Impartial, consistent sentencing is still not a reality for too many defendants in the US justice system. Data from the National Registry of Exonerations show that wrongful convictions in death penalty cases are most often the result of misconduct by officials, including false accusations and perjury. African Americans are the most likely to be wrongly convicted; to date, they represent the majority of defendants to be exonerated. Just a handful of counties in the US are responsible for most death sentences. Our lawyers are currently involved in several cases that highlight the problems with wrongful conviction and the use of the death penalty.
"It's not about excusing terrible crimes," says Louis O'Neill, counsel and Director of Pro Bono. "It's about trying to ensure that the innocent and intellectually disabled people are not executed, and to prevent and correct mistakes, of which there are too many."
In one example, we have represented the Federal Republic of Germany since 2012 in its bid to save a dual citizen of Germany and the US from execution in South Carolina—a quest that came to a successful milestone in late 2017.
Charged with murder in 2003, the petitioner has fetal alcohol syndrome that has so seriously affected his cognitive abilities that he functions at the emotional level of a nine-year-old child. This condition was not brought up during the trial or sentencing, and he was sentenced to death.
Our lawyers from New York and Boston, with research assistance from lawyers in Frankfurt, filed numerous amicus briefs on behalf of the Federal Republic of Germany arguing that the petitioner's death sentence should be vacated because of his trial counsel’s failure to present evidence of his fetal alcohol syndrome and because individuals with this condition should be ineligible for the death penalty, as are children and intellectually disabled people. Ultimately a federal magistrate judge recommended—on the sole issue addressed in our most recent amicus filing, an innovative approach at the initial habeas corpus stage before a federal district court—that the South Carolina Post-Conviction Review Court erred in ruling that counsel was not ineffective in failing to investigate the petitioner's fetal alcohol syndrome. The Magistrate recommended that the death sentence be vacated and that, in a reasonable period of time, either a resentencing trial take place or a lesser sentence be imposed.
Update: On March 9, 2018, the Court granted the habeas petition and vacated the death sentence on the sole issue addressed by the White & Case team in our amicus brief—that counsel was ineffective in failing to investigate our client's fetal alcohol syndrome. Such a win on habeas review is rare for death row petitioners in South Carolina and even more infrequent on Sixth Amendment claims of ineffective assistance of counsel.
Stay of execution for DNA testing
We were able to achieve a stay of execution in a death penalty case just days before the execution date, arguing that the DNA evidence had not been properly assessed and that no trace or forensic evidence connected our client to the murder. Despite being in possession of the murder weapon, as well as the victim’s blood-stained clothes, the state had not conducted DNA testing on these items.
After we were recruited by the ABA Death Penalty Representation Project, a team of lawyers from around the world reviewed 16 years of records and mounted a last-minute defense for our client. We successfully persuaded the court to order DNA testing of the items in the state's possession, and we are currently waiting for the analysis to be completed.