Rethinking the timing of capital clemency.

• Author: Gershowitz, Adam M.
• Position: I. What Do We Know at the End of Direct Appeals? C. Insufficient Information in Some Cases to Assess Whether Clemency Could Have Been Granted Earlier through Conclusion, with footnotes, p. 31-55

3. Insufficient Information in Some Cases to Assess Whether Clemency Could Have Been Granted Earlier

   In eight cases, it is not possible to assess whether a governor or pardon board could have relied on the same information to commute a sentence at the conclusion of direct review. These cases can be subdivided into two categories: (1) the governor or pardon board did not state a reason for the commutation; and (2) the governor relied on multiple reasons for the commutation, only some of which were clear at the end of direct review.

   In four very recent cases, it is impossible to discern the reason for the commutation because the governor or pardon board offered nothing or very little in the way of explanation. In 2012, the Georgia State Board of Pardons and Paroles offered no reason for ending Daniel Greene's twenty-one year stay on death row. (261) Four years earlier, the Georgia board commuted the death sentence of Samuel David Crowe less than three hours before execution, but it "did not give a reason for its decision." (262) In 2011, Missouri Governor Nixon commuted the death sentence of Richard Clay in Missouri "[w]ith almost no explanation" other than that he based his decision on a "number of factors." (263) Finally, in 2010, Governor Henry followed a divided recommendation of the Oklahoma Pardon and Parole Board and commuted the death sentence of Richard Tandy Smith. (264) Henry's explanation for the commutation was vague; he stated only that "after reviewing all of the evidence and hearing from both prosecutors and defense attorneys, I decided the Pardon and Parole Board made a proper recommendation to provide clemency and commute the death sentence." (265)

   In four other cases, it is not possible to say if clemency could have been granted at the end of direct appeals because governors relied on multiple rationales for the commutations, with some of these rationales unavailable at the end of direct review. Two recent cases from Ohio, as well as clemencies in Missouri and Georgia, fall into this category.

   In 2010, Governor Strickland of Ohio commuted Richard Nields's death sentence to life imprisonment because (1) there was a faulty conclusion by the medical examiner that evidence showed premeditation, and (2) appellate judges had repeatedly expressed concern about whether the facts of the case evinced sufficiently heinous conduct to merit death. (266) The proportionality concerns were apparent during the direct appeals process, (267) although the problems with the medical examiner's testimony were not clear until later.

   Two years earlier, Strickland commuted the death sentence of John Spirko, who had been on death row for nearly twenty-five years. There had long been questions about whether Spirko was guilty of the crime, and he had raised innocence questions in his direct appeals. (268) After the Ohio Parole Board granted seven reprieves for DNA testing to be conducted, the test was administered shortly before the scheduled execution, but the results came back inconclusive--the DNA neither inculpated nor exculpated Spirko. (269) While questions about Spirko's innocence had surfaced since the time of his conviction, it is not clear what role the last-minute, inconclusive DNA test played in the grant of clemency.

   In 1993, Missouri Governor Carnahan commuted the death sentence of Bobby Lee Shaw, who had been on death row for almost fourteen years.

   While Shaw was serving a life sentence for first-degree murder, he murdered a prison guard. (270) At trial, a psychiatrist testified to Shaw's low IQ but concluded that he was only borderline mentally disabled and did not suffer from a mental disease or defect. (271) Years later, however, the Missouri Capital Punishment Resource Center unearthed new evidence of Shaw's mental-health issues and convinced the psychiatrist who testified at trial to recant the trial testimony. (272) A few months before the execution, lawyers presented additional expert testimony in a competency hearing. (273) One week before Shaw's execution, Carnahan commuted his sentence because of his mental-health problems. (274) There was evidence of these problems at trial. And it is possible that lawyers would have presented the new psychiatric evidence if a clemency hearing had been held at the end of direct appeals. But it is not possible to say for certain whether the governor would have had all the same information at that point.

   Finally, it is impossible to say whether the commutations of ex-marine Harold Williams could have been made earlier. A spokesman for the Georgia Board of Pardons and Paroles said that "there was ample evidence the codefendant ... was the ringleader in the murder," that the codefendant served only five years, and that the codefendant signed an affidavit taking responsibility for the murder while he was in prison. (275) Williams raised his limited role in the murder in his direct appeal, (276) but it is not clear when the other factors came to light. Because the pardon board did not explain which factors were most important and when the information became available, it is impossible to say for certain whether the necessary information was known at the conclusion of direct appeals.

4. Cases in Which Crucial Information Came After Direct Review

   In seventeen cases, commutations were based on information that surfaced only after the postconviction process had begun. In some of these cases, governors or pardon boards still could have granted clemency years earlier than they actually did, but it would not have been possible to reach the same conclusion at the end of direct review.

   1. Commutations Based on Recent Legal Developments

      In three cases, the Supreme Court's decision in Atkins v. Virginia (277)--which outlawed the execution of the mentally disabled--led to commutations. In 2002, three psychologists evaluated Thomas Nevius and concluded that he was mentally disabled. (278) The Nevada Board of Pardons then unanimously commuted Nevius's sentence. (279) The following year, Governor Foster of Louisiana commuted the death sentence of Herbert Welcome. (280) Welcome had the intellectual abilities of an eight year old and had been on death row for over twenty years. (281) The Atkins decision also indirectly led to the commutation of Darnell Williams in Indiana. (282) In 2003, one year after Atkins, a state judge ruled that Williams's codefendant was mentally disabled and could not be executed. (283) The following year, Governor Kernan commuted Williams's sentence because he believed that Williams was less culpable than the codefendant. (284)

      In two other cases, different legal developments created a basis for clemency that did not exist before the conclusion of direct review. Six hours before Freddie Davis was to be executed in Georgia, the Board of Pardons and Paroles stayed (and later commuted) his death sentence. (285) The board pointed to "questions over Davis' role in the killing, a new trial granted an alleged accomplice and the accomplice's recantation of incriminating testimony." (286) Because the accomplice's death sentence was not reversed until 1988, (287) well after the conclusion of Davis's direct appeals, the same clemency determination could not have been made earlier. In an Oklahoma case, Governor Henry commuted the death sentence of Osbaldo Torres, in large part because of international outrage that Torres, who was a Mexican citizen, was not informed of his right to contact the Mexican Consulate following his arrest. (288) The consulate issue arose because, only weeks earlier, a decision by the International Court of Justice held that the United States had violated the Vienna Convention in dozens of cases. (289)

   2. DNA and Other New Evidence

      Although new evidence of innocence may seem like the quintessential reason for clemency, there were only six cases in which governors commuted death sentences because of new evidence that came to light after the conclusion of direct review.

      In 2003, Governor Taft of Ohio relied in part on new DNA evidence to commute the death sentence of Jerome Campbell. (290) Following the enactment of a DNA testing law in 2001, (291) the defense was able to show that blood on Campbell's shoes was his own, not the victim's. (292) When the Ohio Supreme Court denied Campbell a new trial based on this evidence, Taft commuted the sentence to life without parole. (293)

      Governor Batt of Idaho commuted the death sentence of Donald Paradis in 1996 because there was "some element of doubt" surrounding Paradis's guilt. (294) While Batt did not specify why he was granting clemency, a spokesman for the Idaho Commission of Pardons and Parole said that while the commission still believed Paradis was guilty, evidence presented at his clemency hearing had cast some doubt on this conclusion. (295) At the clemency hearing, Paradis's attorneys focused on a blood analysis. (296) Paradis's earlier appeals did not mention the blood test, and it appears that this test occurred after the conclusion of direct appeals. (297)

      On his last day in office in 1994, Virginia Governor Wilder commuted the death sentence of Earl Washington Jr. A few months before the clemency decision, a new DNA test indicated that "sperm found in the victim identified a genetic trait that could not have come from Washington or [the victim's] husband." (298) Because that type of DNA testing did not exist at the conclusion of Washington's direct appeals, (299) the clemency determination likely would not have been the same years earlier.

      In 1991, Wilder granted a conditional pardon to Joseph Giarratano, who had attracted international attention based on his claims of innocence. (300) Giarratano had been convicted of rape and murder, but new psychiatric evidence suggested that he might have made up all or part of the confession used to convict him. (301) The new evidence came to light after his direct appeals ended in 1980. (302)

      In 1979, Florida Governor Graham commuted the...