By Patrick B. McGuigan and Darla Shelden —
OKLAHOMA CITY – There have been no executions in Oklahoma since 2015.
Many citizens wonder if that lengthy moratorium should ever end. Some who defend use of executions have, over the past half-decade, come to believe the process has become problematic.
A recent interim study by an important legislative panel that met on Wednesday, October 14, underscored multiple concerns about the Ultimate Sanction.However, supporters of the death penalty stressed an intention to, sooner or later, resume state-managed killing.
The legislative interim study, led by state Rep. Kevin McDugle, R-Broken Arrow, was held at the state Capitol last week.
McDugle has declared that one of the state’s most prominent death row inmates – Richard Glossip — is actually innocent. He drove the dynamic that led to this study, the sum of which was critical of past execution practices.
The meeting itself, guided by House Public Safety Committee Chairman Justin Humphrey, R-Lane, was a rare moment in Oklahoma policy development. Sympathy for major changes in the death penalty process – along lines suggested by the historic work of a review commission of Oklahomans – was overt. Indeed, McDugle said weeks ago he believes executing Glossip would be a mistake.
While the direction of questions hinted at significant reform possibilities, outright abolition of the Ultimate Sanction seems unlikely, for now.
Don Knight, attorney for Oklahoma death row inmate Richard Glossip, told members of the panel he had located more than 400 people who might have information and who should have been talked to by the police or defense investigators– regarding Justin Sneed, the actual killer in the murder of an Oklahoma City inn-keeper, for which Glossip was sentenced to death as alleged mastermind.
Knight, who has worked on the case pro bono, indicated that many of them are wiling to testify that Sneed was a desperate intravenous methamphetamine user willing to trade anything he had for access to drugs and women.
Knight told the panel, “We found people who had extensive knowledge of Sneed’s intravenous methamphetamine use.”
The opening speaker, Knight addressed the recent interim study at McDugle’s invitation.
Because of intimidation other individuals faced by prosecution after they came forth with potentially exculpatory information some years ago, Knight is not disclosing the identities of the new witnesses whose testimony, he believes, effectively exonerate Glossip and/or raise significant questions about police or prosecutorial misbehavior in his case.
Early in the proceedings, after a suggestion from Knight, Rep. McDugle asked that the review commission’s final report be admitted into the record. It was, as the expression goes, “without objection, so ordered.”
Knight pointed to letters, found after lengthy investigative work, from Fred McFadden, an inmate, who early in the Glossip proceedings corresponded with Oklahoma County District Attorney Bob Macy saying he had information concerning Sneed’s responsibility for the murder of hotel operator Barry Van Trease, and Glossip’s innocence.
Knight showed, on a screen, a redacted version of one letter.
“The new evidence we presented, which is only a small sample of the evidence no one has ever seen, shows that if Rich Glossip is executed, Oklahoma will be killing an innocent man,” Knight told The City Sentinel in a post-hearing interview.
“I’m thankful to Representatives McDugle and Humphrey for giving us the opportunity to use Rich’s case to highlight the serious problems that grow from defense attorneys who fail to do even the most basic work on behalf of their clients, and how the appeals are not designed to remedy these problems,” he continued.
“By bringing these issues to the attention of all Oklahomans, we also want to acknowledge the suffering of the members of the Van Treese family. Our thorough investigation has clearly shown that Justin Sneed murdered Barry Van Treese for drug money and that Rich had nothing to do with it.
“Since 1997, Rich has also been forced to pay a terrible price for Sneed’s murderous meth addiction,” Knight stated. “Only by allowing Rich a fair opportunity to present his evidence can justice be obtained, both for the Van Treese family, and Rich Glossip. We hope the attention can now be turned to consideration of changes that will provide innocent people, like Rich, a truly fair opportunity to present their newly discovered evidence before it is too late.”
Attorney Bob Ravitz — a career public servant who has long guided the Oklahoma County Public Defender’s Office — expressed various frustrations over the realities of limited resources and prosecutorial use of “snitches who will tell you anything to save themselves” – with Sneed (from the Glossip case) as among the most notable examples of an actual killer making a deal to allow a death sentence for an alleged accomplice who was not the murderer.
Ravitz said the system can only work honorably when defense attorneys can count on “super-ethical prosecutors” on the other side. Many examples were given of what happens when that is not the case.
Weaknesses in the Glossip case garnered much of the panel’s scrutiny, but other notable past and present death row inmates were referenced.
“There’s a guy who’s been out of prison for some time now and got a lot of money from the state of Oklahoma. Jeffrey Todd Pierce was inappropriately convicted for the crime of rape. Ultimately, he was exonerated because of DNA evidence,” Ravitz told the panel.
While covering a broad front and multiple issues, Ravitz’s presentation was nonetheless compelling, including this reflection: “I’m pulling my hair out today and every day because I saw the number of capital cases in my office today and it’s horrifying – that is ineffectiveness of counsel. Unless there is sufficient funding for lawyers to represent defendants and do the adequate investigation. I’m almost convinced that there ought to be a specialized unit that handles capital cases that has trained expert witnesses. It’s really hard to find lawyers that want to do capital cases. I had one lawyer die, one lawyer who got cancer, another one retire and another one leave. I have nobody who is first chair in a capital case.”
Ravitz stated that his agency is sorely underfunded in its ability to hire expert witnesses in order to defend its clients properly.
In an exchange with conservative Republican lawmakers, he drew astonished reactions when he said – in response to questions – “My expert witness budget for all my capitol cases for the whole year is $75,000.”
Scott Crow, interim director of the Oklahoma Department of Corrections, told legislators “As of today there are 56 inmates on Oklahoma’s death row and of that number 31 have exhausted their appeals.”
Craig Sutter, representing the Oklahoma Indigent Defense System (OIDS) pointed to the work of the Oklahoma Death Penalty Review Commission: “Since 1976 and [until] 2014 there were 321 people sentenced to death in Oklahoma and of that 163 were reversed for one reason or another. And 156 were taken off of death row completely. I think those numbers go towards the fact that there’s always the potential for mistakes and errors and the inability to come back and fix those errors. We’re pretty limited when it comes to doing an investigation.”
That’s a 50 percent reversal of those sentenced to death row.
One pro-death penalty legislator asked if Sutter believes “Oklahoma has executed innocent people in the past.” Sutter’s succinct response: “Yes.”
Also speaking was Christy Sheppard, whose cousin was murdered, and after five years of legal proceedings, two men were convicted in the killing. Ron Williamson,of John Grisham’s “The Innocent Man” fame, received the death penalty and Dennis Fritz avoided the death penalty (in penalty phase) by one vote.
Later the two men were exonerated through a review of DNA evidence.
As Sheppard recalled, “What I have learned about the criminal justice system is that it is not what I thought it was. I have a degree in criminal justice and that’s not what I learned at higher levels of education.
“I think just as general lay people we get hung up in the end game. We get concerned about how that individual may or may not have suffered and is that equivalent to what the victim has gone through. But we don’t give much thought about how that person made it to death row. We have a system that doesn’t anticipate itsown failure.
“We can say that we have checks and balances and that while we’ve exonerated innocent men off of death row to see the system worked – we were able to get that done. … I believe this is the most accurate statistic I have right now is that 87 percent of all exonerations had gone through the entire appeals process and we can’t give them that time back. We can’t make up for what’s gone.”
Referring to the “snitch” issue, she told the panel, “I don’t’ know that it’s justice that we have the wrong man is prison when the real perpetrator goes free. And in many cases committed other violent crimes…rape and murder. Just in my cousin’s case we know that he [the actual killer] committed three other violent rapes after my cousin’s murder. He was eventually imprisoned, where DNA investigations tied him to multiple crimes.”
State Attorney General Mike Hunter, known as a defender of the status quo, told the interim study he believes the state’s three-drug protocol – aiming to bring back the use of the death penalty, will be approved. “Issues in these drugs in the past have always led back to human error. We’re confident that the lethal injection protocol will clear the judicial process,” Hunter said.
Still, in an exchange with Rep. Humphrey he agreed transparency between the prosecution and defense counsel is vital. When Humphrey asked if Hunter agreed “there needs to be a little bit more transparency by the prosecution?” Hunter replied, “Prosecutors have a legal and ethical responsibility to share evidence that they’ve gathered in connection with their case, including exculpatory evidence.”
He continued, “If there’s exculpatory evidence that a prosecutor has uncovered, whether it’s during the trial process or subsequently, that person has a responsibility to the justice system to make it available. There are sufficient safeguards and responsibilities to ensure that exculpatory evidence is provided to defendants and their attorneys thru the appellate process as far as I’m concerned.”
However, Hunter did not directly address issues raised repeatedly during the meeting regarding exonerations, or attempted exonerations or the inability of defense counsel to visit apparent new evidence after appeals have been exhausted under existing law.
Hunter said executions could resume early-to-mid 2021.
Terry Baggett, representing the Oklahoma District Attorneys Council, said the review commission had four recommendations touching on training and counselor notification, and believes “we have done what we were asked to do.” Concerning ineffective counsel for capital defendants, he asserted: “Not many cases are overturned due to ineffective assistance of counsel. Does it happen, yes, but it is not routine.”
The 300-page, Oklahoma Death Penalty Review Commission report, released in May 2017 and the first of its kind in the nation, acknowledged the strong support Oklahomans have for the death penalty, but said, “Nevertheless, it is undeniable that innocent people have been sentenced to death in Oklahoma. And the burden of wrongful convictions alone requires the systemic corrections recommended in this report.”
In addition to the Commission’s recommendation that the current moratorium be extended, the report made 45 additional recommendations that it said would significantly improve how the state carries out executions.
The Commission concluded that,” Many of the findings of the Commission’s year-long investigation were disturbing and led Commission members to question whether the death penalty can be administered in a way that ensures no innocent person is put to death.”
Since 1973, 172 former death-row prisoners have been exonerated of all charges related to their wrongful convictions. Ten people have been exonerated from Oklahoma’s death row.
Tom Bates, new executive director of the Pardon and Parole Board, told the study members the first training session for board members will take place in December, led by Assistant Attorney General Jennifer Miller. Bates noted that no one now on the board has ever dealt with a death row clemency hearing. Bates said P&P Board hearings take place after all other appeals have been exhausted, and “I don’t know if it’s the Pardon and Parole Board’s place to decide cases.”
In closing remarks,Rep. McDugle reflected: “When all of the evidence is not laid on the table to where people can’t decide without seeing everything that’s involved in the case…that personally bothers me, especially when it comes to death row.
“If you find yourself outside the appeals process with a new attorney, without the ability for new evidence to be laid on the table, and now the new attorney who is an outstanding attorney doesn’t have the ability to go back and get the evidence that should have been presented in the first place. is it possible for someone to be on death row and be innocent? It is my personal opinion that it is possible.
“My conviction here is that we’ve got to get it right. If we’re going to put somebody in the chair, as Oklahomans, we have to get it right.”