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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

In Its Rush to Kill, Arkansas May Have Executed an Innocent Man

Ledell Lee
Ledell Lee
Ledell Lee’s first hard-knock moment came even before he was born. His mom, 16 and on her third pregnancy by a man years older than she was, drank and smoked through his pregnancy. Because of her substance abuse, Ledell was born with a fetal alcohol syndrome disorder, a medical condition that left him with brain dysfunction and intellectual disability.

Twenty-eight years later in 1993, Ledell Lee was arrested for the murder of Debra Reese. And on Thursday night, just before midnight, the state of Arkansas killed Ledell in a gross miscarriage of justice.

From the beginning, Ledell proclaimed his innocence and wrote to everyone he could think of, beseeching lawyers to fight for him. His journey through the legal system consisted of an unbroken chain of drunk, conflicted, and grossly incompetent attorneys. No one who represented Ledell ever looked at the chasm between the state’s theory of guilt and the proof presented at trial. For instance, the crime scene was drenched in blood, but the state witnesses who put Ledell at the scene said he didn’t have any blood on him. None of the limited forensic evidence tested, like fingerprint analysis, at the time matched him. Ledell has been asking for DNA testing for decades.

Until last week, when our team joined his defense and began to frantically investigate the case, no defense lawyer had ever hired a psychologist to test Ledell’s intellectual disability. And no court had ever been troubled by the one pertinent claim his former counsel had raised: that a member of the prosecution team was having an affair with the trial judge at the time of Ledell’s trial.

As a death penalty lawyer who handles death penalty cases exclusively, I am all too familiar with the story of poor lawyering and court failures. That said, the facts of Ledell’s case stand out and are an indictment of the system that put him to death. Serious questions of guilt, conflicts of interest by defense counsel, a deeply biased judge, and never presented evidence of intellectual disability: Any one of these bases should be enough to pause an execution. It is profoundly disturbing that even taken together, they weren’t enough to move the courts or the governor to spare his life.

I got involved in the case two weeks before Ledell’s execution after reading that he was about to die without any lawyer ever having investigated the fact that he might have an intellectual disability. I called a friend who is a life history investigator in capital cases, and together we decided that we should see if there was anything we could do to help Ledell. We knew we would be running against strong headwinds: Courts are hostile to any claims close to an execution date, and we were incredibly close. But we thought if there was a small chance we could do something, we had to try. We made contact with Ledell’s Arkansas counsel, who had only been appointed months before, and who readily welcomed our assistance.

The more I learned about his case, the more troubled I felt. There were gross, shocking abuses throughout. I discovered that Ledell’s relationship with his lawyers had broken down over his insistence on defending his innocence. His lawyers had requested to withdraw and stopped working on his case. The judge, the same one having an affair with the prosecutor, wrote to the Arkansas Supreme Court and opposed new counsel for Ledell. He did so while personally disparaging him. The same judge then presided over Ledell’s trial. This was not normal, and far outside of the bounds of the kind of impartiality we expect from judges.

The history of Ledell’s defense provided a tour of the worst our profession has to offer, including a lawyer who was stumbling and slurring due to alcohol consumption during his representation of Ledell and another who was sanctioned by the bar for their terrible performance in his case.

➤ Click here to read the full article

Source: ACLU, Cassandra Stubbs, Director, ACLU Capital Punishment Project, April 24, 2017

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