The Initiative has continued the projects that it began in 2009 and 2010. The following is an update:
Knox v. Mississippi:
Drinker Biddle obtained significant achievements in exposing the unfair treatment of death row prisoners while collaborating with individuals from the ABA Death Penalty Representation Project and counsel from Mississippi.
The collaboration began in the spring of 2009, as part of the firm’s pro bono litigation initiative in memory of Barbara McDowell, Washington D.C. Partner Jerry Hartman’s late wife and a well-known public interest lawyer. A complaint was filed with the Mississippi Chancery Court, asserting claims of a systemic failure to provide effective assistance of counsel by attorneys who represent death row prisoners in their post-conviction proceedings in Mississippi. (Knox v. Mississippi, Mississippi Supreme Court No. 2010-CA-00814)
While the Mississippi Supreme Court affirmed the trial court’s dismissal of our Complaint, important gains were nonetheless achieved through the litigation by publicly exposing years of unfair treatment of death-row prisoners.
Our complaint was the impetus behind two important Mississippi Supreme Court decisions that current and future death row prisoners will undoubtedly rely upon in bringing their individual successor post-conviction petitions challenging their convictions and sentences of death.
In, Stevens v. Mississippi, decided prior to Knox, the Mississippi Supreme Court provided the very remedy we were seeking in Knox, i.e., consideration of an ineffective assistance of post-conviction counsel claim. The decision in the Knox case affirmatively established for the first time in a published Mississippi Supreme Court decision that a prisoner on death row can assert state ineffective assistance of post-conviction counsel claims in a successor post-conviction petition even if he/she had not raised such a claim in an earlier petition.
Following the Stevens and Knox decisions, the court went a step further in the individual case of another Knox plaintiff, Blayde Grayson. This time in a published opinion, the court said “today we make clear that PCR petitioners who are under a sentence of death do have a right to the effective assistance of PCR counsel.”
On December 12, 2013, the procedure identified in Knox and the substantive law developed in Stevens/Grayson came together, resulting in a grant of relief for another Knox plaintiff, Alan Walker. In Walker v. State, the Mississippi Supreme Court held that the same office that represented all Knox plaintiffs had provided ineffective assistance of post-conviction counsel to Mr. Walker. The court granted Walker’s motion to file a successive claim for post-conviction relief and ordered a hearing to examine the merits of his claims. This is the precise remedy sought by the plaintiffs in Knox, and the decision is a momentous step toward securing effective representation and due process for all persons facing a sentence of death in Mississippi.
Less than four months after its decision in Walker, the Mississippi Supreme Court granted full relief to another Knox plaintiff, Michelle Byrom. The court’s order, issued March 31, 2014, granted Ms. Byrom’s motion to file a successive petition for post-conviction relief, and then overturned her conviction and death sentence. The unanimous court acknowledged that its decision was “extraordinary and extremely rare” but did not explain its rationale. The decision came just days after the Mississippi Attorney General had requested that the court set an execution date by March 27th for Ms. Byrom.
Instead, the court agreed to review startling new evidence of her innocence which had attracted national media attention. Ms. Byrom had been represented by the same inadequate state post-conviction office that negligently represented other Knox defendants. Had she received competent representation, this evidence might have been discovered years earlier. Following the court’s decision, Ms. Byrom agreed to plead no contest in exchange for her release. The court sentenced Ms. Byrom to time served, and she was released on June 26, 2015, after spending 16 years in prison, 14 of those on death row. Numerous stories appeared in the press reporting on this case and they appear here. Additional news story about her release available here.
Of the original 16 plaintiffs in the litigation, further litigation occurred with respect to eight of them in addition to Michelle Byrom. The other seven original plaintiffs were executed. Richard Jordan, after denial of his appeal to the United States Supreme Court with three Justices dissenting, is awaiting a determination of his clemency petition. Willie Manning was granted post-conviction relief vacating his conviction and sentence and granted a new trial. This relief was based upon his initial post-conviction petition. Steve Knox had his proceedings stayed indefinitely by the Mississippi Supreme Court to allow consideration of his motions for funding and discovery. Alan Walker was granted leave by the Mississippi Supreme Court to file a successor post-conviction petition based on post-conviction inadequate assistance of counsel. The case was remanded on that issue. Blayde Grayson achieved a significant victory when the Mississippi Supreme Court issued an opinion holding a constitutional right to effective assistance of counsel in state post-conviction proceedings. The Mississippi Supreme Court held that he had inadequate counsel but it was not prejudicial. His motion for access to experts was granted. Jeffrey Harvard’s motion for leave to file a successor post-conviction petition was denied by the Mississippi Supreme Court but it apparently did not raise the issue of post-conviction ineffective assistance of counsel. Stephen Powers was granted the right to file a federal habeas petition prior to the conclusion of the Knoxlitigation. Thong Le had his post-conviction relief denied by the Mississippi Supreme Court but is likely proceeding with federal habeas proceedings.
Exclusion of African Americans From Juries in Alabama Counties:
On October 19, 2011, Drinker Biddle & Reath LLP (“DBR”), in collaboration with the Equal Justice Initiative of Montgomery, Alabama (“EJI”), filed a first of its kind civil class action in the United States District for the Middle District of Alabama. This class action was filed as part DBR’s Barbara McDowell Pro Bono Initiative, which is a program that aims to significantly and positively impact social justice concerns faced by indigent, charitable or civil groups unable to afford legal services.
The lawsuit, entitled Dennis Hall, et al. v. Douglas Albert Valeska, et al., 11-cv-894 (M.D. Ala. 2011), seeks to eradicate the long-standing pattern and practice of Alabama state prosecutors’ use of peremptory challenges to exclude otherwise qualified African Americans from serving on juries in serious felony cases (principally capital cases) in Houston and Henry Counties, Alabama, solely because of their race in violation of the U.S. Constitution, federal and anti-discrimination laws, including the federal Civil Rights Act of 1875, and state law. As the United States Supreme Court has recognized, “the opportunity for ordinary citizens to participate in the administration of justice has long been recognized as one of the principal justifications for retaining the jury system.”
The Complaint alleges that Defendants’ illegal pattern and practice has been in force for decades and continues to the present day, and is evidenced by statistical data and acknowledged by rulings of the Alabama Court of Criminal Appeals. From 2006 to 2010, for example, state prosecutors in Dothan, Alabama used peremptory strikes to exclude 82% of qualified black jurors in death-penalty cases. Houston County has the highest per capita death sentencing rate in Alabama. In addition, Alabama appellate courts have reversed several cases finding that Mr. Valeska’s office excluded black prospective jurors in order to ensure that African Americans would not serve on juries that Mr. Valeska and his assistants were unfairly suspicious of black potential jurors. Through their request for declaratory and injunctive relief, Plaintiffs – five African American residents of Houston and Henry Counties who were themselves victims of Defendants’ discriminatory conduct – seek to put an end to Defendants’ unlawful discriminatory conduct and prevent any further harm to them, other qualified African-American citizens who reside in Houston and Henry countries, and the community at large. Plaintiffs seek, among other injunctive relief, ongoing federal court monitoring of jury selection in Houston and Henry Counties.
Obtaining Food Stamps for District of Columbia Residents
Legal Aid reached a settlement agreement with the District of Columbia Department of Human Services (DHS) and the District of Columbia Department of the Environment (DDOE) that will result in additional Food Stamps benefits for thousands of District residents. Working with the law firm of Drinker Biddle & Reath LLP as a project of the firm’s Barbara McDowell Pro Bono Initiative, Legal Aid brought suit against DHS and DDOE at the Office of Administrative Hearings when the District failed to implement the Food Stamps Expansion Act of 2009 in a timely matter. Harris v. D.C. Department of Human Services and D.C. Department of the Environment (Administrative Agency in the District of Columbia)
Food Stamps are a critical benefit that enables thousands of District families to put food on the table. This is a federal program that helps low-income families and individuals buy food and stimulates the District economy through these food purchases. According to the U.S. Department of Agriculture, in 2010, there were approximately 119,000 individuals in approximately 66,000 households receiving Food Stamps in the District with each household receiving, on average, about $250 per month.
The legal dispute centered on the date on which the Food Stamps Emergency Expansion Act of 2009 became effective. Among other changes, the Food Stamps Expansion Act increased Food Stamps allotments for thousands of beneficiaries by making all beneficiaries eligible to receive the maximum “Standard Utility Allowance” in their shelter cost calculations. For some beneficiaries, this will result in a larger deduction from their countable income for shelter expenses which will lower their net income sufficiently to receive a higher Food Stamps allotment for the household.
Because the District government failed to begin implementing the Act by the spring of 2010, Legal Aid with the assistance of attorneys from Drinker Biddle filed fair hearing requests with the Office of Administrative Hearings (OAH) in July 2010 challenging the failure to implement the benefits expansion. In its brief to OAH, Legal Aid argued that Food Stamps beneficiaries were entitled to the expanded benefits as of October 15, 2009 – the effective date of the emergency legislation containing the Food Stamps Expansion Act.
The District government agreed to mediate the dispute, and after several months of negotiating, a settlement was reached. Under terms of the settlement, the District agreed to recalculate Food Stamps benefits for all current and former beneficiaries who were receiving benefits at any time between January 2010 and the present using the maximum Standard Utility Allowance and award any resulting increased benefits. In addition, DHS and DDOE finalized their memorandum of understanding so that the maximum Standard Utility Allowance is now being awarded to all beneficiaries prospectively as of February 1, 2011. The agreement stated that the expected time frame for the recalculation of the retroactive payments is expected to be 24 months.
This is an important victory for Food Stamps beneficiaries. Families with children and extremely low-income individuals, many of whom have no other source of income, will be able to feed themselves much better because of this case. The fact that this settlement was obtained through a project created in the memory of Barbara McDowell makes this settlement even more meaningful for Legal Aid.