Maryland Death Penalty Repeal Legislation

The National Coalition to Abolish the Death Penalty applauds Governor O’Malley and the Maryland General Assembly for introducing and considering Senate Bill 276 and House Bill 295: Death Penalty Repeal and Appropriation from Savings to Aid Survivors of Homicide Victims and urges its passage...
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Marion Wilson Files Clemency Plea in Georgia

Arguing that Marion Wilson (pictured, center) did not kill anyone and did not intend that a killing occur, lawyers for the Georgia death-row prisoner have filed a clemency petition urging the Georgia State Board of Pardons and Paroles to commute Wilson’s sentence to life without parole. The Board, which declassified Wilson’s petition allowing it to be released to the public, is scheduled to hold a clemency hearing on Wednesday, June 19, 2019, one day before Wilson is scheduled to be executed. Wilson’s petition emphasizes three arguments for clemency: that Wilson neither killed nor planned to kill the victim, Donovan Parks; that the prosecution grossly exaggerated Wilson’s juvenile record and gang involvement to make him appear more deserving of the death penalty; and that the jury was never presented significant mitigating evidence concerning the chronic deprivation, abuse, and neglect Wilson experienced throughout his childhood.

Wilson was convicted of the 1996 killing of Donovan Parks. Robert Earl Butts, who was executed in 2018, was tried separately for the same murder and sentenced to death after prosecutor Fred Bright told the jury that the state’s evidence proved that Butts had pulled the trigger. Both Butts and Wilson were seen asking Parks for a ride and getting into his car. Soon after, Parks was found dead of a shotgun wound. Wilson’s attorneys argue that Bright, who prosecuted both men, “certainly believed that Butts was the more culpable party” because he offered a plea deal to Wilson but not Butts. Wilson, who was only 19 at the time Parks was killed, rejected the plea offer “largely out of fear that, as a young, small-statured inmate, he would be endangered in general population at a maximum-security prison.” Wilson suspected Butts intended to rob someone, but has long maintained that he had no idea Butts planned to hurt or kill anyone. Wilson went to trial first and was convicted. Although the prosecution presented no evidence that Wilson was the shooter, Bright nevertheless argued to the jury in the penalty phase that he had been the triggerman. At Butts’ trial one year later, Bright contradicted that argument, presenting evidence that Butts committed the killing. “That the prosecution falsely maintained that Marion was the shooter in order to obtain the death penalty was, and still remains, highly unethical and contrary to the State's higher duty of probity and truthfulness in any criminal proceeding," the clemency petition states.

The clemency petition also highlights other false statements by the prosecution that it says gave the jury a “grossly distorted version of [Wilson]’s teenage years and gang involvement.” “Bright’s presentation of Marion’s juvenile record during sentencing was rife with hyperbole and outright falsehoods,” the petition says. Among the hyperbole, Bright told the jury that Wilson “tried to burn down a duplex apartment” when he was 12 years old. In reality, Wilson and two other pre-teen friends were playing in an abandoned duplex unit and tried to warm themselves by lighting paper and rags on fire. A responding police officer said “there was ‘not enough accelerant’ on the smoldering rags and papers to do any damage and that the ‘fire never really caught.’” On the subject of Wilson’s alleged gang affiliation, his lawyers say the prosecution “took several statements of youthful bravado and presented them out of context, playing on the county’s prevalent gang paranoia to present a hyperbolic image of the gang menace facing the community.” Bright had twice been found by the Georgia Supreme Court to have made bad faith statements attempting to link crimes to gangs when there was no evidence they were gang-related. However, Wilson’s trial lawyer failed to present evidence to the jury contradicting the prosecutor’s false assertions.

Finally, Wilson’s clemency attorneys provided the Board with extensive mitigating evidence that trial counsel failed to present to the jury. They write: "Wilson’s life — from conception to incarceration — was characterized by instability, neglect, abuse and trauma. Teachers, social workers and family friends remember a warm, intelligent and creative child yearning for a nurturing environment but trapped in a hopeless situation. Subjected to racism throughout his childhood by his extended family, school and the broader community for his biracial identity, Marion struggled to find himself and gradually succumbed to the self-destructive lifestyle that resulted in his imprisonment as a juvenile offender at the age of 17. What makes Marion’s childhood even more tragic is that it is clear that for a few brief periods in his life when he actually had a modicum of stability, security and emotional and moral support, he was able to thrive.” Because of trial counsel’s failures, they said, “[t]he jury that sentenced Marion to death was wholly unaware of his history of pervasive and prolonged abuse and neglect at the hands of numerous adults in his life, as well as evidence of impaired cognitive function and organic brain damage."

Since the U.S. Supreme Court upheld Georgia’s death-penalty statute in 1976, the state has executed only one prisoner whom the evidence showed did not commit the killing — Kelly Gissendaner, who was convicted of planning and covering up her husband’s murder. The petition argues that “[b]y virtue of the prosecutor’s misconduct and his trial counsel’s incompetence, Marion Wilson faces death while others, far more culpable, are spared.” it states, asking the board to “afford Marion a chance to accept the deal he did not have the maturity or foresight to take over twenty years ago, and allow him to prove himself worthy” of a lesser sentence.

Indiana Judge Orders State to Pay $538,000 in Attorney Fees for Stonewalling Release of Lethal-Injection Records

Citing “egregious” misconduct by state prison officials in trying to evade a court order to produce public records concerning its efforts to obtain lethal-injection drugs, an Indiana judge has directed the state’s Department of Corrections to pay more than a half million dollars in plaintiffs’ attorney fees. On June 12, 2019, Marion County Circuit Judge Sheryl Lynch (pictured) awarded $538,000 in attorney fees to plaintiffs who were seeking public release of records regarding the drugs Indiana intended to use in future executions. The suit began as a public-records request in 2014, but because of the Indiana Department of Correction’s repeated refusal to release the records or comply with court orders, it expanded to include late-night secrecy legislation and multiple court rulings.

In 2015, Washington-based lawyer A. Katherine Toomey filed suit in Indiana state court after the Indiana Department of Correction refused to produce execution-related records she had requested under the state public records law. On October 24, 2016, she won a summary judgment requiring the Department to release the records. In 2017, while the Department’s appeal of that decision was pending, the Indiana legislature adopted a retroactive secrecy statute to block the ruling from taking effect. At 2:00 a.m. on the final day of the 2017 legislative session, the legislature inserted a two-page secrecy provision into the state 175-page budget bill.

Judge Lynch struck down the secrecy law in 2018, finding that the law had been designed specifically to alter the outcome of the court proceedings. “The General Assembly does not have the authority to determine the outcome of pending litigation,” she wrote. “As applied to this case, the General Assembly’s passage of the Statute overstepped its authority and violated the Indiana Constitution’s Separation of Powers by disturbing a pending case and upsetting this Court’s judgment.” Judge Lynch specifically singled out the law’s unconstitutional retroactivity provisions, writing, “[t]he Statute’s retroactivity clause violates the prohibition against special laws because it impermissibly applies to only one lawsuit by a single individual. According to the Department’s own records, Toomey is the only person who, at the time the Statute was conceived and ultimately enacted, had ever requested access to public records regarding the State’s lethal-injection drugs.”

The court faulted state officials for the unnecessary litigation that led to the fee award. “If the Department had not gone to the General Assembly without knowledge to Toomey or the Court to get a retroactive statute to essentially vacate this Court's Order for Summary Judgment … and file an improper appeal to the Indiana Court of Appeals and the Indiana Supreme Court to prolong the Attorney Fee hearing, then Toomey would not have needed to file its pleading to force the public disclosure of e-mails and legislative materials,” Lynch wrote. She called the Department’s successful attempt to “obtain a retroactive statute [to vacate the summary judgment order] without advising the Court and Toomey” in advance, and its abuse of the appellate process, “egregious.” Toomey's request for costs and attorney fees were reasonable, the court wrote, “given the procedural history of [the] request for the lethal injection information.” “[A] simple [public records] request turned into major litigation given the Department's handling of this case,” she said.

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