Genealogists like Moore hunt for relatives and build family trees just as traditional genealogists do, but with a twist: They work with law enforcement agencies and use commercial DNA databases to search for people who can help them identify unknown human remains or perpetrators who left DNA at a crime scene.

The field exploded in 2018 after the arrest of Joseph James DeAngelo as the notorious Golden State Killer, responsible for more than a dozen murders across California. DNA evidence collected from a 1980 double murder was analyzed and uploaded to a commercial database; a hit to a distant relative helped a genetic genealogist build an elaborate family tree that ultimately coalesced on DeAngelo. Since then, hundreds of cold cases have been solved using the technique. Moore, among the field’s biggest evangelists, boasts of having personally helped close more than 200 cases.

The practice is not without controversy. It involves combing through the genetic information of hundreds of thousands of innocent people in search of a perpetrator. And its practitioners operate without meaningful guardrails, save for “interim” guidance published by the Department of Justice in 2019.

The last five years have been like the “Wild West,” Moore acknowledged, but she was proud to be among the founding members of the Investigative Genetic Genealogy Accreditation Board, which is developing professional standards for practitioners. “With this incredibly powerful tool comes immense responsibility,” she solemnly told the audience. The practice relies on public trust to convince people not only to upload their private genetic information to commercial databases, but also to allow police to rifle through that information. If you’re doing something you wouldn’t want blasted on the front page of the New York Times, Moore said, you should probably rethink what you’re doing. “If we lose public trust, we will lose this tool.”

Despite those words of caution, Moore is one of several high-profile genetic genealogists who exploited a loophole in a commercial database called GEDmatch, allowing them to search the DNA of individuals who explicitly opted out of sharing their genetic information with police.

The loophole, which a source demonstrated for The Intercept, allows genealogists working with police to manipulate search fields within a DNA comparison tool to trick the system into showing opted-out profiles. In records of communications reviewed by The Intercept, Moore and two other forensic genetic genealogists discussed the loophole and how to trigger it. In a separate communication, one of the genealogists described hiding the fact that her organization had made an identification using an opted-out profile.

The communications are a disturbing example of how genetic genealogists and their law enforcement partners, in their zeal to close criminal cases, skirt privacy rules put in place by DNA database companies to protect their customers. How common these practices are remains unknown, in part because police and prosecutors have fought to keep details of genetic investigations from being turned over to criminal defendants. As commercial DNA databases grow, and the use of forensic genetic genealogy as a crime-fighting tool expands, experts say the genetic privacy of millions of Americans is in jeopardy.

Moore did not respond to The Intercept’s requests for comment.

“If we can’t trust these practitioners, we certainly cannot trust law enforcement.”

To Tiffany Roy, a DNA expert and lawyer, the fact that genetic genealogists have accessed private profiles — while simultaneously preaching about ethics — is troubling. “If we can’t trust these practitioners, we certainly cannot trust law enforcement,” she said. “These investigations have serious consequences; they involve people who have never been suspected of a crime.” At the very least, law enforcement actors should have a warrant to conduct a genetic genealogy search, she said. “Anything less is a serious violation of privacy.”

The Wild West

Forensic genetic genealogy evolved from the direct-to-consumer DNA testing craze that took hold roughly a decade ago. Companies like 23andMe and Ancestry offered DNA analysis and a database where results could be uploaded and searched against millions of other profiles, offering consumers a powerful new tool to dig into their heritage through genetics.

It wasn’t long before entrepreneurial genealogists realized this information could also be used to solve criminal cases, especially those that had gone cold. While the arrest of the Golden State Killer captured national attention, it was not the first case solved by forensic genetic genealogy. Two weeks earlier, genetic genealogists Margaret Press and Colleen Fitzpatrick joined officials in Ohio to announce that “groundbreaking work” had allowed authorities to identify a young woman whose body was found by the side of a road back in 1981. Formerly known as “Buckskin Girl” for the handmade pullover she wore, Marcia King was given her name back through genetic genealogy. “Everyone said it couldn’t be done,” Press said.

The type of consumer DNA information used in forensic genetic genealogy is far different from that uploaded to the Combined DNA Index System, or CODIS, a decades-old network administered by the FBI. The DNA entered in CODIS comes from individuals convicted of or arrested for serious crimes and is often referred to as “junk” DNA: short pieces of unique genetic code that don’t carry any individual health or trait information. “It’s not telling us how the person looks. It’s not telling us about their heritage or their phenotypic traits,” Roy said. “It’s a string of numbers, like a telephone number.”

In contrast, the DNA testing offered by direct-to-consumer companies is “as sensitive as it gets,” Roy said. “It tells you about your origins. It tells you about your relatives and your parentage, and it tells you about your disease propensity.” And it has serious reach: While CODIS searches the DNA of people already identified by the criminal justice system, the commercial databases have the potential to search through the DNA of everyone else.

Individuals can upload their test results to any number of databases; at present, there are five main commercial portals. Ancestry and 23andMe are the biggest players in the field, with databases containing roughly 23 million and 14 million profiles. Individuals must test with the companies to gain access to their databases; neither allow DNA results obtained from a different testing service. Both Ancestry and 23andMe forbid police, and the genetic genealogists who work with them, from accessing their data for crime-fighting purposes. “We do not allow law enforcement to use Ancestry’s service to investigate crimes or to identify human remains” absent a valid court order, Ancestry’s privacy policy notes. The two companies provide regular transparency reports documenting law enforcement requests for user information.

MyHeritage, home to some 7 million DNA profiles, similarly bars law enforcement searches, but it does allow individuals to upload DNA results obtained from other sources.

And then there are FamilyTreeDNA and GEDmatch, which grant police access but give users the choice of opting in or out. Both allow anyone to upload their DNA results and have upward of 1.8 million profiles. But neither company routinely publicizes the number of customers who have opted in, said Leah Larkin, a veteran genetic genealogist and privacy advocate from California. Larkin writes about issues in the field — including forensic genetic genealogy, which she does not practice — on her website the DNA Geek. Larkin estimates that roughly 700,000 GEDmatch profiles are opted in. She suspects that even more are opted in on FamilyTreeDNA; opting in is the default for the company’s U.S. customers and “it’s not obvious how to opt out.”

But even opting out of law enforcement searches doesn’t guarantee that a profile won’t be accessed: A loophole in GEDmatch offers users working with law enforcement agencies a back door to accessing protected profiles. A source showed The Intercept how to exploit the loophole; it was not an obvious weakness or one that could be triggered mistakenly. Rather, it was a back door that required experience with the platform’s various tools to open.

GEDmatch’s parent company, Verogen, did not respond to a request for comment.

An Open Secret

In forensic genetic genealogy circles, the GEDmatch loophole had long been an open secret, sources told The Intercept, one that finally surfaced publicly during the Ramapo College conference in late July.

Roy, the DNA expert, was giving a presentation titled “In the Hot Seat,” a primer for genealogists on what to expect if called to testify in a criminal case. There was a clear and simple theme: “Do not lie,” Roy said. “The minute you’re caught in a lie is the minute that it’s going to be difficult for people to use your work.”

As part of the session, David Gurney, a professor of law and society at Ramapo and director of the college’s nascent Investigative Genetic Genealogy Center, joined Roy for a mock questioning of Cairenn Binder, a genealogist who heads up the center’s certificate program.

Gurney, simulating direct examination, walked Binder through a series of friendly questions. Did she have access to DNA evidence or genetic code during her investigations? No, she replied. Could she see everyone who’d uploaded DNA to the databases? No, she said, only those who’d opted in to law enforcement searches.

Roy, playing the part of opposing counsel, was pointed in her cross-examination: Was Binder aware of the GEDmatch loophole? And had she used it? Yes, Binder said. “How many times?” Roy asked.

“A handful,” Binder replied. “Maybe up to a dozen.”

Binder’s answers quickly made their way into a private Facebook group for genetic genealogy enthusiasts, prompting a response from the DNA Doe Project, a volunteer-driven organization led by Press, one of the women who identified the Buckskin Girl. Before joining Ramapo College, Binder had worked for the DNA Doe Project.

In a statement posted to the Facebook group, Pam Lauritzen, the project’s communications director, said the loophole was an artifact of changes GEDmatch implemented in 2019, when it made opting out the default for all profiles. “While we knew that the intent of the change was to make opted-out users unavailable, some volunteers with the DNA Doe Project continued to use the reports that allowed access to profiles that were opted out,” she wrote. That use was neither “encouraged nor discouraged,” she continued. Still, she claimed the access was somehow “in compliance” with GEDmatch’s terms of service — which at the time promised that DNA uploaded for law enforcement purposes would only be matched with customers who’d opted in — and that the loophole was closed “years ago.”

It was a curious statement, particularly given that Press, the group’s co-founder, was among the genealogists who discussed the GEDmatch loophole in communications reviewed by The Intercept. In 2020, she described the DNA Doe Project using an opted-out profile to make an identification — and devising a way to keep that quiet.

Press referred The Intercept’s questions to the DNA Doe Project, which declined to comment.

In July 2020, GEDmatch was hacked, which resulted in all 1.45 million profiles then contained in the database to be briefly opted in to law enforcement matching; at the time, BuzzFeed News reported, just 280,000 profiles had opted in. GEDmatch was taken offline “until such time that we can be absolutely sure that user data is protected against potential attacks,” Verogen wrote on Facebook.

In the wake of the hack, a genetic genealogist named Joan Hanlon was asked by Verogen to beta test a new version of the site. According to records of a conversation reviewed by The Intercept, Press and Moore, the featured speaker at the Ramapo conference, discussed with Hanlon their tricks to access opted-out profiles and whether the new website had plugged all backdoor access. It hadn’t. It’s unclear if anyone told Verogen; as of this month, the back door was still open.

Hanlon did not respond to The Intercept’s requests for comment.

In January 2021, GEDmatch changed its terms of service to opt everyone in for searches involving unidentified human remains, making the back door irrelevant for genealogists who only worked on Doe cases, but not those working with authorities to identify perpetrators of violent crimes.

Undisclosed Methods

Exploitation of the GEDmatch loophole isn’t the only example of genetic genealogists and their law enforcement partners playing fast and loose with the rules.

Law enforcement officers have used genetic genealogy to solve crimes that aren’t eligible for genetic investigation per company terms of service and Justice Department guidelines, which say the practice should be reserved for violent crimes like rape and murder only when all other “reasonable” avenues of investigation have failed. In May, CNN reported on a U.S. marshal who used genetic genealogy to solve a decades-old prison break in Nebraska. There is no prison break exception to the eligibility rules, Larkin noted in a post on her website. “This case should never have used forensic genetic genealogy in the first place.”

“This case should never have used forensic genetic genealogy in the first place.”

A month later, Larkin wrote about another violation, this time in a California case. The FBI and the Riverside County Regional Cold Case Homicide Team had identified the victim of a 1996 homicide using the MyHeritage database — an explicit violation of the company’s terms of service, which make clear that using the database for law enforcement purposes is “strictly prohibited” absent a court order.

“The case presents an example of ‘noble cause bias,’” Larkin wrote, “in which the investigators seem to feel that their objective is so worthy that they can break the rules in place to protect others.”

MyHeritage did not respond to a request for comment. The Riverside County Sheriff’s Office referred questions to the Riverside district attorney’s office, which declined to comment on an ongoing investigation. The FBI also declined to comment.

Violations have even come from inside the DNA testing companies. Back in 2019, GEDmatch co-founder Curtis Rogers unilaterally made an exception to the terms of service, without notifying the site’s users, to allow police to search for someone suspected of assault in Utah. It was a tough call, Rogers told BuzzFeed News, but the case in question “was as close to a homicide as you can get.”

It appears that violations have also spread to Ancestry, which prohibits the use of its DNA data for law enforcement purposes unless the company is legally compelled to provide access. Genetic genealogists told The Intercept that they are aware of examples in which genealogists working with police have provided AncestryDNA testing kits to the possible relatives of suspects — what’s known as “target testing” — or asked customers for access to preexisting accounts as a way to unlock the off-limits data.

A spokesperson for Ancestry did not answer The Intercept’s questions about efforts to unlock DNA data for law enforcement purposes via a third party. Instead, in a statement, the company reiterated its commitment to maintaining the privacy of its users. “Protecting our customers’ privacy and being good stewards of their data is Ancestry’s highest priority,” it read. The company did not respond to follow-up questions.

As it turns out, the genetic genealogy work in the Golden State Killer case was also questionable: The break that led to DeAngelo came after genealogist Barbara Rae-Venter uploaded DNA from the double murder to MyHeritage, according to the Los Angeles Times. Rae-Venter told the Times that she didn’t notify the company about what she was doing but that her actions were approved by Steve Kramer, the FBI’s Los Angeles division counsel at the time. “In his opinion, law enforcement is entitled to go where the public goes,” Rae-Venter told the paper.

Just how prevalent these practices are may never fully be known, in part because police and prosecutors regularly seek to shield genetic investigations from being vetted in court. They argue that what they obtain from forensic genetic genealogy is merely a tip, like information provided by an informant, and is exempt from disclosure to criminal defendants.

That’s exactly what’s happening in Idaho, where Bryan Kohberger is awaiting trial for the 2022 murder of four university students. For months, the state failed to disclose that it had used forensic genetic genealogy to identify Kohberger as a suspect. A probable cause statement methodically laying out the evidence that led cops to his door conspicuously omitted any mention of genetic genealogy. Kohberger’s defense team has asked to see documents related to the genealogy work as it prepares for an October trial, but the state has refused, saying the defense has no right to any information about the genetic genealogy it used to crack the case.

Prosecutors said it was the FBI that did the genetic genealogy work, and few records were created in the process, leaving little to turn over. But the state also argued that it couldn’t turn over information because the family tree the FBI created was extensive — including “the names and personal information of … hundreds of innocent relatives” — and the privacy of those individuals needed to be maintained. According to the state, it shouldn’t even have to say which genetic database — or databases — it used.

Kohberger’s attorneys argue that the state’s position is preposterous and keeps them from ensuring that the work undertaken to find Kohberger was above board. “It would appear that the state is acknowledging that the companies are providing personal information to the state and that those companies and the government would suffer if the public were to realize it,” one of Kohberger’s attorneys wrote. “The statement by the government implies that the databases searched may be ones that law enforcement is specifically barred from, which explains why they do not want to disclose their methods.”

A hearing on the issue is scheduled for August 18.

“A Search of All of Us”

Natalie Ram, a law professor at the University of Maryland Carey School of Law and an expert in genetic privacy, believes forensic genetic genealogy is a giant fishing expedition that fails the particularity requirement of the Fourth Amendment: that law enforcement searches be targeted and based on individualized suspicion. Finding a match to crime scene DNA by searching through millions of genetic profiles is the opposite of targeted. Forensic genetic genealogy, according to Ram, “is fundamentally a search of all of us every time they do it.”

While proponents of forensic genetic genealogy say the individuals they’re searching have willingly uploaded their genetic information and opted in to law enforcement access, Ram and others aren’t so sure that’s the case, even when practitioners adhere to terms of service. If the consent is truly informed and voluntary, “then I think that it would be ethical, lawful, permissible for law enforcement to use that DNA … to identify those individuals who did the volunteering,” Ram said. But that’s not who is being identified in these cases. Instead, it’s relatives — and sometimes very distant relatives. “Our genetic associations are involuntary. They’re profoundly involuntary. They’re involuntary in a way that almost nothing else is. And they’re also immutable,” she said. “I can estrange myself from my family and my siblings and deprive them of information about what I’m doing in my life. And yet their DNA is informative on me.”

Jennifer Lynch, general counsel at the Electronic Frontier Foundation, agrees. “We’re putting other people’s privacy on the line when we’re trying to upload our own genetic information,” she said. “You can’t consent for another person. And there’s just not an argument that you have consented for your genetic information to be in a database when it’s your brother who’s uploaded the information, or when it’s somebody you don’t even know who is related to you.”

To date, efforts to rein in the practice as a violation of the Fourth Amendment have presented some problems. A person whose arrest was built on a foundation of genetic genealogy, for example, might have been harmed by the genealogical fishing expedition but lack standing to bring a case; in the strictest sense, it wasn’t their DNA that was searched. In contrast, a third cousin whose DNA was used to identify a suspect could have standing to bring a suit, but they might be hard-pressed to prove they were harmed by the search.

If police are getting hits to suspects by violating companies’ terms of service — using databases that bar police searching — that “raises some serious Fourth Amendment questions” because no expectation of privacy has been waived, Ram said. Of course, ferreting out such violations would require that the information be disclosed in court, which isn’t happening.

At present, the only real regulators of the practice are the database owners: private companies that can change hands or terms of service with little notice. GEDmatch, which has at least once bent its terms to accommodate police, was started by two genealogy hobbyists and then sold to the biotech company Verogen, which in turn was acquired last winter by another biotech company, Qiagen. Experts like Ram and Lynch worry about the implications of so much sensitive information held in for-profit hands — and readily exploited by police. The “platforms right now are the most powerful regulators we have for most Americans,” Ram said. Police regulate “after a fashion, in a fashion, by what they do. They tell us what they’re willing to do by what they actually do,” she added. “But by the way, that’s like law enforcement making rules for itself, so not exactly a diverse group of stakeholders.”

For now, Ram said, the best way to regulate forensic genetic genealogy is by statute. In 2021, Maryland lawmakers passed a comprehensive law to restrain the practice. It requires police to obtain a warrant before conducting a genetic genealogy search — certifying that the case is an eligible violent felony and that all other reasonable avenues of investigation have failed — and notify the court before gathering DNA evidence to confirm the suspect identified via genetic genealogy is, in fact, the likely perpetrator. Currently, police use surreptitious methods to collect DNA without judicial oversight: mining a person’s garbage, for example, for items expected to contain biological evidence. In the Golden State Killer case, DeAngelo was implicated by DNA on a discarded tissue.

The Maryland law also requires police to obtain consent from any third party whose DNA might help solve a crime. In the Kohberger case, police searched his parents’ garbage, collecting trash with DNA on it that the lab believed belonged to Kohberger’s father. In a notorious Florida case, police lied to a suspect’s parents to get a DNA sample from the mother, telling her they were trying to identify a person found dead whom they believed was her relative. Those methods are barred under the Maryland law.

Montana and Utah have also passed laws governing forensic genetic genealogy, though neither is as strict as Maryland’s.

Solving Crime Before It Happens

The rise of direct-to-consumer DNA testing and forensic genetic genealogy raises another issue: the looming reality of a de facto national DNA database that can identify large swaths of the U.S. population, regardless of whether those individuals have uploaded their genetic information. In 2018, researchers led by the former chief science officer at MyHeritage predicted that a database of roughly 3 million people could identify nearly 100 percent of U.S. citizens of European descent. “Such a database scale is foreseeable for some third-party websites in the near future,” they concluded.

“All of a sudden, we have a national DNA database, and we didn’t ever have any kind of debate about whether we wanted that in our society.”

“All of a sudden, we have a national DNA database,” said Lynch, “and we didn’t ever have any kind of debate about whether we wanted that in our society.” A national database in “private hands,” she added.

By the time people started worrying about this as a policy issue, it was “too late,” Moore said during her address at the Ramapo conference. “By the time the vast majority of the public learned about genetic genealogy, we’d been quietly building this incredibly powerful tool for human identification behind the scenes,” she said. “People sort of laughed, like, ‘Oh, hobbyists … you do your genealogy, you do your adoption,’ and we were allowed to build this tool without interference.”

Moore advocated for involving forensic genetic genealogy earlier in the investigative process. Doing so, she argued, could focus police on guilty parties more quickly and save innocent people from needless law enforcement scrutiny. In fact, she told the audience, she believes that forensic genetic genealogy can help to eradicate crime. “We can stop criminals in their tracks,” she said. “I really believe we can stop serial killers from existing, stop serial rapists from existing.”

“We are an army. We can do this! So repeat after me,” Moore said, before leading the audience in a chant. “No more serial killers!”

Update: August 18, 2023, 3:55 p.m. ET
After this article was published, Margaret Press, founder of the DNA Doe Project, released a statement in response to The Intercept’s findings. Press acknowledged that between May 2019 and January 2021, the organization’s leadership and volunteers made use of GEDmatch tools that provided access to DNA profiles that were opted out of law enforcement searches, which she described as “a bug in the software.” Press stated:

We have always been committed to abide by the Terms of Service for the databases we used, and take our responsibility to our law enforcement and medical examiner partner agencies extremely seriously. In hindsight, it’s clear we failed to consider the critically important need for the public to be able to trust that their DNA data will only be shared and used with their permission and under the restrictions they choose. We should have reported these bugs to GEDmatch and stopped using the affected reports until the bugs were fixed. Instead, on that first day when we found that all of the profiles were set to opt-out, I discouraged our team from reporting them at all. I now know I was wrong and I regret my words and actions.

The post Police Are Getting DNA Data From People Who Think They Opted Out appeared first on The Intercept.

The news made Rodrick’s remarks at the vigil even more urgent. “My brother was convicted of the murder and rape of Stacey Stites, and since that time, we’ve been living a nightmare that we cannot wake up from,” he said. “The reason I say it’s a nightmare is because the truth is out there, but nobody is willing to look at it or to pay attention to it. Evidence is out there that proves my brother’s innocence, but nobody is admitting it into the court.”

“I say, let all the evidence be looked at and heard and give him a new trial,” he continued. “We don’t need to free Rodney Reed, the truth will free Rodney Reed.”

“We don’t need to free Rodney Reed, the truth will free Rodney Reed.”

Reed, who is Black, was sentenced to death for the 1996 rape and murder of 19-year-old Stites, who was white. Her body was found on the side of a country road just outside Bastrop, Texas. Sperm recovered from Stites’s body was eventually matched to Reed, which prosecutors called the “Cinderella’s slipper” linking Reed to her death. But Reed insisted he was innocent; he said he’d been having an affair with Stites, who was engaged to a white police officer named Jimmy Fennell. Fennell denied the possibility of an affair, claiming that he and Stites had a loving relationship and she didn’t know anyone named Rodney Reed. Fennell was questioned several times but was never seriously considered as a suspect.

In the decades since Reed’s conviction, a host of evidence has emerged showing that Reed and Stites did know each other and Fennell was aware of their dalliance, dismantling the state’s theory of the crime. Evidence of Fennell’s propensity for violence has also surfaced; in 2008, he was sentenced to 10 years in prison for kidnapping and sexually assaulting a woman while on duty and in uniform. He threatened to kill her if she told anyone about it. Meanwhile, the courts — most notably the CCA — have shrugged their shoulders and rebuffed Reed’s efforts to win a new trial.

In a pair of rulings issued on June 28, the CCA again denied Reed’s pleas, which the court has now done at least a dozen times since 2000. Each time, the court has flatly rejected the mounting evidence of Reed’s innocence, often in ways that mischaracterize the evidence or interpret the law to make the revelations meaningless. In the most recent rulings, the court trivializes nearly every detail that casts doubt on Reed’s guilt.

I have covered Reed’s case for more than 20 years and have repeatedly fielded questions from people bewildered by the CCA’s position. Dozens of witnesses have come forward with information that supports Reed’s account and points to Fennell as the more likely killer, including friends of Stites’s and Fennell’s law enforcement colleagues. How can the court discount every single one of these witnesses? There are no good answers. The conclusion I’ve come to is one that is beyond the law and something that veterans of Texas’s criminal legal system have grumbled about for years: There are just some defendants the CCA judges don’t like and will steadfastly rule against, regardless of the evidence that might support their bid for a new trial or release. Rodney Reed is one of them.

A Secret Affair

When Reed was first questioned by police in connection with the murder, he denied knowing Stites aside from what he’d seen in the news. It was only after his DNA came back as a match that he relented and said the two had been having a clandestine affair. Although the CCA has pointed to Reed’s initial denial as undercutting his claim of an affair, which they deemed “manufactured and implausible,” it isn’t hard to see why Reed might have withheld this information: Even in mid-1990s Texas, a Black man dating a young white woman engaged to a white cop would have been a risky endeavor.

With the DNA match to Reed, the state devised a theory of the crime. Stites left the apartment she shared with Fennell around 3 a.m. to make the 30-mile commute to the grocery store in Bastrop where she worked the early shift stocking produce, only to be waylaid by Reed. Traveling on foot, Reed somehow stopped Stites’s vehicle, overpowered her, then raped and strangled her with her own belt — all presumably inside the truck — before dumping Stites’s body on the roadside and leaving the truck in the Bastrop High School parking lot.

Prosecutors didn’t offer any conclusive evidence demonstrating how all of this might have taken place. And the timeline itself was predicated on information that Fennell provided to investigators. He wasn’t awake when Stites left that morning, he told them, but he filled them in on what he said was her normal routine. Inexplicably, the cops failed to search the apartment the couple shared, even though it was the last place Stites was known to be alive. Days after the murder, the state released the truck to Fennell, who immediately got rid of it.

Although Reed’s trial attorneys promised to deliver evidence of his alleged affair with Stites, they fell far short, calling to the stand only a few witnesses, each with some connection to the Reed family. The defense was hamstrung by the fact that they had done little work to prepare for the capital trial. Records reflect that they only began working on the case in earnest a month before jury selection — hardly enough time to conduct their own investigation into who might have known what. They repeatedly asked the judge to postpone the trial but were denied.

In contrast, prosecutors told the jury that they had interviewed anyone with a plausible connection to the case — including all of Stites’s co-workers at the grocery store — and found no one who could back up Reed’s story. Investigators talked to “every boyfriend, every co-worker, every friend, every family member, everybody,” prosecutor Lisa Tanner told the jury. “Nobody connects them. Nobody. Folks, this secret affair was so secret that Stacey Stites didn’t know about it. That’s how secret it was — because it didn’t exist.”

Straining Credulity

It wasn’t long after Reed was convicted that other witnesses started coming forward. Not only did they confirm a preexisting relationship between Reed and Stites, but they also shared stories about Fennell’s jealousy, racism, and volatility — indications that he knew about the relationship and was furious about it. Every time, however, the CCA rejected the evidence.

There was a woman named Mary Blackwell, for example, who said she’d been in a law enforcement training class with Fennell. In an affidavit she provided to Reed’s lawyers in 2004, she said she heard Fennell tell a fellow trainee that if he ever caught his fiancée cheating on him, he’d strangle her with a belt. Texas prosecutors pointed out that no one else had admitted to hearing the comment, leading the CCA to discredit Blackwell’s story.

More recently, the CCA’s reflexive dismissal of witnesses whose claims call the state’s case into question has bordered on the absurd. In 2021, a judge in Bastrop presided over a nine-day evidentiary hearing that featured dozens of witnesses, including friends of Stites’s from work, members of law enforcement who knew Fennell, and former inmates imprisoned with Fennell. The witnesses testified that Stites and Reed had been involved in a relationship, that Fennell knew about it, and even that Fennell had confessed to Stites’s murder. None of these witnesses had any connection to Reed or his family.

Among the witnesses was a co-worker of Stites’s named Suzan Hugen, who testified that she and Stites were friends. She said she was aware that the relationship between Fennell and Stites was off; among other things, she’d seen finger-shaped bruises on Stites’s arms, which the younger woman tried to hide. Hugen also said that Stites had introduced her to her friend “Rodney.”

Hugen provided this information to the state well before Reed’s 1998 trial, yet it was never turned over to Reed’s attorneys. In fact, it wasn’t until just before the evidentiary hearing commenced in 2021 that the state finally made Hugen’s information available, along with statements from three other individuals that suggested other grocery store employees might also have known about a relationship between Stites and Reed. The decades-late disclosures prompted Reed’s lawyers to file an appeal claiming that the state had violated its obligation to turn over exculpatory information to the defense as required by the U.S. Supreme Court ruling known as Brady v. Maryland.

Despite overwhelming testimony in favor of Reed, the judge presiding over the evidentiary hearing fully embraced the state’s position that none of Reed’s witnesses were credible. Judge J.D. Langley signed off on findings written by the state, concluding that only the state’s witnesses, including Fennell, were reliable.

Reed’s attorneys challenged the ruling before the CCA, arguing that Langley had abdicated his responsibility to make independent determinations about witness credibility by simply adopting the state’s proposed conclusions, which were rife with errors and factual misrepresentations about various testimony, including Hugen’s.

In one of the rulings released on June 28, nearly two years after the evidentiary hearing concluded, the CCA lamented the errors — it listed several in a footnote with the caveat that the list was “by no means exhaustive” — before undertaking its own assessment of the witnesses’ credibility. Ultimately, the CCA concluded, as Langley had, that none of Reed’s witnesses were credible, save for one man whose father lived in the apartment just below Stites and Fennell, who reported hearing violent arguing on multiple occasions.

The man, Brent Sappington, said that he and his father, Bill, who has since died, approached a prosecutor the family knew at church to report what they’d heard. According to Sappington, the prosecutor, a man named Ted Weems, told them to hush up because investigators already had their suspect. Weems testified that Bill had reported the fighting upstairs, but he denied discouraging the family from coming forward. The CCA credited Sappington only to the extent that Weems “corroborated” his account; where the stories diverged, the CCA concluded that Weems was the one telling the truth. Sappington explained that he was initially hesitant to come forward because Fennell was in law enforcement and he feared his story would be dismissed, an explanation the court found to be an excuse that “strains credulity.”

Several other witnesses provided similar reasoning, saying they didn’t come forward sooner because they feared retaliation from a law enforcement community that they expected would protect its own. The court repeatedly found this explanation unconvincing. Other witnesses, who said they didn’t realize that what they knew was important, were dismissed as likely fabricating their recollections. While it’s true that memory can be tricky, the CCA failed to engage with any nuance and instead deployed a false-memory blanket across multiple witness statements as a one-stop discrediting device.

“For 23 years, Texas illegally hid evidence that could have exonerated Rodney Reed.”

Where Hugen was concerned, the court stated that the account she offered was “unremarkable, even mundane.” The judges also took aim at her recollection about seeing bruises on Stites’s arms, concluding that jurors would not have believed that since no bruises were found on Stites’s arms during the autopsy.

As for the state’s alleged Brady violation, the CCA concluded that the information Hugen had was “immaterial” since one witness had previously testified at Reed’s trial that she’d seen Reed and Stites together at the grocery store. Hugen’s account wouldn’t have added anything, the judges wrote, despite the fact that Hugen had no connection to the Reed family, and had her information been disclosed in a timely way, it would have offered Reed’s defense another avenue of investigation.

The court took the position that other witness statements were immaterial because the state had deemed them dead leads. In other words, if Texas prosecutors decided that the statements were meaningless, then they had no obligation to turn them over — a bastardization of Brady’s disclosure requirement that would afford prosecutors total discretion over what evidence is released to the defense. Although prosecutors cited their Brady obligation in releasing the witness information to Reed’s attorneys in 2021, the CCA’s opinion seemed to endorse the notion that it would have been perfectly fine for them to leave the information forever buried in the state’s files.

“The Whole World Will Know”

That the CCA would rule against Reed is neither new nor surprising — nor is the judges playing mental gymnastics with legal standards to get them to their desired result.

For decades, the court has been a myopic, hegemonic institution, composed largely of middle-aged, white, male jurists who were former prosecutors — a mix of factors that has created an insulated worldview within the court’s chambers in Austin. When the current presiding judge, Sharon Keller, first ran for a seat on the court back in 1994, she described herself as “pro-prosecutor,” meaning, she told a reporter, “seeing legal issues from the perspective of the state instead of the perspective of the defense.” That view has dominated the CCA bench for the last 30 years and reflects its approach to the Reed case.

The judge who wrote the June 28 opinions was its newest member, Jesse McClure, a former prosecutor-turned-Houston district court judge who was appointed to the bench in December 2020 by Texas Gov. Greg Abbott. Notably, he is only the third Black CCA judge since the court’s establishment in 1891. One judge, Scott Walker, dissented from the rulings but did not explain why.

Reed’s lawyers are frustrated. “For 23 years, Texas illegally hid evidence that could have exonerated Rodney Reed. He is an innocent man,” Jane Pucher, a senior staff attorney with the Innocence Project, said in a statement. “Texans should be outraged that prosecutorial misconduct is going unchecked, and the state is being given a license to cheat — even if it means sending an innocent man to his death.”

Pucher said Reed’s legal team is considering all its options, including asking the U.S. Supreme Court to review the case. Meanwhile, a separate legal effort to obtain DNA testing on key crime scene evidence, including lengths of the braided belt used to strangle Stites, is ongoing. Texas has long fought Reed’s bid to have the evidence tested; predictably, the CCA sided with the state, offering a novel interpretation of Texas’s DNA testing law to block Reed’s access. The dispute made it to the Supreme Court on a technical point, and this spring, the court ruled in Reed’s favor, sending the case back to the 5th U.S. Circuit Court of Appeals.

Rodrick is frustrated by the CCA’s continued hostility toward his brother, but he has vowed to keep fighting. At the vigil in Washington, D.C., he recalled something that his mother, Sandra, told the court back in 1998 when Reed was convicted. “She said, ‘You may try to take my son’s life, but I guarantee you the whole world will know about it.’”

The post Dozens of Witnesses Say Rodney Reed Is Innocent. Texas Court Says They’re All Wrong. appeared first on The Intercept.

After the Oklahoma Pardon and Parole Board denied Glossip’s clemency request last month, Lea was the person he turned to. “I called her the second I got back to my cell,” he said. “I told the guards, ‘I need to get back there.’ … Whenever things get really tough for me, and I feel at my lowest point, I know that I can talk to Lea and she can pick me up from that.”

Now they faced a dreaded ritual they’d already confronted multiple times: preparing for Glossip’s transfer to Death Watch, one of the final stages of the state’s death penalty protocol. Their last contact visit was scheduled for Friday, May 5 — one more chance to hug, kiss, and hold hands. Afterward, Lea would take Glossip’s belongings home, while he prepared to be moved to a holding cell adjacent to the execution chamber.

Lea arrived earlier than usual that day, around 9 a.m. She was accompanied by the legendary anti-death penalty activist Sister Helen Prejean, Glossip’s spiritual adviser. Three other high-profile advocates joined them: Republican state Reps. Kevin McDugle and Justin Humphrey, as well as GOP politico Justin Jackson. With Glossip’s May 18 execution date looming, the visit was more of a strategy session than a series of goodbyes. No one was ready to give up.

Around noon, Sister Helen and the politicians decided to leave in order to give Lea and Glossip some privacy, or whatever passed for privacy in a crowded visiting room. But first, they all stepped into the hallway to take some photos — a privilege not usually afforded to the men on death row, which the interim warden had arranged himself. In one photo, Lea stood in front of her husband wearing a wide smile, clasping his cuffed hand in both of hers.

Once back in the visiting room, it was harder to keep a brave face. As 3 p.m. approached, Glossip held Lea’s hands tighter. “He kept telling me, you know, something could happen,” she said. “We’re gonna get through it no matter what.”

“Then, all of a sudden, the warden comes in and says, ‘I need both of you. Come out to the hallway,’” Lea said. The room went quiet. Since their visit was coming to an end, Lea assumed the warden wanted to discuss handing over the box of property. Instead, he told them that the U.S. Supreme Court had just stayed Glossip’s execution. “And we just completely, completely crumbled into each other.”

Upon their return to the visiting room, they raised their arms up together and said, “We got the stay.” And the room erupted with cheers.

Confession of Error

The stay of execution was the latest twist in a seemingly never-ending saga that has seen Glossip come close to execution nine different times. Just one month earlier, the state’s attorney general, Genter Drummond, had asked the Oklahoma Court of Criminal Appeals to vacate Glossip’s conviction and death sentence, saying he could no longer stand by the conviction.

But in a series of devastating blows, the court rejected Drummond’s motion and said it saw no reason to stay Glossip’s execution. By then, Glossip’s lawyers had filed a petition for certiorari with the U.S. Supreme Court, asking the justices to address misconduct in the case that had recently come to light. But it was only after the legal team filed a second petition — and a request for a stay backed by the attorney general himself — that the high court intervened, blocking the execution while it considers whether to take the case.

Glossip was twice tried and sentenced to death for the January 1997 murder of Barry Van Treese inside a seedy Best Budget Inn that Van Treese owned on the outskirts of Oklahoma City. No physical evidence linked Glossip, the motel’s 34-year-old manager, to the crime. Instead, the case against him was built almost entirely on the testimony of 19-year-old Justin Sneed, who worked at the motel as a handyman.

Sneed admitted to murdering Van Treese but claimed it was all Glossip’s idea. On Sneed’s word alone, prosecutors theorized that Glossip wanted Van Treese dead so he could take over operations of the low-rent motel. At trial, they painted Sneed as powerless to resist Glossip’s command to kill the boss. In exchange for testifying against Glossip, Sneed avoided the death penalty and was sentenced to life without parole.

Glossip has steadfastly maintained his innocence, and over the years, evidence of his wrongful conviction has mounted. New evidence supports Glossip’s contention that Sneed, a chronic drug user with a violent streak, initially planned to rob Van Treese and killed him when the plan went sideways. Sneed implicated Glossip in this scheme during a highly suggestive police interrogation. Witnesses who were ignored by police and prosecutors have since come forward to say that Sneed was cunning and manipulative and quite capable of killing a man on his own.

Glossip’s defense team has also uncovered a cascade of police and prosecutorial misconduct. The state destroyed a box of crucial evidence before Glossip was retried in 2004, and it suppressed evidence that Sneed sought to recant his incriminating testimony. More recently, Glossip’s legal team found notes reflecting that prosecutor Connie Smothermon knew that portions of Sneed’s testimony were false.

Sneed had been diagnosed with bipolar disorder and prescribed lithium to manage it by a psychiatrist who evaluated him at the Oklahoma City Jail. At trial, Sneed denied that the evaluation ever took place.

Drummond had highlighted Sneed’s misstatements in his brief to the Court of Criminal Appeals seeking to vacate Glossip’s conviction. He argued that Sneed’s mental health disorder combined with his chronic drug use could have negatively affected “Sneed’s ability to properly recall key facts” at trial.

Despite the overwhelming evidence that the state got it wrong, the Oklahoma Court of Criminal Appeals has routinely rejected Glossip’s appeals. In April, the judges all but ignored Drummond’s confession of error and explained away Sneed’s misstatements, finding that he was “likely in denial of his mental health disorders.”

The court’s ruling triggered the 35-day protocol preceding Glossip’s execution date, including a hearing on April 26 before the Oklahoma Pardon and Parole Board, whose members are empowered to recommend clemency to the governor. At the hearing, Drummond sided with Glossip’s defense team; it was the first time in Oklahoma’s history that an attorney general argued in favor of clemency for a person on death row.

The board was not swayed. To secure a clemency recommendation, Glossip needed a favorable vote from three members. Instead, the board deadlocked, voting 2-2. Under board rules, a tie is weighted in favor of the “no” votes, resulting in a denial of clemency.

The Oklahoma Constitution requires that the board be comprised of five “impartial” members, three appointed by the governor, and one each appointed by the Oklahoma Supreme Court and Court of Criminal Appeals. For Glossip’s hearing, however, just four were present; board member Richard Smothermon, who is married to the prosecutor at the center of Glossip’s misconduct claims, had recused himself from the case in July 2022.

Despite the advance warning, nothing was done to fix the issue: While the state constitution requires a five-member board, state statutes and administrative rules provide no mechanism for the designation of an alternate when a member is recused.

Two days before the hearing, Don Knight, Glossip’s lead attorney, filed a lawsuit in Oklahoma County District Court asking the court to permanently bar the state from executing Glossip absent a clemency hearing conducted within constitutional parameters.

By allowing the board to make clemency decisions without its full complement of members, the state was putting a greater burden on Glossip, Knight argued. Instead of winning three out of five votes, he would be required to secure three of four. Knight asked the court to declare the April 26 hearing “void of any legal effect.” The lawsuit remains pending.

The Fight Ahead

Both of the petitions pending before the Supreme Court deal with crucial evidence that the state withheld from Glossip’s defense. The first petition was filed in early January, when Glossip was facing a February execution date. The state responded quickly, asking the court to reject the petition. Notably, the court has repeatedly put off considering the case; so far it has been scheduled for discussion six times.

By the end of January, much had changed. The outgoing attorney general, John O’Connor, was replaced by Genter Drummond, who quickly launched an independent investigation into Glossip’s case and released to Glossip’s attorneys a box of prosecution records that O’Connor had refused to let the defense see. The box contained the records related to Sneed’s misleading testimony, evidence that prompted Drummond to conclude that Glossip’s conviction could not stand.

Drummond’s intervention may not have moved the Oklahoma Court of Criminal Appeals or the parole board, but it is clear that the Supreme Court is taking his position more seriously. Not only did the attorney general join Glossip’s motion for a stay of execution, which the court granted on May 5, but there is also every indication that he will join Glossip’s appeal to the court.

To McDugle, the state lawmaker, Oklahoma’s response to Glossip’s case has damaged the credibility of key state institutions. “This case is no longer about justice,” he said at a press conference at the Oklahoma State Capitol the day before the stay was granted. “It’s about power, pride, and politics. That’s what it’s become.”

McDugle said that prior to getting involved in Glossip’s case, he didn’t realize how “deeply embedded” the state’s prosecutors are in all branches of government. Through the District Attorneys Council, they apply pressure across the system to protect their power.

This dynamic explained the presence of several district attorneys from across the state at Glossip’s clemency hearing: The point was not only to stare down the board and get them to vote “no,” but also to demonstrate their objection to the attorney general’s unprecedented intervention. Among them was former Oklahoma County DA David Prater, who took extreme measures to defend Glossip’s conviction — including orchestrating the arrest of a witness who came forward with information about Sneed.

The District Attorneys Council has actively sought to undermine Prater’s successor, Vicki Behenna, the county’s first female elected DA. In April, Behenna wrote a letter to the parole board noting that under new guidelines she had instituted, Glossip’s case would not be eligible for capital prosecution. Behenna’s position has further fueled backlash to the attorney general’s intervention. Prater and the District Attorneys Council know that if the courts agree that Glossip’s conviction should be overturned, it will be up to Behenna to decide whether to retry the case.

On Tuesday, Glossip’s supporters held a rally on the front steps of the Oklahoma Capitol. The featured speaker was Phil McGraw, whose coverage of Glossip’s case in 2015 prompted new witnesses to come forward. Knight, Glossip’s lawyer, reminded the crowd that the fight was not over. The Supreme Court stay represented one victory in a battle that will “rage on” until Glossip is freed, he said. Lea emphasized that there was still a lot of work to be done and thanked everyone for supporting their efforts. “We truly do need all of you — especially as Oklahomans — right now.”

As she told The Intercept, the last month has been a legal and emotional rollercoaster. “It feels like this really insane detour just happened. Now we’re just getting back on the road we were supposed to be on,” she said. “And I like to think it was a good vindication for Drummond also because he’s taken so much blowback.”

On the morning after the Supreme Court granted the stay, Lea and Glossip felt a sense of relief they hadn’t felt in a long time. “That was the first good night’s sleep we both had in a while,” Lea said. “Saturday was the first day we’ve woken up in 11 months without an execution date over us.”

The post The “Power, Pride, and Politics” Behind the Drive to Execute Richard Glossip appeared first on The Intercept.

But in a stunning rebuke, the court rejected the attorney general’s request, triggering the 35-day protocol that precedes an execution. Perhaps most critical: a hearing on April 26 before the Oklahoma Pardon and Parole Board, whose members are empowered to recommend clemency to the governor, serving as a final check against a wrongful execution.

There was every reason to expect the board would vote to spare Glossip’s life. Among the witnesses who appeared on Glossip’s behalf on Wednesday was Attorney General Gentner Drummond himself, along with prominent Oklahoma lawmakers who have come to believe in Glossip’s innocence.

Yet in another stunning reversal of fortune, the board voted to deny clemency. Barring intervention by the courts or Gov. Kevin Stitt, Glossip will be executed by lethal injection on May 18.

“It’s horrifying,” Don Knight, Glossip’s lead attorney, said. But “we’re not done, by a long shot.”

Glossip was twice tried and sentenced to death for the January 1997 murder of Barry Van Treese inside a seedy Best Budget Inn that Van Treese owned on the outskirts of Oklahoma City. No physical evidence linked Glossip, the motel’s 34-year-old live-in manager, to the crime. Instead, the case against him was built almost exclusively on the testimony of 19-year-old Justin Sneed, who worked as a handyman at the motel. Sneed admitted to bludgeoning Van Treese to death but claimed it was all Glossip’s idea. Prosecutors claimed Glossip killed Van Treese in a scheme to take over the low-rent motel and painted Sneed as a meek dolt who would do anything Glossip asked of him. In exchange for testifying against Glossip, Sneed avoided facing the death penalty and was sentenced to life without parole. Glossip has steadfastly maintained his innocence, and over the years, evidence of his wrongful conviction has steadily mounted.

Counter to the state’s fanciful narrative, the evidence supports Glossip’s contention that Sneed — a chronic drug user with a penchant for unpredictable bouts of violence — initially planned to rob Van Treese, killed him when the plan went sideways, and then later, during a highly suggestive police interrogation, named Glossip as the mastermind behind the crime. Witnesses who were ignored by police and prosecutors have since come forward with evidence that Sneed was cunning, manipulative, and quite capable of killing a man on his own.

Knight has spent nearly a decade investigating and presenting to the court new evidence that undercuts Glossip’s conviction. Still, at every turn, the Oklahoma Court of Criminal Appeals has willfully ignored the myriad problems with the case — including prosecutorial misconduct and the state’s destruction of evidence. That same evidence, meanwhile, has led a contingent of conservative, pro-death penalty lawmakers to advocate on Glossip’s behalf over fears the state might execute an innocent man.

The State Got Away With It

The clemency hearing took place at the Kate Barnard Community Corrections Center, a women’s jail complex in Northeast Oklahoma City. The fluorescent-lit room was packed compared to most clemency hearings, with seven rows of chairs assigned to attendees in advance. As in all such proceedings, victims’ family members sat on one side of the room, alongside representatives of the state, while advocates for Glossip sat on the other. Unlike most hearings, both sections included current and former elected officials, most notably Drummond, who was there representing the state and advocating for clemency, the first time an Oklahoma attorney general has ever done so.

“If the defense would’ve destroyed that box of evidence, there would have been charges brought against them. But the state seemingly got away with it.”

Among the most conspicuous attendees was former Oklahoma County District Attorney David Prater, whose office sent Glossip to death row. Before his retirement in January, Prater aggressively defended Glossip’s conviction, intimidating witnesses who came forward with new evidence in 2015 and accusing Glossip of waging a “bullshit PR campaign.” Prater also previously targeted the parole board for recommending clemency in other cases, accusing members of having an anti-death penalty bias. Wearing a dark pinstriped suit, an American flag pin, and a permanent scowl, Prater sat in the fifth row alongside prosecutors from other parts of the state. While he did not speak before the board, Prater shook his head as witnesses described the state’s destruction of evidence and other prosecutorial misconduct.

Each side had 40 minutes to present their case, followed by remarks by the Van Treese family and Glossip himself. A large digital clock faced the speakers, while TV monitors faced the board. One of the five board members, Richard Smothermon, was absent, having recused himself due to the fact that his wife was the prosecutor who sent Glossip to death row.

Knight told the board that Glossip grew up in a chaotic household where family members struggled with drug and alcohol abuse. Unlike a number of his 15 siblings, Glossip managed to avoid running afoul of the law, and after dropping out of school, he worked hard to build a quiet and successful life for himself. He became a manager at Domino’s Pizza before turning to management of a string of motels. “It may not seem like much, but for a guy with a seventh-grade education … it was pretty good,” Knight told the board. The idea that Glossip was scheming to take over the Best Budget Inn was inconceivable, Knight said. It was a fiction dreamed up by Sneed, “a man who now everyone, even the state, admits is a liar.”

“People rarely begin a life of crime at 34,” Knight went on. In contrast, Sneed had a long history of criminal behavior before he killed Van Treese at 19, including threatening to kill his middle school teacher. “The worst thing on Rich Glossip’s record? A traffic ticket.”

Republican state lawmakers described how they had come to believe in Glossip’s innocence. Each said he was skeptical at first; they didn’t believe that an innocent person could wind up on death row. But as they learned more about the case, and new evidence continued to emerge, they concluded that Glossip’s conviction was a miscarriage of justice.

Central to their conclusion was the work of law firm Reed Smith, which undertook a pro bono investigation into the case at the behest of a larger group of lawmakers led by Republican Rep. Kevin McDugle. Reed Smith spent more than a year on its investigation, interviewed more than 40 witnesses, and gathered records from multiple state agencies, producing five reports that paint the clearest picture yet of Glossip’s wrongful conviction. McDugle told the board that he asked the investigators to go where the facts took them. “I simply want them to find the truth in this case,” he said.

“In reading their findings, I was sickened that something like this could happen in the state of Oklahoma,” McDugle said. “Their investigation concluded that based on the complete record, old and new evidence, no reasonable jury hearing it all would have convicted Glossip of murder for hire.” McDugle was especially disturbed by the state’s destruction of a box of evidence before Glossip’s second trial in 2004, including the motel’s financial records and crime scene evidence that could have been tested for DNA. “If the defense would’ve destroyed that box of evidence, there would have been charges brought against them. But the state seemingly got away with it.”

Justin Jackson, a political ally of the governor’s, struck a more personal note. He said that he’d gotten to know Glossip during visits to death row at the Oklahoma State Penitentiary in McAlester. Today he describes him as a friend and “brother in Christ.” “Rich has never wavered once in his claim of innocence,” Jackson said. He held up a painting of a hummingbird that Glossip made for Jackson’s mother, who was dying of cancer. Glossip said that for him, the hummingbird represented freedom from death row — but for Jackson’s mother, he hoped it would represent freedom from pain and suffering. When his mother died in 2020, Jackson said, “Rich had no way of knowing of my mom’s passing but by happenstance he called me later that morning. And he spent the next 30 minutes consoling me.”

An Unprecedented Hearing

When it was the state’s turn to present its case to the board, Drummond began by acknowledging each speaker, along with Van Treese’s loved ones. “I know that this has been an extremely difficult process for the family to endure.”

“I’m not aware of anytime in our history that an attorney general has appeared before this board and argued for clemency.”

“I want to acknowledge how unusual it is for the state to support a clemency application of a death row inmate,” Drummond said. “I’m not aware of anytime in our history that an attorney general has appeared before this board and argued for clemency. I’m also not aware of any time in the history of Oklahoma when justice would require it. Ultimately that is why we are here.” As the state’s chief law enforcement officer, Drummond said, it was his duty to consider “what justice is for the state of Oklahoma.” That’s what led him to finally release evidence that had never been turned over to Glossip’s legal team. It’s also what led him to launch an investigation of his own into the case.

Christina Vitale, a lawyer who was part of the Reed Smith investigation, presented a PowerPoint laying out critical new evidence that had come to light in the past year. This included multiple letters from Sneed to his attorney expressing a desire to recant his testimony against Glossip. It also included the contents of a box of evidence belonging to the district attorney’s office, which was turned over to investigators in January. The box contained prosecutors’ handwritten notes revealing that after Van Treese’s murder, Sneed had been diagnosed with bipolar disorder and prescribed lithium to manage it by a psychiatrist who evaluated him at the Oklahoma City Jail. At trial, Sneed denied that the evaluation ever took place.

Drummond had highlighted Sneed’s misstatements in his brief to the Court of Criminal Appeals seeking to vacate Glossip’s conviction. He argued that Sneed’s mental health disorder combined with his chronic drug use could have negatively affected “Sneed’s ability to properly recall key facts” at trial. “The state has reached the difficult conclusion that the conviction of Glossip was obtained with the benefit of material misstatements to the jury by its key witness,” Drummond wrote.

“The state of Oklahoma can extract its pound of flesh from Richard Glossip, but I believe it has already extracted three pounds.”

Sneed lying about his diagnosis and prosecutors’ failure to correct the record were key factors for Rex Duncan, a former prosecutor whom Drummond retained to conduct the second investigation of Glossip’s conviction. Duncan was the last witness for the state. “This is a first for me, to agree with the defense attorney that their client deserves clemency,” he said. After 600 hours spent reviewing the case, Duncan said, he concluded that “Richard Glossip did not receive a fair trial and the state of Oklahoma cannot stand behind his conviction. Further, the state of Oklahoma cannot stand behind an execution given what has been discovered.”

“If anybody deserved to be on death row, it’s Justin Sneed,” Duncan said. “Richard Glossip has been on death row for most of his adult life, has been served his last meal three times and been within minutes of execution. The state of Oklahoma can extract its pound of flesh from Richard Glossip, but I believe it has already extracted three pounds.”

Enough Is Enough

When it was time for the Van Treese family to speak, their message was clear: They wanted their ordeal to be over and felt betrayed by the state’s call for clemency. Donna Van Treese, Barry’s widow, echoed her testimony from Glossip’s 2014 clemency hearing, describing the impact of her husband’s murder and the lasting trauma for her children. “We do not feel justly represented today,” she told the board. Barry’s son, Derek Van Treese, decried the years of investigation and publicity that had made Glossip’s case famous. “This case has been pushed from being a legal matter to being a political issue; has been pushed from the court of law to the court of public opinion,” he said. “Enough is enough.”

“Today has been a travesty,” Van Treese’s sister, Alana Van Treese Mileto, said. While she acknowledged that Drummond’s concerns should be considered, “at the same time, this is so one-sided.” The state’s presentation “feels like a giant stab in the back, to be honest with you.”

Asked if Drummond’s office had contacted the family prior to the hearing, Donna Van Treese spoke indignantly of a phone conversation with the attorney general. Drummond told her that he believed Glossip was guilty, she said. In response, Drummond repeated what he had previously stated: His personal belief was that Glossip was guilty of “at least accessory after the fact” for his failure to tell detectives about statements Sneed made following the murder. “More likely than not he’s guilty of murder,” he said. “But I do not believe that the evidence presents that he is guilty beyond a reasonable doubt.” He maintained that the board should recommend clemency. “I believe it would be a grave injustice to allow the execution of a man whose trial was plagued by many errors.”

Glossip was given 20 minutes to speak on his own behalf. He spoke for less than three, appearing by Zoom from the Oklahoma State Penitentiary. He wore maroon prison scrubs, and his wrists were handcuffed together, making it difficult for him to raise his hand to be sworn in by the board chair. Glossip dabbed at his eyes with a tissue while delivering remarks he had prepared on sheets of white paper. He told the Van Treese family that he was sorry for everything they’d been through. And he thanked all the people who had supported him, including McDugle, Jackson, and Drummond.

Unlike Glossip’s previous clemency hearing in 2014, where board members challenged his account of what happened the day Barry Van Treese died, this time the board asked no questions. Instead, they announced a 10-minute break to deliberate.

After several hours of careful, comprehensive presentations by advocates for Glossip and representatives of the state laying out all the reasons that clemency should be granted, the end was shockingly abrupt. Board members quickly announced their votes: two votes for clemency, followed by two votes against. Under the rules of the Pardon and Parole Board, a tie is weighted in favor of the no votes, meaning the default is denying clemency and blessing an execution.

The Van Treese family cheered, cried, and hugged upon hearing the vote, gathering before a line of TV cameras. Everyone else filed out of the room.

Knight, Glossip’s lawyer, vowed to pursue every remaining avenue to save his client’s life. On Wednesday afternoon, he filed an unopposed stay of execution with the U.S. Supreme Court. He is also challenging the makeup of the board, arguing that the fifth board member, Smothermon, should have been replaced to avoid a tie that would result in a denial of clemency. Knight also plans to challenge the appellate court’s ruling dismissing Drummond’s request to vacate Glossip’s conviction. Finally, he said, he would ask the governor for a reprieve to allow the legal process to take its course, “because the execution of an innocent man would be an irreversible injustice.”

In the meantime, Glossip faces the torment of yet another execution countdown. As his wife, Lea, told the board, they have already undertaken the excruciating task of planning for his state-sanctioned murder: deciding who will attend the execution, what Glossip will choose for his final meal, and where he will be buried. “He is now on the brink of his ninth execution date, all for a crime that he did not commit,” she said. “This ordeal has been absolutely psychologically terrorizing.”

Leaving the hearing, McDugle called the outcome “ridiculous.” “Oklahoma’s got some systemic problems with the judicial system,” he said. “Any reasonable person who would have been in that room would have voted yes for clemency.” Although McDugle has always maintained that he supports capital punishment, he reiterated what he has previously said about the case: If Glossip’s execution is carried out, “I will fight against the death penalty in the state of Oklahoma.”

The post Shocking Vote by Oklahoma Parole Board Clears the Way for Richard Glossip’s Execution appeared first on The Intercept.

“This court has thoroughly examined Glossip’s case from the initial direct appeal to this date,” the court’s five justices wrote. “Glossip has exhausted every avenue and we have found no legal or factual ground which would require relief in this case.”

The court’s move is a rebuke not only to the attorney general, who ordered a review of Glossip’s case earlier this year, but also to dozens of conservative Oklahoma legislators who have been fighting to stop Glossip’s execution over fears the state would kill an innocent man. The independent counsel who reviewed the case concluded that Glossip should receive a new trial — and that pushing for his execution did not “serve the interests of justice.”

Glossip was sentenced to death for the 1997 murder of Barry Van Treese inside a seedy Best Budget Inn that Van Treese owned on the outskirts of Oklahoma City. No physical evidence linked Glossip, the motel’s live-in manager, to the crime. Instead, the case against him was built almost exclusively on the testimony of a 19-year-old maintenance man named Justin Sneed, who admitted to bludgeoning Van Treese to death but said it was all Glossip’s idea. In exchange for testifying against Glossip, Sneed avoided the death penalty and was sentenced to life without parole. Glossip has always insisted on his innocence, and, over the last decade, evidence that he was wrongly convicted has steadily mounted.

Much of this evidence supports Glossip’s contention that Sneed — a chronic drug user who demonstrated unpredictable bouts of violence — carried out the crime and only later set up Glossip as the mastermind. New witnesses have come forward to counter the state’s portrayal of Sneed as a hapless dolt who took direction from Glossip, testifying that Sneed was cunning, manipulative, and quite capable of killing a man on his own.

Most recently, the state disclosed evidence that Sneed made misstatements at trial that undermined his credibility. While he was in jail, Sneed was diagnosed with bipolar disorder and prescribed lithium to manage it. However, when he testified against Glossip, Sneed denied ever seeing a psychiatrist and said he had no idea why he’d been given lithium.

Drummond highlighted these misstatements in his brief to the court seeking to vacate Glossip’s conviction. He argued that Sneed’s mental health disorder combined with his chronic drug use could have negatively affected “Sneed’s ability to properly recall key facts” at trial. “The state has reached the difficult conclusion that the conviction of Glossip was obtained with the benefit of material misstatements to the jury by its key witness,” Drummond wrote.

In rejecting Drummond’s request to vacate Glossip’s conviction, the court blithely concluded there was no reason to further stay Glossip’s execution. “Because Glossip has not made the requisite showing of likely success” in further appeals or “irreparable harm” from any denial of his claims, “he is not entitled to stay of execution,” the justices wrote.

“While I respect the Court of Criminal Appeals’ opinion, I am not willing to allow an execution to proceed despite so many doubts,” Drummond said in a statement. “Ensuring the integrity of the death penalty demands complete certainty. I will thoroughly review the ruling and consider what steps should be taken to ensure justice.”

Glossip’s attorney Don Knight said it was “unconscionable for the court to attempt to force the state to move forward with this execution” given that the attorney general himself agreed that the state’s star witness had been discredited. “We cannot permit this longstanding injustice to go unchallenged and will be filing for review of this manifestly unjust ruling in the United States Supreme Court.”

In February, the Supreme Court intervened in another capital case, Escobar v. Texas, in which prosecutors’ arguments in favor of a death row defendant had been rejected by a similarly hostile appeals court. There, the Texas Court of Criminal Appeals ignored the Travis County district attorney’s decision to join the defendant in asking the court for a new trial. As in Glossip’s case, the prosecutor found that the original prosecution relied on an unsound foundation and that the conviction should be vacated. The Supreme Court sent the case back to the CCA “for further consideration in light of the confession of error by Texas.” Drummond cited the Escobar case in his filing with the Oklahoma court.

“We ask all Oklahomans who believe in justice to stand with Mr. Glossip, and the state of Oklahoma, to stop this wrongful judicial execution,” Knight said, “and grant Mr. Glossip the new trial he so rightly deserves.”

The post Oklahoma Court: We Want Richard Glossip Dead and Evidence Be Damned appeared first on The Intercept.

“The U.S. Supreme Court’s ruling today is a critical step toward the ultimate goal of getting DNA testing in Rodney Reed’s case,” Parker Rider-Longmaid, one of Reed’s attorneys, said Wednesday. “We are grateful that the court has kept the courthouse doors open to Mr. Reed.”

Reed, who is Black, was sent to death row for the murder of a 19-year-old white woman named Stacey Stites, whose body was found on the side of a country road outside Bastrop, Texas, in 1996. Sperm recovered from Stites’s body was matched to Reed. Prosecutors called this evidence the “Cinderella’s slipper” that revealed her killer. But Reed insisted he was innocent. He said he’d been having a clandestine affair with Stites, who was engaged to a white cop from a neighboring town. That officer, Jimmy Fennell, denied the possibility of an affair, claiming that he and Stites had a loving relationship and that Stites didn’t know anyone named Rodney Reed. Fennell was never seriously considered as a suspect, yet there was evidence from the start that he might have been responsible for Stites’s death.

Over the intervening decades, this evidence has only gotten stronger. Friends and co-workers of Stites’s maintain that she did know Reed, and law enforcement colleagues of Fennell’s said he had discovered the affair and was furious that Stites was cheating on him with a Black man. Evidence of Fennell’s propensity for violence has also mounted; in 2008, he was sentenced to 10 years in prison for kidnapping and sexually assaulting a woman while on duty and in uniform. He threatened to kill her if she told anyone.

Prosecutors have repeatedly rebuffed the growing evidence of Reed’s innocence. While failing to offer anything meaningful to challenge the accounts of Reed’s witnesses, they continue to insist that his conviction is righteous — a stance the Texas courts have wholeheartedly endorsed.

Over the years, Reed has repeatedly sought DNA testing of key crime scene evidence that could resolve the matter, including two lengths of a braided leather belt that were used to strangle Stites. Texas has fought back at every turn with a host of dubious claims, including that Reed cannot prove there is DNA present on the belt, that the evidence is too contaminated for testing, and that no amount of DNA evidence would change the outcome of his case. Years of legal wrangling over Reed’s request to test this evidence finally landed his case before the Supreme Court last year.

At issue was a federal civil rights case Reed filed in an attempt to access testing. This time, Texas argued that Reed waited too long to file suit, embracing several different theories to claim that the statute of limitations clock had run out. In its opinion, the Supreme Court found that Reed filed his case on time. The justices who joined today’s majority ruling seemed to grasp that Texas’s claims, as Justice Ketanji Brown Jackson put it during oral arguments, were designed solely to “keep a prisoner from ultimately being able to bring a federal claim.”

Out of Reach

The current dispute started in 2014, when Reed filed a motion in state district court seeking testing of the belt and other items under Texas’s post-conviction DNA testing law, known as Chapter 64. Although the law was intended to provide an avenue for defendants to avail themselves of science as a means to challenge their convictions, many have struggled to access testing, largely due to rulings from the Texas Court of Criminal Appeals, or the CCA, which has repeatedly interpreted the statute in ways that narrow eligibility.

Since Chapter 64’s enactment in 2001, state lawmakers have been forced to amend it several times to address rulings that undercut the intent of the law. At times, the CCA’s rulings have been truly puzzling: In one case, the court ruled that to obtain DNA testing, a defendant first had to prove that DNA existed on the evidence in question, which is nearly impossible to do absent DNA testing.

Prosecutors used this logic to deny DNA testing of the belt used to strangle Stites, arguing that Reed shouldn’t be able to test the belt for DNA because he couldn’t prove there was DNA present. The state also claimed that because evidence had been commingled during storage — mishandling the state itself was responsible for — the items were too contaminated to render any probative DNA results. After the district court sided with the state, Reed appealed to the CCA, which upheld the lower court’s ruling in April 2017. In so doing, the CCA interpreted Chapter 64 to require elements not contained within the text of the law; specifically, the court concluded that alleged contamination of evidence barred Reed from testing, even though the statute says nothing about contamination. Reed asked the court to reconsider its position; six months later, it declined to do so.

While the Supreme Court has ruled that there is no right to post-conviction DNA testing, it has found that if a state does provide access to testing, then the process for obtaining it must be fair, and a defendant may bring a civil rights suit in federal court to challenge an unfair process. That is what Reed did in August 2019, when the CCA declined his request for rehearing.

Under Texas law, such a suit must be brought within two years of the CCA’s denial, but the 5th U.S. Circuit Court of Appeals dismissed Reed’s suit, ruling that he should have filed several years earlier. In a confounding ruling, the appeals court determined that Reed should have brought the civil rights suit when the district court initially denied testing back in 2014, even though that was years before the CCA weighed in and denied Reed’s appeal. If Reed had taken his claim to federal court in 2014, as the 5th Circuit suggested, he would have been wasting time — and court resources — by filing a suit the federal court couldn’t consider because the state appeals process was ongoing.

While the question before the Supreme Court was a narrow, technical one — when, exactly, should Reed have filed his federal lawsuit? — for Reed and others like him, the answer has life-and-death consequences.

Starting the Clock

During oral arguments in October, Texas argued that Reed could have filed suit on any number of dates, just not the specific date he chose after the state appeals process had concluded. Yet the state offered no cogent explanation for why any of those previous dates made sense. Instead, what appeared to underpin Texas Solicitor General Judd Stone’s position in favor of the alternative dates was that each of them would mean that Reed filed his suit too late, after the statute of limitations had run out.

In a brief eight-page ruling, Justice Brett Kavanaugh made quick work of things. Writing for himself; Chief Justice John Roberts; and Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Jackson, Kavanaugh noted that, as a “general matter,” the statute of limitations begins to run only when a person has a “complete and present cause of action.” Because the “longstanding Texas rules of appellate procedure” include the right to ask the CCA for rehearing, which Reed did, the clock began to tick once that request was denied.

“When a prisoner pursues state post-conviction DNA testing through the state-provided litigation process,” the statute of limitations for filing a federal civil rights suit “begins to run when the state litigation ends,” Kavanaugh wrote. “In Reed’s case, the statute of limitations began to run when the Texas Court of Criminal Appeals denied Reed’s motion for rehearing.”

In dissent, Justice Samuel Alito, joined by Neil Gorsuch, wrote that the statute of limitations should have started running when the CCA first denied Reed’s appeal in April 2017. Alito reasoned that the full force of the CCA’s ruling took effect immediately and wasn’t contingent on a request for rehearing, in part because the court often denies such requests. In other words, Reed should have predicted that the April 2017 ruling was the court’s final word on the matter.

Writing separately, Justice Clarence Thomas pontificated at length about all the reasons Reed’s case should be rejected, the matter of the filing date seemingly the least of them. It wasn’t until the close of his opinion that Thomas’s disdain for the rights of criminal defendants and naked bloodlust came into focus.

Thomas noted that there was nothing about the majority’s ruling that would bar the state of Texas from executing Reed. The pending civil rights suit “is no barrier to the prompt execution of Reed’s lawful sentence,” he wrote. He suggested that Texas should move forward: “Reed conceded at oral argument ‘that you do not get a stay of execution just because you brought’” a Chapter 64 or federal civil rights suit, Thomas wrote. “Texas is free to take him at his word.”

Thomas’s argument completely misrepresented the facts. What Reed’s attorney said during oral arguments was that Reed received a stay not because of his DNA case, but because of the myriad troubling questions that have plagued his conviction. The CCA issued the stay of execution in November 2019 to give the courts a chance to determine whether the state had withheld exculpatory evidence from Reed’s defense, whether it had deployed false testimony at his trial, and whether Reed was actually innocent. The stay remains in effect and litigation is ongoing.

The Supreme Court’s ruling sends Reed’s separate federal civil rights suit back to the 5th Circuit for further consideration. With the question of whether Reed filed that suit in a timely manner now answered, “the ruling clears a path” for the court to “consider Mr. Reed’s request that DNA testing be conducted on the murder weapon and other probative items from the crime scene,” Jane Pucher of the Innocence Project, another one of Reed’s attorneys, said.

Rider-Longmaid noted that Bastrop County District Attorney Bryan Goertz has refused to agree to DNA testing and urged him to get on board. “He should join us in the search for the truth, rather than blocking it. If DNA evidence exists, as it does here, it should be tested,” he said. “It’s that simple.”

The post Supreme Court Allows Rodney Reed to Keep Up His Fight for DNA Testing appeared first on The Intercept.

The ruling by the far-right, Trump-appointed judge was lawless and should come as no surprise to anyone who has been paying attention to the ratcheting up of tensions over the legality of abortion since the United States Supreme Court upended constitutional protection for the procedure last summer in Dobbs v. Jackson Women’s Health Organization.

In fact, Kacsmaryk’s ruling in the mifepristone case, known as Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, has a lot in common with the Dobbs opinion penned by Justice Samuel Alito: It ignores science, wholly reimagines facts, and cites less-than-credible sources to arrive at a preordained destination.

The opinion threatens to block access to mifepristone nationwide. Kacsmaryk stayed his ruling for seven days to give the federal government a chance to appeal to the 5th U.S. Circuit Court of Appeals, perhaps the most conservative and results-oriented appeals court in the country, which is expected to bless Kacsmaryk’s decision. On Monday, the Justice Department filed its appeal, writing that Kacsmaryk had “upended decades of reliance by blocking FDA’s approval of mifepristone and depriving patients of access to this safe and effective treatment, based on the court’s own misguided assessment of the drug’s safety.”

Meanwhile, on the heels of Kacsmaryk’s ruling, Washington state District Judge Thomas O. Rice issued his own opinion in a separate mifepristone-related lawsuit brought by 17 states and the District of Columbia, barring the FDA from taking any action that would make mifepristone unavailable in those jurisdictions.

The two opinions deploy diametrically opposed approaches. Kacsmaryk has positioned himself as a scientist in a black robe, free to second-guess the FDA and medical experts whenever and however he chooses, while Rice has made it clear that his job is to respect the science and stay in his lane, considering only whether the agency has satisfied its legal obligations.

Whether the government will find reason to appeal Rice’s decision remains to be seen. But if the 5th Circuit does what it usually does — that is, rubber-stamp even the most extreme and unhinged interpretations of the law — then it will be up to the Supreme Court to decide whether science or ideology will prevail.

Second-Guessing the Science

Mifepristone is the first drug in a two-drug protocol approved for early pregnancy termination. Mifepristone blocks progesterone, a hormone needed to continue pregnancy, and softens the uterine lining; the second drug, misoprostol, is taken 24 to 48 hours later and causes the uterus to contract, expelling the pregnancy. Today, the regimen accounts for more than half of all pregnancy terminations in the U.S. and is also used for miscarriage management.

In 2021, after two decades of enforcing a slew of restrictions tied to mifepristone that advocates and providers had long argued were medically unnecessary, the FDA lifted a requirement that the drug be dispensed in person and has since taken steps to expand access in states where abortion is legal.

Mifepristone is one of the most widely studied medications out there; it has been used in more than 630 published clinical trials, including more than 420 randomized, controlled studies, the “gold standard for research design,” according to a friend-of-the-court brief filed in support of the FDA by the American College of Obstetricians and Gynecologists, the American Medical Association, the American Academy of Family Physicians, and eight other leading U.S. medical groups. The risk of serious complications is less than 1 percent.

“Mifepristone’s safety profile is on par with common painkillers like ibuprofen and acetaminophen, which more than 30 million Americans take in any given day,” the brief read. Procedures like wisdom teeth removal, colonoscopy, and plastic surgery have higher complication and death rates, as does the use of Viagra. “Put simply,” the brief stated, “medication abortion is among the safest medical interventions in any category — related to pregnancy or not.”

“Medication abortion is among the safest medical interventions in any category — related to pregnancy or not.”

Kacsmaryk wasn’t buying any of this. In his 67-page ruling, he lifted talking points from the legal filings of the Alliance for Hippocratic Medicine, which incorporated itself in the Texas Panhandle city of Amarillo in August for the express purpose of challenging the approval of mifepristone. The Alliance argued that medication abortion was wildly unsafe, that the FDA recklessly approved its use in 2000, and that it has since lowered the guardrails to the detriment of anyone who might consider taking it. Because of the way the federal judiciary is organized in North Texas, filing in Amarillo guaranteed that the Alliance’s lawsuit would land on Kacsmaryk’s desk.

The five out-of-state groups that make up the Alliance represent a shadow medical community that exists to promote counterfactual narratives about the risks associated with abortion. In his opinion, Kacsmaryk added his own spin to the Alliance’s baseless assertions, liberally deploying italics to convey his righteous indignation at the very notion that the FDA approved mifepristone in the first place.

Kacsmaryk routinely used medically incorrect and inflammatory terminology beloved by the anti-abortion movement. In his first footnote, he declared that “jurists” often use the word “fetus” in “unscientific ways.” Had he meant that other judges used the word “fetus,” which denotes the developmental stage beginning around eight weeks, when they should have used “embryo,” which encompasses gestation from two to eight weeks, he might have had a point. But instead of using the proper medical terms, he declared he would instead adopt the terms “unborn human” and “unborn child” to encompass all stages of gestation, terms that are not only unscientific, but also oxymoronic. (Accuracy isn’t the point here; rather, it is a none-too-subtle nod toward the goal of many anti-abortion groups, which is to deem a pregnancy at any stage of gestation a “person” under the law, otherwise known as “fetal personhood.”)

To support the proposition that medication abortion is wildly unsafe, he cited almost exclusively anti-abortion sources, including an analysis of anonymous posts to an anti-abortion website and at least one academic whose work has been repeatedly challenged. He also dropped in the opinions of former GOP lawmakers, including disgraced and now deceased former Indiana Rep. Mark Souder, who offered his take on the dangers of medication abortion during a 2006 House subcommittee hearing, and deceased former Oklahoma Sen. Tom Coburn, who, in 2007, said he’d heard a story about a woman whose medication abortion allegedly failed and led her to give birth to an infant with congenital disorders.

Kacsmaryk concluded that the scientists at the FDA haven’t been doing their job right, leaving him no choice but to usurp their authority and enter a ruling to block access to mifepristone across the country.

“The court does not second-guess FDA’s decision-making lightly,” he wrote. Nonetheless, he determined that the scientific studies the agency relied on to approve the drug in 2000 were “unsound,” forcing him to offer a course correction. Quoting directly from the Alliance for Hippocratic Medicine’s lawsuit, he wrote that the “physical and emotional trauma that chemical abortion inflicts on women and girls cannot be reversed or erased.”

Unsatisfied by merely turning the clock back two decades on medical progress, Kacsmaryk’s opinion also tried to breathe new life into the prudish zombie law known as the Comstock Act, which, in 1873, outlawed sending via the mail anything considered “obscene, lewd, lascivious, indecent, filthy or vile”— which at the time included contraceptives — and “every article or thing” that could be used for abortion. The law has not been enforced since the 1930s; Congress removed references to contraceptives in the 1970s; and over the years, judicial actions have largely neutered its reach. Last year, the Department of Justice told the U.S. Postal Service that the dormant law did not prohibit sending medication abortion to patients in places where abortion is legal.

Kacsmaryk disagreed with all of this, calling the act’s provisions “important public policy,” meaning that sending medication abortion pills anywhere for any reason would violate federal law. “The Comstock Act plainly forecloses mail-order abortion,” he wrote.

The Status Quo

Rice’s opinion in the Washington case stands in stark contrast to Kacsmaryk’s ruling. While both are preliminary opinions in advance of further litigation, Rice’s is by far the more conservative.

In that case, the plaintiff states asked the judge to bar the FDA from enforcing the remaining administrative restrictions on the provision of mifepristone, including an unwieldy “prescriber agreement” doctors are required to file with each pharmacy that might fill the prescriptions they write. Rice declined to do so, saying it was too early to make such a call. He concluded that to preserve the “status quo,” he would leave in place the remaining restrictions but block the agency from imposing any new restrictions on access to mifepristone in the 18 jurisdictions that are parties to the lawsuit.

In contrast, Kacsmaryk concluded that preserving the status quo meant going back to the era preceding the FDA’s approval of mifepristone in 2000. “Chemical abortion is only the status quo insofar as defendants’ unlawful actions … have made it so,” he wrote.

Unlike Kacsmaryk, Rice specifically noted that it was not his job to play scientist: “It is not the court’s role to review the scientific evidence,” he wrote. “That is precisely FDA’s role.” Rice noted that there are questions about whether the remaining restrictions are being imposed legally; the agency has said they’re needed to ensure the drug is used safely, while it has also declared mifepristone supremely safe. But sorting out the underlying legal details, Rice concluded, was a task for another day. He declined to issue a nationwide ruling, which are reserved for “exceptional cases.”

Kacsmaryk’s approach has been widely criticized as unhinged. “The court’s disregard for well-established scientific facts in favor of speculative allegations and ideological assertions will cause harm to our patients and undermines the health of the nation,” American Medical Association President Jack Resneck Jr. said in a statement. “Substituting the opinions of individual judges and courts in place of extensive, evidence-based, scientific review of efficacy and safety through well-established FDA processes is reckless and dangerous.”

Whether the U.S. Supreme Court will agree is an open question. The three Trump-appointed justices — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — were promoted to the bench based on their anti-abortion bona fides. All three joined in Alito’s opinion overturning Roe v. Wade, a screed similar in tone and intellect to Kacsmaryk’s mifepristone ruling.

Given the Supreme Court remains an unfortunate wild card, scholars have pointed out several key details impacting the state of play. Kacsmaryk’s conclusion that the Comstock Act forbids mailing medication abortion applies only to the FDA, noted David Cohen, a law professor at Drexel University. “NO ONE ELSE in the country is required to follow that ruling,” he wrote in a Twitter thread. And, as Cohen and law professors Greer Donley and Rachel Rebouche pointed out in a recent piece for Slate, the FDA has the power to ignore Kacsmaryk’s ruling. Because the agency doesn’t have the capacity to police “every nonapproved product on the market,” they wrote, “it has long been settled law, decided in a unanimous 1985 Supreme Court decision, that the agency has broad enforcement discretion, meaning the agency, not courts, gets to decide if and when” it will pursue such a ban.

In the wake of the Texas ruling, Oregon Democratic Sen. Ron Wyden encouraged the Biden administration to simply ignore Kacsmaryk’s mandate. “The FDA, doctors, and pharmacies can and must go about their jobs like nothing has changed and keep mifepristone accessible to women across America,” he said.

Still, advocates caution that ignoring Kacsmaryk’s decree won’t solve the larger problem he has created. If the Supreme Court allows the ruling to stand, it “will radically alter the process for approving drugs and will chill innovation in bringing new drugs to market,” Jennifer Dalven, director of the American Civil Liberties Union’s Reproductive Freedom Project, said on Monday. “If the courts allow this decision to stand, they will be, in essence, telling every fringe group with an opposition to a medication or vaccine, ‘Just go find a politically aligned judge who can then, with the stroke of a pen, deny Americans the ability to get the critical, life-saving treatment they need.’”

The post Texas Judge Cosplaying as Medical Expert Has Consequences Beyond the Abortion Pill appeared first on The Intercept.

“The state has carefully considered the voluminous record in the case, the constitutional principles at stake, and the interests of justice,” Drummond wrote in a filing with the Oklahoma Court of Criminal Appeals. “While the state has previously opposed relief for Glossip, it has changed its position based on a careful review of the new information that has come to light.”

The move by Drummond signals the possible end of a decadeslong saga that began on January 7, 1997, with the discovery of Barry Van Treese’s body inside Room 102 of a seedy motel on the outskirts of Oklahoma City.

Glossip, the live-in manager of the Best Budget Inn, was twice tried and sentenced to death for the murder of Van Treese, the motel’s owner. No physical evidence linked Glossip to the crime. Instead, the case against him was built almost exclusively on the testimony of a 19-year-old maintenance man named Justin Sneed, who admitted to carrying out the brutal killing but said it was all Glossip’s idea. In exchange for testifying against Glossip, Sneed avoided the death penalty and was sentenced to life without parole. Glossip has always insisted on his innocence, and over the last decade, evidence that he was wrongly convicted has steadily mounted.

The Intercept was the first national news outlet to thoroughly examine Glossip’s innocence claim. That investigation, published in 2015, brought widespread attention to the case and prompted a four-part docuseries by Joe Berlinger released in 2017. Last year, The Intercept’s coverage included exclusive interviews with key witnesses who were never contacted by police or prosecutors; the information they provided cast further doubt on Sneed’s account and bolstered Glossip’s innocence claim.

Glossip’s case also caught the attention of a bipartisan group of Oklahoma lawmakers, many of them rock-ribbed pro-death penalty conservatives, who became alarmed that the state planned to kill an innocent man. They sought out the law firm Reed Smith LLP, which conducted an independent investigation into the case. Since June 2022, the firm has released five reports, each containing bombshell revelations that paint a clear picture of Glossip’s wrongful conviction.

Yet until recently, it seemed unfathomable that the state of Oklahoma would concede that Glossip’s conviction was fatally flawed. Despite the ongoing revelations, courts and previous prosecutors refused to seriously consider the evidence pointing to his innocence. Things began to change course after Drummond took office in January. Almost immediately, Drummond slowed the state’s frenzied execution schedule and appointed special counsel to review Glossip’s case.

The appointed counsel, Rex Duncan, ultimately concluded that Glossip’s conviction and sentence should be set aside. In a 19-page report, Duncan touched on problems with the case that Glossip’s attorneys have been trying to draw attention to for years — including the state’s repeated failure to turn over key evidence to the defense and its destruction of additional evidence that cast doubt on the already flimsy case.

“The state’s murder case against Glossip was not particularly strong and would have been, in my view, weaker if full discovery had been provided,” Duncan wrote.

Duncan found that Sneed, the state’s star witness, made misstatements at trial that undermined his credibility. While it has long been known that Sneed was a heavy drug user at the time of Van Treese’s murder, evidence only recently disclosed to Glossip’s attorneys revealed that while he was in jail, Sneed was diagnosed with bipolar disorder and prescribed lithium to manage it. However, when he testified against Glossip, Sneed denied ever seeing a psychiatrist and said he had no idea why he’d been given lithium. Both Duncan’s report and Drummond’s court filing highlight the significance of this misstatement, noting that Glossip’s attorneys should have been made aware of the full scope of Sneed’s diagnosis.

“There is no dispute that Sneed was the state’s key witness at the second trial. If Sneed had accurately disclosed that he had seen a psychiatrist, then the defense would have likely learned … the true reason for Sneed’s lithium prescription,” Drummond wrote in the court filing. “With this information plus Sneed’s history of drug addiction, the state believes that a qualified defense attorney likely could have attacked Sneed’s ability to properly recall key facts at the second trial.”

“The state has reached the difficult conclusion that the conviction of Glossip was obtained with the benefit of material misstatements to the jury by its key witness,” he wrote.

The Oklahoma Court of Appeals, which has been unsympathetic to Glossip’s appeals for years, has little choice but to agree with Drummond that the case should be sent back to Oklahoma City for further consideration. The former elected district attorney there, David Prater, was particularly hostile to Glossip’s innocence claims and called efforts to stop his execution a “bullshit PR campaign.” Prater has since retired and was recently replaced by Vicki Behenna, a former federal prosecutor and head of the Oklahoma Innocence Project.

In the meantime, Glossip’s execution date — his ninth — is still on the calendar for May 18. Drummond has joined Glossip’s attorney Don Knight in asking the court to grant a stay.

In a phone call, Knight was cautiously hopeful that the client he’s fought so tirelessly to save from execution may instead be freed. When he told Glossip that the attorney general had asked that his conviction be overturned, Glossip was “ecstatic,” Knight said. “It was like this moment washed over his face where he recognized that after all these years and after everything he’s been through, he was finally getting someone to listen to him.”

The post Oklahoma Attorney General Asks Court to Overturn Richard Glossip’s Conviction appeared first on The Intercept.

“Julie Bonds McCrory was my mother,” Chad said. “She was taken from me from a very early age. I’m 40 years old now.” Chad had no memory of the murder or his father’s 1985 trial. The crime had traumatized the tight-knit community of Andalusia, where Chad still lives, turning neighbors against Charles McCrory as soon as he became a suspect. But as long as Chad could remember, his father had insisted he was innocent — and most of his family believed him.

“I was raised by my grandparents,” Chad continued. “My dad’s parents. They loved my mom like their own child.” Although they supported Chad’s relationship with his incarcerated father, “they also encouraged me to make my own decision on supporting him.” As he got older, Chad said, he tried to keep an open mind about family members who believed McCrory was guilty. He spent hours talking to his maternal uncle, Barry Bonds, who consistently opposed his father’s release. Yet Chad said he was grateful for their time together. “I learned a lot of things about my mom growing up.” He could never get her back. But he hoped to reunite with his father before he died behind bars.

Chad’s wife and other family members watched the proceeding with a mix of attentiveness and resignation. “They’ve pretty much made up their minds,” Charles McCrory’s younger sister, Laura Grissett, said before the hearing began. “It feels just like a waste of time.” Although the board chair, former Birmingham prosecutor Leigh Gwathney, smiled encouragingly as Chad spoke, they knew better than to feel hopeful. The hearing had begun with a tense exchange between Gwathney and McCrory’s lawyer, Mark Loudon-Brown of the Southern Center for Human Rights, who reiterated a point he’d emphasized in McCrory’s parole application: that prosecutors in Covington County — the same office that convicted his client — had made clear that they no longer considered McCrory a threat to public safety.

“In April of 2021, the district attorney made Mr. McCrory an offer to time served that would have allowed him to leave court that very day and go home unsupervised,” Loudon-Brown said during his own two-minute presentation. The offer, which McCrory rejected because it came with the requirement that he admit to killing his wife, was made on the eve of an evidentiary hearing that would debunk the single most important piece of evidence that sent McCrory to prison for life: a supposed bite mark found on his wife’s body.

Although a famed bite-mark analyst insisted at trial that the mark conclusively linked McCrory to the murder, that same expert has since recanted, saying he would never deliver such testimony today. In the years since McCrory was convicted, bite-mark analysis has been roundly discredited as junk science. Nevertheless, the judge who presided over the evidentiary hearing was unmoved. He ruled against McCrory, keeping him locked up. McCrory is the last known defendant still imprisoned for a conviction almost entirely based on the faulty forensic practice.

Regardless of his client’s innocence claim, Loudon-Brown said, the offer from prosecutors reflected a belief that McCrory had been “sufficiently punished, that his release would be consistent with the safety of the community … and that his exemplary prison record justifies his release.” Gwathney bristled at this characterization. “Did the district attorney make those statements regarding his reasoning?” she asked pointedly. Wasn’t it possible he had different reasons for offering such a deal? Loudon-Brown conceded there were likely a number of reasons. But the offer still showed a willingness to free McCrory — the very question now before the parole board.

Gwathney’s posture made clear how she intended to vote. Under her tenure, the number of applicants granted parole has dropped precipitously. In Alabama, parole proceedings are cursory and notoriously stacked against incarcerated people, who are not even allowed to attend their own hearings. Yet in some ways, McCrory was luckier than most. Unlike the man whose case was called before his that morning, he had family members present, a legal advocate, and even the support of a retired Department of Corrections employee, who felt strongly enough to appear before the board in person. Retired after 35 years, she described McCrory as “a very skilled, very talented, and very intelligent person. I had no fears of him whatsoever.”

Chad was still speaking when the timer went off. “This has been the 12th parole board we’ve attended,” he said, urging the board to consider the many certificates his father had earned behind bars. Chad tried to make a final point: The prosecutors who made the plea offer were part of his community too; people he did business with, went to church with. “And I feel like —”

The bailiff stepped forward. “Your time is up,” he said.

Rush to Judgment

In 2022, The Intercept published a deep-dive investigation into McCrory’s case, detailing his long-standing claim of innocence. But the evidence pointing to his wrongful conviction was not discussed at the parole hearing. Maintaining innocence is rarely a winning strategy in front of parole boards, which expect contrition from the incarcerated people who appear before them. It’s the court system, theoretically at least, that is supposed to consider whether evidence supports a claim of innocence. When a trial judge rejects such a claim, as the Covington County judge did in McCrory’s case, then it falls to appellate courts to determine whether that was the right call.

So far that has not helped McCrory either. The courts that have reviewed his conviction have willfully ignored the discredited forensic evidence at the heart of his case, dismissing the bite-mark expert’s recantation and going so far as to craft an entirely new narrative of the crime in order to keep McCrory in prison.

Julie McCrory’s body was found inside the couple’s house on the morning of May 31, 1985. She was lying prone, her head was bashed in, and she’d been repeatedly stabbed in the chest. Chad, then 3 years old, was found unharmed in his crib. The police quickly zeroed in on McCrory as their only suspect: He and Julie were separated, and McCrory had been having an affair with a former co-worker. At trial, the theory seemed to be that he’d savagely murdered Julie to be free from her.

The police investigation was cursory at best. Detectives searched McCrory’s home and car and found nothing to connect him to the bloody crime. Police also found personal items that prosecutors sought to introduce at trial despite their lack of relevance to the crime: a VHS tape and a collection of photos featuring Julie and her husband in kinky scenarios. “There is more than one scene in which the young lady is — what is considered in bondage,” a defense witness testified at a pretrial hearing. The state apparently hoped to show that “bondage sex” could lead to “stronger and stronger acts of violence,” as one prosecutor put it. Although the items were barred by the presiding judge, rumors swirled in the run-up to the trial, and many came to believe that the murder was linked to some kind of sex ring.

According to the state’s star witness, the puncture wounds on Julie’s arm were a perfect match to McCrory’s unique dentition.

Ultimately, the state latched onto a single piece of physical evidence as dispositive of McCrory’s guilt: two small indentations on the back of Julie’s right arm, which they concluded was a bite mark made by McCrory’s allegedly distinctive dentition.

The state rushed the case to trial in October 1985, but there was little else in the way of evidence. McCrory and his father had been the first to discover Julie’s body that morning; they’d gone to check on her after she failed to drop Chad off at his grandparents’ house. Police decided that McCrory was acting strangely when they arrived on the scene. Detective Billy Treadaway testified that McCrory asked him if Julie had been killed by a “lick on the back of her head,” which he found odd since her injuries had not yet been documented. Under cross-examination, Treadaway acknowledged that Julie was found with her head in a pool of blood but insisted, “You couldn’t see the lick on the back of the head. You could just see her head splattered open.”

The most important witness for the state was Dr. Richard Souviron, a forensic dentist who rose to fame after testifying during the trial of serial killer Ted Bundy. Even though Souviron had cautioned prosecutors early on against using the bite mark at McCrory’s trial absent other solid physical evidence, when he got on the stand, he was unequivocal, saying that the two puncture wounds on Julie’s arm were a perfect match to McCrory’s unique dentition — and only .5 percent of people in the world had dentition like McCrory’s.

The next day, the jury found McCrory guilty. He was sentenced to life in prison.

A Star Witness Recants

Bite-mark analysis depends on two assertions: that human dentition is unique and that skin is a suitable substrate to record that uniqueness. Neither is true; research has revealed that human dentition is not unique, and skin, as malleable as it is, is a poor medium for preserving an accurate record of injury. In recent years, the scientific community has repeatedly interrogated bite-mark analysis, deeming it a random and purely subjective practice. To date, more than two dozen people convicted on bite-mark evidence have been exonerated.

In 2020, Loudon-Brown and attorney Chris Fabricant of the Innocence Project filed a petition with the court in Andalusia where McCrory was tried, asserting his innocence and asking that his conviction be overturned. They had powerful new evidence: Souviron had recanted his trial testimony. “I no longer believe, as I did at the time of trial, that there is a valid scientific basis for concluding that the injury found on the skin of the victim … could be ‘matched’ or otherwise connected to a specific individual,” he wrote in an affidavit. “I therefore renounce that testimony.”

Circuit Judge Lex Short convened an evidentiary hearing the following spring. Two forensic odontologists, Adam Freeman and Cynthia Brzozowski, former true believers in bite-mark evidence, testified about the discipline’s demise and said there was no basis to conclude that the marks on Julie’s arm were made by teeth, let alone McCrory’s teeth.

More than two dozen people convicted on bite-mark evidence have been exonerated.

Covington County Chief Assistant District Attorney Grace Jeter did not call any experts to rebut Freeman and Brzozowski, but she dismissed Souviron’s recantation, suggesting that there was a difference between bite-mark analysis and “teeth-mark” analysis, and that Souviron had engaged in the latter. She told the judge that even without Souviron, the jurors could have taken the molds of McCrory’s teeth and photos of Julie’s injuries and made the comparison on their own.

Jurors aren’t “allowed to engage in their own junk science,” Loudon-Brown responded.

Short issued a brief ruling in February 2022, which parroted Jeter’s arguments and denied McCrory relief. The judge ignored Souviron’s recantation, found that Freeman and Brzozowski offered little more than a difference of opinion — what’s known as impeachment evidence — and agreed that jurors could have decided for themselves that the injury to Julie’s arm was inflicted by McCrory. Even without Souviron’s testimony, Short concluded, there was enough circumstantial evidence tying McCrory to the murder, such as his comment about the “lick” on Julie’s head, to uphold the jury’s verdict.

McCrory’s lawyers contested the ruling before the Alabama Court of Criminal Appeals. Souviron’s opinion wasn’t merely challenged by other dentists, they noted, but wholly recanted. The discredited bite-mark analysis was the only evidence tying McCrory to the murder; without it, there was nothing to sustain his conviction.

The lawyers argued that police had failed to consider evidence that pointed away from McCrory, including hairs found clutched in Julie’s hand. And while there was physical evidence from the crime scene that could have been tested for DNA, it was subsequently destroyed by the state. Today, all that remains in the evidence room at the courthouse is the dental mold of McCrory’s teeth.

Willful Ignorance

In its reply to the appeals court, the state, now represented by the attorney general’s office, amplified Short’s conclusions. It ignored Souviron’s recantation (save for a single reference to it as “alleged”) and leaned into the argument that McCrory’s challenge to his conviction was nothing more than a dispute over differing expert opinions amid the “shifting science” of bite-mark analysis.

The state also relied on a creative recasting of the facts.

In her brief, Assistant Attorney General Kristi O. Wilkerson dismissed the allegation that the cops had failed to pursue evidence of an alternate suspect and spun circumstantial elements of the case, like the fact of McCrory’s affair, into an elaborate narrative that bore little resemblance to the testimony offered at trial. McCrory was “passionately in love” with the woman he’d had an affair with, desperate to sever ties with Julie, and turned to murder as the only way out. Julie’s death, she wrote, would solve all McCrory’s problems.

Wilkerson’s brief tried to make it appear that the case against McCrory was about everything but the alleged bite mark — a position that the trial prosecutor does not share. In an interview with Loudon-Brown after the 2021 evidentiary hearing, the prosecutor said the bite mark was “key” to the state’s case and “clearly” the basis of McCrory’s conviction.

“Her decision not to recuse jeopardized the partiality of the entire court.”

The state’s reframing of the issue apparently sat just fine with the Alabama Court of Criminal Appeals, which denied McCrory’s appeal in December. The opinion was mostly cribbed from the court’s denial of McCrory’s first appeal back in 1986 and quoted extensively from Short’s ruling. It, too, failed to acknowledge Souviron’s recantation and suggested that while there might be issues with bite-mark analysis, the same could not be said of “teeth-mark analysis.”

McCrory’s lawyers asked the court to reconsider its position. “This court erroneously split hairs regarding a pseudo-distinction between ‘bite marks’ and ‘teeth marks,’ wrongly concluding that Mr. McCrory’s petition is based on mere impeachment evidence that would not have changed the result of his trial,” they wrote. “An unrebutted and unimpeached recantation of critical expert testimony is not merely impeachment evidence — the evidence no longer exists.”

And there was a second problem: One of the appeals court judges, Elizabeth Kellum, had previously worked at the attorney general’s office and argued against McCrory’s 1986 appeal. “Judge Kellum signed the state’s brief in Mr. McCrory’s original appeal,” his lawyers wrote. “This creates an appearance of impropriety that, under the canons of judicial ethics, mandates recusal. Her decision not to recuse jeopardized the partiality of the entire court and violated Mr. McCrory’s constitutional rights.”

The court agreed to rehear the case, but instead of actually doing so, it merely removed Kellum’s name and reissued its previous opinion.

“When Judge Kellum was an assistant attorney general, she advocated for the state, against Mr. McCrory,” Loudon-Brown wrote in a statement to The Intercept. “Her involvement as a judge hearing Mr. McCrory’s case after she litigated against him cannot be squared with the constitutional requirement that judges be impartial and objective decision makers.”

Loudon-Brown said that McCrory’s team will again ask the court to reconsider his case. If it declines, they will appeal to the Alabama Supreme Court.

Who Speaks for the Dead?

Outside the building where McCrory’s parole hearing took place, signs directed visitors to one of two doors. There was the “Victim Waiting Room” and the “Offender Waiting Room.” People like Chad — the victim’s son, who also supported his father — were assigned to the latter category.

The hearing room was similarly divided. On the left side, relatives who opposed parole sat alongside lawyers for the state. Also present was a representative of the nonprofit Victims of Crime and Leniency, or VOCAL, which attends all parole hearings and opposes release in every homicide case.

At around 9:30 a.m., Barry Bonds, Chad’s uncle, stood to address the board. “I am here to protest Charles McCrory’s release,” he said. “It’s a very long story, and I can’t get it all in in the time that I have.” As Julie’s youngest brother, Bonds said, he once looked up to McCrory, who was an EMT and auxiliary police officer. “He got me involved in the Andalusia Rescue Squad.” But then he pivoted, invoking the rumors that had swirled around McCrory’s trial. “There was a lot of wife-swapping, a lot of sex stuff going on in the community,” he said, without elaborating.

“The one thing that has stuck in my mind for many years,” Bonds went on, was the statement McCrory made at the scene: “‘Did the blow to the back of her head kill her?’ Only someone that was there would ask that question.” If McCrory would simply confess to the crime, Bonds suggested, he might still be able to “spend eternity in heaven.”

“I am the voice of Julie. … I never had the opportunity to know her.”

The next speaker was VOCAL Director Janette Grantham. Although she said she’d been asked by Julie’s family not to oppose parole for McCrory, she took it upon herself to speak anyway. “I am the voice of Julie,” she said. “I never had the opportunity to know her. But I’m sure if she had the opportunity to be here today, she would tell you she did not want to die.” McCrory had been convicted and sentenced to life by a jury of 12 people, Grantham said, therefore he should remain in prison. This was what his victim deserved. “And she deserves to have her voice heard today.”

There were two prosecutors representing the state. Nayla Contreras, of the attorney general’s office, reminded the board that parole is “a privilege and not a right.” The fact that someone “is doing exceptionally well in prison” does not mean they should be released. McCrory was behind bars because of acts he chose to commit, she said, things he’s never owned up to. “Yes, 40 years is quite a long time to serve in prison. But I would submit to the board this morning that 40 years is a long time to be in a grave as well.”

Finally, there was Nikki Stephens, an assistant district attorney in Covington County. “I’m honored to speak today on behalf of and for Julie McCrory’s family,” she said. She quickly rehashed the evidence the state had presented ad nauseam: McCrory’s “salacious affair”; the brutality of the murder and extent of Julie’s injuries, which she described in graphic detail; and finally, McCrory’s incriminating statement. “And I quote: ‘Was it the lick to the back of the head that killed her?’”

Stephens disputed Loudon-Brown’s characterization of the state’s rationale for offering a plea deal in 2021. The real reason was that the case was at a “particular posture at that point,” she explained. “I don’t know that, if the conviction were overturned, we would be able to retry the case because of witness issues.” Many of the people involved in the investigation were deceased, Stephens explained. She made no mention of the state’s star witness, Souviron, who is very much alive.

After a few minutes of deliberation with the sole other board member in attendance (a former state trooper), Gwathney, the board chair, announced their decision. Parole was denied. “It is also the unanimous decision of the board that parole will be reconsidered in five years,” she said, prompting the bailiffs to see everyone out.

It had stopped raining when Chad and his group got outside. They gathered in a circle while Loudon-Brown explained his team’s next steps. They would keep fighting in the courts, he said. A few minutes later, the group was asked to clear the sidewalk leading to the parking lot. Shortly afterward, Bonds emerged from the building flanked by security staff, who escorted him to his car. The implication that Bonds needed protection from the rest of the family angered Grissett, McCrory’s sister. In the eyes of the state, Bonds’s opposition to freeing McCrory made him the only victim that counted. “Chad has never been treated as a victim,” she said.

The post His Conviction Relied on Debunked Bite-Mark Science. Why Is He Still Locked Up? appeared first on The Intercept.

“It sounds like a pretty sick and twisted plot to a dystopian novel,” she continued. “But it’s not. It’s exactly what happened to me while pregnant in Texas.”

Zurawski and her husband had known each other since preschool. They married in 2019 and were excited to start a family. After months of fertility treatments, Zurawski learned she was pregnant. The couple was beyond thrilled; they decided to name their daughter Willow. Zurawski was “cruising though” her second trimester, she said, and had just finished the invite list for her upcoming baby shower when everything changed. She developed “unexpected and curious” symptoms. Her obstetrician told her to come in right away. After an examination, the couple received the “harrowing news” that Zurawski’s cervix had dilated prematurely. Later her water broke; because Zurawski’s pregnancy was still weeks from viability, there was no chance Willow would survive.

“I asked what could be done to ensure the respectful passing of our baby and … protect me from a deadly infection,” she recalled. Nothing could be done, she was told, because of Texas’s abortion bans.

Zurawski is one of five Texas women who are plaintiffs in a lawsuit that the Center for Reproductive Rights filed against the state this week. The lawsuit argues that the state’s various abortion bans, which contain only vague exceptions in cases of medical emergency and impose both civil and criminal penalties if violated, have caused confusion and sparked fear among medical professionals, putting pregnant people’s lives in danger.

“What the law is forcing physicians to do is to weigh … very real threats of criminal prosecution against the health and well-being of their patients,” Nancy Northup, CEO of the Center for Reproductive Rights, said during the Tuesday afternoon press conference. The lawsuit seeks to stop the “unnecessary pain, suffering, injury, and life-threatening complications caused by Texas’s abortion ban.”

The lawsuit asks a state district judge to clarify the scope of the medical emergency exception and affirm that physicians can provide abortion care when an emergency condition arises. It is the first lawsuit of its kind, Northup said, “in which individual women have sued a state for the harm that they endured because abortion care has been criminalized in the wake of Roe’s reversal.”

Zurawski’s doctor said her pregnancy could not be terminated until there was no longer fetal cardiac activity or her health had deteriorated enough that the ethics board at the hospital would allow an abortion. “I cannot adequately put into words the trauma and despair that comes with waiting to either lose your own life, your child’s life, or both,” she said. “For days I was locked in this bizarre and avoidable hell.” Zurawski developed life-threatening sepsis; only then did the hospital agree that she was sick enough to qualify for abortion under Texas law. “What I needed was … a standard medical procedure,” she said. “An abortion would have prevented the unnecessary harm and suffering that I endured.”

Confusion and Intimidation

By the time the U.S. Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization last June — which overturned Roe v. Wade and eliminated a half-century of constitutional protection for abortion — Texas politicians had already codified two abortion bans. During their 2021 biennial legislative session, lawmakers passed Senate Bill 8, a six-week ban that sidestepped constitutional oversight by outsourcing enforcement to vigilantes empowered to bring civil suits against health care providers or anyone else they believed might have aided a patient seeking an abortion in violation of the law. Lawmakers also passed a so-called trigger ban, a complete ban on abortion that took effect in August 2022, shortly after Roe’s demise.

Theoretically at least, each of the Texas bans has an exception for cases involving medical emergencies. But according to the new lawsuit, the laws don’t use standard medical terminology, and what exactly counts as a medical emergency is vague. “Inconsistencies in the language of these provisions, the use of non-medical terminology, and sloppy legislative drafting have resulted in understandable confusion throughout the medical profession regarding the scope of the exception,” the lawsuit reads. While the exception appears multiple times in the state’s health and safety code, conflicting language leaves “physicians uncertain whether the treatment decisions they make in good faith, based on their medical judgment, will be respected or will later be disputed.”

And that is a serious problem given the extreme penalties for violating Texas’s abortion bans. Doctors who violate the trigger law, for example, face revocation of their license, a civil penalty of at least $100,000 per violation, and, if criminally charged, up to 99 years in prison.

To date, abortion is banned in 13 states, including Texas. Medical exceptions in those states vary, and some have none at all, providing only a list of possible defenses a physician can assert if they are prosecuted. Physicians have long warned that these exceptions are vague and place patients in danger. Stories of pregnant people denied abortion care despite suffering from serious medical complications or carrying a fetus with a fatal diagnosis have made news across the country, but they have prompted few, if any, attempts to better define exceptions to the bans.

During his 2022 reelection campaign, Texas Gov. Greg Abbott told Inside Texas Politics that he’d seen some situations in which pregnant people were not getting the heath care they needed to protect their lives. “There’s been too many allegations that have been made about ways in which the lives of the mother are not being protected, and so that must be clarified.” Although the Texas Legislature convened in January, no action has been taken to remedy the problem. A spokesperson for Attorney General Ken Paxton told the Associated Press that Paxton is “committed to doing everything in his power” to defend the laws as written.

Meanwhile, anti-abortion groups have pushed back on the notion that the bans they advocated for need any clarification, suggesting that where patients like Zurawski are concerned, doctors are simply being negligent. That’s exactly what the Texas Alliance for Life did in the wake of the center’s lawsuit. “Tragically, some physicians are waiting until their patients are nearly dead before performing a life-saving medical procedure,” Amy O’Donnell, the group’s communications director, said. “We see situations when pregnant women do not promptly receive treatment for life-threatening conditions as potential medical malpractice issues.”

“You Need to Leave the State”

In the face of legislative inaction, the new lawsuit seeks to have a judge step in and declare that doctors have the right to exercise their best medical judgment — and that they won’t face penalties for doing so. It also argues that the Texas Constitution guarantees fundamental rights that don’t disappear simply because a person is pregnant. “Texas law cannot demand that a pregnant person sacrifice their life, their fertility, or their health for any reason, let alone in the service of ‘unborn life,’ particularly where a pregnancy will not or is unlikely to result in the birth of a living child with sustained life,” it reads.

Three additional plaintiffs in the center’s lawsuit were also on the Capitol grounds Tuesday. Like Zurawski, they shared stories of wanted pregnancies that ended in heartbreak amid a nightmare of trying to access necessary abortion care in Texas.

Lauren Hall was nervous about becoming a parent, but excited, she told reporters. Then, when she was 18 weeks pregnant, an anatomy scan revealed anencephaly; her fetus was not growing a skull and had little brain matter. Her husband held back tears when he asked the doctor what they should do. The doctor hesitated. Wait to miscarry or leave Texas for an abortion, the couple was told. The doctor warned that if they chose to leave Texas, they should not tell anyone where they were going or why, and she couldn’t refer Hall to an out-of-state provider or even transfer her medical records; under Senate Bill 8, no one knew how far Texas would go to prosecute people involved in abortion care. Hall and her husband made their way to Seattle, where she finally received the medical intervention she needed. Hall recalled protesters outside the clinic, “calling us killers and waving pictures with dead babies at us.”

Lauren Miller already had a young son when she found out she was pregnant with twins. She and her husband were excited. They started calling the twins “Los Dos,” and every night, her husband would give her two kisses on the belly, “one for each.” But Miller began suffering from debilitating nausea and vomiting. At 12 weeks, she found out that one of the fetuses had two large fluid masses developing where his brain should be. The fetus had an often-fatal genetic abnormality, and later scans revealed “one heartbreaking issue after another.” Miller’s medical providers seemed to be searching for words when trying to counsel her about her options, she said. Finally, one specialist tore off his gloves and threw them in the trash: “I can’t help you anymore,” she recalled him saying. “You need to leave the state.”

That’s what she and her husband decided to do. She wanted to just “curl up and cry and mourn,” but instead, she had to scramble to find care to give the other twin “and myself the best chance of surviving this pregnancy.” She and her husband felt lost, she said, “like we were in a dark room feeling for a door.” She noted that while she had the resources to access the care she needed out of state, others might not be as fortunate. “Layers of privilege should never determine which Texans can get access to the health care they need.”

“Where else in medicine do we do nothing and just wait to see how sick a patient becomes before acting?”

Anna Zargarian was surprised to find out she was pregnant. It was September 2021, just after S.B. 8 had gone into effect, and she remembered “naively” thinking that it was a good thing she wouldn’t need an abortion. Two months later, Zargarian’s water broke; her amniotic fluid was gone, and she was told the baby would not survive. On the Capitol lawn, Zargarian began to cry as she recalled getting the news. “My heart broke into a million pieces,” she said. “I didn’t even know a pain like that could exist until that moment.” Under the provisions of S.B. 8, she wouldn’t be able to get the care she needed in Texas until “my life was actively in danger,” she said. “I couldn’t understand what was going on.” She fled to Colorado for care. “Where else in medicine do we do nothing and just wait to see how sick a patient becomes before acting?”

A reporter at the press conference asked how the women felt now, filing this case together after going through such an isolating ordeal. To be clear, Zurawski said, none of the women wanted to be there: “We have all become involuntary members of the most horrific club on the planet.” And they were just a small representation of “countless others” in Texas and around the U.S. who have gone through similar trauma. “Being together is powerful, but it’s also traumatic knowing that there are so many people who are going through this,” she said. “And I think that’s why we’re all here.”

The post “Sick and Twisted”: Women Sue Texas Over Harrowing Medical Episodes Caused by Abortion Bans appeared first on The Intercept.

The Alliance incorporated in Amarillo in August 2022, bringing together five out-of-state anti-abortion groups: the Catholic Medical Association, the Coptic Medical Association of North America, the American College of Pediatricians, the Christian Medical & Dental Associations, and the American Association of Pro-Life Obstetricians and Gynecologists. Three months later, the lawsuit was filed in the same Texas Panhandle city where Kacsmaryk hears all federal civil cases.

The lawsuit alleges that in 2000, the Food and Drug Administration, or FDA, wrongly approved mifepristone, the first of two drugs that make up the standard medication abortion protocol. The groups also argue that sending abortion medications through the mail violates federal criminal law. To advance their argument, the plaintiffs have assembled a raft of dubious evidence to allege that the FDA is anti-science and mifepristone is a wildly dangerous drug, despite decades of scientific research and hundreds of medical studies that demonstrate otherwise. They have dished it all up for a federal judge who, in just a short time on the bench, has developed a reputation for factitious legal opinions. A ruling in their favor could see medication abortion all but banned across the U.S., sparking a new round of chaos after the fall of Roe v. Wade and laying the groundwork for the dispute to land before the U.S. Supreme Court.

Suspect Assertions

Medication abortion is a two-drug protocol designed for use in early pregnancy termination. The first drug, mifepristone, blocks progesterone (a hormone needed to maintain pregnancy) and softens the uterine lining; the second drug, misoprostol, is taken 24 to 48 hours later and causes the uterus to contract, expelling the pregnancy.

The regimen was developed in France in the late 1980s, but it wasn’t until 2000 that the FDA finally approved it for use in the United States. Medication abortion accounted for just 5 percent of abortions in 2001 but has steadily grown in popularity; today, medication abortion accounts for more than half of all pregnancy terminations in the country. The protocol is also commonly used for miscarriage management.

The FDA has enforced a slew of restrictions tied to mifepristone that advocates and providers have long argued are medically unnecessary — including a rule that it must be dispensed in person, even though misoprostol is not taken until later at a place of the patient’s choosing. During the pandemic, the in-person dispensing rule was blocked, and in December 2021, the FDA announced that it was permanently lifting the requirement. The agency has since taken additional steps to expand access to medication abortion by allowing mail-order and brick-and-mortar pharmacies to dispense it to patients with prescriptions in states where abortion is legal.

It was against this backdrop that the Alliance for Hippocratic Medicine, its partner organizations, and several individual doctors — represented by lawyers with the Christian-right Alliance Defending Freedom — filed suit in Texas, arguing that the FDA never should have approved mifepristone in the first place, let alone expand its use or loosen dispensing requirements.

The filing is a jumbled mess of suspect assertions, cloaked in inflammatory and medically inaccurate language. The filing refers to medication abortion as “chemical” abortion and claims that mifepristone “starves the baby to death.” It alleges that medication abortion is far riskier than procedural abortion or carrying a pregnancy to term, which the plaintiffs argue “rarely” leads to threatening complications. They call mifepristone an “endocrine disrupter” that could threaten the normal development of adolescents who take it. And they assert that individuals suffering complications from medication abortion could “overwhelm” the health care system, leading to a flood of blood transfusions that “exacerbates the current critical national blood shortage.”

These allegations are baseless. An endocrine disrupter is a chemical that mimics or interferes with the body’s hormones, such as PFAS, a class of toxic “forever” chemicals found in dozens of common products that has been linked to cancer and other illnesses. The notion that mifepristone — taken in a single dose — falls into this camp because it “briefly blocks progesterone receptors in the uterus is completely unfounded,” according to an amicus brief filed in the case by the American College of Obstetricians and Gynecologists, the American Medical Association, the American Academy of Family Physicians, and eight other leading U.S. medical groups. “There is no reason to think, nor is there evidence to show, that preventing the absorption of progesterone for a brief window would have any effects on adolescent development,” the brief states.

“Mifepristone’s safety profile is on par with common painkillers like ibuprofen and acetaminophen, which more than 30 million Americans take in any given day.”

The assertion that medication abortion is a risky and understudied endeavor recklessly approved by the FDA is equally spurious. To date, mifepristone has been used in more than 630 published clinical trials, including more than 420 randomized, controlled studies, which the amicus brief notes are the “gold standard of research design.” At less than 1 percent, the risk of serious complications is exceedingly low. The likelihood of any complication at all is about 5 percent; the most common is an incomplete expulsion, which may require a procedural abortion to complete. Meanwhile, the risk of death associated with carrying a pregnancy to term is 14 times higher than the risk associated with abortion.

“Mifepristone’s safety profile is on par with common painkillers like ibuprofen and acetaminophen, which more than 30 million Americans take in any given day,” according to the amicus brief. Procedures like wisdom teeth removal, colonoscopy, and plastic surgery have higher complication and death rates, as does the use of Viagra. “Put simply,” the brief states, “medication abortion is among the safest medical interventions in any category — related to pregnancy or not.”

Behind the Scenes

The fight over abortion has long featured a shadow medical community that exists to promote counterfactual narratives about risks associated with the procedure. To Mary Ziegler, a law professor and legal historian at the University of California, Davis, the fact that the Alliance for Hippocratic Medicine was established to go after medication abortion isn’t surprising.

“There’s a tradition of groups like this forming,” Ziegler said. Back in the 1990s, for example, a group called the Physicians Ad Hoc Committee for Truth sprang up for the purposes of advocating for a ban on dilation and extraction abortion, which anti-abortion forces dubbed “partial-birth abortion.” Once Congress passed the ban, the committee disappeared.

While the Alliance for Hippocratic Medicine itself is a new entity, presumably incorporated to bolster the pending lawsuit, the groups organized under it have been around for a long time. The American Association of Pro-Life Obstetricians and Gynecologists, known as AAPLOG, formed in the wake of the 1973 Roe decision, initially as an affinity group of anti-abortion physicians who belonged to the American College of Obstetricians and Gynecologists, or ACOG, the country’s leading professional membership organization for OB-GYNs.

Over time, AAPLOG began to push back against the medical and scientific establishment, developing a narrative that abortion was not only immoral, but also dangerous. The group focused more on disputing the “factual premises of things ACOG was saying, rather than just disputing the morality or ethics of those decisions,” Ziegler said. “Medical arguments against abortion bans were effective enough that they needed to be met with medical arguments for abortion bans,” she explained. “There’s an appetite for these organizations to have their own narratives.”

AAPLOG has since split from ACOG and now has roughly 7,000 members compared to ACOG’s more than 60,000 (anyone can join the former, while the latter’s membership is limited to medical professionals). Despite its size, AAPLOG has successfully pressed its counternarrative in legislative and legal crusades to restrict or ban abortion, even when the scientific underpinning for its position is shaky.

Take the work of George Delgado, one of the named plaintiffs in the Alliance for Hippocratic Medicine lawsuit. A doctor in Southern California, Delgado developed so-called abortion pill reversal: the notion that a person who changes their mind about going through with a medication abortion after taking mifepristone (but before taking misoprostol) can interrupt the process by taking a large dose of prescription progesterone to reestablish the pregnancy. There is no evidence that the protocol is safe or effective; the only controlled study designed to interrogate it was halted based on “safety concerns” after three of 12 participants hemorrhaged and were taken to the hospital. Still, AAPLOG has deemed medication abortion reversal a “medically sound choice” and supported state efforts to mandate counseling on reversal for anyone seeking abortion.

“When you have arguments about science that are not based that much in evidence, not only is it confusing and obviously can lead to really bad outcomes, but it’s also disenfranchising.”

While the alternate narratives pushed by groups like AAPLOG may be politically powerful, they are also dangerous, offering the imprimatur of science without sound foundational support. “When you have arguments about science that are not based that much in evidence, not only is it confusing and obviously can lead to really bad outcomes, but it’s also disenfranchising,” Ziegler said. “Because normal people don’t know anything about these topics, right? They don’t know about the relative rate of complications of mifepristone. And so if what’s really going on here is a struggle over constitutional values and ethics and so on, we should be telling the truth about that.”

The shadow medical community’s efforts to legitimize various abortion restrictions have been effective — like a requirement that abortion doctors maintain hospital admitting privileges, which groups including AAPLOG claimed was a best practice designed to ensure patient safety. Broadly speaking, such efforts worked in front of state lawmakers but typically failed at the Supreme Court.

Now, with Roe in the rearview mirror and no immediately obvious need to keep pressing such pseudoscience, Ziegler suspects that groups like AAPLOG are still leaning into these arguments because their real aims — like establishing fetal personhood rights — “are still not popular,” she said. Anti-abortion ballot measures have repeatedly failed with voters, and a significant majority of Americans say abortion should be legal in all or most cases. “And so they’re having to take their claims to courts and to judges like Judge Kacsmaryk … and they’re having to rely on weird interpretations of FDA regulations.” This is “not a window into what they think is the most important,” she said, but “what they think will work.”

A Slippery Slope

Before being tapped to serve as the federal district court judge in Amarillo, Kacsmaryk worked at the religious-right First Liberty Institute, which, among other things, opposes the separation of church and state. Kacsmaryk has been vocal about his disdain for gay marriage, reproductive rights, and transgender people. In 2016, he signed onto a letter that called being transgender an “irrational … delusion” (the Catholic Medical Association, which is a party in the mifepristone lawsuit, was also a signatory). And he’s written that the sexual revolution was destructive, seeking “public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”

In the Title X case, Deanda v. Becerra, Kacsmaryk sided with Texas father Alexander Deanda, who was challenging the program based on its guarantee of patient confidentiality. Deanda claimed that the program violated his rights as a parent raising his daughters according to “Christian teaching on matters of sexuality.” With Title X in place, he argued, he had no assurance that his daughters would be “unable to access … contraception” and other services that “facilitate sexual promiscuity.”

Among the criticisms leveled at Kacsmaryk in the wake of his ruling in favor of Deanda was that he lacked power to consider the case in the first place. To bring a federal lawsuit, a plaintiff must show they’ve been injured by the law they’re challenging, but Deanda — who never alleged that his children attempted to avail themselves of Title X services — hadn’t been harmed. Deanda had no standing to bring the suit, in other words, and Kacsmaryk had no cause to hear it. Nonetheless, Kacsmaryk ruled that the Title X program as administered violated the “constitutional right of parents to direct the upbringing of their children.”

In response to the pending mifepristone lawsuit, the federal government has argued that the FDA’s approval of the drug in 2000 was based on years of solid research, that the statute of limitations to challenge that approval has since run out, and that, like Deanda, the plaintiffs have no standing.

The FDA argues that neither the medical associations nor the individual doctors bringing the suit have suffered any injury related to the drug’s approval. And indeed, the plaintiffs’ claims of injury are tenuous. While the doctors who are party to the lawsuit don’t provide medication abortion, they argue that they may one day find themselves in a situation where a person allegedly harmed by mifepristone comes to them for treatment, thus drawing their attention away from existing patients. And they say that these impaired patients may present with an incomplete abortion, which would conscript the doctors into providing services that violate their conscience. Meanwhile, the organizations argue that the approval of mifepristone has forced them to divert time and energy away from other priorities, like advocating for fetal personhood, forcing them to focus instead on “educating” their members about the dangers of medication abortion.

To the FDA, this theory of legal injury is nonsense — and a slippery slope: Allowing the case to go forward would greenlight other baseless legal complaints, it argues in response to the Alliance lawsuit. “If FDA approved a new heart medicine, emergency physicians would have standing to challenge the approval on the theory that some patients would experience adverse events under the new treatment; in contrast, cardiologists would have standing to challenge the approval on the theory that some patients would no longer require their services.”

A Zombie Law

In a response filed in early February, the Alliance Defending Freedom lawyers brushed off the government’s arguments about standing — the doctors and organizations bringing the suit had “standing six ways from Sunday,” they asserted. They doubled down on their fearmongering, arguing that medication abortion had never been studied under “real-world conditions,” and that the doctors bringing the suit actually “treat and care for countless victims of this dangerous drug regimen.”

The plaintiffs also leaned into allegations that allowing medication abortion to be mailed to patients violates the 19th-century law known as the Comstock Act, which outlawed sending anything considered “obscene, lewd, lascivious, indecent, filthy or vile” through the mail, including contraceptives and “every article or thing” that could be used for abortion. Over the years, judicial and congressional actions have largely neutered the act, and in late December, the Department of Justice penned an opinion noting that the law does not apply where abortion is legal or when the sender doesn’t intend that the recipient would use the drugs illegally. But the Comstock Act is still on the books, a zombie law that the Alliance plaintiffs are trying to raise from the dead.

If Kacsmaryk agrees that the Comstock Act applies to medication abortion, the impact could be far-reaching. The act forbids the mailing of any device that may be used for abortion, which would include countless medications and routine gynecological instruments. It could also impact the availability of misoprostol, which absent mifepristone, can be used alone to accomplish an abortion. It is not as effective as the two-drug regimen but has for decades been used safely for that purpose; the Alliance lawsuit does not attack FDA approval of misoprostol.

A hearing in the case has yet to be scheduled. Meanwhile, a coalition of 12 states, led by Washington and Oregon, filed their own lawsuit last week asking another federal judge to rule that mifepristone is safe and effective and that its FDA approval is “lawful and valid.” The states are asking the judge to eliminate all remaining FDA-imposed restrictions on mifepristone, which they argue impermissibly impede access to the drug.

On February 24, Vice President Kamala Harris met with reproductive rights advocates and medical experts, including from ACOG and the American Academy of Family Physicians. The Alliance lawsuit is not just an attack on “women’s fundamental freedoms,” she warned. “It is an attack on the very foundation of our public health system.”

“Those who would attack … the ability of the FDA to make a decision” about approving a drug like mifepristone “ought to look in their own medicine cabinets to figure out whether they’re prepared to say those medications … should no longer be available to them,” she said. “Because that is what we are talking about.”

The post The Shadow Medical Community Behind the Attempt to Ban Medication Abortion appeared first on The Intercept.

Rojo Bushnell was sitting in a Huddle House diner down the street from the prison. She’d been there all day with Megan Crane, co-director of the MacArthur Justice Center’s Missouri office, working on Taylor’s case. Rojo Bushnell realized that as she was waiting on hold, the execution was already underway. At 6:16 p.m. Taylor was pronounced dead.

Taylor was executed for the 2004 murder of his girlfriend, Angela Rowe, and her three young children in Jennings, a suburb of St. Louis. Taylor had always maintained his innocence. He was nearly 2,000 miles away when the bodies were found inside the home he shared with Rowe, shot in the head. Police seized on Taylor as their sole suspect, pursuing witnesses to confirm their theory of the crime while ignoring evidence to the contrary. At Taylor’s trial, the prosecution relied on a dubious statement provided by Taylor’s brother, Perry — a statement Perry had vociferously recanted — and on testimony from a medical examiner who dramatically changed his estimated time of death in order to implicate Taylor.

Despite lingering questions over Taylor’s guilt, his innocence claim was never fully investigated nor considered by any court. St. Louis County Prosecuting Attorney Wesley Bell declined to avail himself of a Missouri law that allows prosecutors to reopen possible wrongful convictions, saying there were no facts “to support a credible claim of innocence” in Taylor’s case. The office maintained its stance even as Taylor’s daughter, Deja, flew to St. Louis days before the execution to share crucial information supporting her father’s alibi, which could have confirmed that the victims were still alive several days after Taylor had left the state.

“They know that people have other avenues to vindicate their rights, but it doesn’t matter to them.”

As Taylor’s execution loomed, attorneys sought to stop it, asking Gov. Mike Parson to convene a Board of Inquiry: an independent panel tasked with vetting Taylor’s innocence claim. The governor declined to do so. As it became clear the execution would likely proceed, attorneys learned that the state was denying Taylor’s request to have a spiritual adviser and two witnesses, Rojo Bushnell and Crane, present during the execution.

After the Missouri Supreme Court and the federal district court in St. Louis declined to intervene, Rojo Bushnell and Crane were sitting in the diner working on an appeal to the 8th U.S. Circuit Court. Rojo Bushnell was calling to tell Taylor about the appeal when she was informed that it was too late.

It is not the first time that Missouri has executed a person in the face of a compelling claim of innocence, nor is it the first time the state has executed someone while litigation was still pending. “I think that’s something we were all thinking about,” Rojo Bushnell said. “They know that people are continuing to litigate; they know that people have other avenues to vindicate their rights, but it doesn’t matter to them.”

During her last visit with Taylor on Tuesday morning, Rojo Bushnell talked to him about his love of music. His favorite song, he told her, was The O’Jays’ “Family Reunion.” Rojo Bushnell and Crane listened to the song as they drove from Bonne Terre back to St. Louis after the execution. Taylor, a devout Muslim, “accepted his fate, that whatever was Allah’s will was Allah’s will,” Rojo Bushnell said. “He was positive up to the last time I talked to him.”

Missourians to Abolish the Death Penalty held rallies in support of Taylor across the state on Tuesday, from Kansas City to Bonne Terre. “One day the truth will be uncovered, and Raheem Taylor will be vindicated and posthumously exonerated,” the organization’s co-director Michelle Smith said.

“This is an undeniable and irreversible injustice,” Crane said. “But in the words of Raheem, he will ‘live eternally in the hearts of family and friends.’”

The post “An Irreversible Injustice”: Missouri Executes Leonard “Raheem” Taylor Despite Doubts Over His Guilt appeared first on The Intercept.

That Taylor made this trip is undisputed; what it means depends on who you believe. According to the state of Missouri, the trip was evidence that Taylor, then 40, was fleeing St. Louis after brutally murdering his 28-year-old girlfriend, Angela Rowe, and her three young children. According to Taylor, the trip was for business, but with a twist: He was planning to meet his 13-year-old daughter, Deja, for the first time. During the visit, both Deja and her mother, Taylor’s former girlfriend, say that Taylor called Rowe in St. Louis and put Deja on the phone to chat with one of Rowe’s daughters. In other words, in the days after Taylor boarded that westbound flight, Rowe and her children were very much alive.

Despite the discrepancy, Taylor was arrested two weeks later. He was tried on four counts of first-degree murder and sentenced to death. He has always maintained his innocence, arguing that police fixated on him as a suspect and ignored a compelling alibi supported by witness statements in favor of a theory in which he slaughtered his loved ones and then stayed at the crime scene for days before flying to California. The state’s case rested on Taylor’s brother, Perry, who was relentlessly harassed by police until he implicated his brother in the crime — and who recanted his statements long before Taylor’s 2008 trial. The state also relied on testimony from a medical examiner who changed his time-of-death estimate dramatically to support the state’s version of events.

“All they wanted was SOMEBODY to heap these crimes on,” Taylor wrote in an email to The Intercept. “Even if it was the wrong SOMEBODY.”

Nevertheless, Missouri is scheduled to execute Taylor on February 7. All of Taylor’s appeals have been denied, leaving open a host of unanswered questions and doubts about his guilt. His efforts to avail himself of a Missouri law that allows prosecutors to reopen possible wrongful convictions have been rebuffed by St. Louis County Prosecuting Attorney Wesley Bell. Although the Missouri Supreme Court denied a request to stay Taylor’s execution, the Midwest Innocence Project has asked Gov. Mike Parson to intervene and conduct an inquiry into the case. The lawyers “have grave concerns that Missouri is going to execute an innocent man,” they wrote in their request to the governor. Without such an inquiry, “Leonard Taylor will be executed without a single factfinder ever reviewing the evidence of his actual innocence.”

A Horrifying Scene

Angela Rowe’s family was worried. It was Friday, December 3, and no one had talked to her in several days. They called her children’s school and were told the kids hadn’t been there all week. That raised alarms, her older sister Gerjuan recalled; Rowe’s kids — 10-year-old Alexus, 6-year-old Acqreya, and 5-year-old Tyrese — never missed school. The police arrived at Rowe’s home in Jennings, just outside the St. Louis city limits, to check on the family around 6 p.m. The front of the house was dotted with Christmas decorations. Editions of the St. Louis Post-Dispatch were rolled up in plastic bags on the lawn, and mail had accumulated behind the storm door.

Inside, police confronted a horrifying scene. Rowe’s three children were lying on the four-postered bed in the back bedroom, fully dressed, a comforter pulled over them; they’d each been shot in the head. A TV in the room was blaring loudly. In the front bedroom was Rowe, also clothed and under a blanket. She too had been shot in the head. The air conditioning was set at around 50 degrees. Joseph Lebb, an investigator from the medical examiner’s office, reported that Rowe’s body was in rigor mortis — a stiffening of the muscles that generally takes hold not long after death — and her core body temperature was just over 51 degrees. The bodies exhibited early signs of decomposition, Lebb reported. Outside, Gerjuan told Lebb that she’d last seen Rowe the previous Saturday, November 27, when Rowe came over to lend her $50.

The next morning, medical examiner Phillip Burch performed the autopsies. Based on “the condition of the bodies,” Rowe and her children had likely been murdered at least a day — and no more than a week — before they were found, he told defense lawyers during a 2006 deposition. He was most confident, he said, that the family had died sometime during the week of November 29.

Police quickly latched on to Leonard Taylor, Rowe’s live-in boyfriend, as their main suspect. The night the bodies were found, Gerjuan asked the cops whether Taylor was inside the house, and police reports indicate that various members of Rowe’s family said that her relationship with Taylor was not without its struggles.

Taylor had a criminal record and a history of violence. He’d done time in California for rape and was accused in 2000 of raping his 16-year-old stepdaughter. He was also a seasoned drug dealer who trafficked cocaine across the country, amassing a string of aliases and fraudulent IDs. Still, the state never offered a cogent motive to explain the vicious and cold-blooded crime.

Taylor had overlapping intimate relationships that followed the path of his illicit business dealings, which earned him the nickname “Cass” — short for Casanova. While Taylor was involved with Rowe, he also had a wife in California and a girlfriend in Kentucky.

Among his past partners was Mia Perry, Deja’s mother, who he became involved with in the late 1980s. In 1991, the same year that Deja was born, Taylor was popped for drug dealing and sentenced to time in federal prison; he never got to meet his baby daughter. While inside, Taylor told the Kansas City Star, he “hooked up with some cats that were on some corporate stuff, doing corporate check fraud.” Upon his release, Taylor began a short-lived career in white-collar crime, which landed him in Missouri state prison.

Rowe, the younger sister of Taylor’s former neighbor in St. Louis, visited him often while he was incarcerated. When he was released in 2002, Taylor re-upped his cross-country drug trade, staying with Rowe when he was in town. In the summer of 2004, Taylor, Rowe, and the kids moved into the house in Jennings. Rowe had Taylor’s name tattooed on her arm. Around the home, there were pictures of the smiling couple and love notes Rowe had written. The move was a relief, according to Taylor, because he’d recently had a drug deal go bad with the notoriously violent Gangster Disciples, who operated in St. Louis and southern Illinois. Meanwhile, he’d also gotten a lead on his long-lost daughter, Deja, whom he ultimately tracked down in California just days after Thanksgiving.

During their reunion, Taylor called back home to St. Louis to share the news with Rowe. Taylor had plans to bring Deja out to St. Louis and wanted her to chat with Rowe and 10-year-old Alexus. The following Monday, Taylor boarded a Greyhound bus carrying a kilo of cocaine and headed back east on business, he told the KC Star. On December 9, Taylor was arrested in Kentucky for the murders of Rowe and her children.

No Other Suspects

Eight hours after the bodies were found, at 2:15 a.m. on December 4, Perry Taylor got a phone call from a St. Louis police detective. Perry, who has since died, worked as a truck driver for Gainey Transportation Services, which sent him all over the country hauling freight. He spent so much time on the road that he’d moved out of his St. Louis apartment earlier that year, storing his belongings at the home his brother shared with Rowe. Perry’s truck had everything he needed for the most part, including a TV and DVD player. On the rare nights he spent in St. Louis, he parked in a lot behind the house and slept in his truck.

Perry was spending the night south of Atlanta when he got the call. It’s unclear from the record whether police were the first to inform him that Rowe and her children had been shot to death. But according to a police report, a detective asked Perry if he knew where his younger brother was. Perry said Taylor was probably in California. He estimated that it had been about a month since they’d spoken. Asked about his brother’s relationship with Rowe, Perry said it had been strong, as far as he knew. According to the report, the detective hung up and immediately called local police in Georgia, who descended on the truck stop where Perry was staying, hoping to find Taylor in his rig. But he wasn’t there.

Undeterred, St. Louis detectives continued to track Perry, using GPS coordinates provided by the trucking company. Upon learning that he was scheduled to make a delivery in New Jersey, three detectives flew in to meet him. They found Perry at a truck stop on the New Jersey Turnpike. According to their report, they took him to a local police station, where they asked him again when he last spoke to his brother. When Perry recalled the conversation taking place in early November — his brother had called about a rap show in Alabama, he said — detectives said they had records that showed otherwise. They also asked if Taylor had a gun. Perry said it wouldn’t surprise him, given his brother’s lifestyle. “He dresses fancy and wanted to hang out with rappers,” Perry said, according to the report. The detectives asked if Perry had given Taylor a ride. No, Perry said, adding that they were free to look for fingerprints in his rig.

On December 8, detectives finally got what they wanted from Perry. He had just arrived back in St. Louis when they stopped him at a gas station off Highway 70. They arrested him, took him to the Jennings police station, and asked him to give a videotaped statement. In the video, Perry sits in front of two white detectives wearing a dark blue hoodie, glasses, and a pair of handcuffs, which are eventually removed. The original video, which was more than three hours long, was later edited into several brief clips totaling less than eight minutes. Jurors would only see the shortened version. In the first clip, which starts around 11 p.m., Perry is asked again when he last talked to his brother. “The last time I spoke with him was the night he told me he did that,” he says.

Perry said Taylor had called him asking for money because he had to “get away.” When Perry asked why, he said, “I killed Angela.” At first he thought his brother was joking, Perry said, but then Taylor told him that Rowe had come at him with a knife. He also said something about killing her children, though Perry could not say precisely what. “He either said ‘I’m gonna kill the kids too’ or ‘I killed the kids.’ And I don’t remember which one he said.” In another clip, recorded close to 1 a.m., Perry struggles to tell the police when, exactly, that phone conversation took place. “He already told you before Thanksgiving what had happened, right?” one detective prompts him. “Yeah,” Perry says. “Was that the day before? Two days before?” Perry pauses, hesitating, saying he really isn’t sure. “If I had to guess, I would say it was on the day before.”

“Anything I told the police in that video was all coerced, sir, every fucking word of it.”

In a pre-trial deposition three years later, Perry angrily insisted that he had been coerced into giving the statements against his brother. From the moment they first found him in Atlanta, he told lawyers on both sides, the police had verbally and physically abused him, pulling him out of his truck, and punching, kicking, and threatening him. In New Jersey, they ransacked his truck, destroying his TV and DVD player and leaving black fingerprint dust everywhere, then locked him up at the local jail. On the day he finally gave the statement implicating his brother, he said, police had surrounded him with weapons drawn, forcing him into a police car. “And some detective right off the bat told me, ‘OK, before we get to the station, here’s what you’re going to say.’”

Perry recalled the cops threatening that if he didn’t say what they wanted, they would hurt his mother, who was disabled and lived on the fifth floor of her building. “It would be a shame if something was to happen to her, like she was to fall out the window,” he remembered one officer saying. The police told him what to say, rehearsed it with him, and made him repeat it on tape, he said. “Anything I told the police in that video was all coerced, sir, every fucking word of it, it was all bullshit.”

The conduct by police ultimately cost him his job and everything he owned, Perry told the attorneys. His truck was impounded, and he was unable to retrieve any of his belongings from Rowe’s house. “The police told me I could not go and get any of my shit, they didn’t give a damn what happened to it.” But what angered him most was how they mistreated his mother. “She’s never had so much as a parking ticket. And for the police to go to my mom’s house and harass her the way they did and threaten her the way they did … that’s the kind of shit that makes you hate law enforcement.”

Perry repeatedly insisted that Taylor was innocent. “My brother ain’t capable of that bullshit. I don’t believe in my heart that he did it. You fucking people look at his criminal record, looked at his past and his background, and you fucking went on a witch hunt, you ain’t considered no other suspects,” he said.

Nevertheless, one year later, Perry’s videotaped statements would become the state’s primary evidence against Taylor at trial.

Rolling Back the Clock

Determining time of death is at best an inexact science. While shows like “Law and Order” feature pathologists and other crime-fighters who announce a precise time of death based on mere visual examination, figuring this out in real life is a trickier proposition. There are clues that pathologists often consider, like rigor mortis, lividity — the gravitational pooling of blood after death — body cooling, post-mortem insect activity, and putrefaction. But each physical change can depend on any number of other factors. Still, there is a reliable way to sort it out amid the corporeal uncertainties: If you know when somebody was last seen alive and when they were found dead, you can bet that time of death is somewhere in between.

Almost immediately, investigators had concrete information about when Rowe and her children were last seen alive. At the crime scene, Rowe’s sister Gerjuan said that Rowe had visited her on Saturday, November 27. Beverly Conley, one of the children’s aunts, said she got a call from Alexus around midnight on Saturday; it stood out because Alexus never called her so late and she sensed anxiety in the child’s voice. In the background, she said, she could hear arguing. Sherry Conley, another aunt, said that she spoke on the phone to both Alexus and Acqreya around noon on Saturday. Sherry also told police that she talked to Rowe on Sunday morning at 10 a.m. to discuss plans for the children to stay with her the following weekend, starting December 3. She could hear the kids playing in the background and heard Alexus shout out that she was excited about the visit. Finally, a neighbor named Elmer Massey, whose daughter regularly played with Rowe’s kids, told police that he’d seen Rowe and her children over the weekend, and that at some point during the week of November 29, he’d seen a Black man looking out from behind Rowe’s storm door.

Despite these consistent accounts, police reports don’t reveal any efforts by investigators to figure out what happened after November 28 — the last day that witnesses report having talked to Rowe and the kids. At trial, prosecutors rolled back the clock instead, leaning into Perry’s videotaped statement and arguing that Taylor murdered Rowe and the children in the wee hours of November 24, then remained in the house until he flew to California on the morning of November 26.

“These are people just making honest mistakes.”

In pressing this alternate timeline, the state had a strong ally: medical examiner Phillip Burch. Burch, who died in 2014, had previously said that the most likely time of death was within days of the bodies being found on December 3, and no more than a week beforehand — a window that would exclude Taylor. But at trial Burch changed his story, claiming that he hadn’t taken into account the air conditioner being set at 50 degrees (even though he had mentioned the temperature during his deposition). With that in mind, he testified that Rowe and the children could have been killed up to three weeks before they were found. The expanded timeline caught the defense flat-footed; they hadn’t retained their own pathology expert to testify on Taylor’s behalf.

The state bolstered this narrative with testimony from a reluctant witness, an ex-girlfriend of Perry’s named Betty Byers, who made clear on the stand that she did not want to be there. She said that Perry had called her the day before Thanksgiving; when she asked how Taylor was doing, he replied, “You don’t want to know what he did.” She answered, “What he do, kill somebody?” Yes, Perry said. “He killed Angie and the kids.” The next day, Byers testified, she saw Perry in person and overheard a phone call between him and his brother in which it became clear that Taylor was still at Rowe’s home with the bodies. “Man, what the fuck you still doing there?” she heard Perry say.

It’s unclear how many times Byers spoke to detectives. But police records show at least one of her interviews was recorded on a DVD alongside that of another witness who had a similarly incriminating account — and whose interview was accidentally erased, according to police. In fact, the case record shows that at least five videotaped interviews — including with key witnesses — were destroyed, all of them unintentionally, according to the state.

The state sought to undermine the witnesses who contradicted its timeline. Alan Key, one of the prosecutors, argued that Rowe’s neighbor, Massey, had gotten his dates confused — he’d actually seen the man, who Key insisted was Taylor, a week earlier. “It’s silly” to think otherwise, Key told the jury.

The prosecution brought in a representative of the company Rowe used for her home phone line to testify that there weren’t records of the calls that Gerjuan and the Conleys said they had with Rowe and the kids. That witness failed to mention that the company, Charter Communications, had a disclaimer regarding its phone records: The company “DOES NOT keep or have records for every incoming or outgoing call made or received by our telephone subscribers,” it read. This significant caveat wouldn’t come out until after the trial.

In his closing argument, Key told the jury that Perry Taylor had the facts straight, while Gerjuan and the Conleys were deluded. Gerjuan had substance abuse problems, he said, and Sherry and Beverly, overcome by grief, were understandably confused, their memories unreliable. “These are people just making honest mistakes,” he said.

Another Victim

Deja Taylor was in her late teens when her father was sent to death row. At first, she didn’t know what had happened; no sooner had she met him than he disappeared from her life again. Nor did her father’s attorneys track her down so that she could share her recollection of his visit to California. It was not until November 2022, when she was 31 years old, that she gave a declaration that could have been critical to his case. It described the visit with her father on Thanksgiving weekend in 2004, the phone call with Rowe and her daughter, and the plans they had made for her to visit St. Louis. “Angela seemed very excited to meet me and I was excited as well,” she said. “I was so happy to connect with my father and his new family that I cried quite a bit that day.”

 “I live in constant fear of his possible execution and have no idea what I will do without my father.”

“Finding out that my father was back in prison, and this time on death row, was very hard for me to deal with,” Deja said. She kept it to herself even as she reconnected with Taylor, communicating with him regularly in phone calls and letters. “My father is a constant source of positive support,” she said, giving her advice and helping her during painful periods, like when her grandmother died last year. “I was extremely close to my grandmother and completely devastated by her death, but my dad helped me get through the grieving process,” she said. Now she was terrified that she would soon lose him too. “I live in constant fear of his possible execution and have no idea what I will do without my father in my life.”

On February 3, Deja flew to St. Louis expecting to meet with County Prosecuting Attorney Wesley Bell. Advocates for Taylor had asked for a meeting so that Deja could share her account. A relatively new Missouri law allows elected prosecutors to intervene in possible wrongful convictions, but earlier in the week, Bell had issued a statement saying that there were no facts “to support a credible claim of innocence” in Taylor’s case. Confusingly, on the same day, Bell’s office also wrote a letter to the Missouri Supreme Court, saying that it supported Taylor’s efforts to delay his execution in order to give his attorneys additional time to investigate his innocence claim.

Deja was accompanied by Midwest Innocence Project Executive Director Tricia Rojo Bushnell. When they arrived at the office, however, Bell was nowhere to be found. Instead, an investigator appeared and told them that he would be interviewing Deja alone; he would not allow Rojo Bushnell to accompany her. The investigator did not ask questions, simply listening as Deja spoke. “She did not feel hopeful about their role afterwards,” Rojo Bushnell said.

In a statement to The Intercept, a spokesperson for Bell denied that Deja was ever told she would meet with the prosecuting attorney. And he suggested that Deja had not done enough to prove her father’s alibi. “She either has probative evidence or not. We encourage her to finally come forward so that we can evaluate any potential evidence she has.”

Taylor’s predicament — that he’s so close to execution without his claim of innocence being thoroughly vetted — is emblematic of a criminal legal system that routinely ignores its own failures. The Midwest Innocence Project’s request for the governor to convene an independent panel to investigate the case, known as a Board of Inquiry, is an extraordinary and unusual action that amplifies the case’s sprawling failures. “Leonard Taylor, throughout every level of his state and federal proceedings, has had the misfortune of being represented by ineffective counsel who did little, if any, investigation on his behalf and, as a result, failed to appropriately litigate his claims or present his actual innocence,” the lawyers wrote.

To Michelle Smith, co-director of Missourians to Abolish the Death Penalty, there’s plenty of blame to go around. Smith argues that Taylor’s post-conviction attorneys put too much faith in Bell and his promises to correct past wrongs. Bell’s persona as a progressive prosecutor did not mean he would automatically intervene in Taylor’s case, she said. “There was too much trust put into what a progressive prosecutor is supposed to be in St. Louis County, which is not the reality.”

For Deja, who visited her father after he was transferred to the prison where he is scheduled to die Tuesday evening, Taylor’s execution will make her another victim in the case. “I know that he has had his day in court and the jury found him guilty,” she said. “But the legal system seems blind to the impact that his death will have on innocent loved ones.”

Update: February 7, 2023
On Monday, Missouri Gov. Mike Parson denied clemency to Leonard “Raheem” Taylor and rejected a request for a Board of Inquiry to review Taylor’s claims of innocence, which Parson called “self-serving.” The governor announced that the state would go through with Taylor’s execution as planned. The Missouri Supreme Court rejected Taylor’s final appeal and the state attorney general denied his request for a spiritual adviser to be present during his execution. Unless the U.S. Supreme Court intervenes, Taylor will be executed at 6 p.m. CST on Tuesday.

The post Will Missouri Execute an Innocent Man? appeared first on The Intercept.

Her friend said the gridlock was probably because of the march. Carmona was skeptical. But when they stopped in Delaware for gas, she was surprised to see throngs of women asking people to sign petitions. “This is something completely different,” Carmona remembers thinking. Mobilized by Trump’s election, millions of people marched that Saturday in cities across the country. A year later, Carmona joined the Women’s March organization, where she now serves as executive director.

In the wake of the Supreme Court’s June decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and decimated nearly 50 years of abortion rights, Carmona anticipates another strong showing for this year’s march. It is slated for January 22, the anniversary of the court’s 1973 ruling in Roe. But instead of Washington, D.C., this year, the main event will be held in Madison, Wisconsin. “We wanted to send a clear message to elected leaders, to our base, to the people that we’re going to where the fight is,” Carmona said. “And that’s at the state level.”

The fight to protect reproductive rights has largely shifted to the states. While the Supreme Court has determined that the U.S. Constitution provides no guarantee of reproductive freedom, that document is hardly the final say. The U.S. Constitution is the floor, not the ceiling — a baseline guarantee of rights afforded to the people — and many state constitutions provide much broader protections.

With this shift there’s a lot on the line for reproductive rights, including in Wisconsin, where a suit challenging the validity of an 1849 abortion ban is winding its way through the courts. This spring, voters will decide whether the state’s Supreme Court — final arbiters of the Wisconsin Constitution — will flip to provide a 4-3 liberal majority. “We have a lot of infrastructure in Wisconsin, and so we … have the ability to make an impact there,” Carmona said. “We have a mandate to do so.”

State of Play

Since Dobbs, 12 states have banned abortion entirely (save for some exceptions that exist in name only), and state court challenges to those bans are pending in Kentucky, Louisiana, Oklahoma, and West Virginia, according to the Guttmacher Institute. Abortion is unavailable in two states: North Dakota, which saw its sole clinic moved to Minnesota, and Wisconsin, where clinics stopped providing care while the legality of the pre-Roe ban is in limbo. Four states — Arizona, Florida, Georgia, and Utah — currently allow abortion with gestational limits, ranging from six weeks in Georgia to 18 weeks in Utah. In Indiana, Ohio, and Wyoming, lawmakers have passed draconian bans on care that have been blocked by state courts pending litigation.

Since June, the state of play has been in near constant flux; earlier this month, the Idaho Supreme Court ruled that the state constitution contained no right to abortion, just hours after the South Carolina Supreme Court found the opposite true of its constitution. In a fiery opinion, Justice Kaye Hearn (only the second woman to serve on the South Carolina court) struck down a six-week abortion ban on the grounds that it violated the constitution’s explicit right to privacy. “We hold that the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable, and implicates a woman’s right to privacy,” she wrote.

“At the risk of stating the obvious, in order for a choice to be informed, a woman must know she is pregnant.”

Hearn noted that in passing the restriction, lawmakers discussed the importance of making an informed choice about having an abortion — a professed desire laughable in the face of a six-week ban. Most people don’t even realize they’re pregnant at six weeks, Hearn wrote. “At the risk of stating the obvious, in order for a choice to be informed, a woman must know she is pregnant.”

While the Idaho Supreme Court found that there was no protection for abortion in the state’s constitution, it noted that voters had the power to change that — by electing new legislators or amending the constitution. Voters in California, Michigan, and Vermont did just that last year, enshrining constitutional protection for reproductive freedom. Voters in Kansas and Kentucky defeated amendments that would have stripped their constitutions of such protections.

The state ballot successes have inspired plans for initiatives in other states, including Missouri and Ohio. In response, Republican lawmakers have sought to make it harder to get citizen-led initiatives on the ballot. “Those lawmakers know their ideological views are out of sync with their voters,” Kelly Hall, executive director of the Fairness Project, told The Guardian. “They are trying to change the rules of the game.”

Unprecedented Times

Although the destruction of Roe motivated voters in November’s midterm elections, turning an anticipated “red wave” into a mere trickle, Republicans in Congress seem to have zero desire to read the room. Once House Republicans finally managed to elect a speaker, they passed two largely symbolic attacks on abortion: a resolution condemning attacks on churches and anti-abortion “crisis pregnancy centers,” despite the fact that threats of violence targeting actual abortion providers have skyrocketed, and a measure that would create new criminal penalties for doctors who fail to provide specific care to a child “born alive” after an attempted abortion, which, it should be said, is rhetoric divorced from medical reality.

“The offensively named ‘born-alive’ legislation is another cruel and misguided attempt to interfere with evidence-based medical decision making between parents and their physicians,” Iffath Abbasi Hoskins, president of the American College of Obstetricians and Gynecologists, said of the bill. “It is meant to incite emotions.”

But there is no doubt that anti-abortion lawmakers in states around the country will follow suit. The Texas legislature, which only meets every other year, has teed up a slate of anti-abortion measures — including a strategy for punishing people who travel out of state for care. In Virginia, Gov. Glenn Youngkin, thought to have 2024 presidential ambitions, has pushed for a 15-week abortion ban and said he would “gleefully” sign any anti-abortion measure that lands on his desk. A special election this month to fill a state Senate seat vacated by a Republican was seen as a referendum on Youngkin’s glee; on January 10, voters flipped the seat, electing Democrat Aaron Rouse, who ran on an abortion rights platform. The election has strengthened the state Senate’s Democratic majority, making it unlikely that Youngkin’s anti-abortion priorities will go anywhere anytime soon.

In recent weeks, the Biden administration has taken steps to blunt the impact of some anti-abortion legislation. In December, the Food and Drug Administration announced labeling changes for emergency contraceptives, making clear that they do not induce abortion (long an anti-science talking point of the anti-abortion crowd). Weeks later, the FDA announced regulatory changes that would allow retail pharmacies to dispense medication abortion pills — a move that could significantly expand access ahead of attempts to restrict its availability. Medication abortion, available in the earliest weeks of pregnancy, now accounts for more than half of all abortions in the U.S. The Department of Justice also issued an advisory opinion to the U.S. Postal Service announcing that a prudish federal law initially enacted in 1873 did not prohibit sending medication abortion pills through the mail, even to people in states that have banned abortion.

Lawmakers elsewhere are moving to enact greater protections for reproductive autonomy. Earlier this month, the Illinois Legislature passed an omnibus bill to expand and protect access to care, which has since been signed into law. The state has become a haven in a vast abortion desert; according to Planned Parenthood of the St. Louis Region, which operates an abortion clinic in Illinois just over the Missouri state line, the law couldn’t come a minute too soon. Since Roe fell, wait times for care in Southern Illinois have jumped from three or four days to two-and-a-half weeks. There’s been a nearly 80 percent increase in abortion patients — and a more than 300 percent increase in the number of patients coming from outside Missouri or Illinois.

“Providers and patients are navigating unprecedented times,” Southern Illinois abortion providers said in a joint statement prior to the bill’s passage, encouraging lawmakers to act swiftly. “What we once hypothetically planned for has now become our reality, and the impact and burden abortion bans have on providers and patients is a public health crisis that affects all Illinoisans.”

Bigger Than Roe

In recent years, Wisconsin has been ground zero for conservative activism, funded in no small part by the Koch brothers. The state is among the most gerrymandered in the nation and was one of seven states implicated in Trump’s fake electors scheme. According to Carmona, it’s time to push back. The decision to hold the Women’s March in Madison reflects just how much is at stake, she said. So does the theme of the march: “Bigger Than Roe.”

“This isn’t a single-issue march because we don’t lead single-issue lives.”

“Women are not just the battleground for the right around reproductive freedom. … We’re making decisions about when and how to have a family,” she said. “Like, can we afford it? Do we have a job? Do we have a house? What is our outlook on the future? Are we optimistic? Do we trust our institutions? Do we trust our elected officials? Do we trust our elections that get them there?”

The energy on the ground is encouraging, she said. In advance of the state Supreme Court election, the organization has rallied thousands of donors and nearly 1 million “action-takers”: people who have signed up for the march, signed on to petitions, and volunteered to knock on doors. Spring elections are often won by a slim margin, she noted. “We feel very, very well positioned to take up this fight because, honestly, mobilizing a thousand people is well within our ability.”

“We want to be clear that … this isn’t a single-issue march because we don’t lead single-issue lives,” she said. “And that women are coming for more than just the bare minimum, which should be bodily autonomy. We’re actually coming for a future where we can thrive.”

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The analysis reveals that at least 90 California law enforcement agencies have spent more than $20 million buying firearms, ammunition, and other gear from at least six federally licensed firearms dealers with a history of violating firearms laws — including failing to report sales involving multiple weapons, a key indicator for the Bureau of Alcohol, Tobacco, Firearms, and Explosives in identifying straw purchasers and potential firearms trafficking.

“Using taxpayer money to buy guns from dealers with a history of noncompliance with gun safety laws is counterproductive, to say the least,” said Erica Rice, program manager for Brady’s Combating Crime Guns Initiative.

The review is part of Brady’s ongoing Gun Store Transparency Project, a collection of thousands of records from the ATF regarding enforcement actions the agency has taken against licensed gun sellers for serious violations of federal law. The nonprofit reviewed six years of law enforcement purchasing records obtained via public records requests made by the American Friends Service Committee as part of a project tracing the militarization of police agencies in California. Brady then cross-checked those records against ATF inspection reports to reveal that dozens of law enforcement agencies have purchased goods from dealers whose practices may be putting public safety at risk.

LC Action Police Supply in San Jose, for example, a “high-volume dealer” whose clientele is predominately law enforcement agencies, state-certified private security officers, and other firearms dealers, according to the ATF, has been cited for 41 violations of federal firearms laws — the majority repeat infractions — during eight inspections since 1995.

During a 2018 inspection, the most recent report available, the ATF cited LC Action for seven violations, including failing to timely report a sale of multiple weapons and failing to record various background check information. The inspection prompted inspectors to recommend a “warning conference” — the most serious action the agency can take short of revoking a dealer’s license. It was the third time since 2009 that LC Action had faced a warning conference; the dealer’s 2005 inspection resulted in a recommendation that its license be revoked, an action the agency ultimately did not take.

Nonetheless, according to the Brady analysis, California law enforcement agencies spent nearly $19 million at LC Action between 2015 and 2021, with the California Department of Corrections and Rehabilitation spending the most, at more than $14 million.

Kip Miller, co-owner of LC Action, wrote in an email that a number of the violations were actually the result of errors made by the ATF inspector and not due to LC Action’s noncompliance. The company takes its business “seriously and responsibly,” he said. Miller did not respond to requests from The Intercept for documentation reflecting corrections or acknowledgment of error by the ATF.

Brady also reviewed more than $4 million in purchases from Adamson Police Products by 64 law enforcement agencies. Adamson has its own troubling history with the ATF. In 2016, the agency found that the dealer’s Livermore store violated federal requirements regarding the possession and sale of short-barrel rifles, which are subject to stringent regulation. One of those weapons ultimately went missing, according to ATF records. As a result, Adamson’s owner demoted an employee, the records show. In all, the ATF has cited Adamson for 25 violations of firearms laws (at least 11 of them were repeat violations) during six inspections since 2003, according to records obtained by Brady, resulting in two warning conferences.

Adamson Police Products owner Jim Cunningham did not respond to The Intercept’s request for comment.

According to Brady, cities across the U.S. spend more than $5 billion per year on guns alone (ammunition and other supplies account for billions more), with taxpayers footing the bill.

The ATF has recognized that federal firearms licensees are the front line against the diversion of firearms into the illegal market, and there is evidence that dealer business practices can lead to reductions in trafficking and crime. That’s why it’s critical to ensure that dealers comply with gun laws, Brady says, and that government entities purchasing weapons do so only from responsible dealers that adopt model policies like the Gun Dealer Code of Conduct.

California has among the country’s most extensive gun regulations, and yet taxpayer dollars in communities throughout the state — from Orange County to Humboldt County — are still being used to buy firearms from dealers that have racked up serious infractions. The purchasing records reviewed by Brady represent just a fraction of the state’s 531 law enforcement agencies — meaning that many more agencies could be supplied by problematic dealers. And while there were more than 130,000 active federal firearms licensees in 2020, the ATF was able to inspect less than 6,000 of them. In other words, Rice said, what the California data reveals may represent the tip of the iceberg.

“The data we have is a snapshot. It comes from a small percentage of California’s law enforcement agencies and a small percentage of ATF inspection reports,” she said. “California has some of the strongest gun laws in the country. So if taxpayer dollars in California are being spent at gun dealers who have been cited for violating the law, then it is likely happening in other states too.”

It should be a simple ask for government agencies to direct their purchasing power to responsible dealers, said Joshua Scharff, general counsel and director of programs at Brady. “Procurement policies that properly vet dealers and promote responsible firearms sales [are] low-hanging fruit in the fight to prevent gun violence,” he said.

In 2019, New Jersey Gov. Phil Murphy issued an executive order directing the state’s Division of Purchase and Property to assess whether the firearms dealers it does business with “adhere to public safety principles relating to firearms.” Last spring, Brady released a report on New Jersey’s efforts, which it said were successful in both “promoting gun safety and laying a strong foundation for future action.”

After the mass shooting at the Tree of Life synagogue in Pittsburgh in 2018, officials in Toledo, Ohio, including Police Chief George Kral, announced that the city would only buy weapons from dealers deemed responsible; in 2019, the U.S. Conference of Mayors adopted a resolution encouraging member cities to take similar action, though it is unclear how many have done so. Still, limiting purchases to dealers who take their responsibility for reducing gun violence seriously is a viable way forward for state and local governments — and perhaps particularly useful for cities and counties in places like Texas, where statewide leadership is hostile to gun regulation.

Rice said it’s important not to lose sight of how the kind of data contained in Brady’s analysis impacts people and communities. “Law enforcement is tasked with protecting and serving communities, so it is critical the public ensures they are not purchasing from the same dealers who may be contributing to rising rates of shootings and homicides,” she said. “The least we should be willing to accept is responsible stewardship of our tax dollars.”

The post California Police Are Buying Guns From Dealers With Troubling Records appeared first on The Intercept.

Glossip had twice been tried and sentenced to death for the 1997 murder of Barry Van Treese inside Room 102 of a seedy Best Budget Inn that Van Treese owned on the outskirts of Oklahoma City. No physical evidence linked Glossip, the motel’s live-in manager, to the crime. Instead, the case against him was built almost exclusively on the testimony of a 19-year-old maintenance man named Justin Sneed, who admitted to carrying out the killing but said it was all Glossip’s idea. Glossip has steadfastly maintained his innocence.

Over his 30-year career, Berlinger has received widespread acclaim for his work, including on wrongful convictions. When his four-part series “Killing Richard Glossip” was released in 2017, it quickly raised the profile of Glossip’s case. Inspired by The Intercept’s reporting, Berlinger’s series delved into the myriad issues that have plagued Glossip’s conviction and revealed startling new evidence that undercut the state’s theory of the crime.

In his brief to the parole board, Oklahoma Attorney General John O’Connor sidestepped the problems with the state’s case and instead attacked those who would call it into question, including Berlinger. “I took it as desperation on the AG’s part,” Berlinger told The Intercept. “It’s unbelievable that they would go to such lengths to discredit a documentary.”

“What other facts have been selectively cherry-picked by the state?”

Over nearly five pages, the AG’s office poked at alleged factual inaccuracies in Berlinger’s series that it deemed “somewhat minor” — allegations Berlinger calls specious — before taking a broad swipe at the documentary as being deliberately slanted in Glossip’s favor. Berlinger said he wasn’t troubled by the fact that the AG attacked his work so much as how he did it.

“It is a documentary hoping to bend the truth in order to convey Glossip’s side as possessing both a legal and moral superiority,” the AG wrote. “Indeed, Berlinger has even acknowledged as much in his other work.” For this proposition, the AG cited a 2021 Irish Times article, claiming that “Berlinger noted that his work ‘allows [him] to play with the nature of truth. Because we live in this post-truth society.’”

But that’s not what Berlinger told the Irish Times.

The filmmaker was talking about a different documentary series — focused on internet sleuths trying to solve what they believed was a murder — that illuminated the dangers of ignoring facts in favor of conjecture.

To make it sound like Berlinger was also talking about the Glossip case, the AG’s office left out the first part of his quote — it was “the series,” Berlinger said, that allowed him to “play with the nature of truth” — and then omitted the following sentence: “I’ve spent a lot of my time doing wrongful conviction cases and being involved at the criminal justice system where circumstantial evidence has led to tragic results. This case shows how, despite all the evidence, people can be so convinced of their own beliefs.”

For Berlinger, the mischaracterization was infuriating and unnerving. “They changed one word, which makes all the difference in the world, and left out the next consecutive sentence, which really changes the whole meaning of things,” he said. If they would do something so brazen and easily disproved to him, what might they do to Glossip?

Berlinger decided to write a letter to the parole board. “If facts are so selectively presented by the state in their clemency brief about one filmmaker’s work,” he wrote, “you must ask yourselves, what other facts have been selectively cherry-picked by the state to tell a convincing but false narrative in Richard Glossip’s case?”

Willful Blindness

Nearly 25 years after he was first accused of plotting his boss’s brutal murder, Glossip is approaching his eighth scheduled execution date in early 2023. On February 16, if Oklahoma finally gets its way, Glossip will be executed by lethal injection at the state penitentiary in McAlester, one week after his 60th birthday.

Yet the evidence pointing to Glossip’s wrongful conviction has only grown stronger over time. His most recent execution date was put on hold by Gov. Kevin Stitt, who granted a stay of execution to allow the Oklahoma Court of Criminal Appeals to consider filings from Glossip’s defense team, which asked the court to hear new evidence in the case. Among the most recent revelations are handwritten letters from Sneed that showed a desire to take back his story about being coerced to kill Van Treese — a narrative that provided the basis for the state’s entire case against Glossip.

The courts have routinely brushed aside such discoveries. With Glossip’s execution date looming, his clemency hearing — tentatively set to take place later this month — may be the last chance for authorities to spare the life of a man whose case has become emblematic of the profound problems with Oklahoma’s death penalty system and capital punishment as a whole. “We now know what really happened — both how the crime was actually committed and how an innocent man got sent to death row,” Glossip’s attorneys argue in their clemency application. Yet prosecutors have continued to insist that their client should die, they write, “without regard to recent developments because two juries found him guilty and sentenced him to death. That is willful blindness.”

Sneed’s version of events was dubious from the start, the product of a coercive interrogation in which homicide detectives repeatedly emphasized their belief that Glossip was involved. Beginning with his confession to police and continuing through each of Glossip’s two trials, where he was the star witness, Sneed couldn’t seem to keep his details straight — not about what led up to the crime, what happened inside Room 102, or who did what after the fact to try to cover it all up. Sneed said Glossip promised to pay him thousands of dollars to kill Van Treese, but the exact amount changed over time.

According to the state, not long before he was murdered, Van Treese discovered that Glossip had been embezzling from the nearly all-cash operation while letting the ratty motel slide into disrepair; he was planning to fire Glossip. The state has argued that in an effort to keep his job, Glossip hatched a plan to kill Van Treese and take over motel operations.

Although Glossip has always maintained that this is preposterous — “I wouldn’t hurt nobody for a job,” he said on the stand in 1998 — he did himself no favors in the immediate aftermath of Van Treese’s murder. When he was first interviewed by police, he failed to tell them about a chilling exchange he says he had with Sneed in the early morning hours of January 7, 1997. Sneed had banged on the wall of Glossip’s apartment at the motel, waking him up; when Glossip opened the door, Sneed told him that a couple of drunks had broken a window — and that he’d killed their boss, Van Treese. Glossip insists that he thought Sneed was joking. But he withheld the information long enough to give people reason to believe he was covering for Sneed. By the time Glossip went to trial, he’d been cast as a sinister puppet master who brainwashed Sneed into committing murder.

For more than two decades, the state has insisted that Sneed was a meek dolt who was powerless to resist Glossip, despite the fact that it was Sneed alone who carried out the bloody attack. Meanwhile, a host of new witnesses have come forward with information disputing the state’s narrative. Residents of the Best Budget Inn said that Sneed was conniving, violent, and often resorted to theft to fund his drug addiction. Men who were incarcerated with Sneed say he boasted about falsely implicating Glossip to avoid facing the death penalty.

One man who spent time with Sneed in the Oklahoma County Jail told Berlinger that Sneed said he and a woman had lured Van Treese into Room 102 to rob him. One of the lead detectives on the case, Bob Bemo, told Berlinger that he doubted Sneed ever meant to kill Van Treese. “He ended up killing Barry. … I don’t know that he intended to, but he did,” Bemo said. “He beat him pretty good.” At one point during his interrogation, Sneed also told the cops that he only meant to incapacitate Van Treese. “I just really meant just to knock him out,” he said. In other words, even Sneed has intimated that the crime was a robbery gone wrong and not a murder for hire.

In 2021, a group of mostly conservative, pro-death penalty Oklahoma state lawmakers asked the governor and the Pardon and Parole Board to conduct an independent investigation into Glossip’s conviction. Neither Stitt nor the board members (the majority of whom are appointed by Stitt) obliged, so in early 2022, the lawmakers sought the help of the law firm Reed Smith LLP, which launched a pro bono, four-month investigation.

“There are a lot of things right now that are eating at me. Some things I need to clean up.”

A team of attorneys and investigators reviewed more than 12,000 documents and interviewed dozens of witnesses. The result was a bombshell 343-page report that took issue with nearly every aspect of the state’s case against Glossip. Among the revelations: A box of financial records, potentially key to determining if any money was missing from the motel, was destroyed while Glossip’s first conviction was on appeal. By the time he was retried, the evidence was gone. In marking the evidence for destruction, the DA’s office falsely claimed that Glossip’s appeals had been exhausted; oddly, the box was also assigned a new case number, a move that would effectively hide it from anyone searching for the evidence.

Since then, the firm has released additional startling information, including that Sneed considered taking back his story about Glossip. In 2003, a year before Glossip was retried, Sneed wrote to his public defender, Gina Walker, asking, “Do I have the choice of re-canting my testimony at any time during my life, or anything like that.” In 2007, he again reached out to Walker. “There are a lot of things right now that are eating at me,” he wrote. “Some things I need to clean up.” In response, Walker, who has since died, discouraged Sneed from recanting, writing that if he hadn’t testified, he likely would have ended up on death row.

Reed Smith also found evidence that Assistant District Attorney Connie Smothermon worked with Walker during Glossip’s second trial to modify Sneed’s testimony to fit the medical examiner’s finding that Van Treese had puncture wounds to his chest. Although there was a knife found at the scene, at the first trial Sneed denied attacking Van Treese with a knife. At the retrial, Sneed testified for the first time that he had stabbed Van Treese.

Sneed has not responded to The Intercept’s request for an interview.

GOP state Rep. Kevin McDugle, one of the driving forces behind the lawmakers’ efforts to halt Glossip’s execution, is a stalwart supporter of capital punishment. But he is certain that Glossip is innocent. “If we put Richard Glossip to death, I will fight in this state to abolish the death penalty,” McDugle said.

An Insider’s Game

Where McDugle and others are clearly concerned about the integrity of the case against Glossip, the Oklahoma attorney general and five members of the state’s Court of Criminal Appeals remain unmoved.

In the wake of the Reed Smith reports, Glossip’s pro bono defense team, led by attorney Don Knight, filed two additional appeals to the court raising questions about the veracity of the case, asking for an evidentiary hearing, and arguing that Glossip is innocent. The lengthy filings laid out evidence that Glossip’s conviction was plagued by an inadequate police investigation as well as prosecutorial misconduct. The lawyers cried foul over the police destruction of evidence, Smothermon’s plotting with Walker to change Sneed’s testimony, and the failure to turn over Sneed’s ruminations regarding recantation.

In response, O’Connor, the attorney general, suggested that the destruction of evidence was just an honest misunderstanding. The letters Sneed wrote to Walker, meanwhile, only “establish that Sneed feels guilty about petitioner’s fate, possibly because of outside pressure.” In a second filing, O’Connor announced that Sneed had “never discussed recanting, in the legal sense.” (It was unfair, he noted, to assume that Sneed would understand the meaning of the word “recant.”)

The communication between Smothermon and Walker regarding Sneed’s testimony was no big deal, according to the AG, who argued that Sneed’s testimony wasn’t even inconsistent: Sneed first said that he didn’t stab Van Treese and during the second trial said only that he “tried to” stab Van Treese; since the knife didn’t fully penetrate the skin, the two statements weren’t in conflict, the AG wrote.

As for Glossip’s innocence claim, O’Connor argued that none of his evidence was credible and Glossip simply wanted to be spared the death penalty. “Were petitioner innocent, he should not wish to stay in prison,” he wrote. “Instead, he appears to have been slowly gathering evidence to use when his next execution date was set.” The AG argued that this approach was “completely inconsistent” with a claim of innocence.

In two separate opinions, the Court of Criminal Appeals rejected Glossip’s innocence claim and embraced the state’s arguments — including the assertion that Sneed never expressed a desire to recant.

Asked about the AG’s briefs, Knight, Glossip’s lead attorney, sighed. “I would say that they knew the audience that they were writing to,” he said. “They knew what they needed to say to the five judges on the Court of Criminal Appeals to give those five judges enough for them to write the terrible decisions that they wrote. It was like an insider’s game.”

“I just can’t imagine any person looking at me straight in the face and saying, ‘Oh, yeah, this is fine.’”

Mostly, Knight is frustrated. He’s spent the last seven years digging into Glossip’s case. And every new revelation brings him back to a central point: The police failed to conduct a thorough investigation into Van Treese’s murder. They never formally interviewed Van Treese’s widow, Donna, for example, and it took nearly a week for them to locate and interview Sneed. They didn’t preserve or interrogate financial documents related to the motel’s operations — so there’s no clear proof that any money was missing from the Oklahoma City property, let alone that Glossip was stealing. Not only was a box of financial records destroyed by the state before Glossip’s second trial, but inexplicably, the police also returned additional records to the Van Treese family shortly after the crime.

Knight has repeatedly written to the Oklahoma County District Attorney’s Office asking for access to records that might provide answers. He has never received a response. “I’ve always just wanted to know what happened here,” Knight said.

Knight also sent a lengthy letter to O’Connor, laying out what detectives did and didn’t do and asking a basic question: Is this enough to support a capital murder conviction? Knight said he’s convinced that Glossip is innocent, but the point of the correspondence wasn’t to harp on that. Instead, he wanted to know if the state was truly satisfied with the murder investigation. “It seems to me that we ought to be able to agree on whether what these cops did was enough or not. … I just can’t imagine any person looking at me straight in the face and saying, ‘Oh, yeah, this is fine,’” he said. “And when you admit that this isn’t enough, the next question becomes, well, what do you do about it now?”

Intimidation Tactics

The Oklahoma Pardon and Parole Board does not usually spare the lives of people facing execution. Although its votes are merely recommendations to the governor, who has the last word, on the rare occasions when the board has called for clemency, the decisions have often been mired in controversy. After board members voted in 2021 to spare the life of Julius Jones — a Black man convicted by a nearly all-white jury who insisted he was innocent — Oklahoma legislators tried to pass a law that would forbid the board from considering innocence claims at clemency hearings for the condemned.

Few politicians have tried to wield power against the board like outgoing Oklahoma County District Attorney David Prater. In 2013, the year before Glossip first applied for clemency, Prater accused the board of violating the state’s Open Meeting Act by keeping a “secret” parole docket and improperly granting early release to people in prison. When the board members refused to resign, he had them arrested on criminal charges, which he dropped the following year. As Oklahoma tried to execute Glossip in 2015, Prater used similar intimidation tactics to try to silence witnesses who came forward. More recently, Prater targeted two board members whom he accused of anti-death penalty bias. As Prater embarked on his final year as DA in early 2022, both members resigned their positions.

Although Prater’s departure from office may give Glossip some reason for optimism, his chances before the board remain fraught with uncertainty. All five current board members will see their terms expire on January 8, at which point at least some will be replaced by new members chosen by the governor. Because a clemency hearing must take place no less than 21 days before a scheduled execution, even those appointed immediately will have little time to acquaint themselves with their new role, let alone the voluminous records in Glossip’s case, prior to his February 16 execution date.

When Glossip last went before the board in October 2014, his case had not yet reached national prominence. Rather than make a vociferous argument for their client’s innocence, his lawyers emphasized the weakness of his conviction. At most, they said, the evidence showed that Glossip was guilty of helping Sneed cover up the murder. They urged the board to consider whether they had “any doubt” as to Sneed’s version of events. “This case is entirely circumstantial except for Justin Sneed’s testimony,” Glossip’s lawyer Kathleen Lord said.

Prosecutors pushed back on the notion that this was a “one-witness case.” They pointed to the single piece of incriminating evidence that has haunted Glossip the most: his failure to tell Oklahoma City police what he knew when they first questioned him. Asked why he wasn’t forthcoming, Glossip repeated what he has told others over the years: “At first I didn’t believe [Sneed] did what he said he did.”

Several members of Van Treese’s family attended the 2014 hearing, including his widow, Donna, who held up a family photo taken a year before her husband’s death. Her voice trembling with emotion, she described how the murder had upended the lives of her children. She reminded the board of something she’d said on the stand at both trials: that Glossip had lied to her too. On January 7, before Van Treese’s body was found, she called Glossip on the phone. He reassured her that things were fine — and that Van Treese had simply gone to the hardware store to get supplies.

Glossip has always insisted that his statements about when he last saw Van Treese were misconstrued. While Donna Van Treese and others said Glossip claimed to have seen him leaving the motel around 7 a.m. on January 7, Glossip said he meant 7 p.m. the night before. Under questioning from a board member at the 2014 clemency hearing, Glossip said he did not remember saying Van Treese had gone to the hardware store.

All five board members voted to deny clemency.

The state’s new clemency brief was filed this summer. The 175-page document adheres closely to what was presented by the attorney general’s office in 2014. It again emphasizes Glossip’s failure to tell the police what he knew, while leaning heavily on witnesses who questioned his behavior after the crime. It doubles down on the notion that Sneed was a wide-eyed simpleton devoid of free will, ignoring those who have come forward over the years to debunk the state’s depiction.

Prosecutors described Sneed as a “Rottweiler puppy” and Glossip as the “dog trainer.”

The state’s portrayal of Sneed has always been exaggerated on its face. At Glossip’s 2004 retrial, prosecutors described Sneed as a “Rottweiler puppy” and Glossip as the “dog trainer.” In the latest clemency brief, the attorney general’s effort to paint Sneed as “childlike” verges on the absurd, casting him as so guileless and dependent that his emotions rise and fall dramatically with Glossip’s every move. The same office that has repeatedly weaponized the graphic crime scene photos from Room 102 also manages to downplay Sneed’s violent attack to the point where Van Treese almost comes across as the aggressor — defending himself until Sneed is “able to fight back” and “ultimately able to subdue him with blows from the bat.”

Members of the Van Treese family did not respond to emails about Glossip’s case. According to the attorney general’s office, which resubmitted the family’s 2014 letters to the board, relatives have chosen not to be involved in the clemency hearing this time around.

Of the few things that are new in the state’s clemency brief, none of them have much to do with whether Glossip orchestrated Van Treese’s murder in 1997. To portray Glossip as a con man whose manipulative behavior continues to this day, the attorney general included letters from women who previously supported him but have had a change of heart.

In one affidavit, his ex-wife, who is less than half his age, described how she began a relationship with Glossip after seeing Berlinger’s documentary. “At first, I gave him small amounts of money, then it rapidly grew to higher amounts of money as the relationship progressed,” she wrote. Over time, she said, he would “throw temper tantrums” or threaten to hurt himself if she did not do what he wanted. After they divorced, she concluded he was using her. Another woman, who was not romantically involved with Glossip but also gave him money, wrote that she no longer believes he is innocent. Neither woman said explicitly that they wish Glossip to be executed. Nor did they respond to emails or phone calls from The Intercept.

Of course, Glossip, who has since remarried, does not face execution for mistreating his partner or taking financial advantage of people from his death row cell. Nor do the affidavits suggest he poses a danger to society — something even his second jury failed to find in 2004. Glossip’s prison record shows no signs of violence toward the people who live and work around him. As his clemency petition reminds the board, “Glossip had no prior criminal record and has been a model prisoner for over 25 years.”

For Berlinger’s part, he says he debated whether he should write a letter to the board at all. “Will it matter?” he asked himself. This wasn’t about him, after all. He was just a “grain of sand on the beach” of this complex case, yet the state had decided to focus disproportionate attention on him in a way that was flatly dishonest. That’s what convinced him to write the letter. “I wanted the clemency board to understand that if they did it to me, wouldn’t this be their whole approach to things?”

The post Facing His Eighth Execution Date, Richard Glossip Asks for Clemency appeared first on The Intercept.

When it came to Johnson’s crime, there was not much to say that Ramey didn’t already know. Everyone in the neighborhood knew that he’d killed a police officer when he was 19. It wasn’t easy, but “it wasn’t a secret,” she said. Most importantly, it did not change who Johnson was to her. As Ramey got older, they talked about the ordinary things parents discuss with their kids: school, family, and his hopes for her future.

But on New Year’s Day 2022, when Ramey was 18, Johnson called her sounding different. “He was kind of like throwing hints at me,” she said, suggesting that he might not be around for much longer. The conversation unnerved her. It seemed clear that he was trying to prepare her for an execution date.

Later that night, Ramey found out she was pregnant. She worried about disappointing her dad; with his encouragement, Ramey had graduated early from high school and was studying to become a nurse. Under her red graduation gown, she’d worn a T-shirt printed with a photo of her dad, along with her maternal grandmother and mother, who was murdered in front of Ramey just months before Johnson was convicted. “I did it for y’all,” the T-shirt read.

In late August, Ramey got a phone call from her aunt. She told Ramey that her father had received an execution date and warned her that it would be all over the news. Shortly afterward, Johnson called. “They came and got me and told me to pack all my stuff,” he told her. His execution had been set for November 29.

Ramey gave birth just two weeks later. On Facebook, she posted baby pictures of herself, her dad, and her son, whom she named Kaius. In October, she brought him to see Johnson, who was able to hold his grandson for the first time. “That was a very special moment,” Ramey said.

Ramey spoke to The Intercept over the phone in early November while doing a shift at the nursing home where she works. She had not discussed her father’s looming execution date with her employer, let alone taking time off to deal with it. This was one of several logistical questions she was still figuring out. Another was even more daunting. At 19, she was too young to attend the execution under Missouri law. She did not know where she would be as the state took Johnson’s life. It felt important to be at the prison. Even if her dad couldn’t see her, Ramey said, “he would at least know that I’m there with him in his final moments and he wasn’t alone.”

But as Johnson’s execution date got closer, Ramey decided that wasn’t enough. On November 21, the American Civil Liberties Union filed an emergency motion asking the U.S. District Court for the Western District of Missouri to intervene and allow her to attend the execution. “My father has been the only parent for almost all of my life,” she wrote in a declaration to the court. “He is the most important person in my life. If my father were dying in the hospital, I would sit by his bed holding his hand and praying for him until his death, both as a source of support for him, and as a support for me as a necessary part of my grieving process.”

With Johnson’s execution days away, a number of legal challenges are still pending before the courts. The most pressing is whether Johnson’s conviction was unconstitutionally tainted by pervasive racism, as a special prosecutor appointed to review the case has determined; the prosecutor is now seeking to vacate Johnson’s death sentence.

In the 17 years since Johnson was sentenced to die, St. Louis County has become infamous for structural racism, most visible in its policing and prosecution practices. Johnson’s case is emblematic of these dynamics and how the death penalty has been deployed to reinforce the status quo. To Johnson’s attorney Shawn Nolan, the special prosecutor’s findings mean Johnson’s execution must not move forward. “Civilized countries don’t execute people based on the color of their skin,” Nolan said, “but that is what the state of Missouri is about to do.”

The Crime

Nineteen-year-old Kevin Johnson was at his great-grandmother’s house on July 5, 2005, when two police officers showed up, snooping around his white Ford Explorer. Johnson was on probation in connection with a domestic dispute involving his former girlfriend, the mother of his young daughter, Khorry. He had violated the terms of his probation, and the cops were looking to arrest him and perhaps tow his ride. Johnson didn’t want that to happen, and he had an idea. He gave his car keys to his little brother Joseph Long, whom everyone called Bam Bam.

Johnson and his siblings had been raised in difficult circumstances in Meacham Park, a predominantly Black neighborhood in wealthy, mostly white Kirkwood, Missouri, one of the many suburbs that sprawl west of St. Louis. Johnson’s mother was addicted to crack, and his dad was incarcerated for most of Johnson’s young life. Johnson and his siblings had been abused and neglected, at times left for days to fend for themselves. Johnson was particularly protective of 12-year-old Bam Bam, who’d been exposed to cocaine in utero and was born with a congenital heart defect that required major surgery not long after his birth.

Johnson asked Bam Bam to take the car keys next door, where his grandmother Pat Ward lived, to make it look like she owned the Explorer. Bam Bam got up and ran next door. As Johnson watched from the window, what he saw set off a chain reaction that he would forever regret. Ward came out of the house, keys in hand, Johnson later recalled, asking the cops to come quick: Bam Bam had passed out.

Johnson couldn’t see Bam Bam, but after the cops arrived at Ward’s front door, he saw one of them step over something as he made his way inside. Sirens wailed as an ambulance approached along with a third cop, Kirkwood Police Sgt. William McEntee. Johnson’s impulse was to race next door to help, but his family told him to stay put or risk arrest. When Johnson’s mother, Jada Tatum, arrived, McEntee pushed her back, Johnson recalled, nearly knocking her off the porch. “It looked to me … like they was fighting, and I started to get mad,” Johnson later testified. “Then eventually my mom just stopped, she went into the yard and started crying.”

Nearly 20 minutes after the ambulance arrived, Johnson saw the first responders leaving with Bam Bam on a stretcher. His shirt was off, and his feet were dangling over the side.

Not long afterward, Ward returned with the news that Bam Bam was gone. An autopsy later revealed that he’d died of heart failure. Johnson was too shocked to react at first, he said. Then he became distraught, kicking the hinges off his bedroom door. If he hadn’t asked Bam Bam to take the keys, maybe this wouldn’t have happened, he thought. Why had the cops reacted so casually when Ward asked for their help? If Bam Bam had been taken to the hospital sooner, maybe he would be alive.

Johnson went outside trying to clear his head. He removed a pistol from the back of his car and put it in his pocket; if the cops came back to tow the car, he later explained, the gun could put him in even bigger trouble. As Johnson wandered around on foot, people asked him if it was true that Bam Bam had died; news spread quickly through tight-knit Meacham Park. He told his cousin that he thought the cops were responsible.

Around 7:30 p.m. McEntee was back in Meacham Park, responding to a call about someone setting off fireworks. He pulled his cruiser next to three boys, one of whom was carrying a spent firecracker. As he talked to them through the driver’s side window, Johnson walked past on the passenger’s side. He caught McEntee’s eye, and the cop smiled at him. Johnson raised his gun. “You killed my brother,” witnesses recalled him saying as he fired into the car, striking McEntee multiple times. One of the bullets tore through McEntee’s cheek and lodged in his jaw.

Although seriously wounded, McEntee was able to put the car into drive, lurching up the street before hitting a tree. Neighbors were screaming. Johnson ran into his mother, who asked him what he’d done. The cops killed Bam Bam, he told her. No, she replied, Bam Bam just died. She started crying; what about his daughter, Khorry, she pleaded. Johnson remembers taking off running to see Khorry. Cutting through a path between two houses, he found himself back by McEntee’s crashed car. The bloodied officer was kneeling on the pavement. Onlookers scattered as Johnson walked up behind McEntee and shot him in the head.

McEntee was pronounced dead shortly afterward. Johnson fled in his Explorer, passing a stream of cop cars on their way to the scene. Only then did he understand what he had done, he later testified. When he turned himself in three days later, Johnson had one request: that police first let him see his toddler, Khorry. They refused.

The Trials

McEntee’s murder was front page news in St. Louis. Kirkwood had not seen a law enforcement officer killed in over 100 years, police told the press. The 43-year-old father of three had been with the Kirkwood police since the 1980s. Outside the police department, people left flowers and balloons on the lawn.

St. Louis Prosecuting Attorney Robert McCulloch said he was considering seeking the death penalty against Johnson. During his 17 years in office, McCulloch had gained a reputation for winning death sentences — and having a personal stake in punishing cop killers. He was just 12 years old when his own father was killed in the line of duty; Paul McCulloch was “one of the best known officers on the St. Louis police force,” according to a 1964 news article that lauded him as a famed canine handler whose dog had a knack for sniffing out drugs. A Black man named Eddie Glenn was convicted and sentenced to death for McCulloch’s murder. But after the U.S. Supreme Court invalidated the death penalty in 1972, the sentence was reduced to life.

While the headlines trumpeted a possible death sentence against Johnson, many in Meacham Park felt that the full story surrounding McEntee’s death was not being reported. Family members told a Black columnist for the St. Louis Post-Dispatch that Johnson had been distraught by Bam Bam’s death in part because police had been more focused on arresting him than helping his brother. After the columnist wrote about Bam Bam’s funeral preparations, readers wrote in to say that the writer had “slandered a fallen officer” and “excused a killer.”

“They didn’t try to help him because they was looking for me.”

Johnson was tried twice, beginning in March 2007. The courtroom was packed with family members on both sides, along with a slew of police officers. In his opening statement to the jury, McCulloch acknowledged Bam Bam’s death as the precursor to McEntee’s murder. But he rejected the claim that police had failed to act quickly to help the child — or that McEntee had mistreated Tatum, Bam Bam’s mother. An EMT testified that they were attempting lifesaving measures when Tatum approached, so he asked McEntee to sit with her on the porch.

Most importantly, McCulloch rejected the notion that Johnson had acted impulsively, without premeditation. He argued that Johnson had taken the gun from his car with the explicit intent to kill a police officer and dismissed Johnson’s claim that he had been en route to see his daughter when he came upon McEntee the second time. Johnson had returned to the scene after hearing that McEntee was still alive, McCulloch said, then ruthlessly finished the job. “Each one of those shots, in and of itself, is deliberation,” he told the jury.

Although most of the witnesses who knew Johnson said on cross-examination that they had never had problems with him before, McCulloch cast Johnson as a menace who would kill again if given the chance. Not only had he killed McEntee in cold blood, McCulloch said, but Johnson had also tried to murder witnesses who might testify against him.

The evidence for this claim was thin. One witness, 19-year-old Anthony Davis, who knew Johnson from the neighborhood, had agreed to testify against Johnson only after being arrested at the courthouse, where investigators for McCulloch’s office claimed that Davis was intimidating witnesses. No witnesses had complained of intimidation, yet Davis was thrown in jail and his bond was set at $100,000. On the stand at trial, Davis admitted that he was testifying in order to resolve his own legal troubles; his version of events clashed with what others said. In addition to claiming that he had seen Johnson’s family members menacing witnesses, Davis testified that Johnson had told him on the day of the murder that he was going to kill the first cop he saw. A jailhouse informant with a long rap sheet also testified at length about an elaborate plot he’d discussed with Johnson to have key witnesses killed.

It was true that several witnesses seemed reluctant to testify against Johnson. Some had given statements to police, only to back off upon taking the stand. But while McCulloch told the jury that Johnson had threatened them, it was also plausible that witnesses had felt intimidated by police. One woman who was visiting family in Meacham Park on the night of the murder testified that contrary to what she told police, she had not seen Johnson shoot McEntee. “I felt scared. I felt they was intimidating me, pressuring me,” she said.

On March 31, Johnson took the stand. He recounted how he had seen police outside the house, how McEntee had manhandled his mother, and how shocked he was to hear that his brother was dead. He remembered telling his friends that the police had not done anything to help Bam Bam. “They didn’t try to help him because they was looking for me,” he said. When he saw McEntee smile at him from inside his police car, “I flipped out, and I pulled out my gun, and I started shooting,” he said. He could not explain what he was thinking. “I was just in a trance.”

McCulloch mocked Johnson’s “trance nonsense” in his closing statement. But the defense said he was merely trying to find words to describe his tragic mistake. “What he’s talking about is acting without thinking,” defense attorney Robert Steele said.

Jurors found this position persuasive. When it came time to decide Johnson’s fate, a majority believed that he was not guilty of first-degree murder. Deliberations were contentious, according to jurors who later gave statements to Johnson’s appellate attorneys. One Black juror described a pair of white jurors who “kept loudly repeating that they couldn’t vote for 2nd degree because Kevin would get out and hunt them down.” One of them “kept yelling things about ‘your neighborhoods’ and ‘you people’” when talking to Black jurors, he said.

Another Black juror said that she had been called to speak to the trial judge after a white woman on the jury accused her of “intimidating” behavior. For all the talk of intimidation, the juror said, it was the heavy police presence that made her the most uneasy. “We were aware from the beginning of the trial that cops were going to be heavily packing the courtroom. I even had my neighbor drive me because someone warned me that cops would run my plates if I parked in the garage.”

Johnson’s retrial took place later that year. Whereas the previous jury had been evenly split between Black and white jurors, this time the jury was made up of nine white and three Black jurors.

There were other changes. McCulloch eliminated the jailhouse informant with the story about plotting to kill witnesses and added a video reenactment of the crime. He also bolstered testimony about the officers’ efforts to save Bam Bam and emphasized that McEntee had not mistreated Johnson’s mother. “Was he very deferential to her?” McCulloch asked one of the cops who responded to the scene. “Yes, he just tried to get her to go out of the house, and he was kind of holding on to her, trying to hold her up,” the cop said. “She was very upset about her son.”

McCulloch’s final witness at the retrial was St. Louis County Medical Examiner Mary Case, who described the damage each bullet had inflicted on McEntee. Using a model skeleton, she demonstrated where the bullets had entered his body, noting that McEntee might have survived some of the most severe injuries, but there was no way to survive being shot in the head.

On November 8, 2007, the jury convicted Johnson of first-degree murder.

“They want you to think that because he had this horrible childhood that he shouldn’t be punished appropriately.”

The sentencing phase began immediately. McCulloch called McEntee’s three siblings, who testified about the hole his death had left in their family. His sister Cathy testified that after she gave birth to a daughter with a heart problem, McEntee had helped with the baby’s tube feedings. “He was very supportive — and very supportive when I lost her,” she said.

In contrast, defense attorneys cast Johnson as an unwanted child who had never known a stable home. His grandmother described how 2-year-old Johnson used to come to her house looking for food because his mother was too incapacitated from drug abuse to properly care for him. Records from the Division of Family Services described how caseworkers found Johnson and an older brother living amid cockroaches; Johnson has since described chasing the insects for food. During his years in and out of institutions and group homes, he did not receive the therapy he needed to overcome the trauma of his early life. A psychiatrist who evaluated Johnson said he had attempted suicide when he was 14.

McCulloch accused the defense of weaponizing Johnson’s upbringing to deny justice to McEntee’s family and the people of Meacham Park. “They want you to think that because he had this horrible childhood that he shouldn’t be punished appropriately, that he does not deserve it,” he said. The real problem, McCulloch insisted, was that Johnson did not take advantage of the opportunities he’d been given.

Before jurors voted to sentence her client to death, defense attorney Karen Kraft suggested that there was more to the case than they had seen. A defense witness had testified about being pulled over by McEntee multiple times while living in Meacham Park. Although he seemed reluctant to go into detail, he described how McEntee had screamed at him after ordering him out of his car. Kraft said she thought “long and hard” about whether to call this witness. “I don’t like speaking ill of the dead,” she said. But “there may be a side of Sergeant McEntee that his family didn’t see. That’s all I’m going to say about that.”

Meacham Park

Johnson had been on death row for seven years when McCulloch’s name exploded onto the national stage in the wake of a different killing in St. Louis County. In 2014, a white police officer named Darren Wilson shot and killed an unarmed Black teenager named Michael Brown. The shooting in Ferguson sparked mass protests and added the call “Hands up, don’t shoot” to the lexicon of the nascent Black Lives Matter movement.

McCulloch’s handling of Wilson’s prosecution would help turn the case into an emblem of institutionalized racism and impunity for violent cops. When McCulloch announced that a grand jury had declined to indict Wilson, he added fuel to the fire by blaming the media for the protests and declaring that the grand jurors, who were mostly white, “gave up their lives” to see the inquiry to its end.

The Ferguson protests exposed long-simmering tensions over law enforcement’s treatment of Black residents in St. Louis County. While the Department of Justice ultimately declined to file federal charges against Wilson, it found that Ferguson police “routinely” violated Black residents’ constitutional rights, using their powers to unlawfully detain and arrest residents in a scheme that prioritized revenue through fines and fees over the duty to ensure public safety. The department was not diverse, failed to engage with the community, ignored complaints of police misconduct, and engaged in practices that fostered “distrust and resentment.”

“Before there was a Ferguson, there was a Meacham Park.”

Such police abuses — and the grievances they engendered — were not isolated to Ferguson. To longtime residents of St. Louis County like Michelle Smith, co-director of Missourians for Alternatives to the Death Penalty, Johnson’s case can only be fully understood in the context of the community’s relationship to police. “Before there was a Ferguson,” Smith said, “there was a Meacham Park.”

Then surrounded by fields and forests, Meacham Park was established in 1892 as an unincorporated Black enclave roughly 14 miles southwest of St. Louis. The dirt streets were named after prominent people and places in Black history. Although it lacked running water and sewers, by the early 20th century, Meacham Park was thriving.

But as suburban developments proliferated, weak state law governing the establishment of new municipalities left Meacham Park vulnerable, sparking a protracted tug of war over annexation by wealthy, white Kirkwood. Colin Gordon, a history professor at the University of Iowa who has written about race and inequality in St. Louis County, described how municipal boundary-making was used as a tool of segregation. “You fragment local citizenship in such a way that some people get surveilled by the state and some people get served by the state,” Gordon said.

In the late 1950s, Kirkwood made its first land grab, annexing a valuable commercial strip of Meacham Park, for which the community got nothing in return. In 1956, Interstate 44 sliced through the community, paving over homes and leaving a wedge of the neighborhood stranded. Meanwhile, Kirkwood officials were wringing their hands: They didn’t want responsibility for providing services to Meacham Park, but they also didn’t want the area’s perceived problems coming into Kirkwood. As city leaders put it in a proposed action plan in 1966, “Mosquitoes, bred in the failing septic tanks in Meacham Park, or potential criminals, raised in an atmosphere devoid of police protection, are not respecters of municipal boundary lines.”

In 1991 the residents of Meacham Park finally agreed to an annexation plan. The promise was that commercial development along a discrete swath of its western edge would provide jobs for residents and bring in revenue needed for Kirkwood to extend services across the area. The promise was hollow: The development’s footprint ballooned, swallowing 100 homes and displacing residents for what in the end was a wall of big-box stores that only further isolated Meacham Park from the rest of Kirkwood.

The “racial, spatial, political climate of that place made it ripe for people to lose in different ways.”

In every practical sense, the first “service” to fully encompass Meacham Park was policing — or, more accurately, over-policing, which manifested itself in many of the same ways that would later be identified in Ferguson. “To be the subject of neglect and harassment simultaneously definitely set up a lot of harm in that community,” Smith said.

This dynamic was entrenched long before Johnson shot McEntee in July 2005. Court filings in Johnson’s case include affidavits from relatives and community members who described relentless police surveillance in Meacham Park. Patrol cars were omnipresent, and neighbors were hassled for minor infractions or questioned for seemingly no reason at all. In his affidavit, Dameion Pullum, a childhood friend of Johnson’s, said the cops once maced a group of kids for hanging out in a church parking lot after a high school football game and harassed Johnson’s grandmother’s husband for waxing his car in the driveway.

Several of the affidavits specifically named McEntee as contributing to the harassment. Pullum said McEntee was known as “Tackleberry” because “he was big, and he would tackle and beat people up.” Romona Miller, who was a science teacher at Kirkwood High School in 2005, told the Riverfront Times that students shared stories about “Mac” — including that he had escalated one encounter to the point that another officer had to intervene. “I had never heard the kids talk specifically about a person, so that was concerning to me,” Miller told the weekly. She said she contacted the Kirkwood police with her concerns but never heard back. “I often wonder, if that had been taken more seriously, we could have avoided a lot of this.” (A KPD spokesperson told the St. Louis Beacon that the chief had no recollection of Miller’s complaint. “He’s not saying it didn’t happen,” the spokesperson said. “We get a lot of complaints.”)

Smith stressed that reports of McEntee’s misconduct were not meant to “condone killing. We wish that McEntee was still here.” Still, she was blunt about the role he and other cops played in Meacham Park. “The reality of the situation is he was a terrorist in that community.”

Andrea Boyles, a sociology and Africana studies professor at Tulane University, interviewed Meacham Park residents about their experiences with police for her doctoral dissertation. That work later became the book “Race, Place, and Suburban Policing.”

There had been a “long-standing racial contention between Meacham Park and Kirkwood,” Boyles said, and “ultimately, there were a number of things that transpired … ranging from full loss of land and people losing their homes or being bought out, feeling like they had been manipulated” in the annexation process. Their distrust of the police was perhaps just the most visible manifestation of the disenchantment. “What they reported to me wasn’t just isolated to or told about the police, it was about the entire process, which included the city council,” she said, “and them already feeling like, in many respects, that they had been … indifferently characterized as baggage or weight or throwaways that needed to be saved by the neighboring rich white people.”

Residents told her that in the wake of violent incidents like McEntee’s killing, they felt that the whole community was being indicted, as if at fault for what happened. The “racial, spatial, political climate of that place made it ripe for people to lose in different ways,” Boyles said. “And the results of that, unfortunately, and without justifying or condoning, would be the loss of many lives. And the fact that we are now possibly facing another.”

A Cloud Over the Case

In the wake of Ferguson, voters ousted McCulloch, who had spent nearly 30 years in office, and elected a reform candidate. Former public defender and Ferguson City Council Member Wesley Bell became St. Louis County’s first Black elected prosecutor. In 2019, Bell launched a Conviction and Incident Review Unit, tasked with reviewing officer-involved shootings, allegations of police misconduct, and claims of wrongful prosecution or conviction — a deliberate departure from the status quo under McCulloch. “We know the same-old, same-old approach that we see incarcerating people based on their socio-economic stature, their zip code, their status, their race, their gender — that doesn’t work,” Bell told The Intercept at the time.

Related

By Any Measure, Capital Punishment Is a Failed Policy

While wrongful convictions are a persistent problem within the criminal legal system, until last year, Missouri prosecutors lacked a meaningful way to revisit a conviction they believed was wrongly obtained. In 2021, state legislators passed a law intended to fix the problem; by statute, prosecutors may, “at any time,” file a motion to vacate a conviction in the court where the defendant was originally tried. The trial court is required to hold a hearing to determine if “constitutional error at the original trial … undermines the confidence in the judgment.”

In December 2021, Johnson’s lawyers asked prosecutors to review his conviction, which they argued was unconstitutionally tainted by racial bias. There was an immediate issue, however: Steele, one of Johnson’s defense attorneys at trial, now works for Bell, creating a conflict of interest. In July, Bell’s office wrote to the Missouri Supreme Court, explaining that the office was reviewing Johnson’s case and looking for a special prosecutor to head up the inquiry. Prosecutors asked the court to refrain from setting an execution date. The court disregarded the request, setting Johnson’s execution for November.

“Unconstitutional racial discrimination infected this prosecution.”

Nonetheless, in October, the St. Louis County Circuit Court appointed Kansas City attorney Edward Keenan as special prosecutor. Keenan reviewed more than 31,000 pages of documents related to the case, and in mid-November, he filed a motion with the trial court seeking to vacate Johnson’s conviction. “Unconstitutional racial discrimination infected this prosecution,” he wrote, “and this error requires the judgment to be set aside.” The murder of McEntee was “horrific,” and his family deserved justice. “Unfortunately,” McCulloch “did not pursue that justice according to law,” Keenan wrote. “The law requires this court to … order a new trial that adheres to constitutional standards.”

Among the evidence laid out in Kennan’s motion was a memo he found within the prosecution’s files that showed McCulloch’s team had schemed to eliminate Black jurors from Johnson’s second trial. And he pointed to a speech McCulloch gave to the Oregon District Attorneys Association as evidence of racial animus. A week after he lost his primary race to Bell, McCulloch spoke at the association’s summer conference, where he aired his grievances about the unrest in Ferguson and showed a seemingly random photo of a group of young Black people standing together, telling the audience, “This is what we’re dealing with.” A number of prosecutors were stunned by the presentation. “I found Mr. McCulloch’s remarks to be offensive and unprofessional,” Multnomah County District Attorney Rod Underhill told Willamette Week. “The implication was that these kids were thugs,” Deschutes County District Attorney John Hummel said of the photo. “I was bothered by the implicit nature of his words.”

Perhaps most revealing is McCulloch’s history of charging decisions — an area where prosecutors have complete discretion. McCulloch prosecuted five police officer killings during his tenure. Four of them involved Black defendants; in each, McCulloch sought the death penalty. The fifth case involved a white defendant named Trenton Forster. In that case, McCulloch sought life. Forster’s conduct was far more aggravated than that of the other defendants, Keenan found. Among other things, Forster had bragged on social media about wanting to kill cops, suggesting that his attack was premeditated. Nonetheless, McCulloch took the extraordinary step of giving Forster’s public defender nearly a year to provide mitigating evidence that might convince McCulloch not to seek a death sentence. McCulloch did not offer this opportunity to any of the Black defendants.

Over the course of his career, McCulloch was far more likely to seek the death penalty in cases where the victim was white, according to a recent study by Frank Baumgartner, a political science professor at the University of North Carolina at Chapel Hill. Baumgartner analyzed 408 death penalty-eligible murder cases from St. Louis County between 1991 and 2018 at the behest of Johnson’s legal team. He found that even after controlling for various circumstances, McCulloch’s office was 3.5 times more likely to seek death when the victim was white.

While two-thirds of victims in all eligible cases were Black, 62 percent of the cases ending in a death sentence involved white victims. Baumgartner’s analysis suggested that McCulloch set the bar higher when considering cases involving Black victims, seeking death more frequently when there were multiple victims. The same was not true where white victims were concerned, Baumgartner wrote: “A single white victim suffices.”

McCulloch did not respond to emails from The Intercept requesting comment. In a recent interview with the Riverfront Times, McCulloch defended his record and denied allegations of racially motivated prosecutions. “There’s no question that you can’t do the job that I did for as long as I did it and not have some people think that you’re a terrible person,” he said. “You just can’t do it.”

“This court should consider the special prosecutor’s motion to vacate for what it is: the state’s confession of error.”

Despite Missouri’s requirement that the trial court hold a hearing on the evidence, St. Louis County Presiding Judge Mary Elizabeth Ott denied Keenan’s motion the day after he filed it. In a subsequent order, Ott acknowledged that while capital punishment “is different from all other punishments” and “requires particular care in its application,” there was nonetheless “insufficient time” to conduct a thorough hearing before Johnson’s scheduled execution, which she said she had no power to stay.

Both Keenan and Johnson’s attorneys appealed the ruling to the Missouri Supreme Court, asking it to halt the execution so that the lower court could hold a hearing on the evidence. “This court should consider the special prosecutor’s motion to vacate for what it is: the state’s confession of error,” which has not been contested, Johnson’s lawyers wrote. “The state admits long-standing and pervasive racial bias in St. Louis County’s handling of this case and other death-eligible prosecutions, including the office’s decisions of which offense to charge, which penalty to seek, and which jurors to strike.”

“Unless this court stays the execution,” Keenan wrote in his appeal, “the result in this case will forever have this cloud over it.”

The Missouri Supreme Court will hear oral arguments on November 28, the day before Johnson is set to die.

Witnessing Death

Two days before Thanksgiving, Rep. Cori Bush, who represents St. Louis, sent a letter alongside her Kansas City colleague Rep. Emanuel Cleaver. They urged Missouri Gov. Mike Parson to grant Johnson clemency. “Johnson’s cruel execution will not solve any of the systemic problems facing Missourians and people all across America, including the scourge of gun violence,” they wrote. “It will simply destroy yet another family and community while using the concepts of fairness and justice as a cynical pretext.”

The letter drew from Johnson’s clemency petition, which emphasized his youth at the time of the crime. In 2005, the same year that Johnson killed McEntee, the U.S. Supreme Court outlawed death sentences for people who committed capital crimes before the age of 18. The ruling in Roper v. Simmons was based on scientific research revealing the extent to which the human brain develops throughout a person’s teenage years. It is now well-established that the parts of the brain guiding impulse control continue to form well into early adulthood, and that factors like poverty, abuse, and neglect profoundly impact such development. Earlier this year, the American Psychological Association concluded that the prohibitions established by Roper should also apply to people between the ages of 18 and 20 — the age Johnson was in 2005.

Although Parson has not made an official announcement regarding clemency, he told reporters on November 23 that he did not intend to intervene.

Today, Johnson’s record behind bars is a testament to the way young people mature beyond their crimes. At Potosi, he is considered a “model inmate,” according to his clemency petition, which included dozens of letters from incarcerated men who described him as a mentor and role model. Among Johnson’s most vocal supporters are a group of educators who have maintained since his trial that Johnson was a good kid who committed a tragic act of violence on one of the worst days of his life. Pam Stanfield, his elementary school principal, who has grown especially close to Johnson over the years, described him as a devoted father whose relationship with Ramey “far exceeds what many fathers are able to do while living outside prison walls.”

In a phone call, Stanfield emphasized that Johnson had expressed deep remorse for killing McEntee. “He would give anything if he could go back and do something differently,” she said. “And yet he’s so much more than that.”

On the morning after Thanksgiving, Johnson’s attorneys organized a press conference to discuss Ramey’s fight to witness her father’s execution. Ramey had planned to give a statement but struggled to speak. She asked Smith, of Missourians for Alternatives to the Death Penalty, to read the rest of what she’d written. “I have suffered so much loss in my life,” the statement read, recalling how Ramey had seen her mother killed when she was 4 years old. It was excruciating to think that she would not be there to see her sole surviving parent in his final moments. “If the state of Missouri thinks that my father’s actions at age 19 make him mature enough to be executed, then it makes no sense that under Missouri law an adult who is 19 is not mature enough to be present at that person’s execution.”

A federal judge rejected Ramey’s legal challenge later that evening. He found that Missouri had a valid interest in preventing teenagers from “witnessing death.” He cited a landmark Supreme Court case reining in life sentences for youth, which was rooted in the same scientific research that led to Roper in 2005. Young people “may be more inclined to act out in ways that are disruptive,” he wrote, threatening the “solemnity and decorum” of the execution.

“We are heartbroken for Khorry,” said Nolan, Johnson’s attorney. “Every aspect of this case is a tragedy, but we promise Khorry that we are not done fighting for her father.”

Update: November 30, 2022

Kevin Johnson was executed by lethal injection at 7:40 p.m. on November 29. He declined to make a last statement. U.S. Supreme Court Justices Sonia Sotomayor and Ketanji Brown Jackson dissented from the high court’s decision to reject a stay of execution. Johnson’s lawyer Shawn Nolan released the following statement:

Make no mistake about it, Missouri capitally prosecuted, sentenced to death, and killed Kevin because he is Black. Although the current prosecutor appointed by the court found that Kevin’s death sentence was the product of blatant racism by the St. Louis County District Attorney’s Office, the governor and the Supreme Court of Missouri extinguished the special prosecutor’s pursuit of racial justice and allowed Kevin to be executed anyway. The law is supposed to punish people for what they do, not who they are. Yet, Missouri killed Kevin because of the color of his skin. Shame on all of them.

The post A Special Prosecutor Found Kevin Johnson’s Case Was Tainted by Racism. Missouri Is About to Kill Him Anyway. appeared first on The Intercept.

Known as Amendment 2, the ballot measure would have added language to the Kentucky Constitution to say that nothing in the document could be interpreted to protect a right to abortion. The commonwealth’s constitution contains broad rights of privacy and self-determination; a vote in favor of the amendment would have carved out an exception to those rights, barring any court from even considering the constitutionality of abortion, let alone concluding that it is protected. Although abortion is currently banned in Kentucky, voters’ rejection of the amendment means that a lawsuit challenging various statewide restrictions will be able to move forward. While simply defeating Amendment 2 “will not restore access to legal abortion in Kentucky overnight,” Sweet said, “it is an important step in continuing the legal fight.”

In the wake of the U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization, which stripped abortion rights from the federal Constitution, six states, including Kentucky, put questions about reproductive rights up for statewide voter consideration. In each case, voters sided in favor of protecting reproductive rights.

In August, voters in Kansas roundly rejected a constitutional amendment similar to the measure on the Kentucky ballot. On Tuesday, voters in California approved a constitutional measure protecting the right to abortion and the right to choose, or refuse, contraceptives. Michigan voters decisively approved a measure that would add the “fundamental right to reproductive freedom” to the state’s constitution. Vermont voters overwhelmingly passed similar protections, while Montana voters rejected the so-called born-alive ballot initiative, which purported to protect infants born after failed abortions The Montana measure relied on fear-mongering language lacking scientific support and had the state’s medical community ringing alarms over its potential consequences.

“Across the country, voters made it clear that they will not stand for politicians trying to control their lives and decisions,” Morgan Hopkins, president of All Above All, said in a statement. “It is undeniable that the issue of abortion access was not only important in this election, but is vital to voters across the country.”

Defeat of the Kentucky amendment is particularly consequential. Beginning in 2019, the commonwealth’s General Assembly, which lurched to the right in 2016 and gave Republicans control of both the legislature and governor’s office, began passing restrictions on abortion in earnest, including a six-week abortion ban and a trigger law that would ban all abortion should the U.S. Supreme Court overturn abortion rights. When the Supreme Court did so in June, those bans took effect. Planned Parenthood and the American Civil Liberties Union sued to block the measures as unlawful under the Kentucky Constitution. On November 15, the state Supreme Court is slated to consider whether the bans should be blocked while the lawsuit moves forward. Had the amendment passed, there would have been little recourse to challenge the legality of the bans.

During a Wednesday morning press conference, Sweet said that defeating the Kentucky amendment was “a repudiation of the extreme anti-choice agenda” of the General Assembly “that is out-of-step with most voters’ values and beliefs.” While supporters of the amendment carped that the vote no campaign was being led by big out-of-state groups and money, Sweet said the reality was “hundreds if not thousands of Kentuckians working together to stand up to the politicians and special interests that put their freedom at risk.”

Members of the Protect Kentucky Access coalition — led by Planned Parenthood Alliance Advocates, the ACLU of Kentucky, Sister Song, Granny’s Birth Initiative, Kentucky Health Justice Network, Fairness Campaign, and Kentucky Religious Coalition for Reproductive Choice, along with more than 20 partner organizations based in the commonwealth — mobilized volunteers in 99 of Kentucky’s 120 counties and communicated with more than 600,000 voters as part of their campaign.

While complete voting data isn’t yet available, Sweet said the information that is available strongly suggests that voters across the political spectrum voted no on the amendment. She compared the outcome of Amendment 2, which failed with roughly 52 percent voting no, to Kentucky’s U.S. Senate race, which saw Rand Paul handily reelected with roughly 62 percent of the vote. Well over 150,000 more votes were cast against Amendment 2 than in support of Rand’s challenger, Democrat Charles Booker, a former member of the Kentucky House. “It is very clear that we would not have the lead that we do without a sizable number of votes from Republicans and independent voters,” Sweet said. She thinks the election results send a message to Kentucky lawmakers “that they do not have carte blanche to pass whatever extreme abortion restrictions they choose.”

Jackie McGranahan, a policy strategist with the ACLU of Kentucky, echoed Sweet’s takeaway. “The people of Kentucky have definitely spoken, and their answer is no,” she said. “No to extremist politicians banning abortion and no to political involvement in private medical decisions.” And while the vote hasn’t lifted the bans on abortion, it has kept the constitution’s “very strong” privacy protections intact. She said the ACLU is looking forward to arguments before the Kentucky Supreme Court, which could restore abortion access at the state’s two clinics if the court decides to block the bans while the suit moves forward. Meanwhile, McGranahan said, coalition members will continue working at the legislature to push for equitable access to health care and improvements to Kentucky’s “dismal” maternal health outcomes; the state’s maternal mortality rate is among the highest in the country and particularly troubling for residents of color, who face much steeper mortality rates than their white peers.

“But we are very hopeful. This is one step in a long journey,” McGranahan said. “And today we can be happy.”

The post Kentucky Voters Reject Amendment 2 in “Repudiation of Extreme Anti-Choice Agenda” appeared first on The Intercept.

Amendment 2 is one of five abortion-related measures on statewide ballots this month. Measures in California, Michigan, and Vermont would protect access. A measure in Montana that purports to protect babies “born alive” after an abortion, which is not a thing, has the state’s medical professionals up in arms about its potential consequences. The closest parallel to what Kentucky is asking of voters is a similar measure that appeared on the primary ballot in Kansas in August, which also sought to write reproductive rights out of the state constitution. It was roundly rejected by voters.

In Kansas, the run-up to the primary was flooded with misinformation. Supporters of the so-called Value Them Both Amendment insisted that stripping the state constitution of abortion rights wouldn’t result in a ban on abortion, while voting against the measure would deregulate abortion in the state, allowing clinics to operate without oversight. Neither claim was accurate. Then, on the eve of the primary, Kansas voters received a text message falsely stating that voting yes for the amendment would actually preserve “choice on reproductive rights.” The messages were unattributed but reportedly linked to a former far-right Kansas member of Congress and funded by a Catholic advocacy group.

According to Tate and her colleagues, the misinformation in Kentucky is coming from the “vote no” camp, a coalition of groups organized as Protect Kentucky Access. The lawmakers have bristled at the fact that the coalition would even suggest that the amendment would ban abortion in the state. All it would do, they counter, is vest the general assembly with sole discretion over whether the people of Kentucky retain any reproductive rights. “It will keep state judges in their lane of interpreting the law and not inventing new laws and new rights that the constitution does not speak of,” Tate said. Attempting to back her up, state Sen. Whitney Westerfield seem to prove their opponents’ point. “This amendment does not ban abortion,” he said. “And if it did, I’d vote for it!”

In reality, anti-abortion lawmakers are the ones purveying misinformation. False claims are baked into the language of the amendment, which calls for a ban on taxpayer funding for abortion — something that isn’t happening and isn’t even on the table. And passage of Amendment 2 would almost certainly shut the door on abortion rights in Kentucky. Over the last three years, lawmakers — including Tate and Westerfield — have voted for legislation that severely restricts or bans abortion, except in narrow and ill-defined circumstances.

Those laws took effect after the U.S. Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization, which demolished nearly a half-century of constitutional protection for abortion. The American Civil Liberties Union and the local Planned Parenthood affiliate filed suit to challenge the commonwealth’s abortion bans, and on November 15, the Kentucky Supreme Court is slated to consider whether they should be blocked while the lawsuit contesting their constitutionality is pending. But if Amendment 2 passes on November 8, the question of whether the bans infringe on Kentuckians’ rights will be stripped from the court’s jurisdiction, leaving state lawmakers with exclusive control over reproductive rights.

Aside from the claims of misinformation, there are subtle — and not so subtle — differences between the constitutional amendment campaigns in Kansas and Kentucky. While registered Republicans make up the largest voting group in Kansas, Kentucky boasts slightly more registered Democrats, and slightly more registered women than men. Whether and how these elements will come in to play, of course, remains to be seen.

But the biggest difference, says Tamarra Wieder, Kentucky director of Planned Parenthood Alliance Advocates, is that “Kansas did not have the ban already.” In 2019, the Kansas Supreme Court recognized that the state Constitution contained a right to reproductive autonomy, meaning residents did not lose access to abortion in the wake of the Dobbs ruling. The constitutional amendment was a failed attempt to overturn the court’s decision.

Kentucky residents have been living under a ban — and all its consequences — for months now. “This is something that’s already affecting Kentuckians. People with complicated pregnancies are having to have plan B doctors in other states or care for miscarriages [in] other states,” Wieder said. “I mean, this is no longer another state’s problem.” And it’s heightened the stakes for this election. “People are feeling what it’s like to live in a post-Roe world,” she said. “This is a real situation that’s happening here.”

Absolute and Arbitrary Power

Legislative assaults on reproductive rights in Kentucky began in earnest after the 2016 election. The state House lurched to the right for the first time in decades, giving the Republicans control of the Legislature as well as the governor’s office. The 2019 legislative session would be particularly consequential.

That January, lawmakers introduced a bill that would ban all abortion after about six weeks, a point at which most people don’t even know that they’re pregnant, and another that would ban abortion altogether in the event that federal abortion rights should fall, what’s known as a trigger law.

In February 2019, Tate stood on the House floor and implored her colleagues to pass the trigger law. She thanked the men in the chamber for accepting the “role as the protector of life” amid criticisms of their anti-abortion positions and urged women to realize their role as childbearers. “Do not hesitate to encourage women to accept the graces that have been bestowed on them by their creator,” she said.

Members of the Democratic minority tried to push back. State Rep. Mary Lou Marzian looked frustrated. Of all the “sanctimonious, arrogant legislation that gets filed every year,” she said, “I believe this is the one that is the most heinous.” She lambasted legislators for interfering in the private medical decisions of Kentucky residents. But if this was what the majority was going to do, “if we’re going to be the guardians of women’s uteruses, we need to go all in,” she said, before offering a satirical floor amendment that would require all Kentucky women of childbearing age to file a monthly “notarized statement” with the state regarding their pregnancy status.

The symbolic amendment failed, and the legislation was readily passed in both chambers. The six-week ban similarly sped through the legislative process (Marzian attempted to amend it with language that would make it a crime punishable by 10 years in prison for any man “who ejaculates without intending to procreate”), and both measures were signed into law that March. Each contained a vague exception for the health of the pregnant person, but none for rape, incest, or fetal abnormality.

While abortion may not be mentioned by name in the constitution, it was legal in Kentucky at the time of ratification.

While the trigger law would remain dormant, the ACLU quickly filed suit in federal court to block the six-week ban, which, at least at the time, was a clear violation of constitutional protection for abortion up until viability, roughly 23 to 24 weeks. The federal district court promptly blocked the law for as long as the litigation was pending.

But the Legislature was not done. In March 2021 it passed the language that would become the Amendment 2 ballot measure. The following spring, it passed House Bill 3, an omnibus abortion bill that contained a 15-week ban and a host of onerous administrative requirements for providers, including measures that could put patient privacy at risk.

Although Democratic Gov. Andy Beshear initially vetoed that bill, the Legislature was able to override it, and because the law was deemed an emergency measure, it took effect immediately. Although Planned Parenthood and the ACLU sued in federal court to block its enforcement, there was a weeklong lag before the court ruled in their favor. In the interim Kentucky became the first state in the nation to effectively ban abortion.

It was just the start of a whiplash roller coaster ride for Kentuckians seeking abortion care. The Supreme Court’s June 24 ruling in Dobbs dissolved the federal court’s stay of the six-week ban, paving the way for both the ban and the dormant trigger law to take effect.

Days later, the ACLU and Planned Parenthood, representing the state’s two abortion providers, took their fight to state court, challenging the bans as unlawful under state constitutional protections. The case eventually made its way to the Kentucky Supreme Court, which set oral arguments for November 15 on the question of whether the bans should be blocked while the challenge moves forward.

In briefs before the high court, Kentucky Attorney General Daniel Cameron argues that since the word “abortion” doesn’t appear in the commonwealth’s constitution, it cannot be interpreted to protect a right to reproductive autonomy. He argues that finding such a protection would interject the court into the lawmaking process and usurp the Legislature’s right to set state policy.

In response, the clinics have noted that Sections 1 and 2 of the Kentucky Constitution provide strong protection of individual rights. “All men are, by nature, free and equal, and have certain inherent and inalienable rights,” reads Section 1, including the right to defend their “lives and liberties” and the right of “seeking and pursuing their safety and happiness.” And Section 2 slams the breaks on government overreach: “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”

The clinics argue that the Kentucky Supreme Court has determined that the commonwealth’s constitution provides an “expansive” right of privacy and “self-determination,” broader than what’s contained in the U.S. constitution. And just because the U.S. Supreme Court ruled that the federal constitution doesn’t protect abortion doesn’t mean the same applies to the Kentucky constitution — or that state lawmakers, and not judges, have the right to decide the issue.

They also note that while abortion may not be mentioned by name in the state constitution, it was legal in Kentucky at the time of the constitution’s ratification.

It’s Happening Here

If the Kentucky constitution didn’t provide protection for reproductive rights, then it’s hard to see why Amendment 2 would be necessary. It’s also hard to square the lawmakers’ insistence that passing the amendment would not result in an abortion ban given that banning abortion is what they have been trying so hard to do, even repeatedly eschewing exceptions that would protect victims of rape or incest. At the October press conference, Tate intimated that she found such exceptions objectionable. “Some of my best friends were conceived from rape and incest,” she told reporters. “And it absolutely breaks their heart when they hear from the public position that their life is not valued.”

In railing against the alleged misinformation spread by Protect Kentucky Access, Tate spiraled into a misinformation stream of her own. She alleged that “Kentucky Planned Parenthood” had “raked in” $191 million from performing abortions between 2020 and 2021 (literally impossible given that the clinic in Louisville provided just 368 abortions in 2020 and 626 in 2021). She also claimed that big out-of-state money was funding the coalition’s campaign in an effort to make the commonwealth a hub for abortion in the United States (while the Protect Kentucky Access has received large donations from Planned Parenthood and the ACLU, the majority of its donations have come in smaller amounts from commonwealth residents; on the other hand, the “vote yes” campaign, Yes for Life, has received most of its money from anti-abortion organizations and religious groups, including the Catholic church and Kentucky Baptist Convention).

A reporter at the press conference asked Tate about misinformation coming from the “Yes for Life” campaign, specifically an ad that claimed Amendment 2 was necessary to stop taxpayer-funded, late-term abortion. “‘Radical, out-of-state activists want to spend your tax dollars on late-term abortions, even up to the moment of birth,’” the reporter said, quoting the ad. “Is there any evidence for that?”

“Well, I think we can look across the nation,” Tate began. “We can look at Washington, D.C., and we can see where infanticide — infanticide! — is being pushed, including infanticide up to 28 days after birth.”

The Louisville Courier-Journal sought to set the record straight: Tate’s infanticide claim appeared to have come from a debunked internet rumor. “They know that there is no such thing as elective abortion up to birth — and up to 28 days after birth, according to Rep. Tate,” Democratic state House Minority Leader Joni Jenkins told the paper. “But they lie about it anyway.”

“I think they’re starting to realize they went too far.”

Kaitlyn Soligan Owens, communications director for Protect Kentucky Access, said that Kentuckians are wary of government overreach, and the extreme nature of the proposed amendment has fired up voters across the commonwealth. She said the no campaign has feet on the ground in nearly all of Kentucky’s 120 counties. “This is very important to the people of Kentucky,” she said. “This amendment is very extreme, and people across the state have recognized that since it was introduced.”

During Kentucky’s annual Fancy Farm picnic — the August kickoff to election season, where residents gather to hear political stump speeches — Wieder said a long line of folks formed at the Protect Kentucky Access table to gather literature about the amendment, sign up to volunteer, and share their stories. Many of them were Republicans. “I mean, they were crossing over political boundaries to have conversations, to share their stories, to say why they’re afraid for their daughters, themselves,” she said. “Many shared pre-Roe abortion stories of friends that they have lost.”

Wieder said she thinks that’s at least in part why Tate and her allies seemed so scattered during the October press conference. “I really thought that they were scared, that they don’t have anywhere to go, that they probably have the same polling that we do: that abortion is popular in Kentucky, that people do not want it to be banned or inaccessible,” she said. “I think they’re starting to realize they went too far.”

Amid all the misinformation, Owens said there is one thing lawmakers have said that is true: They want to control people’s bodies. “What they have said, over and over again, verbatim, is ‘we believe this decision’ — this medical decision — ‘belongs in the hands of state legislators,’” she said. “They believe it belongs to them.”

The post Kentucky Lawmakers Seek Exclusive Control Over Residents’ Reproductive Rights appeared first on The Intercept.

R.J. was only 6 weeks old when he first visited Texas death row with his father, Rodrick Reed Sr. By then, his uncle had been there for almost 20 years — and had come close to execution once. In 2019, as R.J.’s third birthday approached and Reed faced another execution date, their hometown newspaper in Bastrop, Texas, printed a front-page photo of R.J. standing in front of the Supreme Court, where his family called on the justices to intervene. Their pleas were rejected. But Reed’s execution was called off at the last minute anyway.

Now, the justices had finally decided to consider Reed’s case. The family made the trip once more to Washington, D.C., to attend the oral argument. The outcome will determine whether Reed can seek DNA testing of key crime scene evidence through the federal courts.

“My family’s been fighting this my whole life,” said Reed’s niece, Brittany. Growing up in Bastrop with the last name Reed wasn’t always easy. But things had started to change, she said. The last execution date brought a wave of protests in support of her uncle, fueled in part by celebrity advocates like Kim Kardashian. More recently, a nine-day evidentiary hearing revealed compelling new evidence pointing to Reed’s innocence — including witnesses who tried to speak to the police years earlier but were ignored. “A lot of people are able to see the real truth,” Brittany said.

Reed, who is Black, was sent to death row in 1998 for killing a 19-year-old white woman named Stacey Stites. Her body was found on the side of a country road outside Bastrop, and sperm recovered from Stites’s body was matched to Reed. Prosecutors called this evidence the “Cinderella’s slipper” revealing her killer. But Reed insisted he was innocent. He said he’d been having a secret affair with Stites, who was engaged to a white police officer. That officer, Jimmy Fennell, denied the possibility of an affair, claiming that he and Stites had a loving relationship and she didn’t know anyone named Rodney Reed. Fennell was never seriously considered as a suspect, yet there was evidence from the start that he might have been responsible for Stites’s death.

This evidence had only gotten stronger over time. Friends of Stites’s confirmed that she and Reed knew each other, and law enforcement colleagues of Fennell’s said he had discovered the affair and was furious that Stites was involved with a Black man. Fennell was later sentenced to 10 years in prison for kidnapping and sexually assaulting a woman while on duty. He threatened to kill her if she told anyone about it. Yet Texas courts have repeatedly blocked Reed’s efforts to win a new trial.

Although Reed’s family was cautiously hopeful the Supreme Court justices would rule in his favor, they learned long ago not to stay silent while leaving his fate to the courts. No matter what happened that morning, Rodrick said before ascending the courthouse steps, he and his family would keep fighting. “There’s a lot of things still yet to come.”

Years of Legal Wrangling

The road to the Supreme Court was long and arduous. By the time the justices agreed to review a narrow legal question, Reed had sought the high court’s intervention numerous times. In a pointed dissent from the court’s refusal to consider his case in 2020, Justice Sonia Sotomayor highlighted the grave questions that had been raised over Reed’s guilt over more than two decades — and the repeated refusal of Texas courts to confront them. “Reed has presented a substantial body of evidence that, if true, casts doubt on the veracity and scientific validity of the evidence on which Reed’s conviction rests,” she wrote. “There is no escaping the pall of uncertainty over Reed’s conviction.”

Texas’s case against Reed has all but collapsed. Medical evidence suggesting Stites was killed on the morning of April 23, 1996, while she was on her way to work has been debunked; experts say she almost certainly died the night before, when she was at home with Fennell. A stream of witnesses with no connection to Reed have come forward with stories about Stites and Reed’s relationship and Fennell’s propensity for violence, flipping the state’s narrative and pointing to Fennell as a more likely killer.

“There is no escaping the pall of uncertainty over Reed’s conviction.”

Texas has rebuffed this evidence. While prosecutors haven’t offered anything meaningful to challenge the new witness accounts, they nonetheless insist that Reed’s conviction is righteous.

Testing physical evidence for DNA could resolve the lingering questions. But while the state has long pointed to the sperm DNA as key evidence that Reed is guilty, it has resisted testing crucial pieces of crime scene evidence that should, at least theoretically, bolster its case. Chief among the untested items are two lengths of a braided leather belt used to strangle Stites. Years of legal wrangling over Reed’s request to test this evidence is what finally landed his case before the Supreme Court.

In 2014, Reed filed a motion in state district court seeking testing of the belt and other items under the state’s post-conviction DNA testing statute, known as Chapter 64. Although the statute was passed in response to several high-profile embarrassments, many Texas defendants have struggled to access testing, in large part thanks to rulings from the Texas Court of Criminal Appeals, the state court-of-last-resort in criminal cases.

The CCA has long had a reputation for hostility to claims of innocence and efforts to secure DNA testing. Since Chapter 64 was enacted in 2001, the legislature has repeatedly amended it to address court rulings that severely narrowed eligibility, an approach lawyers say neuters the law. At times, the court’s rulings have been confounding. In one case, the CCA concluded that to obtain DNA testing, a defendant would first have to prove that DNA existed on the evidence in question — which is nearly impossible to do without DNA testing.

During a hearing on Reed’s DNA request in November 2014, prosecutors took a similar position, arguing that Reed could not prove DNA existed on the belt used to strangle Stites. The state also argued that because the items were handled by multiple people at Reed’s trial (including prosecutors) and then commingled during storage, the evidence was too contaminated to render any probative DNA results. Reed’s experts have countered this notion, explaining in detail why neither circumstance is particularly unique nor problematic.

Nonetheless, the district court ruled against Reed, writing that the state’s case against him was “strong,” meaning that even if DNA testing of the belt had been done before his 1998 trial, there was “no reasonable probability” that Reed would have been acquitted of Stites’s murder. The judge also concluded that Reed was seeking testing solely to delay his execution. Reed appealed to the CCA. Although it initially sent the case back to the district court, asking the judge to clarify his findings, the CCA ultimately affirmed the lower court’s ruling in April 2017.

Under Chapter 64, DNA testing can be ordered by the court only if the evidence “is in a condition making DNA testing possible” and has been “subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect.” The Bastrop County clerk, who is the custodian of evidence, testified that the items had been secured “under lock and key,” and none of them had been tampered with or altered in any way. But the CCA glossed over this and instead determined the evidence had been “contaminated” — a concept not contained in the statute. Reed asked the court to reconsider its ruling; the CCA denied the rehearing request via postcard roughly six months later.

Although the Supreme Court has ruled that there is no constitutional right to post-conviction DNA testing, if a state does provide access to testing, the process for obtaining it must be fair. The court has determined that a defendant may file a civil rights suit in federal court to challenge a process that is unfair. Reed filed such a suit in August 2019. The suit was dismissed, however, when the U.S. 5th Circuit Court of Appeals ruled that it was filed nearly three years too late.

Under the statute, Reed had a two-year window to file his federal claim after he was denied testing. According to the appeals court, Reed should have filed the suit in 2014 after he was denied testing at the trial court level. Reed appealed the decision to the Supreme Court, arguing that filing back in 2014 would have been premature since the CCA hadn’t yet considered his appeal. If the CCA had reversed the trial court’s decision and allowed DNA testing, then the whole matter would have been resolved — and taking the fight to federal court would have been a waste of time and resources. This spring, the Supreme Court said it would take the case. While the question before the court is technical, the consequences for defendants, and particularly those on death row, are substantial.

Moving the Goalposts

The oral argument in Reed v. Goertz began well after noon. The first case before the court that day, National Pork Producers Council v. Ross, consumed more than two hours, with lively back-and-forth between the justices and attorneys that included meditations on morality. “How broadly would you define immoral?” Justice Clarence Thomas asked a lawyer for the Humane Society of America, which argued that bans on gestation crates and other forms of animal cruelty followed a “moral tradition” in the United States.

If there was any irony to be found in the time spent pondering the confinement of farm animals set for slaughter versus the ethics of executing a human being who has spent most of his adult life in a cage, it went unacknowledged. By the time Reed’s attorney rose to make his case, much of the courtroom had cleared out, including the press section. The energy was of a workplace meeting where most people were thinking about lunch.

Much of the discussion focused on Texas’s dickering over when the statute of limitations clock began to tick.

The state has variously changed its position on this question. Texas has argued that the clock began after the state district judge first denied DNA testing in 2014; that it started two years later, after the CCA asked the district judge to revise his findings; and that it began in April 2017, when the CCA issued its opinion inventing the non-contamination rule. But where it definitely did not start, Texas Solicitor General Judd Stone told the court, was the rehearing date in October 2017, when the CCA denied Reed’s request to reconsider the case. Generally speaking, a person can take their legal fight to federal court only after a state claim has been exhausted. The rehearing denial was the court’s final word on the matter, closing any meaningful avenue for redress within the state’s legal system. This is when Reed’s lawyers say the statute of limitations clock should begin to run.

Under any scenario but the last, Reed would have filed his federal civil rights case after the statute of limitations expired. That seemed to be the state’s true goal: Move the goalposts just enough to eliminate Reed’s ability to seek DNA testing through the federal courts, even if doing so would create an arbitrary rule destined to create a confusing morass for everyone else. Many of the justices’ questions homed in on the logic of Stone’s position.

“Can I focus your attention on the difference between the date of the court of appeals decision versus the rehearing date?” Justice Neil Gorsuch asked. “Why should we prefer your view?”

Reed’s request that the CCA reconsider its ruling didn’t matter, Stone responded. “Rehearing changed nothing.”

“That’s just because rehearing was denied,” Justice Elena Kagan interjected. If it had been granted and the court had revised its previous decision, then Reed might be in a different position, which “we don’t know about until the end of the court of appeals process.”

“That seems like an awful waste of time.”

Stone said his proposed rules would take that into account. If rehearing had been granted and something had changed, then the statute of limitations would start running then. But that would create different clocks for different scenarios, Kagan pointed out. “Why isn’t the simpler rule just to say, ‘We don’t know what the authoritative construction of the court of appeals is until the court of appeals process is concluded.’ The end.”

Sotomayor noted that Texas has also said Reed should have pursued his federal court claim back in 2014, after the district court first ruled against him. Yes, Stone said. But if he does that and simultaneously appeals in state court, should the federal court wait to address Reed’s civil rights case? Sotomayor asked.

“It need not,” Stone replied.

“But it can?” Sotomayor asked.

“If the parties request that it wait —” Stone began.

“That seems like an awful waste of time,” Sotomayor said.

Justice Ketanji Brown Jackson echoed this concern. If the federal court would pause consideration of a civil rights case to allow state courts to weigh in first, how would Stone’s proposed rules makes any sense? “What’s the point?” she asked, nodding to Reed’s argument that the state’s position seemed designed “just to keep a prisoner from ultimately being able to bring a federal claim.”

Chapter 64 contains a process for appealing a district court decision to the CCA, Justice Amy Coney Barrett noted. How could Reed have gone to federal court in 2014 if he didn’t yet know what the CCA was going to do — and thus whether the law was applied in an unfair way? “I just don’t understand how the cause exists until the procedures have failed him,” she said.

Stone tried to explain but ultimately hit on this: The point of this dispute was to decide whether individuals like Reed who want to seek DNA testing through the federal courts can draw things out by availing “themselves of endless procedure in state courts.”

The state’s position seemed designed “just to keep a prisoner from ultimately being able to bring a federal claim.”

But Reed was just availing himself of the provisions of Chapter 64, Barrett noted. “The claim is that the procedure, as you said, was fundamentally unfair, but it’s not fundamentally unfair if the CCA could have corrected any mistake that the trial court had made, right?”

Chapter 64 provides for an appeal to the CCA, Stone said, but it says nothing about seeking rehearing in that court. (Despite the fact that rehearing requests are part of the normal CCA process.) All Reed was doing, he said, was trying to extend the time to file “for the purposes of, candidly, forestalling imposition of a capital sentence.”

Such dilatory behavior deprived the state of being able to retry Reed if he were to prevail in the courts, he said, because prosecution witnesses might die or develop dementia. Stone brought up the recent evidentiary hearing, claiming that Reed’s evidence was unreliable and his defenders were exploiting his innocence claim to delay execution. “Additional delay harms the state’s ability to be able to redress this if, for example, he is entitled to a new trial for one reason or another,” Stone said, “which he most emphatically is not.”

Parker Rider-Longmaid, who was arguing on Reed’s behalf, took aim at Stone’s assertions. The CCA called off Reed’s planned execution in 2019 not because of his Chapter 64 claim, but because of the mountain of evidence that now points to Fennell, not Reed, as Stites’s killer. That evidence is still under review. In addition to the troubling evidence Sotomayor laid out in her 2020 opinion, he noted, there is evidence that “Fennell admitted to killing Stites because he discovered she was sleeping with a Black man; that Fennell threatened to kill Stites if he caught her cheating; that Fennell made inculpatory statements at Stites’s funeral; and that Fennell and Stites’s relationship was fraught,” he said. These “are all serious things we think the court should consider.”

After the oral argument concluded, Reed’s mother, Sandra, exited the courtroom with her son and grandson. Members of Reed’s legal team held her hands for support. She looked tired and a bit overwhelmed. For more than two decades she had told her story to anyone who would listen, speaking at countless rallies and interviews. In recent years, Rodrick had taken over much of the public speaking. But Sandra remained a constant advocate for her son. Back outside, an attorney thanked her for being there. “I wouldn’t have missed it,” she said.

A ruling is expected in 2023. But there was no waiting on the court. The family’s next stop was an event at Howard University later that day, where Brittany joined her father in telling Reed’s story. However the fight for DNA testing might end, the truth was on their side, she said. As the evidentiary hearing showed, what’s hidden in the dark “always comes to the light.”

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