An Ode to Black Women Capital Defense Attorneys

By Terrica Ganzy, SCHR Deputy Director

Elaine Jones was counsel of record in Furman v. Georgia, the landmark United States Supreme Court case that abolished the death penalty in 37 states in 1972. She was one of the first Black females to defend people on death row. Almost five decades later, the ranks of Black women who defend people charged with or convicted of capital crimes has grown, but the numbers are still far too low. Today, as Black History Month comes to a close, we pay tribute to this cadre of women who stand in the gap for people who society would otherwise discard.

The Calling

“When I dare to be powerful, to use my strength in the service of my vision, then it becomes less and less important whether I am afraid.” – Audre Lorde

Being a capital defense attorney is hard. The hours are long, the work is born of tragedy, the stakes are the highest possible, and the pay compared to the effort is low. This is not a profession that one chooses simply to have a job. It is a calling: a calling of strength, a calling of conviction, a calling of sacrifice, a calling of love.

It is a calling of strength because so often capital defense attorneys are subjected to the anger and hate directed at their clients. Acknowledging that anger, protecting their client from it, and working to transform anger to mercy requires a certain inner strength. It is a calling of conviction because standing on principle at times is all that sustains the capital defense attorney through repeated denials of relief despite obvious injustice. It is a calling of sacrifice because fighting to save someone’s life can take a mental and physical toll. It is a calling of love because one cannot do this work without a love for humanity, dignity, and justice.

The calling of capital defense applies to all capital defense attorneys regardless of demographics. We choose to celebrate black women attorneys today because these women dare to use their strength in service of their vision of a society that does not kill to prove that killing is wrong.

We pay tribute to the Elaine Jones, the Christina Swarns; the Tanya Greenes of the capital defense community. Thank you for daring to be a powerful force for justice, redemption, and mercy.

The Bail Industry Tries, Again, To Overturn Bail Reform in Georgia

This past Monday, a subcommittee of the House Judiciary Non-Civil Committee heard HB 340, a bill which would overturn bail reform in Atlanta, and preclude any other city or county in Georgia from ending cash bail. The legislation would force burdensome costs on Georgians; it would continue to criminalize poverty and race; it would compromise public safety; and, finally, it would be unconstitutional. The only beneficiaries of the legislation would be the bail industry. The bill’s sponsor, Representative Micah Gravley, presented the legislation while flanked by four individuals from the bail industry.

The bill’s sponsor, Rep. Gravley, is seated next to Ann Hood, of Easy Out Bonding Co., Inc. from Gainesville, Nathan Owens, of Double “O” Bonding in Athens, and Corey Dunlap, of Free At Last Bail Bonding of Atlanta. Rep. Gravley is seen gesturing in the image.

Rep. Gravley told the subcommittee that he introduced the legislation due to alleged problems with individuals being released on signature bonds for violent felonies — and then he turned it over to the bail industry. For the next 25 minutes, two bail industry representatives dominated the discussion and misled the committee. The representatives of the bail industry introduced themselves as “concerned citizens,” only admitting to being in the industry when pressed by members of the subcommittee. One of the bail industry representatives, from Athens, provided copies of several recognizance bonds given to people charged with crimes like armed robbery and rape, claiming that the Athens community wants the law to be changed. SCHR has since learned, however, that in one of the cases the judge issued an OR bond after a hung jury (in which the jury was 11-1 in favor of acquittal) and, in another, the prosecutor agreed to the OR bond, due to a lack of evidence. Bondsman Corey Dunlap stated that a Georgia State Trooper was killed by someone who was out on an OR (own recognizance) bond. When challenged with the AJC’s reporting that the defendant was out of jail on $19,000 bond, Dunlap claimed that he didn’t remember the facts of the case.

The chairman then opened up the hearing for public comment, allowing 60 seconds for each person. Nearly every person who testified was in opposition to the bill. The first voices to speak against the bill were Megan Middleton, a lobbyist from the City of Atlanta, Matthew McCord, a judge who sat on the bail subcommittee of Gov. Deal’s Council on Criminal Justice Reform, and Matt Westmoreland, an at-large member of the Atlanta City Council. SCHR’s Public Policy Director Marissa Dodson continued the opposition testimony, along with Bronson Elliot from Ebenezer Baptist Church, Billy Honor from New Georgia Project, Mary Hooks from SONG, SCHR’s Sarah Geraghty, and Devin Barrington-Ward from Black Futurists Group.

The aggregate testimony against HB 340 was compelling, and some Republican subcommittee members could be seen nodding in agreement with the positions taken. Many members, again including Republicans, recognized the predatory motives of the bail industry and the injustice of forcing extended incarceration, particularly for local ordinance violations and misdemeanor offenses. The subcommittee did not vote on the bill.

SCHR is continuing to monitor HB 340 — which, as of this writing, has not been scheduled for another hearing — while we also track SB 164, a similar bill introduced by Bill Cowsert that has been assigned to the Senate Judiciary Committee but not yet scheduled for a hearing.

A Call to Action from Executive Director Sara Totonchi Before Super Bowl LIII

Next week, Atlanta will host the Super Bowl.  This will be one of the largest sporting events in the city’s history, aside from the 1996 Olympic Games. The challenge presented by these major events remains the same: how will the Gate City treat its most vulnerable populations as we welcome the world?

The Atlanta City Detention Center stands as one of the most troubling monuments of the 1996 Olympic Games. The jail was built to warehouse people the city wished to hide from global view: those visibly struggling with homelessness and poverty. As a testament to that fact, the jail population increased from 2,200 to 4,500 during the Games, all while street homelessness appeared virtually nonexistent to visitors. (For the visibly poor and homeless who weren’t taken to jail, the city was accused of distributing free one-way bus tickets for individuals, under the condition that they never returned to the city.)

Today, thanks to improved immigration policy, historic bail reform and pre-arrest diversion legislation, the jail’s population hovers at under 100 people.  Unfortunately, due in part to the City’s support of the forced closure of Metro Atlanta Taskforce for the Homeless’ Peachtree-Pine shelter, street homelessness increased nearly ten percent between 2017 and 2018.  Partners for Home reported that in 2018, 3076 people were homeless in Atlanta, 740 of whom were unsheltered.  There is no question that both the city and non-profits lack adequate bed space for the current homeless population.

Last week, the City announced that it was moving forward with removing homeless ‘camps,’ in an effort to find permanent housing solutions for the city’s homeless population. The City maintains that the timing—just weeks before the big game—was purely coincidental. But Leroy Thomas, a man who has been sleeping under the downtown connector, told the Atlanta Journal-Constitution that police clearly expressed that people sleeping under the Downtown Connector would need to be gone by a date certain, due to the Super Bowl.  APD spokesman Carlos Campos provided that Atlanta police arrested roughly 40 people for urban camping over the past 24 months. Campos told journalists on a call last week, “If they are violating a law, they will be arrested for violating a law…There are laws that are applicable to everybody and it doesn’t matter what your residential status is.”

While the lack of available shelter space is nothing new, the City’s  destruction of homeless camps, destruction of homeless individuals’ belongings, and increasing arrests and threats of arrest of individuals for urban camping and other status offenses as the Super Bowl approaches strongly suggests an intent to sanitize the image of downtown at the expense of our homeless citizens.

Criminalizing homelessness and poverty violates our most basic human rights, and it sets in action a revolving door: people sent to jail for sleeping on the street and other status-based charges (trespass, soliciting money, urinating in public, etc.) are more likely to experience homelessness again once released. Performing daily, life-sustaining activities such as crossing the street, finding relief without indoor plumbing and asking passersby for money can be enough to land people behind bars for months and in extreme cases, a year or more.  Law enforcement must utilize resources such as pre-arrest diversion and crisis intervention when making contact with people obviously in need of assistance. Jail administrators must adhere to the requirements outlined in bail reform legislation mandating that people arrested for most non-violent charges be released on their own recognizance.  Atlanta judges must honor the constitutional mandate that they not assess bail or fines at rates accused persons cannot afford.

We need your help to hold Atlanta accountable to vulnerable populations during the Super Bowl.

First, we ask you to support a collaborative effort to observe municipal court proceedings January 31-February 5 at 8:00 AM. Sign up to help here.

Second, we encourage you to contact Mayor Bottoms and your City Councilpersons in support of:

  • Warming shelters remaining open for the duration of the Super Bowl;
  • A directive to law enforcement officers to de-prioritize quality of life arrests and prioritize crisis intervention and direct service referrals;
  • A directive to law enforcement officers to use pre-arrest diversion as often as possible; and
  • A commitment from the City of Atlanta Solicitor General to encourage pre-booking diversion for people brought to the jail for minor offenses.

Sample Script: Hello, my name is [YOUR NAME] and I [LIVE/WORK/WORSHIP] in Atlanta.  I am concerned that homeless and visibly poor people will be displaced and arrested in preparation for the Super Bowl.  I am part of a larger community that supports a more humane and moral approach to the issues of poverty and homelessness and ask that instead of increasing arrests, the city (1) keep its warming shelters open for the duration of Super Bowl events; (2) encourage law enforcement officers to refer persons in need to the Pre-Arrest Diversion program or other direct service providers; (3) encourage the Atlanta Solicitor General to support pre-booking diversion; (4) require that jail administrators closely adhere to the bail reform ordinance passed  unanimously by City Council in 2018; and (5) require  judges to honor the Constitution by not assessing fines, fees and bail that accused people cannot afford.  Thank you.

 

 

Legislative Updates

Today is the fifth day of the 2019 Legislative session, and things are in full swing.  As we reported last week, there were a lot of changes to the Georgia General Assembly in the last election. While we don’t know how the new administration will respond to our demand for continued criminal justice reform yet, we do have some exciting updates to share with you.

Legislative Updates

It is still very early in the session, but we are already tracking the following bills that will impact the state’s criminal legal system:

HB 20 – prohibits persons convicted of family violence offenses from possessing or carry firearms

SB 15 – “Keeping Georgia’s Schools Safe” – proposing recommendations from the report by the Senate School Safety Study Committee

SB 23 – prohibits the movement of trailers and semitrailers on highways, unless transporting people or property

SB 25 – clarifies the law on overtaking a school bus by specifically allowing drivers to pass when there is a median, unpaved area or physical barrier

SCHR will provide updates on these and all other bills introduced this legislative session related to criminal justice reform.

Advocacy for Criminal Justice Reform in 2019

The Justice Reform Partnership (JRP), led by SCHR, continues to grow around the state, and partners will work together this session to ensure criminal justice reform is a priority in 2019. Along with the annual Justice Day at the Capitol on February 26th, JRP will also host an eight-week series at the capitol called Talk Justice Tuesdays (TJT) in which partners will focus on specific issues and opportunities for reform this session.

Last Tuesday, SCHR hosted the first TJT – The Road to Criminal Justice Reform in 2019. More than 30 people attended, and the group discussed expectations for criminal justice reform in 2019, important legislative committee assignments, and identified the issues we expect will be considered this year: mental health, bail, dignity for incarcerated women, solitary confinement, expungement, and voting rights.

There will be several other chances to come to the capitol to discuss important criminal justice issues and push for real reforms that will benefit all Georgians. You can find the full schedule for the remaining here: www.JusticeDay365.com.

The 2019 Legislative Session has Begun

On Monday, the 2019 Legislative Session began with the swearing in of Governor Brian Kemp, Lieutenant Governor Geoff Duncan, Secretary of State Brad Raffensperger, lawmakers, and other state elected officials. There are a lot of new faces at the Capitol, and a seemingly palpable recognition that there has been a shift in political power. Though the Senate and the House are still overwhelmingly led by Republicans, the Democrats gained thirteen seats in the last election, and now have a significant majority in the Fulton County delegation. Typically, lawmakers are more willing to pass the new Governor’s agenda in his first legislative session, in order to establish a mutually beneficial relationship that allows both branches to more easily create and enforce the laws they want. At this point, we are unsure of what will happen with criminal justice reform in the next forty legislative days, but we are expecting a longer than usual session because of the semi-late start, the upcoming MLK holiday, and the impending Super Bowl that will be held in Atlanta at the beginning of February.

While Governor Kemp repeatedly said he supported the reforms passed by his predecessor, Governor Nathan Deal, he has yet to adopt any of the specific reforms recommended by Deal’s Council on Criminal Justice Reform in his policy agenda. The Council made clear in its final report that there is still work to be done, and asked lawmakers in 2019 (and beyond) to consider finding ways to assess and collect fines and fees in a way that ensures that vulnerable communities are not disproportionately impacted, improving access and quality of mental health treatment so that people who need help are not put in jail, and changing the use of harsh and ineffective mandatory minimum prison sentences. The only criminal justice issues that Kemp has committed to so far has been to aggressively prosecute gang activity, immigration violations, and sex trafficking. None of these policies would improve public safety nor spend taxpayer dollars wisely. For example, Kemp has said he wants to see the creation of a gang database, in order to track and monitor everyone believed to be involved in gang activity. The research makes clear, however, that these databases do not keep people safe; instead, they unfairly target racial minorities and waste of resources that could more appropriately be spent on improving public schools, expanding affordable housing, and increasing the opportunities for economic mobility.

SCHR is ready to respond to any legislation introduced this session that would result in policies that advance racial injustice, criminalize poverty, endorse the death penalty, or weaken the state’s public defender system. Despite the concern with Kemp’s criminal justice priorities, SCHR is working with lawmakers on both sides of the aisle to create the mental health study committee recommended by the Council on Criminal Justice Reform. We also are working with Republicans and Democrats to pass legislation to improve jail and prison conditions for women, address the inhumane use of solitary confinement, and tackle sentencing disparities.

Community engagement during this session will be critical to the success of reforms that will improve the lives of Georgians impacted by the criminal legal system. To that end, there will be several advocacy opportunities for people interested in criminal justice reform during the 2019 session. The Justice Reform Partnership, the SCHR-led coalition of nearly eighty organizations committed to criminal justice reform, will host eight advocacy days at the Capitol this session. These days, titled Talk Justice Tuesdays, will be held every Tuesday beginning on January 22nd through March 19th, which will include the annual Justice Day at the Capitol on February 26th. Each Tuesday, JRP organizations will focus on an aspect of the system and engage interested individuals by offering information and opportunities to advocate for specific policy reforms. Topics for Talk Justice Tuesdays include expungement, conditions for incarcerated women, the impact on children and families, and access to housing. Additional information about Talk Justice Tuesdays and Justice Day at the Capitol can be found at www.JusticeDay365.com.

Georgia Prisoners Reach Settlement to Reform One of the “Harshest and Most Draconian” Solitary Confinement Units in the Nation

The Southern Center for Human Rights and Kilpatrick Townsend & Stockton, LLP, have reached a settlement with the Georgia Department of Corrections in Gumm v. Sellers, a case challenging solitary confinement in Georgia’s Special Management Unit (SMU). Plaintiff Timothy Gumm was held in the SMU for 7.5 years.  Plaintiff Robert Watkins is now in his tenth year of confinement in the unit.

Conditions in the SMU Before Litigation

Built in 2007, the SMU was designed to isolate people in an extremely harsh form of solitary confinement.  Those assigned to the unit were locked inside specially equipped, parking-space sized cells that deprived them of normal communication and socialization with others.  For many years, the Georgia Department of Corrections placed no fixed limits on who could be confined to the unit, what conditions they would endure while there, or how long they would be subjected to those conditions.

By 2017, the unit had deteriorated to the point where people were being confined to isolation cells for nearly 24 hours per day on average, unable even to see out of a window or interact normally with another person.  A number of them stayed in these cells literally around the clock for months at a time.  Research shows that isolation of this kind for even a few days can produce a range of harmful effects, but Georgia placed people in these conditions for years with no clear pathway out.  People frequently were forced to restart the program from the beginning.  Many were able to leave the unit only after completing their prison sentences and being released to society.

Nearly half of those assigned to the unit had documented mental disorders requiring treatment, and they frequently resorted to extreme measures to cope with the stress of isolation, including cutting themselves, swallowing harmful objects or pills, banging their heads against the wall, and smearing feces on their cells and bodies.  Two men committed suicide in the SMU in 2017.

After touring the unit in October 2017 and speaking with the people confined there, nationally renowned psychologist Dr. Craig Haney authored an expert report observing that some of those he spoke with “were among the most psychologically traumatized persons I have ever assessed in this context.”  Dr. Haney’s report identified numerous problems that made the SMU “one of the harshest and most draconian” facilities in the country and placed people housed there “at significant risk of very serious psychological harm.”

“Dr. Haney’s report was a watershed moment that caused the Department to reexamine its philosophy around solitary confinement,” said SCHR attorney Sarah Geraghty.  “A civilized society doesn’t lock people in isolation cells for years on end.  It was past time to move out of the dark ages.”

Settlement Terms & Reforms Going Forward

In December 2017, the parties reached a settlement agreement concerning conditions and procedures in the SMU.

The settlement terms provide that:

  • Every person held in the SMU must be allowed at least 4 hours per day out of their cells except on weekends and holidays. People will no longer have out-of-cell time denied as a punishment except for short periods following serious misconduct.
  • Except in narrowly defined circumstances, assignment to the SMU cannot exceed 24 months. Any prisoner held for longer than two years will be reviewed quarterly by a special panel composed of senior security, legal, and mental health professionals.
  • People may qualify for transfer from the SMU as soon as 13 months after assignment and may not be arbitrarily moved backward in the program.
  • Everyone in the SMU is assigned a computer tablet equipped with educational programs, email capability, music, and other media.
  • People are also permitted library access and the opportunity to participate in at least 120 minutes per week of out-of-cell programming or classes.
  • The criteria for assignment to the SMU will be modified to limit those who may be placed in the unit.
  • Before assignment to the SMU, and in conjunction with every 60-day or 90-day review hearing, people will receive an out-of-cell mental health evaluation performed by a licensed mental health provider. If the provider finds that someone is decompensating or is likely to decompensate, they will be transferred to an appropriate treatment facility.

The SMU’s population has decreased significantly due to the recent reforms.  In October 2017, the population was 180.  Today it is about 100.

“This settlement has provided and will continue to provide critical relief to the people who have experienced extraordinary suffering while confined in Georgia’s SMU,” said Allen Garrett, a partner at Kilpatrick Townsend & Stockton, and one of the plaintiffs’ counsel.  “As the result of this case, the Department of Corrections has agreed to meaningful reforms that will provide SMU prisoners with essential human interaction and tangible guideposts for getting out of the SMU,” said Garrett.

The settlement will not become final until the federal court approves its terms as fair and reasonable.

FIRST STEP ACT passes the Senate

The FIRST STEP Act (FSA) is a national, bipartisan piece of legislation that passed the Senate last night, in a vote of 87 to 12. It is expected to become law. In today’s divisive, hyper-partisan political landscape, the FSA is an act full of unexpected compromises. It contains some truly positive steps forward, but it also contains dangerous provisions that have the potential to further harm the communities most impacted by mass incarceration, and further entrench wealth and race-based inequities.

SCHR has long been committed to ending the criminalization of race, and supported the federal reform in 2010 to end the sentencing disparity between crack and powder cocaine. A big problem with the implementation of that reform — which the FSA will fix — is that the reforms were not retroactive, meaning thousands of people were unable to benefit from the change. If passed, the FSA would make those reforms retroactive, and reduce the sentences of about 2,500 people.

The FSA would also take steps towards easing harsh mandatory minimum sentencing under federal law. The law would expand the use of a “safety valve” which allows judges to use their discretion to skirt mandatory sentences and would change the “three strikes” rule, so that people  with three or more convictions (including non-violent drug charges) will receive an automatic 25 years, instead of life. Further, some felony drug charges that currently result in an automatic 20 year sentences would be reduced to 15 years.

The FSA also includes provisions to protect the dignity of incarcerated women. The bill would ensure that pregnant women are never shackled during childbirth or post-partum recovery. It also mandates that federal prisons offer free feminine hygiene products; products that are currently prohibitively expensive for many incarcerated women. Currently, women without means are often forced to choose between buying feminine hygiene products and calling their families. The FSA would also require the Bureau of Prisons to place people closer to their homes and ensure people are matched with appropriate rehabilitative services.

The bill also modestly increases the amount of “good time” credits that incarcerated people can earn. The good news is that the change would be retroactive, which would mean that (potentially) thousands of people would qualify for earned release the day the bill goes into effect. The bad news: the good time credits don’t apply to immigrants. The worse news: in order to qualify for good time credit, prisons will be using algorithmic risk assessments. These risk assessments determine someone’s risk factor based on a number of factors including their criminal histories.

We know at the Southern Center that these risk assessments do not take into account the over-policing of black and brown communities or the criminalization of poverty. As The Movement for Black Lives points out in their nuanced opposition to the FSA, the risk assessments will be “using criteria that fails to meet even basic Americans with Disabilities Act standards.” There is good reason to believe that these risk assessments will create more barriers to early release and further marginalize people with disabilities.  It bears repeating: risk assessments based on factors like criminal history, educational background and other demographic considerations pose a real danger of more deeply entrenching institutionalized patterns of racial bias and wealth-based detention.

Also, of concern is that the bill mandates the use of electronic monitoring for the people who have been deemed eligible for early release. The expansion of surveillance practices, which advance the profit agendas of companies who seek to benefit from caging and keeping people under correctional control, is something that SCHR will continue to monitor closely.

Because the FSA applies only to the federal prison system, the potential impact of its passage will be minimal. There are roughly 181,000 people incarcerated in federal prisons, a modest – but important – fraction of the more than two million people in local jails and state prisons. In Georgia, of the more than 102,000 people incarcerated, the FSA will apply only to the approximate 7,900 people being held in federal prisons in this state.

The FIRST STEP Act is just that: a first step. Because the passage of FSA would mean that some people incarcerated in our federal prisons would receive lighter sentences and some dignities for incarcerated women would be restored, SCHR is endorsing it. But we know how important it is to support this bill with clear eyes, and we will continue to sound the alarm on aspects of the FSA that have the potential to further harm individuals, families, and communities. Most importantly, we are committed to ensuring that the work doesn’t stop at the FIRST STEP.

Clemente Aguirre is the Nation’s 164th Death Row Exoneree

Clemente Aguirre-Jarquin, 38, walked out of a Florida detention facility on the afternoon of November 5th, 2018, wiping away tears. He hugged his legal team and his supporters. It was the first time in 14 years — a decade of which he spent awaiting execution on death row —  that he was not behind bars. He is now the 28th person who has been exonerated from death row in Florida, and the 164th  nationwide.

Aguirre-Jarquin’s 14 year ordeal begin in 2004.  The Honduran immigrant was living in a trailer park in Altamonte Springs, Florida — a community where neighbors knew one another and socialized often. In the early morning hours of June 18th, Aguirre-Jarquin went to the home of his neighbors, Cheryl Williams and her mother Carol Bareis, to see if they had any beer. He opened the door to the trailer and was greeted by a horrific sight: the bloodied body of Cheryl Williams on the floor. He tried to revive her, but it quickly became clear that she was dead. As he ventured further into the home, he found the body of Carol Bareis, with a bloodied knife nearby. Fearing that the assailant was still in the home, he picked up the knife in an act of self-defense. Once realizing the home was empty, he ran outside, dropping the knife in the grass. Because he was in the United States illegally, Aguirre-Jarquin didn’t report the crime. He didn’t feel he could risk deportation back to his home country of Honduras, from which he had fled after narcotics traffickers attempted to recruit him into their gang.

Aguirre-Jarquin initially denied knowing anything about the murders when police questioned him, but eventually told investigators the truth about discovering their bodies. He was arrested for tampering with crime scene evidence. Police later claimed that the knife used to commit the murders resembled one at the restaurant where Aguirre-Jarquin worked, and the head chef claimed that one was missing. The facts looked bad: 64 of the 67 bloody shoe prints found in the trailer matched Aguirre-Jarquin, and a “bloodstain pattern analyst” testified at trial that his shorts had contact blood stains on both the front and the back. At one point in his trial, Aguirre-Jarquin rose and shouted: “they’re trying to kill me for no reason! I didn’t do it. I didn’t kill nobody.”  Yet the jury convicted him, and voted, 7-5, to sentence him to death.

In 2007, it came to light that the fingerprint analyst who had claimed that Aguirre-Jarquin’s prints were on the murder weapon had been wrong (an unsurprising development; fingerprint analysis is often done incorrectly). Aguirre-Jarquin filed a motion for new trial based on that disclosure, but in 2009, the Supreme Court again upheld his conviction and death sentence.

Then, in 2011, attorneys from the Capital Collateral Regional Counsel and the Innocence Project won DNA testing for more than 80 items of evidence. These results were presented at an evidentiary hearing in 2013, along with a crime scene expert who testified that the blood on Aguirre-Jarquin’s clothes was in fact not consistent with spatter, but the result of transfer from picking up the victims. A grand total of 0 items of evidence tested contained Aguirre-Jarquin’s DNA. The DNA of Samantha Williams, the daughter and granddaughter of the victims, was found in 8 places in the trailer, all in places consistent with her being the attacker (despite the fact that she claimed not to have been at home on the night of the murder.) Williams had a long history of serious mental illness, and according to her attorneys, a “long and well-documented history of substance abuse, serious mental illness (including impulse control disorder and intermittent explosive disorder), blackouts, and irrational anger, all of which she suffered from at the time of the murders.” She had been hospitalized roughly 60 times for psychiatric evaluations and fought frequently with her mother.

While Aguirre-Jarquin’s appeal for a new trial was pending, defense lawyers were allowed to present the testimony of four people to whom Williams had confessed her guilt in the murders. Her best friend testified that Williams had confessed twice to her in 2010. A neighbor further testified that Williams had said “I’m crazy, I’m evil, and I killed my grandmother and my mother” at a neighborhood barbeque in 2012.

Nonetheless, the circuit judge once again denied the motion for a new trial. “Mr. Aguirre should never have been prosecuted,” said Marie-Louise Parmer, one of Aguirre-Jarquin’s defense lawyers. “And, when the prosecution was shown to be so clearly wrong and unjustified, the State dug in even deeper and law enforcement refused to investigate new leads.”

Aguirre-Jarquin’s team appealed, and the case wound its way up to the Florida Supreme Court. In October of 2016, the Court reversed the denial of new trial, vacated his conviction and death sentence, and set a new trial. “No longer is (Aguirre-Jarquin) the creepy figure who appears over Samantha’s bed in the middle of the night;” the Court stipulated. “He is now the scapegoat for her crimes….And when the DNA evidence is considered together with Samantha’s numerous, unequivocal confessions, the result is reasonable doubt as to (Aguirre-Jarquin’s) culpability.”  “We commend the Florida Supreme Court for acknowledging the extensive and powerful DNA evidence of Mr. Aguirre’s innocence,” said Nina Morrison, one of Aguirre-Jarquin’s attorneys from the Innocence Project.

The retrial was set for 2018. In March of this year, during jury selection, a mistrial was declared after jurors were overheard discussing their Internet searches in attempts to learn more about the case. The jury selection process for the second retrial began in October of 2018. On October 29th, the defense put forth an affidavit from Samantha Williams’ then-boyfriend’s current wife, which directly contradicted the boyfriend’s testimony at Aguirre-Jarquin’s 2006 trial that Williams had been with him for the duration of the night when the murders took place. The affidavit revealed that he had known that Williams had indeed gone back to the trailer that night, telling him that she  “had a bad feeling about her mother.” On November 5th, while jury selection was still ongoing, the prosecution abruptly dismissed all of the charges against Aguirre-Jarquin. It was an unexpected victory – the culmination of years of dogged work by a large legal team –and the end to Aguirre-Jarquin’s 14 year nightmare.

Timely Justice?

Around the same time of Aguirre-Jarquin’s evidentiary hearing in 2013, Governor Rick Scott signed the ghoulishly named “Timely Justice Act” into law. The legislation argued that the process from conviction to execution took too long, with the average length of stay on Florida’s death row hovering at nearly 15 years. Despite the fact that the state holds the dubious distinction of the most death-row exonerations in the country — Florida has released 28 prisoners previously sentenced to death — the new law significantly accelerated the pace of the capital punishment process, requiring the governor to issue an execution warrant within just 30 days of death row prisoners exhausting their legal remedies. Once the death warrant is signed, the execution must be carried out within 180 days. But the Timely Justice Act didn’t have enough teeth for the Florida legislature — on November 6th, 2018, a mere 24 hours after Mr. Aguirre was fully exonerated, a constitutional amendment was voted into law in Florida.

The text that Floridians read at the voting booth contained nothing about capital punishment. On the ballot, Amendment 6 discussed creating constitutional rights for crime victims, requiring courts to facilitate victims’ rights, and raised mandatory retirement age of judges from 70 to 75, in addition to a few more changes, none of which dealt with the death penalty.  If you were to read further than what’s included on the ballot, though, you would learn that a vote in favor will limit “all state-level appeals and collateral attacks on any judgment” in a capital case within five years, “unless a court enters an order with specific findings as to why the court was unable to comply with this subparagraph.” This is not justice. In the case of Clemente Aguirre-Jarquin — and 27 others before him — it would constitute a deadly, irreversible mistake.

“Clemente’s case raises many layers of concern about our criminal justice system, the impact of race and national origin in police investigations and subsequent prosecutions, and the inherent fallibility of the death penalty,” said Marie-Louise Parmer. “The case demonstrates a need for improved funding for indigent defense, training for judges and prosecutors to understand our system is fallible and to be receptive to new evidence, and a recognition of the importance of the interplay between the indigent defense bar and top tier civil law firms. We, as Americans, should carefully and honestly take the time to review and consider whether we as the only Western Democracy that still imposes the death penalty should still be doing so.”

Aguirre-Jarquin is now living in Tampa, in a home provided to him by the Sunny Center, a nonprofit started by Sunny Jacobs – herself an alumnus of Florida’s death row, where she was incarcerated for 17 years for a crime she didn’t commit – and her husband Peter Pringle, an innocent man who had been sentenced to death in Ireland. Aguirre-Jarquin lives next door to Derrick Jamison, who spent 20 years on Ohio’s death row before he was exonerated in 2005. Freedom, Aguirre-Jarquin told the Orlando Sentinel, “is a beautiful dream.”

Aguirre was represented by a team of dedicated lawyers over the years: Maria DeLiberato, Julissa Fontan, Marie-Louise Palmer, Nina Morrison, Barry Scheck, Lindsey Boney, Kevin Newsome, Ashley Burkett, Frank Bankowitz, Brooks Proctor, Dylan Black, & Josh Dubin. 

The End of Louisiana’s “Jim Crow Jury”

Last week, Louisiana voted overwhelmingly to abolish non-unanimous jury verdicts – a relic of Jim Crow that has, since its inception, silenced black jurors with terrifying and profound precision. Louisiana was one of only two states that allowed verdicts with only ten of twelve jurors. While resistance to Jim Crow juries has always existed, a pioneering study of over 5,000 jury trials in Louisiana between 2011 and 2017 gave a final burst of momentum to the movement. Tuesday’s historic “Yes” vote on Amendment 2 came almost exactly 120 years after the Jim Crow Jury was first adopted at the Louisiana Constitutional Convention of 1898, expressly convened “to establish the supremacy of the white race in this State to the extent to which it could be legally and constitutionally done.”

120 years later, there should be no doubt that the Jim Crow jury was successful. The empirical evidence compiled exposes non-unanimous jury verdicts as an exceptionally effective tool of white supremacy, operating exactly as intended: first, to stifle the voices of black jurors who understand intimately the injustice of the criminal process, and second, to grease the wheels of the carceral machine intent on efficiently criminalizing black bodies. While black jurors made up less than a third of total votes in non-unanimous jury verdicts between 2011 and 2017, they cast more than half of these verdicts’ “empty votes,” or votes that were disregarded in a non-unanimous verdict. Not only were black jurors silenced, it was black defendants who were disproportionately convicted in these non-unanimous decisions. When a conviction was reached against a black defendant in Louisiana, there was a 43 percent chance that the verdict was non-unanimous. When the convicted defendant was white, that number dropped to 33 percent.

The margin of victory for Amendment 2—at nearly 2-to-1 (with only 3 of Louisiana’s 64 parishes opposed)—was a remarkable shift for a state that has long led the country in its tough-on-crime approach to criminal justice. Until very recently, Louisiana was the most incarcerated state in the most incarcerated country in the world. But it was another fact about Louisiana’s criminal process that featured prominently in the public debate over Amendment 2: Louisiana—and New Orleans specifically— is the wrongful conviction capital of the United States. Of the twenty-five individuals exonerated since 1990, eleven were sent to prison by non-unanimous jury convictions. 85 percent of voters in New Orleans voted in favor of the Amendment, which, alone, gave it almost enough support to succeed. The second highest percentage of support came from Caddo Parish, where more people were sentenced to death per capita from 2010 to 2014 than any other county in the United States. (The Parish’s former District Attorney, Dale Cox, has often said that Louisiana needs to “kill more people.”)

There were few clear indicators, however, that determined how a parish would vote, revealing the true extent of the campaign’s support. Some of the most non-white parishes, like East Carroll and Madison, had relatively low percentages of “Yes” votes, while some predominantly white parishes, like Jefferson, had some of the highest percentages. One of the few factors that did seem to have an effect was the level of vocal opposition from that Parish’s district attorney. In Sabine Parish, one of the three parishes that voted in opposition, District Attorney Don Burkett was one of the most outspoken critics of Amendment 2. Yet in an ironic twist, the powerful Louisiana District Attorneys Association (that has long fought for split-juries) did not take a position on Amendment 2. The LDAA does not take public stances unless it reaches a unanimous decision amongst its members.

Amendment 2’s overwhelming victory should not be understated: grass-roots organizers built an extraordinarily diverse coalition that should serve as a model for justice reform in the future. As Mercedes Montagnes of the Promise of Justice Initiative told us, “Our courts hold out the promise of justice for every citizen. With the passage of this Amendment, we are one step closer to making this promise a reality for the people of Louisiana. Together, our coalition and the people of Louisiana have shown that we are ready to move our criminal justice system forward and make justice a reality for all.”

As the movement looks ahead to the next battle for equal justice, how we frame this victory is critical. Across the political spectrum, Amendment 2’s success has been heralded as the final knockout blow for Jim Crow. “You, now, ladies and gentlemen have ended 138 years of Jim Crow,” declared Sen. J.P. Morrell, the sponsor of the legislation that led to Amendment 2’s place on the ballot. And while non-unanimous jury verdicts may have been the most egregious relic of Jim Crow left standing, they were simply the most visible piece of Jim Crow’s legacy on our criminal legal system, signifying the rot that reaches to the core of criminal justice in the United States. The abolition of the Jim Crow Jury is not the final blow, but rather, an essential first step in the long process of eradicating the structural racism at the heart of the country’s carceral regime.

Tennessee Plans to Execute Edmund Zagorski in Electric Chair Tonight

Tonight, in Tennessee, barring any last minute intervention, Edmund Zagorski will be strapped into an electric chair. Four sponges soaked in brine will be attached to his ankles to increase conductivity, another brine-soaked sponge will be placed on his forehead, a shroud will be placed over his face, and he will be shocked to death. Two shocks, both 1750 volts.

Mr. Zagorski requested that he be executed by electrocution on October 8th, just hours after the Tennessee Supreme Court upheld the use of a 3-drug lethal injection cocktail, which multiple experts have warned would lead to a very painful death. Mr. Zagorski said that he preferred the thought of a 35 second death, with two large shocks, to a potentially protracted, agonizing death via lethal injection. He’s not alone in his trepidation — this summer, in an effort to avoid a botched execution, eight death row prisoners in Alabama requested to be executed in the gas chamber, rather than face lethal injection.

But in choosing the electric chair, will a slow and painful death be avoided? Other death penalty states have moved away from the use of the electric chair; the Supreme Courts in Georgia and Nebraska ruled that its use is unconstitutional. In the 5-4 Georgia Supreme Court ruling, the electric chair was denounced for “its specter of excruciating pain and its certainty of cooked brains and blistered bodies.” The ruling went on to say that death via electric chair inflicts “purposeless physical violence and needless mutilation that makes no measurable contribution to accepted goals of punishment.” There are multiple instances of botched executions via electric chair. Jesse Tafero, who was executed in Florida in 1990, had smoke and flames shooting from his head. In 1999, blood spilled from under an prisoner’s mask as he was being shocked to death in the electric chair.

Compounding an already horrific situation, the electric chair which will be used to kill Zagorski was built by a self-taught expert — with no engineering degree — and hasn’t been used for over a decade. The expert, Fred Leuchter, worries that his device will malfunction. “What I’m worried about now is Tennessee’s got an electric chair that’s going to hurt someone or cause problems. And it’s got my name on it,” Leuchter told AP. “I don’t think it’s going to be humane.”

The last execution using the electric chair was in Virginia, in 2013. There is no humane means of executing another human. But it is especially tragic that in 2018, a person sentenced to die must be forced to choose a method of execution that has been ruled unconstitutional and cruel, in an attempt to avoid another method that is likely unconstitutional and cruel.

The Tennessean has published a timeline of what tomorrow’s execution will look like, below.

At 5 PM, Zagorski will be dressed in cotton pants, a shirt and cotton socks or cloth house shoes.

Immediate family of the victims, two men Zagorski is convicted of killing, will arrive at the prison by 6:15 p.m. Around the same time, prison staff will shave Zagorski’s head and  legs.

At 7 p.m., prison staff will take Zagorski out of his cell next to the execution chamber. He will be led to the electric chair.

Staff will strap Zagorski into the chair with an electric chair harness and wrist straps.” Four sponges soaked in salt water will be strapped around his ankles to increase conductivity.

Zagorski’s lawyer, federal public defender Kelley Henry, and an attorney for the state will leave the execution chamber.

At 7:10 p.m., blinds to the witness rooms will open and the warden will ask Zagorski for last words.

After that, prison staff will place another sponge soaked in salt water on Zagorski’s head. Staff will then place the electric chair head piece” on Zagorski’s head. They will also  place a shroud around his face.

More salt brine will be poured over the ankle sponges.

The warden will give the signal to proceed, and the executioner will activate the electric chair.

The electric chair will release 1,750 volts of electricity for 20 seconds, will stop for 15  seconds and then will release 1,750 volts for another 15 seconds.

After the first wave of electricity, officials will wait five minutes and then close the blinds into the witness room.

A doctor will check Zagorski for signs of life. If there are none, the doctor will pronounce him dead.

If Zagorski is still alive, the blinds will be raised, another round of electricity will be administered and the doctor will be called in again.

The warden will announce when Zagorski’s death sentence is complete, and will ask witnesses to leave.