The U.S. Supreme Court has granted review of an Arizona death-penalty case in which the state courts first refused to consider a defendant’s mitigating evidence and then denied his request for a jury sentencing hearing after his death sentence was overturned. The Court on June 10, 2019 granted the petition for writ of certiorari filed by Arizona death-row prisoner James Erin McKinney (pictured) 26 years after he was first sentenced to death.

In 1993, McKinney was convicted for a double murder committed during the course of a burglary. At that time, Arizona law provided for a jury trial on guilt or innocence and a separate penalty-phase trial in front of a judge. In his penalty-phase hearing, McKinney presented mitigating evidence of a terrifying childhood replete with instability, abuse, and neglect. The evidence from his early childhood showed that his mother was repeatedly forced to flee from his alcoholic father. McKinney and his siblings lived in “squalor” in a house littered with dirty diapers, sharing a room with livestock and going to school in “dirty clothes that reeked of urine from being on the bedroom floor with the animals.” McKinney “suffered regular and extensive physical, verbal, and emotional abuse.” His stepmother regularly beat him and his siblings, leaving marks and bruises. Often, they were locked out of the house for hours without food and water. According to testimony from a psychologist, McKinney was diagnosed with PTSD “resulting from this horrific childhood.” The trial judge found that McKinney's childhood was “beyond the comprehension of most people,” but refused to consider any of that evidence as a result of Arizona Supreme Court caselaw requiring mitigating evidence to be have a direct causal connection to the crime. Without that evidence, the trial judge sentenced McKinney to death.

In June 2002, the U.S. Supreme Court declared the state’s judicial sentencing procedures unconstitutional, ruling in Ring v. Arizona that capital defendants had a right to a jury determination of all facts upon which a death-sentence could be imposed. However, the Court later ruled in Schriro v. Summerlin that it would enforce Ring only in cases that had not yet completed direct review at the time Ring was decided. The Arizona state courts upheld McKinney’s conviction and death sentence, but the U.S. Court of Appeals for the Ninth Circuit reversed his sentence, holding that Arizona’s requirement that mitigating evidence be “causally connected” to the crime violated the U.S. Supreme Court’s long established 1982 decision in Eddings v. Oklahoma. The appeals court ruling also affected every other Arizona death-penalty case in the 15-year time period in which the state courts unconstitutionally limited mitigating evidence.

The Ninth Circuit returned the case to the Arizona courts for resentencing, but rather than giving McKinney a new sentencing hearing, Pima County prosecutors asked the Arizona Supreme Court to conduct its own independent review of his sentence. McKinney argued that resentencing by the court would violate his right under Ring to have a jury decide the aggravating and mitigating evidence in his case. The Arizona Supreme Court sided with the prosecutors and independently reweighed the aggravating and mitigating evidence. Affording little weight to McKinney's PTSD, the court resentenced him to death. McKinney’s Supreme Court petition argued that Arizona’s refusal to provide him a jury sentencing violated his rights under Ring and Eddings and deviated from the approach of other state and federal courts that had uniformly required jury resentencing in similar circumstances.

Ben Cohen of the Promise of Justice Initiative, which filed an amicus brief in support of McKinney, called the decision to hear the case “a positive sign that the court is not going to throw up its hands and ignore unconstitutional death sentences.” John Mills of Phillips Black, a non-profit law practice that also submitted an amicus brief, said McKinney’s case “presents an opportunity to reaffirm the importance of juries in weighing the evidence about whether an inmate should live or die.” The Court’s resolution of the issue could affect resentencing procedures in more than twenty other cases.

A study of tax rates and crime rates in Texas counties has found that death-penalty trials contribute to higher property tax rates and increased rates of property crime. Alex Lundberg (pictured), an assistant professor of Economics at West Virginia University, analyzed budgetary and crime rate data from Texas counties and found that counties responded to the high cost burden of capital trials by raising property taxes and reducing public safety expenditures. As an example, he cites Jasper County, Texas, which “raised property taxes by eight percent to fund a joint trial for suspects in the 1998 murder of James Byrd. Another Texas county reduced public safety expenditure after voters rejected a property tax increase.” The reduction in public safety spending did not affect violent crime, Lundberg found, but “as counties reduce expenditures on public safety in the two years up to the conclusion of a capital trial, their property crime rate rises by an estimated 1.5%.”

Studies consistently show that death penalty trials are more expensive than non-capital trials in which defendants face a sentence of life without parole. Standard practice calls for two lawyers on each side, and compertently litigated cases involve lengthy jury selection, multiple expert witnesses, and extensive investigation into the defendant’s background to discover and present mitigating evidence intended to persuade the jury to spare a defendant's life. Lundberg’s data showed that Texas “counties bear an average of $1,400,000 in additional expenses coded as ‘judicial’ or ‘legal’ in the two years up to the conclusion of a trial (or $700,000 in a one-year window).” He examined county data because “[a] few activities, such as hearing automatic appeals, housing death row inmates, and, occasionally, assigning public defenders to indigent defendants, are covered by the state, but the bulk of the expense falls on the county in which a capital trial takes place.” To cope with the high cost of death-penalty trials, “counties meet the cost of trial in two ways. The first is by increasing property taxes. The data show property tax rates increase by an average of 2% in years with a capital trial (as a percent of a percentage). When multiplied by the mean market value across counties, the increase yields an additional $660,000 in tax revenue. The second response is a drop in public safety expenditure. Court records do not provide trial start dates, but capital trials can take more than a year to complete. With the median length of time between the date of the offense and the conclusion of trial as an approximate guide, counties reduce public safety expenditures by $2,800,000 in the two years up to the conclusion of a capital trial (or $1,400,000 in a one-year window).”

Lundberg concludes that moving the cost of the death penalty to the state level might be more sustainable for counties. “By housing more costs at the state level, counties would no longer face stark tradeoffs in trials, taxes, and public expenditures. The National Right to Counsel Committee supports a similar policy for indigent defense. According to the Committee, over 50% of indigent defense expenses fall on counties in sixteen states, including Texas. Aside from reducing the opportunity cost of trial for counties, a shift in the financial burden from counties to the state may improve the quality of indigent defense, which is frequently poor.” He writes, “As the public finance of the death penalty currently stands, the opportunity cost of trial is relatively high. Citizens in Texas face both higher taxes and crime to ultimately fund a small number of executions.”

Four years after the racially motivated murders of nine African-American parishioners at the historic Emanuel African Methodist Episcopal Church in Charleston, South Carolina on June 17, 2015, a new book by Charleston Post and Courier reporter Jennifer Berry Hawes explores the aftermath of the killings and the extraordinary narrative of grace and forgiveness it produced. As a reporter for the Post and Courier, Hawes covered the story of white supremacist Dylann Roof’s murder of the churchgoers and the court proceedings that led to his death sentence. In Grace Will Lead Us Home, released on June 4, 2019, Hawes examines the continuing impact of the murders on the victims’ families, the Charleston community, and the nation. Her book describes the murders within the historical context of race relations in South Carolina, including Charleston’s history of slavery and Jim Crow, and the debates spawned by the shooting about issues such as the display of the Confederate flag. Through interviews with survivors and survivors and victims’ family members, she explores the role of forgiveness in the AME Church and the family divisions that resulted from the murders. She also addresses the ways in which Roof’s capital trial further traumatized those affected by the shooting.

Hawes was part of the Post and Courier reporting team that won the Pulitzer Prize and the Polk Award for its 2014 investigative series on domestic violence, Till Death Do Us Part, and was a 2019 Pulitzer finalist for a series of articles, An Undying Mystery, on the racial injustice that led to South Carolina’s wrongful execution of 14-year-old George Stinney for the deaths of two white girls. In Grace Will Lead Me Home, she “wanted to provide people with a more complex, better understanding of what happened in Charleston.” “The narrative of forgiveness” that emerged from the statements by victims’ family members at Roof’s bond hearing was “an absolutely beautiful, inspiring moment [that] came to define this tragedy,” she said. But in the months and years that followed, “the lives of the people who were most directly affected were changed in so many ways.” Interviewed by NPR’s Joshua Johnson, Hawes described the family members’ statements of forgiveness less as sympathy for Roof than as healing for them. “It’s to keep hate from corroding the soul. It’s to keep me from drowning in malice. … The whole idea was that this is something I can do for myself so that I can move on as a human being. And for people who are Christians, it’s to move toward God and to move forward in their faith,” she said.

In its review of Grace Will Lead Me Home, The New York Times says, Hawes’s effort “to write as comprehensive an account as possible [of the impact of the killings] largely succeeds — if sacrificing, invariably, some depth for breadth. Still, she lands the book with moral force and great feeling, writing about the soil that could produce both the Emanuel Nine and a Dylann Roof.” Kirkus Reviews described the book as “[a]t once horrifying and inspiring, engaging and thought-provoking” and called it “a definitive must-read about the Charleston tragedy.”

The Charleston tragedy and writing the book caused Hawes to rethink how mass violence affects society. In an interview with MacMillan Library, she said: “I have since come to think of mass shootings as akin to tossing a rock into a pond. The initial impact disrupts the surface in obvious ways. But then ripple upon ripple of disruption spreads from that impact. This is what happens after these events, and happened here, from divisions among families and the church to divisions within families grappling with so much pain.” She has noticed hopeful developments since the shooting, such as joint Bible studies that bring together people of different races and police efforts to engage with the community. On the other hand, she says, “our legislators have failed so far to pass meaningful policy changes needed to address the enormous racial disparities that persist here in everything from education to housing to healthcare.” As a result, “the wounds of slavery and Jim Crow remain unhealed.”

In 2009, the National Academy of Sciences (NAS) released a landmark report titled Strengthening Forensic Science in the United States: A Path Forward, in which it raised significant questions about the validity of every forensic science discipline except DNA analysis. The report concluded, “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 a report for The Intercept, journalists Liliana Segura and Jordan Smith assess the meager progress in forensic science in the decade following the release of the NAS report and explore how politics, tradition, and inertia have contributed to an “ongoing crisis within forensic science that remain[s] woefully unresolved.”

Forensic science, including fingerprint analysis, hair analysis, bite mark comparison, and arson investigation, is widely used in criminal prosecutions, but it has been found to contribute to wrongful convictions in a startling number of cases. A 2017 DPIC review of 34 death-row exonerations found that junk science contributed to nearly one-third (32.4%) of those wrongful convictions. An FBI review of hair analysis found that analysts had made erroneous statements in at least 33 death penalty cases, but many of those never had an opportunity for reconsideration – by the time the report was released, nine of those defendants had been executed and five had died of other causes. Segura and Smith explain, “high-profile forensics scandals and a rising tally of exonerations have made it hard for even the most stubborn forensic experts to ignore the problem of junk science.”

In 2016, a follow-up report by the President’s Council of Advisors on Science and Technology warned, “Without appropriate estimates of accuracy, an examiner’s statement that two samples are similar — or even distinguishable — is scientifically meaningless: It has no probative value and considerable potential for prejudicial impact. Nothing — not training, personal experience nor professional practices — can substitute for adequate empirical demonstration of accuracy.” Yet, to the dismay of Harry Edwards, a senior judge on the U.S. Court of Appeals for the District of Columbia who co-authored the NAS report, law enforcement and prosecutors have actively opposed reform. “The group that surprised me the most were prosecutors,” he said. “Not just at Department of Justice, but prosecutors generally. Because I would’ve assumed, in my naïve way, that they would’ve welcomed a report saying we need more and better research to validate these practices, and to make them better. Because that serves both prosecutors and defendants well. … I think a number of them were worried that if you took the report seriously and started doubting some of what they had been doing, this would open cases that they thought were long gone.”

Edwards particularly noted the problems with bite-mark evidence. “I was flabbergasted when I listened to the person that was testifying about bite marks,” he recalled. “There were no studies of any consequence on validation, reliability, and I didn’t have to be a scientist to understand that what he was saying was fragile, at best.” Bite-mark evidence relies on two assumptions, Smith and Segura explain: “First, that human dentition, like DNA, is unique; second, that skin is a suitable medium for recording this uniqueness. The problem is that neither premise has been proven true; in fact, scientific research conducted to date has suggested the opposite — and that bite-mark matching is an entirely subjective affair.” It has been implicated in 31 wrongful convictions, and a study that asked 39 analysts certified by the American Board of Forensic Odontology to examine 100 case studies found that they unanimously agreed on whether the evidence was a human bite mark in only four cases. The Texas Forensic Science Commission concluded “there is no scientific basis for stating that a particular patterned injury can be associated to an individual’s dentition,” and recommended a moratorium on its use. Despite this evidence, several leaders in forensic odontology have dug in their heels. One dentist, Dr. Robert Dorion, called the focus on wrongful convictions “fake news,” and asserted, without evidence, that wrongful convictions connected to bite marks “had ceased.”

In the ten years since the NAS report, a few reforms have been made, including the National Commission on Forensic Science banning its practitioners from using the misleading phrase “reasonable degree of scientific certainty” in their testimony. Judge Edwards said, “we’re not where we ought to be” in terms of implementing reform. Most particularly, he is disappointed that a key recommendation from the report has not been adopted: the formation of a “national group that was independent, separate from law enforcement, that oversees forensic science. That hasn’t happened,” he said.