Executions Are On Hold, but States Are Still Pushing for Death Amid the Coronavirus Pandemic

As the virus spreads, the criminal justice system is going out of its way to increase the death toll.

Walter Ogrod in 2019. Photo: Courtesy of the Ogrod family

Greg Ogrod and his fiancée, Mary, were cooking in their Philadelphia kitchen on March 21 when they got the news: A judge had ordered Pennsylvania’s corrections department to transport Greg’s brother, Walter, from death row to an outside hospital for Covid-19 testing and, if necessary, treatment.

“It was very elating; song and dance, jumping up and down,” Greg said. “We were grateful that Walter would be out of that environment.”

Since mid-March, Walter had been very sick. He’d developed a fever of 106 degrees and was in respiratory distress — it felt like “breathing through a wet sponge,” he told Greg.

As pandemic stress gripped the country, Greg and Mary’s anxiety was compounded by their worry about Walter. He’d tested negative for the flu and it seemed likely that he had the coronavirus. Since it can be deadly with the most attentive and competent health care, Greg had good reason to be concerned: Prison conditions are crowded and unsanitary; prison health care is notoriously spotty and at times incompetent. They wanted Walter removed to a hospital.

With Philadelphia’s court system all but shut down, Walter’s attorneys followed judicial orders for obtaining the expedited consideration of “a matter relating to a health and medical emergency,” which was unopposed by the Pennsylvania Department of Corrections. That Saturday morning, the judge approved the transfer.

“The failure to test and treat Mr. Ogrod for Covid-19 constitutes deliberate indifference to Mr. Ogrod’s serious medical needs,” Judge Leon Tucker wrote, “and a failure to provide Mr. Ogrod with health care services of a quality acceptable within prudent professional standards [is] in violation of Mr. Ogrod’s Eighth Amendment right to be free from cruel and unusual punishment.” Leaving him in prison also posed an “immediate” health threat to other inmates, guards, and prison staff, he wrote.

And there was one other thing, the judge noted: It was likely that Walter, who had been sentenced to death in 1996, was innocent.

In fact, weeks before Walter fell ill, Philadelphia District Attorney Larry Krasner had agreed with defense attorneys that widespread misconduct had plagued the investigation and prosecution of Walter Ogrod, and they had asked a local judge, Shelley Robins New, to vacate Walter’s conviction. “In short,” the DA wrote in a brief filed with the judge, “the Commonwealth concedes Ogrod was wrongfully convicted.”

But to date, Robins New has failed to take any meaningful action to consider the joint request that relief be granted. Among the thoughts plaguing Greg is that if Robins New had acted in a timely manner, his brother might never have gotten sick.

The crisis is putting the death penalty’s day-to-day cruelty on stark display.

Learning that Tucker had signed the medical release provided Greg and Mary a moment of relief amid the turmoil, but it was short-lived. Just hours after Tucker’s order was filed, a lawyer for the Department of Corrections penned a letter arguing that the judge didn’t have jurisdiction to order Walter’s release. The prison system refused to comply. On March 25, Tucker rescinded the order, writing that “upon further consideration,” he lacked jurisdiction to consider the matter.

That same day, a corrections department spokesperson wrote in an email to The Intercept that Pennsylvania’s prisons were “fully compliant with CDC guidelines for testing” and that no one in State Correctional Institution Phoenix, where Walter is housed, had been quarantined because of the virus. In fact, Maria Finn wrote, “we have no inmates suspected to have Covid-19 at this time.”

Currently, Walter remains isolated in his cell, is still having breathing problems, and hasn’t been tested for the coronavirus.

With the virus now spreading rampantly across American prisons and jails — including in Pennsylvania, where the prison system identified its first case on March 29 — the pandemic has exposed the grave public health threat posed by mass incarceration. As advocates call for freeing pre-trial detainees — and fight for commutations and early release for the most vulnerable behind bars — the crisis is also putting the death penalty’s day-to-day cruelty on stark display. Death rows across the country are filled with the aging and infirm, people more likely to die of illness or old age than in the execution chamber. Though Walter Ogrod’s case may be unique in some ways, the resistance from those with the power to release him despite his failing health is all too familiar.

Indeed, throughout the country, the crisis is highlighting the particular mix of politics and inertia that has always characterized capital cases. Although the coronavirus has so far granted a temporary reprieve to two men who were slated to die in March, it has not stopped states from pushing to carry out executions, even as the pandemic shuts down almost every other aspect of American life. In Texas, prosecutors and prison officials argued against postponing the executions scheduled for March before the state’s top criminal court intervened, while Nueces County District Attorney Mark Gonzalez, who ran as a reformer, convinced a judge to set an execution date for John Ramirez, now scheduled to die in September. In Tennessee, the Attorney General’s Office has pushed back against a stay of execution for Oscar Smith, scheduled to die in June.

Pennsylvania has not carried out an execution in more than 20 years. To Death Penalty Information Center Executive Director Robert Dunham, who once practiced capital defense in the state, the senseless cruelty of the criminal justice system’s institutional players in the midst of the pandemic cuts to the heart of everything that is wrong with capital punishment. When the country finally sees the end of this crisis, he asks, will Americans “realize just how utterly lacking in humanity these people are, and how their burning desire for vengeance has eradicated what’s left of human decency?”

Under the Wire

As Walter Ogrod’s family fought for his release last month, the coronavirus crisis was exposing another familiar phenomenon: the insistence among some prosecutors on seeking new death sentences even when there is virtually no chance of ever carrying them out. Nowhere was this on more bizarre display than in Colorado.

On February 26, just days before the United States reported its first death from Covid-19, the Colorado General Assembly passed a bipartisan bill abolishing the death penalty. The historic vote ended a long political fight that had strained relationships between lawmakers of the same party. Gov. Jared Polis had vowed to sign such a bill into law, signaling that he would also likely commute the sentences of anyone on death row.

In the meantime, however, a prosecutor outside Denver was intent on getting one last death sentence under his belt before the law took effect. The statute banned the death penalty for any capital crimes charged after July 2020, meaning that current cases remained fair game. For the past two years, 24-year-old Dreion Dearing had been awaiting trial for fatally shooting Adams County Sheriff’s Deputy Heath Gumm in January 2018. District Attorney Dave Young, an outspoken opponent of the abolition bill, had announced that he would seek the death penalty.

A prosecutor outside Denver was intent on getting one last death sentence under his belt before the law took effect.

There were reasons to doubt whether Young could win a death sentence. Colorado juries have repeatedly opted for life without parole in recent years, even in mass murder cases. In a state that is more than 80 percent white, and where all three men on death row were African American, a death sentence against Dearing would only seem to prove what abolitionists have long argued: that in the rare instances in which it is applied, Colorado’s death penalty is intolerably racist. What’s more, as the circumstances that led to Gumm’s murder came to light, there were serious questions about the police investigation — and the racial dynamics that define public safety in Adams County.

A lawsuit filed last year against Young and county detectives traced Gumm’s death to a confrontation in which Dearing and others came to the home of a white high school teacher named Peter Aquino, who called the police to say he’d been assaulted. The youths fled the scene, but a shootout ensued, leaving Gumm dead. Dearing was charged as the shooter.

Under questioning by detectives with the Adams County Sheriff’s Department, Aquino, a key witness, eventually admitted that he had engaged in a sexual relationship with a young black student in his poetry class at a Denver high school. He believed that Dearing and his companions had come to his home to retaliate on her behalf. Just one day earlier, Aquino’s ex-student had confronted him in a parking lot, where she broke his car windshield. According to the lawsuit, which was filed on behalf of the former student, a police officer who responded to that altercation yelled at Aquino, calling him a “predator.”

BRIGHTON, CO - JANUARY 26: A family member, who is believed to be Dreion Martise Dearing's mother, covers her face as she leaves the courtroom after an advisement hearing, for her son Dreion at Adams County Justice Center, on January 26, 2018 in Brighton, Colorado. The was crying throughout the court advisement for Dreion Martise Dearing who is accused of killing Adams County Sheriffs Department Deputy Heath-Gumm on Wednesday, Jan. 24. (Photo by RJ Sangosti/The Denver Post via Getty Images)

A family member believed to be Dreion Dearing’s mother covers her face as she leaves the courtroom after a hearing at the Adams County Justice Center in Brighton, Colo., on Jan. 26, 2018.

Photo: RJ Sangosti/The Denver Post via Getty Images

Despite this revelation, Adams County officers “never made reports of any kind to any local law enforcement or county department of social services of the abuse,” the lawsuit says. Instead, authorities charged Aquino’s former student for her behavior in the parking lot, even though it was clear that she had been victimized. In an affidavit accompanying the lawsuit, the teenager said that she was 14 years old when Aquino first invited her to his apartment before a poetry competition, where he asked her to dance for him and then performed oral sex on her. Although her mother alerted the school that she suspected inappropriate conduct by Aquino, administrators failed to act. The abuse lasted for more than two years.

The lawsuit argues that Adams County protected Aquino, a key witness against Dearing, at the expense of his victim, whose trauma “was ignored by the detectives and district attorney while they simultaneously villainized and prosecuted [her] for her conduct in confronting her abuser.” Although upholding public safety surely demanded the prosecution of Gumm’s killers, the lawsuit contended, it also meant “investigating, reporting, and prosecuting a heinous crime like a pattern of sexual assault on a child by one in a position of trust.”

If Young’s refusal to bring charges against Aquino could be partly explained by his desire to protect a witness in a major case, his insistence on chasing a death sentence against Dearing — even as the abolition law headed to the governor’s desk — defied rational explanation. Death penalty trials demand a massive investment of time and money under ordinary circumstances. Despite promises of closure, victims’ families often find themselves mired in a sluggish post-conviction process that resurfaces their trauma again and again. With jury selection in the case set to begin in early March, just as the pandemic began to escalate, Young’s death penalty crusade looked increasingly driven by politics rather than a commitment to justice, let alone public safety.

On March 9, the Colorado Supreme Court temporarily shuttered most of the state courts but left it up to district court judges to decide whether certain proceedings should move forward, including those “necessary to protect the constitutional rights of criminal defendants” under the Speedy Trial Act. That same day, hundreds of prospective jurors flooded the Adams County Justice Center in downtown Brighton, Colorado. Some 8,000 people had been summoned in Dearing’s case, the Colorado Independent reported, with jury selection set to last for weeks. Two hundred fifty people arrived in the morning, followed by another 250 in the afternoon. According to a subsequent motion filed by Dearing’s attorneys, the prospective jurors “were forced into a crowded room and required to fill out questionnaires.”

Despite the court’s assurances, one juror described being “seated shoulder to shoulder with hundreds of others,” with no hand sanitizer in sight.

Despite the court’s assurances that it would provide paper towels and hand sanitizer, one juror, whose age put them at higher risk, described being “seated shoulder to shoulder with hundreds of others,” with no hand sanitizer in sight. “I saw individuals with pens near their face and some even near their mouth,” they said. “I don’t want to be an alarmist, but were these items sanitized and cleaned between jury groups?” Another prospective juror, who was pregnant, was “terrified to be there,” describing “several very obviously sick people in attendance who told staff they had fevers, etc.”

The next day, lawyers discovered that the spouse of one of the prospective jurors worked with a person who had just died from pneumonia. “He was sick the past couple of weeks with a fever and coughing,” the juror had written to the court, adding, “I just wanted you to be aware of this.”

On March 11, defense attorneys filed a motion warning that the situation was violating the recommendations of government health authorities. “All potential jurors — particularly those at higher risk — currently face a Hobson’s choice: comply with their legal obligations and subject themselves to a much higher risk of infection and propagating a deadly virus or complying with health recommendations issued by our state and federal governments.” Attorneys asked District Judge Mark Warner to provide testing to prospective jurors returning to court in the coming weeks, but the motion was denied.

The following week, 17th Judicial District Chief Judge Emily Anderson ordered the Adams County courthouse closed to the public, limiting proceedings to “matters of immediate concern for public safety” — including Dearing’s trial. Lawyers balked, arguing that this would violate their client’s rights to a public trial. In the meantime, Colorado Independent editor Susan Greene — one of the only journalists covering the saga — was barred from the trial after she was caught taking photos of filthy disinfectant wipes she’d used to clean a courtroom bench.

To Mary Claire Mulligan, a veteran capital defense attorney based in Boulder, the situation was surreal to watch from afar. “Nothing surprises me anymore,” she said of Young’s decision to charge forward with a death penalty trial. Still, “I was really shocked that they were continuing to bring jurors in under those circumstances.” It was clear that any resulting jury would have trouble focusing on the law or facts of the case, she said. “They’re going to be freaking out.”

By the end of the month, things had unraveled. On March 23, Polis signed the death penalty bill into law. Two days later, he announced a state-wide stay-at-home order, forcing the trial to be postponed. On March 30, Young finally surrendered, filing a motion to withdraw the death penalty in the Dearing case. In a statement geared more toward the media than the court, Young blamed the governor for forcing his hand, while ignoring his own role in the extended ordeal. “Deputy Heath Gumm’s family and friends have been tremendously victimized due to the loss of their loved one in the line of duty,” he wrote. “At this point, pursuing a death sentence in this case prolongs that victimization, knowing that the People have no reasonable likelihood of overcoming the Governor’s opinion on the death penalty.”

A spokesperson for Young declined to discuss the case, as did Gumm’s father. Still, elsewhere in Colorado, prosecutors are still looking to have the last word on the death penalty. As the abolition law takes effect this summer, 23-year-old Marco Garcia-Bravo is set to go to trial on July 17 for a 2017 double murder in Colorado Springs. Asked last month about its plans to seek a death sentence, the El Paso County DA’s office answered, “Right now, nothing has changed.”

Lies and Omissions

As the viral epidemic continues unabated, killing people behind bars, Philadelphia District Attorney Larry Krasner has been an outspoken voice urging the decarceration of jails and prisons. “Safe and swift depopulation of these facilities will enable those who become ill to be treated and appropriately isolated; mitigate panic-fueled staff attrition and prisoner violence; and enable the criminal justice system to be full partners in flattening the curve,” he said.

This all may sound like common sense, but in the context of the criminal justice system, it’s actually quite extraordinary. Across the country, reform-minded prosecutors like Krasner who try to correct injustices have repeatedly bumped up against the entrenched status quo political machinery that has defined the criminal justice system for decades. It is precisely these forces that appear to be keeping Walter Ogrod locked in prison.


Walter Ogrod, center, poses for a portrait with his brother, Greg Ogrod, and Greg’s fiancée, Mary G. Kelly, in 2019.

Photo: Courtesy of the Ogrod Family

In January, after Krasner conceded that Walter Ogrod’s conviction should be overturned, Judge Shelley Robins New scheduled a hearing on the matter for March 27. But then in early March — before the coronavirus shuttered the Philadelphia courts and just before Walter fell ill — Robins New summarily canceled the hearing, without telling the lawyers.

The attorneys wanted to know why the abrupt change of course. During a March 13 telephone call with Robins New’s clerk, they were told, in essence, that the hearing wasn’t convenient for her, and she wouldn’t be available again until at least June 5.

“The court’s clerk indicated that an earlier date was not possible because (a) the court would not be in session for most of May due to a pre-planned trip abroad; (b) the court only hears criminal matters on Fridays; and (c) the court has no available time any other Friday before the trip abroad in May,” Walter’s lawyers wrote in an emergency motion joined by the DA’s office seeking expedited consideration of the case. In an effort to get it settled amid the court shutdown, the parties proposed a telephone hearing. “Every day a decision and/or hearing is delayed is another day that Mr. Ogrod remains on death row for a crime he did not commit,” reads the motion. “Every day a decision and/or hearing is delayed is another day that Mr. Ogrod’s health is at grave risk.”

“Every day a decision and/or hearing is delayed is another day that Mr. Ogrod’s health is at grave risk.”

The emergency motion was filed March 18. Robins New has yet to respond.

The lack of any response is confounding in part because there is no disagreement between prosecutors and defense attorneys about how Ogrod was wrongly sentenced to death and what needs to be done to make things right.

On July 12, 1988, a neighbor found the naked and beaten body of 4-year-old Barbara Jean Horn partially covered by a trash bag inside a cardboard box on a curb in Philadelphia, less than 1,000 feet from Horn’s home.

She’d been missing for several hours, and shortly after her body was found, five separate eyewitnesses from the neighborhood told police about a man they’d seen outside with a cardboard box that afternoon. The descriptions were fairly similar. None of them named or described 23-year-old Ogrod.

The case attracted widespread media attention but eventually went cold until 1992, when it was assigned to detectives Marty Devlin and Paul Worrell. The pair focused their attention on Horn’s immediate neighborhood, ultimately settling on Ogrod, who lived across the street from her.

Ogrod would be tried twice and ultimately convicted in October 1996 on the thinnest of evidence: a questionable confession and the testimony of a jailhouse snitch to whom Walter had allegedly provided details of the crime. After hours of interrogation, Ogrod told the detectives that he’d tried to rape Horn in his basement and then hit her over the head with a pull-down bar from his home gym — a statement he immediately recanted, professing his innocence. No physical evidence has ever tied Ogrod to Horn’s murder.

What the jurors didn’t know — and what would take decades to finally come to light — was that Ogrod’s conviction was based on lies and omissions that infected the case from beginning to end.


The Coronavirus Pandemic Makes the Case for Criminal Justice Reform

Ogrod had been on Pennsylvania’s death row for 22 years when his defense team asked Krasner to review the case in 2018. With help from Ogrod’s attorneys, the DA’s conviction integrity unit began its investigation. In documents filed with Robins New on February 28, Krasner agreed that layers of misconduct had violated Ogrod’s due process rights and that he had been wrongly convicted of Horn’s murder. “Ogrod’s conviction and capital sentence,” Krasner concluded, “represent a gross miscarriage of justice.”

Among the misconduct detailed in court filings were numerous Brady violations — in which the state failed to turn over evidence favorable to the defense — which for years was a common problem within the DA’s office. “For decades and with some frequency, it appears that the Philadelphia District Attorney’s Office failed to comply with its obligations in regard to Brady and its progeny,” Patricia Cummings, the conviction integrity unit supervisor, wrote in the brief.

The prosecutor at Ogrod’s second trial, Judith Rubino, failed to disclose that a medical expert had told her that asphyxiation was Horn’s cause of death, not a blow to the head as alleged at trial. She’d also suppressed evidence that Ogrod was susceptible to the kind of manipulation the detectives had used during their marathon interrogation — in fact, the state had argued at trial that it was Ogrod who was manipulating the cops in order to downplay the brutality of his plot. Ogrod’s confession was false, Krasner found, and the detectives who extracted it from him had used the same tactics to coax false narratives in at least two previous cases.

“Ogrod found himself adrift in a perfect storm of unreliable scientific evidence, prosecutorial misconduct, Brady violations and false testimony.”

The investigation also revealed that the snitch testimony used against Ogrod was the product of collusion between two notorious jailhouse informants. The mastermind of the operation, a man named John Hall, had enlisted his wife to write to Ogrod pretending to be a stripper who was in love with him in order to tease out personal details that might be used to frame him for Horn’s murder. The DA’s files also revealed that Hall had been used as a witness in 12 homicide cases between 1983 and 1997, including nine in Philadelphia, a fact that was never disclosed to Ogrod’s defense.

And then there is the matter of the DNA. For years, the DA’s office had resisted DNA testing of evidence collected from Horn’s body. In 2018, they finally agreed, and the results revealed a full male profile of someone other than Ogrod. To date, no match has been found.

“At trial, Ogrod found himself adrift in a perfect storm of unreliable scientific evidence, prosecutorial misconduct, Brady violations and false testimony,” the court filing concluded. “Ogrod is likely innocent, and his continued incarceration constitutes an ongoing miscarriage of justice. The commonwealth urges this court to grant Ogrod relief and vacate his conviction and sentence.”

That has not happened — and it’s not entirely clear why.

Tom Lowenstein, a journalist and former policy director for the Innocence Project New Orleans, who wrote a book on Ogrod’s case, said Robins New’s inaction isn’t entirely surprising, though is no less callous. The judge was an 18-year veteran of the Philadelphia DA’s Office and worked homicide cases alongside her mentor Judith Rubino at the time of Walter’s first trial, when the informants who worked to convict him were routinely helping prosecutors win murder convictions. In other words, Robins New’s personal connections and history suggest a reason she is stalling justice. “She’s sitting on it now,” Lowenstein said. “If she thinks she can get away with this as a ‘defender of liberty,’ then this is the moment to make her understand that she is not.”

Robins New did not respond to several phone messages requesting comment.

Greg Ogrod has always known that his big brother Walter is innocent. As his family has suffered over the years, he’s acutely aware that others have too, particularly Sharon Fahy, Barbara Jean Horn’s mother. He thinks about her a lot. And Horn too. On a recent afternoon, Greg and his fiancée took flowers to her grave in Langhorne, a small borough just north of the city. It bothers him that as long as Walter stands convicted of Horn’s murder, no one will be out there looking for her real killer. “Her death has never been solved,” he said. “That’s a complete outrage.”

Greg thought that once the DA agreed that Walter should be released, he would soon be home — and maybe Horn and her family would finally have a shot at justice. But Walter is still in prison, and he’s still sick. “It’s been an emotional roller coaster,” Greg said. “He doesn’t deserve to be put through any more punishment. It’s ridiculous at this point, where everyone knows Walt didn’t do this and he’s still being punished. Severely.”

“In fact, if you want a direct quote from Walter himself,” this is it, Greg wrote in a text message after talking with his brother on the phone: “I think Shelley Robins New wants me to die in here!”

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