of experience and the turnover rate is around 70%.

Politics play a role in death penalty decisions. Although most district attorneys claim that political considerations don’t factor into decisions about seeking the death penalty, scholarly review and anecdotal evidence suggest otherwise.

Robert “Bob” Macy, district attorney of Oklahoma County for 21 years (1980-2001), sought more death sentences than any individual district attorney in the U.S. The 54 cases he brought ending in a death sentence totaled “more than the current death row populations of Colorado, Indiana, New Mexico, Utah, Virginia, Washington, and Wyoming combined.” Macy won elections by large margins and campaigned on his use of the death penalty, and even ran unopposed in his last election in 1998.

Macy’s exercise of his discretion to frequently seek the death penalty contributed to a significant portion of the death row population of Oklahoma, as well as the nation. One study found Macy to be one of just five prosecutors who account for 15 percent of the death row population nationwide as of January 2016. This is equivalent to each of the five prosecutors being responsible for one out of seven prisoners sentenced to death nationwide.

Once aggressive prosecutors like Macy leave office, their jurisdictions often see a dramatic decrease in the number of death penalty prosecutions. There are very few checks on prosecutorial discretion. Some district attorney offices in Oklahoma have established an informal team to review decisions to seek the death penalty, there is no codified procedure or protocol. This leaves open the very real possibility that a crime committed in one county will result in the death penalty and a life sentence in a different county – the very definition of arbitrary.

Handling Prosecutorial Error and Misconduct

A 2013 study found that there is a correlation between death penalty conviction reversal rates and the frequency of death penalty trials in states and counties. In other words, the more frequently that a district attorney seeks the death penalty, the more often those convictions will be reversed due to errors. This is certainly true of Bob Macy and Oklahoma County. A 2016 study found that prosecutorial misconduct occurred in one-third of all death penalty cases tried during Bob Macy’s tenure as district attorney. A recent report found that courts reversed almost half of the death sentences imposed in Oklahoma County under Macy.

Prosecutorial misconduct may include the following actions:

  • Charging a suspect with more offenses than is warranted;
  • Withholding exculpatory evidence from defense;
  • Purposefully mishandling, mistreating or destroying evidence;
  • Allowing witnesses, who prosecutors know (or should know) are not truthful to testify;
  • Pressuring defense witnesses not to testify;
  • Relying on fraudulent forensic experts;
  • During plea negotiations, overstating the strength of the evidence;
  • Making statements to the media that are designed to arouse public indignation;
  • Making improper or misleading statements to the jury;
  • Making misleading arguments that overstate the probative value of testimony; and
  • Failing to report prosecutor misconduct when it is discovered.

Studies reveal that there are very few consequences for prosecutorial misconduct. One analysis looked at 3,625 instances of prosecutorial misconduct. Public sanctions by bar associations were imposed in just 63 of those cases, or around 2% of the time.

Consular Notification

Article 36 of the Vienna Convention on Consular Relations provides that when a foreign national is “arrested or committed to prison or to custody, pending trial or is detained in any other manner,” appropriate authorities must inform him or her of the right to have their native country’s local consular office notified of the detention. In 2005, the U.S. withdrew from an optional aspect of the Convention that granted the International Court of Justice jurisdiction over these disputes. In 2008, the Supreme Court ruled in Medellin v. Texas that states are not required to comply with the Vienna Convention’s consular requirement.

This has had consequences in the death penalty sphere.

In July 2011, the U.S. Supreme Court denied a stay of execution for a Mexican national, Humberto Leal Garcia, Jr., despite opposition from the Obama administration and the Mexican government. Leal was sentenced to death for murdering a 16-year-old girl in Texas in 1994, but he was not informed of his right to contact the Mexican consulate upon his arrest. The stay would have permitted Congress to deliberate on pending legislation requiring states to comply with the Vienna Convention and inform foreign nationals about their right to consular notification. Leal was executed on July 7, 2011, and Texas has since executed two more Mexican nationals who had also been denied consular assistance.

Since 1976, 32 foreign nationals have been executed in the United States (24 of whom raised Vienna Convention claims during their appeals). Oklahoma has executed three foreign nationals, two of whom raised Vienna Convention claims. Four additional foreign nationals have received death sentences in Oklahoma, but their sentences have been amended to non-death sentences.

Role of the Prosecution Recommendations

Recommendation 1: Prosecutors and their investigators should be provided regular training concerning the common causes for wrongful convictions. This training should be mandatory.

Recommendation 2: Prosecutors and law enforcement should be provided regular training concerning their obligations under the Vienna Convention on Consular Relations to notify a non-citizen’s government when a non-citizen has been arrested and charged with a capital crime.

Recommendation 3: All Oklahoma district attorneys’ offices and the Office of the Attorney General should be required to allow open-file discovery at all stages of a capital case, including during the direct appeal, state post- conviction review, federal habeas corpus review, and any clemency proceedings.

Recommendation 4: District attorneys’ offices should be required to retain all files, including protected work product, pertaining to a capital defendant’s case until 60 days after the inmate is no longer on death row, whether because the inmate has been executed, died in custody, had a death sentence commuted to a sentence less than death, or been exonerated.

Chapter 5: Role of the Defense

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Role of the Defense Recommendations

Recommendation 1: To better ensure that individuals facing the death penalty in Oklahoma receive high-quality representation, the Oklahoma Bar Association should promulgate advisory guidelines for the appointment and performance of defense counsel in capital cases.

Recommendation 2: The Oklahoma Bar Association should facilitate or provide regular training for capital defense trial counsel and appellate counsel specific to the unique demands of capital case representation.

Recommendation 3: Attorneys, investigators, and support staff employed by the Oklahoma Indigent Defense System should receive compensation commensurate with that of attorneys, investigators, and support staff employed by district attorneys’ offices in their corresponding counties.

Recommendation 4: Adequate compensation should be provided to conflict counsel in capital cases, and the existing compensation cap should be lifted.

Recommendation 5: Conflict counsel outside of Oklahoma and Tulsa counties (which follow a different process) should not be required to seek funding beyond any statutory cap directly from the Oklahoma Indigent Defense System. Such funds should come from the court funds of the county in which the representation takes place.

Chapter 6: Jury Issues Recommendations
Recommendation 1: In a capital case, the state and the defendant should be guaranteed the right to individual voir dire upon request.
Chapter 7: Role of the Judiciary Recommendations
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Recommendation 1: Oklahoma judges should receive regular training on the trial of capital cases.

Recommendation 2: Oklahoma law should be amended to clearly provide that failure to raise extra-record claims within a direct capital appeal will not constitute waiver of those same claims on capital post-conviction review.

Recommendation 3: To obtain discovery by order of the Oklahoma Court of Criminal Appeals within either a direct appeal or a post-conviction proceeding, counsel for a death-sentenced inmate should be required to show only good cause for the requested discovery.

Recommendation 4: The Legislature should amend Oklahoma law so that capital direct appeals and state post-conviction proceedings run consecutively, rather than concurrently; and a defendant’s initial application for post-conviction relief should be filed with the Oklahoma Court of Criminal Appeals within one year from the date on which the Oklahoma Court of Criminal Appeals issues its decision and mandate on the defendant’s direct appeal in the case.

Chapter 8: Death Eligibility Recommendations
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Recommendation 1: Because it is unconstitutional to execute a defendant who is intellectually disabled/mentally retarded, a defendant should be required to prove his or her intellectual disability/mental retardation only by a preponderance of the evidence, regardless of whether the determination is made by a judge or a jury and regardless of whether the determination is made before or during the defendant’s murder trial.

Recommendation 2: In light of Hall v. Florida, Oklahoma law and the Oklahoma Uniform Jury Instructions should be amended to clarify that capital defendants must be permitted to attempt to establish their ineligibility for a death sentence on the basis of intellectual disability/mental retardation if they have at least one IQ score in the range of 71–75 or lower. In addition, capital defendants with at least one IQ score of 75 or less should be permitted to attempt to establish intellectual disability/mental retardation regardless of whether they have one or more IQ scores of 76 or higher.

Recommendation 3: Because it is unconstitutional to execute someone who is incompetent/insane at the time of execution, Oklahoma law should be amended to permit persons other than the warden to raise the issue of the condemned inmate’s competency to be executed. The prosecution, the condemned inmate’s counsel, the inmate’s legal guardian, the warden of the facility where the inmate is incarcerated, or a court sua sponte should all be allowed to raise the issue of the inmate’s competency to be executed, pursuant to the standards set forth in Ford v. Wainwright and Panetti v. Quarterman.

Recommendation 4: Because it is unconstitutional to execute someone who is incompetent/insane at the time of execution, Oklahoma law should be amended to provide that if it can be shown by a preponderance of the evidence that a condemned inmate is incompetent/insane, the state should not be allowed to execute that inmate. If such a finding is made, the state should only be subsequently allowed to execute the inmate if it is able to show, by a preponderance of the evidence at a later evidentiary hearing, that the defendant has become competent to be executed.

Chapter 9: Clemency Recommendations
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Recommendation 1: The composition of the Oklahoma Pardon and Parole Board should be more open and should not be restricted to individuals with experience in the criminal justice field.

Recommendation 2: The Oklahoma Pardon and Parole Board should compose, adopt, and publish substantive guidelines on the exercise of its clemency powers.

Recommendation 3: The Oklahoma Pardon and Parole Board should create guidelines for recusal of any member who may have a conflict of interest in evaluating a condemned inmate’s petition for clemency.

Recommendation 4: Condemned inmates should have the option to listen to and watch (via closed-circuit television) the entire presentation of their clemency petition to the Oklahoma Pardon and Parole Board.

Recommendation 5: The members of the Oklahoma Pardon and Parole Board should engage in a deliberative process before voting on a condemned inmate’s petition for clemency.

Chapter 10: Execution Process Recommendations
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Recommendation 1: Oklahoma should adopt the most humane and effective method of execution possible, which currently appears to be the one-drug (barbiturate) lethal injection protocol. Oklahoma should develop a process for continuous review of its execution protocol to ensure that the state is using the most humane and effective method possible.

Recommendation 2: The Oklahoma Department of Corrections should revise its execution protocol to provide clear direction to department personnel involved in preparing for and carrying out executions. These revisions should, at minimum, provide comprehensible definitions for potentially ambiguous terms within the protocol and specify who within the department’s chain of command has the authority and responsibility to perform critical steps in the execution process.

Recommendation 3: With respect to lethal injection as an execution method, the Oklahoma Department of Corrections should amend its written execution protocol to require verification—at the point of acquisition and at all stages of the execution process—that the proper drug(s) for carrying out the execution have been obtained and will be used in any execution. The protocol should prohibit drug substitutions not

specified within the protocol itself and should require that all drug purchases be in writing. If necessary to protect the confidentiality of suppliers, the Legislature should amend Oklahoma law to exempt the order form and related documents from disclosure.

Recommendation 4: All government personnel involved in carrying out an execution, as well as those individuals contracted with the government to provide services related thereto, should be thoroughly trained and evaluated on all relevant aspects of the Oklahoma Department of Corrections’ execution protocol.

Recommendation 5: The director of the Oklahoma Department of Corrections (ODOC) should deliver to the governor, at least 48 hours prior to any scheduled execution, a written, signed certification that the director has confirmed that all aspects of the execution protocol have been followed, including: ensuring that all personnel who will participate in the upcoming execution have been adequately trained and prepared; ensuring that the necessary equipment and facilities that will be used are adequate and satisify the standards promulgated within ODOC’s execution protocol; and ensuring that any drugs that will be used have been obtained pursuant to and are consistent with ODOC’s execution protocol.

Recommendation 6: In the event that lethal injection will be used to carry out the execution of a condemned inmate, the inmate should be provided written notice as to which drug(s) will be used at least 20 days prior to the scheduled  execution.

Recommendation 7: Following any execution, an independent third party should conduct a thorough quality assurance review to determine whether state laws, regulations, and protocols were properly followed before, during, and immediately after the execution. It is important that the independent third party be required to maintain the confidentiality of any sources for information. The independent third party’s findings should be communicated in a timely fashion to the Oklahoma Department of Corrections, the Oklahoma Legislature, and the governor’s office, while also being made available to the public.

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