The StandDown Texas Project

Texas Criminal Justice Integrity Unit Issues 2009 Report

The Texas Criminal Justice Integrity Unit, formed by Court of Criminal Appeals Judge Barbara Hervey in 2008, has issued it's second annual report.  The 2009 Annual Report of Activities is available in Adobe .pdf format.

The Integrity Unit also has a new website.  The members have been fostering an active dialogue between judges, prosecutors, the defense bar, and law enforcement advancing knowledge of root causes of wrongful convictions.  The work is shaping continuing professional education and training programs among those in the criminal justice sector.

Crime Lab Scandals to Force Reviews in San Francisco & Nebraska

The Recorder reports, "1,400 Narcotics Cases to Be Re-Evaluated due to San Francisco Crime Lab Scandal," by Kate Moser.  

The San Francisco district attorney's office is combing through files in 1,400 cases -- the entire universe of open narcotics cases in the office -- to determine what can be saved and what needs to be dumped in the wake of an expanding scandal emanating from the police crime lab, a spokesman for the office said Monday.

"We're going through the police records that we have, test results, we're assessing everything," said Assistant District Attorney Brian Buckelew. "There's a taint here on this evidence. We're going to do the right thing and we're going to do it the right way."

The office will make a decision this week on what to do about those cases, he added.

Prosecutors have already dropped more than 350 narcotics cases since the crime lab scandal broke earlier this month. Police shut down the lab in early March amid allegations that a former technician had stolen and used cocaine from evidence samples she tested. The technician, Deborah Madden, has not been charged.

Since then, "the face of the investigation has changed," Buckelew said, given that police are now investigating additional crime lab employees.

Earlier coverage is here.

In Nebraska, AP reported last week, "Flood of appeals likely after Neb. CSI conviction," by Jean Ortiz, via Google News.

As the chief crime scene investigator for Nebraska's busiest county, David Kofoed spent more than a decade helping put away hundreds of criminals using cold, hard science. He developed a reputation as a man who could find things others couldn't.

That reputation was destroyed Tuesday when the Douglas County CSI director was convicted of planting blood evidence during a murder investigation. The conviction throws into doubt the legitimacy of other cases on which he worked, and some of those he helped put behind bars are likely lining up to appeal.

"I think that process has already begun," Clarence Mock, the special prosecutor in Kofoed's case, said Wednesday.

Douglas County prosecutors, wary of a potential flood of appeals, were quick to say they reviewed past cases and believe the 53-year-old Kofoed only planted evidence in the investigation for which he was convicted.

Still, one man convicted of murdering his young son already has challenged Kofoed's work. And Chief Deputy Sheriff Marty Bilek said sheriff's department officials are prepared to respond as criminal defense attorneys seek review of Kofoed's past cases.

"It's a very unfortunate circumstance, but it would behoove attorneys who have cases that involved Dave Kofoed to re-examine them and we'll cooperate with any attorney who wishes to do that," Bilek said.

And:

It's rare for prosecutors to allege evidence tampering, but it does happen.

In Texas' Harris County, four prisoners' convictions were overturned because of faulty work by the Houston crime lab. A 2002 audit found that lab technicians were poorly trained, had misread data, and kept bad records. Authorities reviewed more than 150 cases involving blood-typing evidence from the lab.

And this month, San Francisco prosecutors dismissed more than 250 drug cases because of accusations of evidence tampering in the city's crime lab.

Related posts are in the crime lab index; more on HPD crime lab problems, here.

Forensics Roundup

Today's South Florida Sun-Sentinel carries the editorial, "Caravella case proves worth of DNA testing."

For someone who spent 26 years in prison for a crime he did not commit, Anthony Caravella may actually be one of the lucky ones.

The Miramar man saw his life sentences and convictions for rape and murder thrown out last week, at the request of prosecutors and defense attorneys, after DNA testing — and dogged work by Sun Sentinel reporter Paula McMahon — exonerated him.

The same DNA testing that was not available when the crimes were committed in 1983, but is available now. And which should be used whenever possible — particularly in capital and life sentence cases — to both confirm or exonerate those imprisoned for specific crimes.

According to the Innocence Project of Florida, Caravella is the 252nd person in the nation to be exonerated by post-conviction DNA testing, and the 12th in Florida. DNA is a major tool to ensure justice, but unfortunately, there are still some resisters.

In Texas last week, it took the U.S. Supreme Court to stop the execution of condemned prisoner Hank Skinner about an hour before being taken to the Texas death chamber.

Important evidence in Skinner's 1993 triple murder cases has never gone through DNA analysis. The technology is available to accomplish now what couldn't be done 17 years ago. State courts and prosecutors in Texas opposed the DNA analysis. The temporary reprieve does not guarantee DNA testing will get done, but his case might get reviewed.

The argument is not that Skinner is innocent. The argument is that technology is now available to prove whether or not he committed the crimes. If it takes a little more time to do the testing and remove doubt, shouldn't that be the goal of a true justice system?

Earlier coverage of the Skinner case begins with this post.

In Maryland, Luke Broadwater writes, "Judge defends decision to dismiss fingerprints," for today's Catonsville Times.

In her first public comments about her controversial 2008 ruling disallowing fingerprint evidence in a high-profile death penalty case, Baltimore County Circuit Judge Susan Souder called fingerprint examination "subjective" and said she hoped better standards would be created to improve the reliability of the evidence.

"I wasn't the first person to find there were some issues with latent fingerprint examination," she said during a 30-minute presentation to the Catonsville Sunrise Rotary Club, of which Souder is a member, March 24.

Her talk at the Cafe on the Grove on the campus of the Spring Grove State Hospital Center was part of the club's weekly meeting schedule.

Souder's ruling disallowing the evidence sent shock waves through the legal community.

And:

In her Wednesday morning talk, Souder said she, like many others, did not question the reliability of fingerprint evidence, particularly during her tenure as a judge, and before that, as a federal prosecutor.

She said federal agents would tell her they had a fingerprint "match" and she believed them.

"I've presided over many trials where fingerprint evidence has been admitted and unchallenged," she said.

But that all changed with the death penalty case of Brian Rose, 24, of Baltimore, who was accused of killing a store owner outside of Security Square Mall on Jan. 5, 2006.

Rose's defense attorneys asked for a hearing to challenge the fingerprints in the case, and Souder granted that motion.

Souder said prosecutors called only one witness during that hearing, an FBI expert in fingerprints, who appeared taken by surprise by a defense attorney's questions about the validity of fingerprint examination as a science.

The FBI expert said he had no degree, was not a scientist and did not consider fingerprints a science, Souder said.

Meanwhile, Souder said, the defense presented a "thorough discreditation" of several aspects of fingerprint examination, including that the process lacks standards, independent confirmation of a "match" and proper record-keeping.

Also:

Last week, Souder sought to clarify misinformation about her ruling, saying its application should not be widespread, but limited to the specific case.

"The decision in Rose is very specific," she said. "In this particular case, the latent fingerprint evidence would not be admitted through this expert."

More on the Maryland case is here.  Related posts are in the DNA and forensics indexes.

A View Looking Back at Capital Punishment and Clemency in Tennessee

"Gov. Clement followed conscience on death penalty," is the title of an OpEd from the Tennessean.  It's written by former congressman Bob Clement and appeared in the Sunday paper.  It's a must-read.

As governor, my father, Frank Clement Sr., truly struggled with the responsibility and legal right to decide who lives and who dies under the death penalty. He did not feel it was a responsibility that should be left entirely to the governor.

During his second term, men did die in the electric chair. I remember seeing the anguish my father suffered as the hour of execution grew closer. He would personally talk with each inmate on death row and ask them the simple question: "Why should I save your life?" Some inmates had lied all the way through the legal process, but when facing my father's question, some did say, "Governor, you should not intervene." Even then, the decision was no easier for my father, because he would also meet with the families of inmates, including wives and children. To my know-ledge, he's the only governor who met face-to-face with families of the men he knew he would not save from the electric chair. He felt it was a step he had to take if he was going to accept the responsibility of a state execution.

During his third term, my father had a personal conviction that the state legislature must address the legality of capital punishment. He made his plea to legislators in March 1965. At that time five inmates were on death row, with three scheduled to die that month. He also sent a personal letter to every member of the Senate, asking them to abolish capital punishment, telling them that the death penalty was, in his view, contrary to the biblical commandment not to kill.

And:

The state Senate voted 25-7 to abolish capital punishment. But opposition in the House of Representatives was much stronger. So just three days before the three executions were set to occur, my father decided to make his strongest appeal in a speech on the floor of the House. He raised tough, pointed questions. He asked: "Can anyone deny that this is a law that does not apply to all alike and is therefore inconsistent? Can anyone deny that human judgment is inadequate? This is a law that we cannot justify. It's a law that does not conform to the older law, the Bible."

Despite my father's direct appeal, the House voted the next day, 48-47, in favor of keeping the death penalty. So my father took the only step his conscience would allow him. He personally went to death row to make his announcement to the condemned inmates. He told them: "I cannot save your soul, but I can save your life. Today, I am commuting your sentence from the death penalty to 99 years." The prisoners began shouting, praying and thanking the governor for saving their lives.

Finally:

After the events of March 1965, despite the legislature's refusal to abolish the death penalty, my father never oversaw another execution. Now, more than 40 years after he left office, my father would be proud that as part of his legacy, Tennessee has experienced the fewest executions among all the Southern states.

Related posts are in the clemency index
.

Amnesty International Report

The report is, Death Sentences and Executions 2009, is in Adobe .pdf format.  Amnesty International's USA landing page has video.

The press release announcing the report is, "Amnesty International Challenges China's Continued Secrecy in Death Penalty Executions.  Texas is first in executions in the U.S.; 7th in the world."

In a new report, Death Sentences and Executions in 2009, released today, Amnesty International challenged the Chinese authorities to reveal how many people they execute and sentence to death annually.

The new report reveals that 714 people were executed in 18 countries, and 2001 people were sentenced to death in 56 countries in 2009. However, it does not include the thousands of executions that were likely to have taken place in China, where information on the death penalty remains a state secret.

In a challenge to China's lack of transparency, Amnesty International has decided not to publish its own minimum figures for Chinese executions and death sentences in 2009. Estimates based on the publicly available information grossly under-represent the actual number the state killed or sentenced to death.

"The death penalty is cruel and degrading, and an affront to human dignity," said Claudio Cordone, Amnesty International's Interim Secretary General. "The Chinese authorities claim that fewer executions are taking place. If this is true, why won’t they tell the world how many people the state put to death?"

Amnesty International's research shows that nations that still carry out executions are the exception rather than the rule. In addition to China, the worst offending nations were Iran with at least 388 executions, Iraq with at least 120, Saudi Arabia with at least 69 and the United States with 52.

In the United States, Texas with 24 executions, is the worst offender. It actually ranks 7th in the world trailing only the rest of the United States, and the governments of Yemen, Saudi Arabia, Iraq, Iran and China. Texas has already executed four men in 2010, and another, Franklin Alix, is scheduled to be put to death on the evening of March 30.

The past year saw capital punishment applied extensively to send political messages, to silence opponents or to promote political agendas in China, Iran and Sudan, according to Amnesty International's report.

Selected news coverage includes the New York Times articles, "China Said to Execute Thousands in ’09," by Mark McDonald.

China executed more people last year than the rest of the world combined, according to a report published Tuesday by Amnesty International.

Amnesty said there were “thousands” of Chinese executions in 2009 — the precise number is considered a state secret — and the rights group called on Beijing to divulge how many it carries out.

The report said that at least 714 people were executed in 17 other countries, led by Iran, Iraq, Saudi Arabia and the United States. Methods of execution included beheading, stoning, electrocution, hanging, firing squads and lethal injection.

Amnesty said in its report last year that China had executed at least 1,718 people in 2008, nearly three-fourths of the 2,390 executions worldwide that year.

“The Chinese authorities claim that fewer executions are taking place,” said Claudio Cordone, Amnesty’s interim secretary general. “If this is true, why won’t they tell the world how many people the state put to death?”

Although admittedly incomplete, the figures from Amnesty are widely accepted. The State Department, for example, has cited the group’s findings in its reports on human rights.

And:

The United States was the only country in the Americas to execute anyone in 2009, according to the report, which said the 52 executions constituted the nation’s highest total in three years. Nearly half the executions, 24, came in Texas, while New Mexico officially banned the death penalty.

AFP posted, "Amnesty slams China in death penalty report," by Robin Millard, via Google News. 

The report said that at least 714 people were executed in 18 countries in 2009, while at least 2,001 people were sentenced to death in 56 states.

Besides China, the countries that executed the most people last year were Iran (at least 388); Iraq (at least 120); Saudi Arabia (at least 69); and the United States (52).

And:

Burundi and Togo abolished the death penalty for all crimes, taking to 95 the number of countries to have done this by the end of 2009.

Nine further countries have abolished it for ordinary crimes.

Some 35 countries retain the death penalty but are considered abolitionist in practice as they have not executed anyone in the past 10 years.

That leaves 58 countries that retain the sentence for ordinary crimes.

Kate Allen's column in the Guardian is, "How many does China execute?"

Related posts are in the international index.

Texas Execution

Texas carried out its fifth execution of 2010, last night in Huntsville.  It was the 452nd Texas execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions. 

To date, there have been 12 executions in the nation in 2010, and 1,200 executions since 1977.

Michael Graczyk's AP report on the execution of Franklin Dewayne Alix, "Houston man executed for robbery-slaying," is via the Houston Chronicle.

Alix' execution was the 113th execution ordered from Harris County; more than any other state in the nation.  To date, Virginia has carried out 106 executions; Oklahoma, 92.

According to TDCJ, eight additional executions are scheduled in Texas during 2010, including two in April.  More execution dates will likely be set by state district courts during 2010.  

Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states. 

A New Report From the ACLU of Northern California

The report is titled, Death in Decline '09; it's also available in Spanish.

A news release announcing the report is, "Death Penalty Sentencing In Decline Across U.S.  California, Los Angeles Fall Back in National Trend Toward Permanent Imprisonment."  An excerpt:

As the United States moves away from death sentences to permanent imprisonment, California—particularly Los Angeles County—lags behind, according to a new report on the death penalty by the ACLU of Northern California (ACLU-NC). In 2009, the number of new death sentences nationwide reached the lowest level since the death penalty was reinstated in 1976.  The Golden State, however, sent more people to death row last year than in the seven preceding years. At the close of 2009, California's death row was the largest and most costly in the United States.

"Nationwide, we are seeing a shift due to growing concerns about the wrongful conviction of innocent people and the high costs of the death penalty in comparison to permanent imprisonment," said Natasha Minsker, death penalty policy director for ACLU-NC. "States like Texas, which used to rival California in the number of new death sentences, have seen a dramatic reduction in use of the death penalty since permanent imprisonment became an option."

The increase in death sentences in California last year was caused by the high number of new death sentences in just three counties, according to the report. The majority of counties in California, like the rest of the nation, have effectively replaced the death penalty. Prosecutorial practices in just three "killer counties"—Los Angeles, Orange and Riverside—accounted for 83% of death sentences in 2009, while those counties represented only 41% of the state's population.

Los Angeles showed the most dramatic break from national trends, ranking as the top death penalty county in the United States. Los Angeles County sent more people to death row in 2009 than in any other year this decade—and more than the entire state of Texas for the same period.

The ACLU report also found a dramatic increase in the number of Latinos sentenced to death in California. The percentage of Latinos on death row has historically been well below the percentage of Latinos in the California population.

"We don't know what is driving this increase in the number of Latinos sentenced to death—unfortunately the state does not collect the data needed to answer this important question," said Ramona Ripston, executive director of the ACLU of Southern California. "What we do know is that all California communities would be better served if California opted for permanent imprisonment as a safe and cost-effective alternative to the death penalty."

The interactive map, noted above, shows the geographic disparity among California counties.  Thanks to Stefanie Faucher of Death Penalty Focus for distributing.

The Cost Issue in Pennsylvania

Today's Philadelphia Inquirer carries the editorial, "Dollars and death."

Facing a massive and costly prison overcrowding problem, Pennsylvania has reached the point where the right moral course - ending capital punishment - coincides more than ever with the need to get the state's fiscal house in order.

Space is so tight in the prisons that 2,000 inmates are being shipped to other states. Meanwhile, the state Corrections Department is seeking an 8.5 percent boost in its new budget - driving the annual cost to warehouse convicts to $1.9 billion. That equals 7 percent of all state spending.

So the abolition of the death penalty proposed this month by state Sen. Daylin Leach (D., Montgomery) represents an effort, in part, to help reduce prison costs.

Leach says the state could save hundreds of millions of dollars by eliminating the death penalty. The savings would come by ending the lengthy and costly death-penalty appeals that clog the system.

The state would also save the extra cost of maintaining a death row whose population now stands at 220. That would free up high-security space for other convicts.

The dollars-and-cents argument against the death penalty is secondary, of course, to the risk of sentencing an innocent person to die, as has happened in six cases in Pennsylvania and 139 nationwide. Fortunately, those inmates were exonerated by new evidence but the risk remains of executing an innocent person.

And:

A ban on capital punishment apparently would have to await Gov. Rendell's departure from office, since the former district attorney vows to veto any plan. Nor is there any assurance of support from any of the contenders to replace Rendell.

But the state's prisons crisis is not going away any time soon, just as more death-row inmates are sure to be exonerated over time.

That should make the costly and flawed system of capital punishment repugnant to more and more Americans.

Eventually, elected officials in Harrisburg will have to lead on this issue - or at least get out of the way.

Dave Lindorff writes the OpEd, "The guv & the death penalty," for today's Philadelphia Daily Herald.

GOV. Rendell has a historic opportunity to honor a campaign pledge and put a stop to Pennsylvania's archaic, ineffective and profoundly cruel and unfair death penalty.

Daylin Leach, a Democratic state senator from Montgomery County, last week introduced a bill that seeks to add Pennsylvania to the list of states like New Jersey, New Mexico and New York that have recently abandoned capital punishment.

Leach points out that Pennsylvania's death penalty costs taxpayers hundreds of millions of dollars because of the years and even decades of appeals to which death-row prisoners are entitled. At the same time, he says, the system has sent at least six demonstrably innocent people to death row.

When he first ran for governor in 2002, Rendell, who in his two terms as Philadelphia's elected district attorney put more people on death row than any other D.A. in the state's modern history, said that he would support a moratorium on executions if he were shown that such a move was "warranted."

Only six weeks after he entered the governor's mansion, a commission of retired judges and law-school presidents appointed earlier by the Pennsylvania Supreme Court to study the state's capital-punishment system did just that, issuing a 500-page report detailing rampant bias in the state's legal system (two-thirds of those on the state's death row are black and nearly all are poor).

THE REPORT called on all three branches of government, including the governor, to halt all executions until problems with the system can be analyzed and corrected through court reforms, new rules for prosecutors and changes in state law.

Gov. Rendell ignored that report, and has subsequently signed more than 100 death warrants.

There are currently 220 people awaiting execution in Pennsylvania, which has the fourth-largest death row in the country. Thirty-nine death row inmates, mostly African-American, were put there by Rendell when he was Philadelphia D.A.

If that Supreme Court study weren't evidence enough that the state's death penalty law is fatally flawed, Rendell might consider that two men, Harold Wilson and Nick Yarris, were freed while he was governor after having spent, respectively, 16 and 20 years on death row. Both were found to have been not guilty of the murders for which they had been sentenced to die. Wilson was prosecuted by a Rendell protege, Jack McMahon, who now, in private practice, resolutely opposes the death penalty.

Earlier coverage from Pennsylvania is here; related posts in the cost index.

Is the Death Penalty on Death Row?

That's the title of a BBC News report posted today by Paul Adams.  It focuses on the Hank Skinner case, but examines current trends in Texas..  LINK

The scene outside the Huntsville unit of the Texas state penitentiary last Wednesday evening was a familiar one.

Police officers stood casually outside the imposing red-brick walls as a small group of passionate opponents of the death penalty railed against a punishment they say has no place in modern America.

Inside, a death row inmate, Hank Skinner, was due to be executed by lethal injection.

But with half an hour to go, word emerged that the Supreme Court in Washington had issued a last-minute stay of execution.

Skinner, convicted of the 1993 killing of his girlfriend and her two adult sons in Pampa, has always protested his innocence.

His French wife, Sandrine, expressed relief, but spoke of her anger at a process that could still result in her husband's execution.

"This system has got to stop," she told the BBC. "We are not going to stop until it's over."

The death chamber at Huntsville, which carries out all Texas death penalties, is still the busiest in the nation. Twenty-four prisoners were executed last year.

But across Texas, there has been a steep decline in the number of new death sentences handed down. There were just nine last year. In the late 1990s, as many as 48 people a year were sent to death row.

The statistics have led some campaigners to hope that the death penalty may itself be on death row.

To the south of Huntsville, Harris County, which includes the sprawling metropolis of Houston, used to be known as the nation's death penalty capital.

But after sending about a dozen murderers to death row each year for a decade, it has been two years since it sent a single one.

The county's district attorney, Pat Lykos, rejects the notion that Houston has become a death penalty-free zone.

And:

"What has changed is the availability of life without parole," she says, highlighting a law that came into effect in 2005. Before this, the system offered two options for capital crimes: the death penalty and life in prison with the possibility of parole after 25 years.

But there are other factors at work here too. Take cost.

At True/Slant, Steve Weinberg reflects on the Supreme Court's stay in the Skinner case.  He posts, "Is the U.S. Supreme Court capable of dispensing justice after a wrongful conviction?"

Hank Skinner, long-time resident of Death Row in a Texas prison, is waiting to learn whether the U.S. Supreme Court will rule evidence that might prove his innocence should undergo testing, or be ignored. (Please see the “In Justice” posts of March 23 and March 25.)

I don’t know whether Skinner is a murderer or an innocent man. But I do know that if a majority of the Supreme Court justices care about truth, they will play a role in seeing that the evidence undergoes testing.

The worry is that when it comes to criminal justice system malfunctions, at least five of the nine justices care less about truth than about finality.

The criminal justice systems across the United States–in state trial courts that op0erate at the county level, in state appellate courts and in federal courts–are biased in favor of finality. Put another way, after an innocent defendant has pled guilty or been convicted by a judge/jury, the presumption reigns that the case should be over, forever.

Finality is a virtue most of the time–nobody should want cases to drag on and on after the original disposition. But the worship of finality ignores the frequency of wrongful convictions in some jurisdictions around the nation.

Carol Forsloff posts, "Application of the death penalty is a Southern tradition," at Digital Journal.
By Carol Forsloff.

Earlier coverage of the Skinner case begins with this post.  Related articles are in the cost index.

Texas Execution

Texas is scheduled to carry out its fifth execution of 2010, tonight in Huntsville.  It would be the 452nd Texas execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions. 

To date, there have been 11 executions in the nation in 2010, and 1,199 executions since 1977.

The Huntsville Item carries the AP report, "Houston Man Set to Die for Robbery-Slaying," about Franklin Dewayne Alix.

DNA evidence used in his trial also played a role in a scandal involving the Houston Police Department’s crime lab when retests discredited the initial results.

But the 5th U.S. Circuit Court of Appeals, affirming a federal district judge’s findings, said the DNA evidence was part of a “larger body of proof,” including Alix’s long history of violence, that showed jurors he was dangerous and should be sentenced to death.

The Texas Court of Criminal Appeals rejected questions about an unlicensed medical examiner involved in the case, saying a supervising medical examiner may delegate duties to a deputy who isn’t licensed. And the 5th Circuit said even if the state court was wrong, there was no constitutional violation for evidence improperly admitted.

The article notes that no additional appeals are expected, and that Alix did not submit a clemency petition.

Alix' execution would be the 113th execution ordered from Harris County; more than any other state in the nation.  To date, Virginia has carried out 106 executions; Oklahoma, 92.

According to TDCJ, eight additional executions are scheduled in Texas during 2010.  More execution dates will likely be set by state district courts during 2010.  

Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states. 

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CDT), Thursday.

Texas is scheduled to carry out its fifth execution of 2010, tonight in Huntsville.  It would be the 452nd Texas execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions. 

To date, there have been 11 executions in the nation in 2010, and 1,199 executions since 1977.

The Huntsville Item carries the AP report, "Houston Man Set to Die for Robbery-Slaying," about Franklin Dewayne Alix.

DNA evidence used in his trial also played a role in a scandal involving the Houston Police Department’s crime lab when retests discredited the initial results.

But the 5th U.S. Circuit Court of Appeals, affirming a federal district judge’s findings, said the DNA evidence was part of a “larger body of proof,” including Alix’s long history of violence, that showed jurors he was dangerous and should be sentenced to death.

The Texas Court of Criminal Appeals rejected questions about an unlicensed medical examiner involved in the case, saying a supervising medical examiner may delegate duties to a deputy who isn’t licensed. And the 5th Circuit said even if the state court was wrong, there was no constitutional violation for evidence improperly admitted.

The article notes that no additional appeals are expected, and that Alix did not submit a clemency petition.

Alix' execution would be the 113th execution ordered from Harris County; more than any other state in the nation.  To date, Virginia has carried out 106 executions; Oklahoma, 92.

According to TDCJ, eight additional executions are scheduled in Texas during 2010.  More execution dates will likely be set by state district courts during 2010.  

Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states. 

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CDT), Thursday.

Texas is scheduled to carry out its fifth execution of 2010, tonight in Huntsville.  It would be the 452nd Texas execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions. 

To date, there have been 11 executions in the nation in 2010, and 1,199 executions since 1977.

The Huntsville Item carries the AP report, "Houston Man Set to Die for Robbery-Slaying," about Franklin Dewayne Alix.

DNA evidence used in his trial also played a role in a scandal involving the Houston Police Department’s crime lab when retests discredited the initial results.

But the 5th U.S. Circuit Court of Appeals, affirming a federal district judge’s findings, said the DNA evidence was part of a “larger body of proof,” including Alix’s long history of violence, that showed jurors he was dangerous and should be sentenced to death.

The Texas Court of Criminal Appeals rejected questions about an unlicensed medical examiner involved in the case, saying a supervising medical examiner may delegate duties to a deputy who isn’t licensed. And the 5th Circuit said even if the state court was wrong, there was no constitutional violation for evidence improperly admitted.

The article notes that no additional appeals are expected, and that Alix did not submit a clemency petition.

Alix' execution would be the 113th execution ordered from Harris County; more than any other state in the nation.  To date, Virginia has carried out 106 executions; Oklahoma, 92.

According to TDCJ, eight additional executions are scheduled in Texas during 2010.  More execution dates will likely be set by state district courts during 2010.  

Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states. 

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CDT), Thursday.

Symposium at UT Law

Friday, April 9 and Saturday, April 10 the William Wayne Justice Center and the Capital Punishment Center will host a symposium at the law school, "The American Death Penalty in the 21st Century: The Direction of Legislative Change and the Prospects for Legislative Abolition."

The event is open to the public.  All panel discussions will take place in the Eidman Courtroom.

Here's the schedule:

Friday April 9th
10:15 — 10:30 Welcoming Remarks
    Dean Larry Sager, UT School of Law
    Jordan Steiker, Professor, UT School of Law

10:30 — 12:00: National Perspective on Recent Developments
    Shari Silberstein, Executive Director, Equal Justice USA
    Dick Dieter, Executive Director, Death Penalty Information Center
    Diann Rust-Tierney, Executive Director, National Coalition to Abolish the Death Penalty
    Moderator: Maurie Levin, UT School of Law

12:00 — 1:30: Lunch

1:30 — 3:00: Abolition Achieved : The Experiences in New Mexico, New Jersey, & New York
    Shari Silberstein, Executive Director, Equal Justice USA
    Viki Elkey, Director, New Mexico Coalition to Repeal the Death Penalty
    Jonathan Gradess , Executive Director, New York State Defender's Association
    Moderator: Jordan Steiker, UT School of Law

3:15 — 4:30: Study and Reform of the Death Penalty: Maryland & California
    Dick Dieter, Executive Director, Death Penalty Information Center
    Amy Fusting — Program Director, Maryland Citizens Against State Executions
    Gerald Uelman, Dean, Santa Clara School of Law
    Moderator: Jim Marcus, UT School of Law
 

Saturday April 10th
8:30 — 9:45: Reintroduction, Expansion and Administration of the Death Penalty: Georgia, Virginia & Massachusetts
    Chris Adams, Law Office of Chris Adams, Atlanta, Georgia
    Beth Panilaitis, Executive Director, Virginians for Alternatives to the Death Penalty
    Renny Cushing, New Hampshire House of Representatives; Executive Director, Murder Victims' Families for Human Rights
    Moderator: Rob Owen, UT School of Law

9:45 — 11:00 Abolition Contested: The Experiences in Colorado, Kansas & New Hampshire
    Michael Radelet, Professor, University of Colorado at Boulder
    Donna Schneweis, State Death Penalty Abolition Coordinator, Amnesty International
    Renny Cushing, New Hampshire House of Representatives; Executive Director, Murder Victims' Families for Human Rights
    Moderator: Jordan Steiker, UT School of Law

11:00 — 12:15: Reform to Redress Race Discrimination: The experience in North Carolina
    Rob Owen, Professor, UT School of Law
    Ken Rose, Senior Attorney, Center for Death Penalty Litigation
    Larry Womble, State Representative, North Carolina    
    Moderator:     Maurie Levin, UT School of Law

Forensics Roundup

"US judge urges skepticism on forensic evidence," is the title of a report in today's Boston Globe written by Jonathan Saltzman.

“CSI’’ may make for gripping television, but US District Court Judge Nancy Gertner says forensic evidence isn’t everything it’s cracked up to be.

In a move that some legal scholars said may be the first by a federal judge, Gertner has ordered defense lawyers and prosecutors not to assume that evidence routinely accepted in the courts for decades is reliable. Defense lawyers, she wrote, should vigorously challenge fingerprints, bullet identification, handwriting, and other trace evidence, and prosecutors should be prepared to show it is valid.

“In the past, the admissibility of this kind of evidence was effectively presumed, largely because of its pedigree — the fact that it had been admitted for decades,’’ Gertner wrote in a March 8 order. “As such, counsel rarely challenged it, and if it were challenged, it was rarely excluded or limited.’’

That needs to change, she said. A critique last year by the National Academy of Sciences, she noted, concluded that forensic evidence used to convict thousands of defendants for nearly a century is hardly the infallible proof of police procedurals on television. Too often, the study found, it is the product of sloppy practices that should be improved and standardized.

Spurred by the report and criminal cases she has presided over, Gertner wrote that the validity of such evidence “ought not to be presumed’’ and that defense attorneys should contest it at pretrial hearings, or explain why they do not. She will allow the evidence to go before a jury only if it meets sound scientific principles.

Defense lawyers and advocates for people who have been wrongly convicted of crimes welcomed Gertner’s order.

“It’s a wakeup call not only to other judges and to prosecutors but frankly to defense attorneys who for years — despite the rising tide of scientific reports indicating that many of the so-called tried-and-true disciplines were not in fact so true — rarely did their homework to mount serious challenges,’’ said Peter Neufeld, a cofounder of the New York-based Innocence Project. The nonprofit group uses DNA evidence to exonerate wrongly convicted prisoners.

Neufeld, who testified before the panel of scientific and legal experts that produced last year’s report on forensic evidence, said a recent study he co-wrote for the Virginia Law Review found that flawed forensic testimony contributed to 60 percent of 137 wrongful convictions later overturned through DNA evidence. That makes misapplied forensic evidence the second-leading cause of wrongful convictions, behind eyewitness misidentification, he said.

A spokeswoman for US Attorney Carmen M. Ortiz of Massachusetts declined to comment on Gertner’s order.

Jennifer Mnookin, a professor at UCLA’s School of Law and leading scholar on expert and scientific evidence, said she was unaware of any other federal judge who has issued such an order, although judges have refused to let shaky scientific evidence go before juries after pretrial hearings.

Mnookin said forensic testimony is highly persuasive to juries but that the February 2009 study by the National Academy of Sciences, the nation’s most prestigious scientific body, underscored that the evidence often does not meet the basic requirements of good science.

The Recorder, a Law.com member publication covering California, Kate Moser reports, "S.F. Public Defender Applies Pressure in Crime Lab Scandal."

San Francisco Public Defender Jeff Adachi on Thursday called for an independent crime lab in San Francisco in the wake of an evidence-tampering scandal at the police department's crime lab.

He also called on the district attorney's office to entirely drop cases touched by the scandal.

"I think these cases should be dismissed," Adachi said Thursday at his second news conference in a month dealing with the crime lab. "The prosecutors should move on."

The DA's office has already dismissed more than 350 narcotics cases since the crime lab scandal broke earlier this month, but prosecutors are hoping to refile them after drug evidence is retested.

"We will not be forced into dismissing cases because of timelines put in place by the defense bar or because of political expediencies," a spokesman for the office, Assistant District Attorney Brian Buckelew, said in an e-mail.

Adachi also contended that the DA's office has been slow to hand over information about what cases could be affected by Deborah Madden, the crime lab employee who allegedly stole cocaine from the lab. In particular, he wants a list of the cases with evidence that was analyzed by Madden.

Buckelew disagreed that the prosecution has been dragging its feet. In one narcotics case in front of Judge Anne-Christine Massullo, he said, the DA's office has turned over its entire file and the police department's file for in camera review. The office is also in the process of assembling a "voluminous" log of the crime lab documents it has provided to the court, he added.

Adachi drew a parallel to a similar San Francisco crime lab scandal that unfolded in 1994, when lab officials caught criminologist Allison Lancaster fudging drug test results.

Adachi has retained former crime lab Director Jim Norris, who was running the lab during the Lancaster scandal, to weigh in on what should be done now.

Norris said that it wouldn't be difficult to come up with a list of potentially tainted cases for the public defender.

"It's very easy to segregate these cases," Norris said. "You just have someone go through and pull all the cases where testing was done by the analyst in question."

Related posts are in the crime lab and forensics indexes; more on the NAS report, here.

More on Death Penalty Cost

"Just or Not, Cost of Death Penalty Is a Killer for State Budgets," is the title of a FOX News report by Ed Barnes.

Capital murder trials and death row boondoggles are wreaking havoc on budgets across the country as many states are now rethinking the death penalty, which is enormously costly and rarely imposed even after successful prosecutions.

Every time a killer is sentenced to die, a school closes.

That is the broad assessment of a growing number of studies taking a cold, hard look at how much the death penalty costs in the 35 states that still have it.

Forget justice, morality, the possibility of killing an innocent man or any of the traditional arguments that have been part of the public debate over the death penalty. The new one is this:

The cost of killing killers is killing us.

"There have been studies of costs of the death penalty before, but we have never seen the same reaction that we are seeing now," says Richard C. Dieter of the non-partisan Death Penalty Information Center. "Perhaps it is because governments are looking for ways to cut costs, and this is easier than school closings or layoffs, but it sure has hit a nerve."

In the last year, four states — Kansas, Colorado, Montana and Connecticut — have wrestled with the emotional and politically charged issue. In each state there was a major shift toward rejection of the death penalty and narrow defeats for legislation that would have abolished it. In Connecticut, both houses actually voted in favor of a bill that would have banned executions, but the governor vetoed it.

Unlike past debates over executions, the current battles are fueled largely by the costs the death penalty imposes on states. The numbers, according to the studies, are staggering.

Overall, according to Dieter, the studies have uniformly and conservatively shown that a death-penalty trial costs $1 million more than one in which prosecutors seek life without parole. That expense is being reexamined in the current budget crisis, with some state legislators advocating a moratorium on death-penalty trials until the economy improves.

An Urban Institute study of Maryland's experience with the death penalty found that a single death-penalty trial cost $1.9 million more than a non-death-penalty trial. Since 1978, the cost to taxpayers for the five executions the state carried out was $37.2 million dollars — each.

And:

But no state matches the dilemma of California, where almost 700 inmates are sitting on death row and, according to Natasha Minsker, author of a new report by the Northern California chapter of the American Civil Liberties Union, few will ever actually be put to death. In fact, she says, the odds against being executed are so great, murder suspects in California actually seek the death penalty because it is the only way to get a single room in the state's prison system.

"Only 1 percent of people sentenced to death in California in the last 30 years have been executed," Minsker said. "The death penalty in California is purely a symbolic sentence."

Her study found that the cash-strapped state could immediately save $1 billion by eliminating the death penalty and imposing sentences of life without parole. The alternative, if the cash-strapped state keeps the death penalty: spend $400 million to build a new death-row prison to house the growing number of prisoners.

Related posts are in the cost index.

Death Penalty Process Must Be Fair

That's the title of commentary in today's National Law Journal by former Texas Governor Mark White.  He's writing about the Charles Dean Hood case.  It's subtitled, "The high court should right the wrong in the Hood case, stemming from the judge's and prosecutor's affair."

I'm a longtime supporter of the death penalty, but what's happening in Charles Hood's case in Texas isn't right. If we are going to have the death penalty, we need to make sure that the process is fair and accurate.

The Texas Court of Criminal Appeals (the state's high court for criminal cases) recently granted a new sentencing hearing for Hood on a technical issue related to jury instructions but has refused to address the central issue in this case: The judge and the prosecutor at Hood's trial had a long-term secret affair prior to the trial and concealed the relationship for 20 years. This was a secret that the pair kept even when they knew Hood was on the brink of execution and was trying to verify the rumors of the relationship.

The trial judge and the prosecutor did not come forward voluntarily or abide by their ethical or constitutional duties to divulge this information. Indeed, they denied it or refused to cooperate when asked directly about the affair by Hood's counsel five years ago. Their admissions came only when they were forced by a Texas trial court to testify under oath in 2008.

Now that the world knows the truth and the state courts have failed to correct this injustice, it's imperative that the U.S. Supreme Court intervene in Hood's case and grant him a new trial with an impartial judge and an ethical prosecutor.

The trial judge and the prosecuting attorney's affair breaches every standard of fairness that you would expect a defendant to receive during a capital case or, for that matter, a noncapital case. Hood could not have gotten a fair trial under these circumstances. His trial was infected with an incurable conflict of interest.

And:

The harm to Hood is obvious, but the damage does not stop there. If the system fails to correct itself, it will deliver a blow to public confidence that cannot be easily remedied. Citizens can rightfully wonder how many other defendants were denied their right to a fair trial because the presiding judge and the prosecuting attorney concealed the true nature of their relationship.

People often mistake criticism of death penalty procedures for opposition to the death penalty across the board. I believe that the death penalty is appropriate for the most heinous crimes, those in which 21st ­century forensics or other probative evidence prove the defendant is guilty beyond a reasonable doubt, and after constitutional safeguards have been carefully observed.

Finally:

There's only one thing that can cure an unfair trial. That's a new trial. This time, it should be a fair one.

Mark White served as both attorney general and governor of Texas.  Texas' first post-Furman execution occurred while he was AG.  During his tenure as governor 19 men were executed in the state.

Earlier coverage of the Hood case begins with this post; all coverage available through the Charles Dean Hood index.

Status of Delaware Lethal Injection Litigation

"Delaware courts: Death row inmates seek review," by Sean O'Sullivan is at Delaware Online today.

The federal lawsuit that delayed all Delaware executions for almost four years could be going to the U.S. Supreme Court.

Attorneys representing Delaware's death-row inmates said Thursday they will be seeking a review from the nation's highest court in the coming weeks.

The announcement comes after the U.S. 3rd Circuit Court of Appeals this week denied a request to review and revisit its Feb. 1 ruling, which allowed executions in Delaware to resume, effectively ending the case at the appeals court level.

With that ruling, the death-row plaintiffs now have 90 days to file a petition with the U.S. Supreme Court.

Attorney General Beau Biden said Thursday that this latest appeal effort is not expected to stop any executions in the state from going forward.

The only reason no executions have been scheduled since the Feb. 1 ruling is because no death-row inmate has completely exhausted his legal options, according to state officials.

Should any capital cases reach the end of their appeals in the next 90 days, "We expect that no state court will be prohibited from setting a date [for execution]," Biden said.

Attorneys for Delaware's 18 death-row inmates, however, have asked the appeals court to delay issuing its "mandate" to Delaware, a move that, if approved by the court, could once again put executions on hold.

The case, which was later turned into a class-action lawsuit on behalf of all Delaware's death-row inmates, was originally filed in May 2006, alleging that the way Delaware carried out lethal injections amounted to unconstitutionally cruel and unusual punishment.

Earlier coverage from Delaware begins with this post; related posts, in the lethal injection index. 

Opinion Roundup

Today's Houston Chronicle carries an OpEd by attorney George Parnham, "HPD a forward-thinking leader in mental health."  Parnham represented Andrea Yates.  He and his wife, Mary, founded the Yates Children Memorial Fund with Mental Health America of Greater Houston to promote women's mental health education.

As our nation continues to debate the merits of federal health care reform, Houstonians should realize that we have our own health care debate happening right here at home. It involves the people living with mental illness who cycle in and out of our publicly funded emergency rooms, jails and mental health crisis facilities with little hope of stabilization.

While a part of this problem involves a basic lack of access to mental health services, many of these individuals, called “frequent fliers” by law enforcement and medical personnel who have constant contact with them, have simply been receiving the wrong kinds of services. They are victims of our state's crisis-driven system, which provides temporary and limited emergency care for people experiencing a mental health crisis but often fails to provide ongoing community-based services that keep them stabilized and out of expensive acute-care facilities.

While this is a problem faced throughout our state, Houstonians should know that several of our local leaders at the county, city, state and federal levels have stepped up and taken leading roles in addressing this serious public health issue. These individuals, too numerous to name here, should be commended.

An example of this local leadership is the Houston Police Department's Chronic Consumer Stabilization Initiative, or CCSI. HPD's mental health unit, in collaboration with the Mental Health and Mental Retardation Authority of Harris County and the Houston Department of Health and Human Services, implemented the CCSI as a pilot program in February 2009. The program provides intensive case management for the 30 individuals with a serious and persistent mental illness who have the most frequent encounters with HPD, and its main goal is to divert these chronic individuals away from their routine and repetitive encounters with law enforcement, provide them with opportunities to lead a more stabilized life and reduce excessive calls for service to the 911 system.

HPD recently issued its final report of the six-month CCSI pilot. Involuntary commitments for the 30 people were reduced by 76.4 percent while offense reports and calls for service involving these 30 decreased by 67.3 percent at a total cost of less than $3,900 per person. In contrast, an average stay at the Harris County Psychiatric Center, which is about 10 days, costs about $3,525 per person. In addition, the number of hours HPD officers spent dealing with this particular group was reduced by almost one-third, meaning officers were better able to deal with other calls for service and criminal activity.

Related posts are in the mental illness index

San Antonio Express-News columnist Kathy Clay-Little writes, "Justice is about more than conviction rates," in today's paper.

It had been almost 10 years since Joyce Ann Brown walked out of a Texas prison after serving most of the previous decade for a crime she did not commit.

Yet her tears flowed as freely as if she had been released yesterday; her pain was just as palpable, it seemed, as it was during the years she lived her tragic ordeal.

The man I interviewed on my radio program had been freed by DNA evidence 17 years earlier, but you couldn't tell 17 years had passed by the rivulets of tears coursing down his face. He seemed unaware of them as he talked about the need for a criminal justice system that cared as much about justice as it did conviction rates.

At least he got out alive.

Timothy Cole did not get out alive. Cole, an Army veteran who was enrolled at Texas Tech University in Lubbock, died halfway through a 25-year sentence for a rape that posthumous DNA evidence and the finally heard confession from the real rapist confirmed he did not commit. Ironically, Cole died of a chronic illness — asthma — that should have caused reasonable doubt as to whether he committed the crime of which he was accused.

Cole's asthma was so bad that it manifested itself when he was around smokers; the rape victim told detectives that the man who raped her chain-smoked.

And:

The knowledge that Texas' justice system so thoroughly failed Cole — and the rape victim, too — should spur people of conscience to commit themselves to building a justice system that not only convicts the guilty but also protects the innocent. It begins with electing governors, lawmakers, judges and district attorneys whose first commitment is to justice for the innocent.

More on Timothy Cole is here.

What If Jesus Had Been Tried Under Texas Law?

That's the title of Michael Landauer's post at the Dallas Morning News Death Penalty Blog.  LINK 

It's a conversation with Baylor Law prof Mark Osler's, Jesus on Death Row: The Trial of Jesus and American Capital Punishment., noted here.  An abbreviated version will appear in the Sunday Morning News Viewpoints section.

Here's an excerpt from this must-read:

Landauer: You staged the trial of Christ under the laws of Texas at a Baptist Church in Waco as an untenured professor. What surprised you most about how that experience played out?

Osler: Among many surprises, one of the most striking was the willingness of people in the congregation to consider this very old question in a new light. Many, if not most, had not thought about the modern death penalty in the context of Christ's execution, but once that idea was presented, even those who had participated in capital murder juries (there were two in that congregation) eagerly engaged in the exercise. This is consistent with what I have seen generally in talking about the book -- people of faith who may disagree with me have been uniformly warm and receptive to genuine and heartfelt discussion, largely because it is a debate in which we begin with a common set of beliefs about the source of all knowledge.

Landauer: Given that there is generally a lack of discussion on this issue in Texas, then, do you see people of faith as possibly playing a major role? Should this discussion be taking place in more faith communities?

Osler: Given the prominence of this issue in Texas, it of course should be part of what faith communities talk about, given that our faith instructs us as individuals when we engage with the world. This is an issue, too, where there is more than one principled position, and there are people of faith I greatly respect on the other side of this debate. When we talk about our society choosing to kill our own citizens, we are talking about a moral issue, and people of faith so often lead the way in those discussions. In fact, people of faith have already done so, especially within the Catholic church; I am struck by how important this issue is to many Catholics, and humbled by the sincerity with which they wrestle with these questions.

And:

Landauer: You say in the book that Pilate believed Jesus was innocent, yet, at the end of an abbreviated (by modern standards) appeals process, he bows to public pressure. In modern-day Texas, is it merely public pressure that makes claims of actual innocence not enough? Or are there systemic reforms that are needed?

Osler: As a Christian, the systemic reform I seek is the abolition of the death penalty. I do not have the moral authority to participate in state-sponsored executions or the process leading up to them; really I am the modern-day equivalent of one of the people in John 8 who wandered away with a stone still in his hand after being challenged by Christ. Moreover, the same instincts that led to the wrongful execution of Christ are still inside of us, and that in itself is a reason to pause when considering this issue. God gave us only one Son, and each moment of Jesus' life is fraught with meaning; nothing less is true of those moments Jesus spent as a criminal defendant, and those moments like the others throw great challenges at the conventions of our world.

Related posts are in the books and religion indexes.

In Georgia

A split Georgia Supreme Court is allowing a long-delayed capital trial to proceed.  Defense attorneys had attempted to strip the death penalty from the case due to funding delays.

The Court's 4-3 ruling in Weis v. The State is in Adobe .pdf format.

Today's New York Times reports, "Murder Case May Proceed in Georgia," written by John Schwartz.

A divided Georgia Supreme Court will allow a capital murder case to go forward despite the defendant’s claims that a lack of state financing for death penalty lawyers deprived him of access to effective counsel and a speedy trial.

Jamie Ryan Weis, now 32, was arrested in February 2006 and charged with killing Catherine King, 73, in a robbery. Prosecutors sought the death penalty.

The trial court appointed two defense lawyers with death penalty experience, who began investigating the case. But the agency that pays for defense lawyers in death penalty cases could not pay them.

The original lawyers were replaced with salaried public defenders, who do not usually work on capital cases. Those lawyers asked to withdraw, saying they did not have the time, financing or qualifications to properly pursue a death penalty case. Mr. Weis argued that he should have had the first legal team, and refused to work with the second.

The fight continued for the next two years; in that time, Mr. Weis’s mother, who was expected to testify on his behalf, died.

Justice Harold D. Melton, writing for a four-justice majority, found that the trial delay was “brought about by Weis and his attorneys, and not the funding issues.” Countering arguments that there had been a “systemic breakdown in the public defender system,” he said, “There are still attorneys within that system who are available to represent the criminal defendant.”

In dissent, Justice Hugh P. Thompson wrote that the Constitution requires that Mr. Weis receive a “vigorous defense,” and that Georgia “cannot shirk this responsibility because it is experiencing budgetary constraints.”

Bill Rankin writes, "State high court rejects request to bar death penalty," for the Atlanta Journal-Constitution.

The Georgia Supreme Court on Thursday narrowly rejected a bid to bar prosecutors from seeking the death penalty against a defendant who has sat in jail for more than three years awaiting trial because there has been no money for his defense.

The 4-3 ruling said the state did not violate Jamie Ryan Weis' right to a speedy trial and placed some of the blame on the defendant and his attorneys. Weis is charged with killing Catherine King, a 73-year-old Pike County woman, during a burglary in 2006.

The case had been closely watched because the court might have determined that Georgia could not afford the death penalty in times of budgetary crisis. But the court made no such determination. The appeal had asked the court to dismiss the charges or bar the state from seeking death, because Weis had been without lawyers for more than two years.

Justice Harold Melton, writing for the majority, said a lack of state funds to pay for Weis' defense contributed to some of the delay, but it wasn't the sole factor. "Weis' own behavior, and the behavior of his attorneys, also contributed to the delay," Melton said.

Melton also wrote that Weis asserted his right to a speedy trial too late -- after his own refusal to work with replacement lawyers and after his initial lawyers helped contribute to the case's delay.

In a forceful dissent, Justice Hugh Thompson disagreed.

Because Weis could not prepare for trial until he had funds for his defense, it would have been reckless for him to ask for a speedy trial, Thompson wrote.

"If the state wants to seek the death penalty against an indigent defendant, it must provide adequate funds for a full and vigorous defense," he wrote. "The state cannot shirk this responsibility because it is experiencing budgetary constraints."

Thompson added, "The bottom line here is that the state should not be allowed to fully arm its prosecutors while it hamstrings the defense and blames defendant for any resultant delay."

The cost of defending courthouse killer Brian Nichols in Fulton County so drained the state's public defender agency that it had to stop paying for Weis' initial lawyers. Weis was initially appointed private attorneys Bob Citronberg and Tom West to represent him. For the first several months, the state paid the lawyers, but it stopped as expenses mounted in the Nichols case.

And:

Atlanta lawyer Stephen Bright, who argued the case in Weis' behalf, said the court's majority "is completely wrong on the facts and wrong on the law."

Caldwell was going to give Weis "only token representation at a perfunctory trial where the outcome would have been a foregone conclusion," Bright said. "In upholding that, the Georgia Supreme Court majority abdicated its constitutional and moral authority to protect the right to counsel."

The AP report by Greg Bluestein is, "Ga.'s top court lets death penalty case go forward," via the Macon  Telegraph.

A divided Georgia Supreme Court on Thursday allowed state prosecutors to seek the death penalty against an inmate who claimed his right to a speedy trial has been violated because he has waited in jail for more than two years without an attorney.

The 4-3 ruling found that a lack of funding "was not the sole factor" that delayed the trial of Jamie Ryan Weis. The opinion, written by Justice Harold Melton, concluded that Weis played a key role in delaying the trial, too, when he refused to work with new public defenders appointed to represent him.

And:

The ruling was a victory for the cash-strapped public defender system, which has been targeted by a flurry of legal challenges from civil rights groups who claim it is failing its mission to provide adequate legal defense for Georgia's poor defendants. Among other complaints, they say the state failed to hire attorneys for 100 or so convicted inmates who are seeking to file an appeal.

Also:

Stephen Bright, who represented Weis in the appeals, said the court's ruling encourages a system where attorneys are "lawyers in name only" without funding or resources to investigate and defend capital punishment cases. He called the court's decision "'Alice in Wonderland' justice."

"The Georgia Supreme Court should have stood up and said to the Legislature, 'If you're going to pursue the death penalty, we need adequate defense funding,'" said Bright of the Atlanta-based Southern Center for Human Rights. "You can't provide all the money to the prosecution and not provide any to the defense and then say it's the defendant's fault."

Public Defender Standards Council director Mack Crawford could not immediately be reached for comment but he has long argued that the agency is doing the best it can to fulfill its constitutional duties while coping with stiff budget cuts.

The Weis ruling isn't the last that could determine how the state handles death penalty defenses. The court could soon issue a ruling in a capital case involving Khan Dinh Phan, who has been waiting in jail for almost five years for a lawyer to represent him on charges that he killed a man and his 2-year-old son in 2004.

Earlier coverage of the cost issue in Georgia begins with this post; related articles are in the indigent defense index.

Nebraska Legislators Reject Cost Study in Tie Vote

"Nebraska lawmakers turn down death penalty study," is the title of JoAnne Young's report in today's Lincoln Journal Star.

The Legislature split 22-22 Thursday on authorizing a $50,000 study of what it costs to have a death penalty in Nebraska, leaving the question of taxpayer costs unanswered for the time being.

Senators opposing the idea expressed concerns that such a study could gather accurate numbers and information.

A response to an inquiry on costs last year by Sens. Danielle Conrad and Jeremy Nordquist to Attorney General John Bruning said the attorney general's office had never tracked the expenditure of its funding on a case-by-case basis. It had never had a budget in which funds were specifically identified for capital punishment.

Opponents also discredited past studies on criminal justice issues and questioned whether knowing the costs would change anyone's mind about supporting or not supporting capital punishment.

Senators opposed to the death penalty have made it "very clear," they don't care about the costs, said Omaha Sen. Scott Lautenbaugh.

"It's going to cost us $50,000 and I wonder what we'll find out. And I wonder what we could have done with that $50,000, especially now," he said.

Omaha Sen. Brenda Council, who sponsored the bill (LB1105), said it is important that senators who decide public policy know as much as possible about the policy they are voting on.

Money has been an important topic of discussion in this year's session as senators look toward mounting budget shortfalls.

The Omaha World-Herald has, "Death penalty study rebuffed," by Paul Hammel.

The tight vote came after legislators approved two amendments, by votes of 30-13 and 28-17, giving an early victory to death-penalty foes in a solidly pro-capital punishment body of 49 senators.

Even some supporters of the death penalty said it was worthwhile to resolve an unanswered question in Nebraska: What exactly does it cost to put someone to death rather than lock them away in prison without possibility of parole?

But in the end, the bill was rejected.

Several senators, led by Scott Lautenbaugh of Omaha and John Harms of Scottsbluff, said they questioned whether accurate costs could be determined because agencies such as the Nebraska Attorney General's Office don't track precise expenses on such cases.

"You will struggle getting accurate data to do the comparisons here," Harms said.

Lautenbaugh said no matter what a study showed, it would not change minds about the death penalty in the Nebraska Legislature, which is solidly in favor of capital punishment.

And:

Lincoln Sen. Kathy Campbell, who supports the death penalty, said taxpayers deserve to know what it costs.

Omaha Sen. Steve Lathrop said other states are abandoning the death penalty because of its higher costs for prosecution and because of state budget problems.

"Today is not about whether you're for or against the death penalty but whether you want information so we can make an informed decision," Lathrop said.

He added that the Legislature studies things all the time and that proponents of the death penalty might be fearful of what a "credible study" might show.

Council said national studies have shown that the average death penalty case, including trial and execution costs, is between $1 million and $3 million, as opposed to about $500,000 for the average murder case involving a life sentence.

She added that between 1973 and 1999, only three of the 89 death-penalty trials in Nebraska resulted in an execution. Council said those death-penalty cases cost a total of $45 million, according to a state legislative study.

"Questions must be raised about whether the death penalty is a wise and efficient use of taxpayer dollars," she said.

Earlier coverage from Nebraska is here.

Additional News Coverage of the Hank Skinner Stay

Allan Turner writes, "Justices may opt to settle DNA issue," in today's Houston Chronicle.

The U.S. Supreme Court on Thursday stayed Skinner's execution to consider taking up his lawyers' writ of certiorari seeking review of a lower court's rejection of Skinner's civil rights request for such testing.

Skinner's lead attorney, Rob Owen of the University of Texas' Capital Punishment Center, called on the court to resolve the question, noting that, at present, five circuit courts allow civil rights claims, two do not and five others are undecided.

The New Orleans-based 5th Circuit U.S. District Court denied Skinner's request for DNA testing of bloody knives, material found beneath his victim's fingernails, rape kit samples and other items found at the crime scene in the Panhandle town of Pampa.

Skinner, 47, was condemned for the Dec. 31, 1993, murders of his girlfriend, Twila Busby, and her two adult sons.

Adam Gershowitz of the University of Houston Law Center said it is “very likely” the court will take up the case. “The issue has been brewing for a long time,” he said. “There's been a lot of controversy between the circuits. ... You need five votes to grant a stay and only four votes to take up a review.”

Prisoners wanting courts to order DNA testing can submit the requests in the form of habeas corpus filings or as Section 1983 civil rights claims. But, said Gershowitz, making habeas corpus claims for DNA testing at the federal level rarely is successful. That's especially true when petitioners attempt to introduce new issues that the defendant's lawyer failed to raise at trial.

Federal courts, he said, are loathe to second-guess lower state courts.

“They don't want to step in at the last minute and reverse a case, especially if the state court hadn't had an opportunity to look at all the issues,” Gershowitz said. “They consider it the petitioner's fault for not bringing up the issues earlier.”

At the heart of the controversy over civil rights appeals is whether the prisoner simply is seeking DNA testing of evidence or is demanding to be released from prison.

An effort to be set free typically would be presented as a habeas corpus case, Gershowitz said, while an effort only to obtain testing could be a civil rights case.

The proper route for seeking testing becomes less clear when a prisoner wants to obtain DNA testing in order to be freed from prison.

The BLT/Law.com has, "Justices Delay Execution, May Examine DNA Testing Issue," posted by Marcia Coyle.

The Supreme Court’s “11th hour” stay of execution issued last evening for a Texas death row inmate may give the justices another chance to revisit a key DNA testing question left unanswered last term.

The justices unanimously granted the delay one hour before Henry Skinner was scheduled to die for the 1993 murders of his girlfriend and her two adult sons. Skinner, who claims he is innocent, has sought DNA testing of bloody knives, material beneath the dead woman's fingernails, rape kit samples and other items found at the murder scene. The Court’s order will remain in effect until the justices act on Skinner’s petition for certiorari.

Skinner’s counsel, Robert Owen of the University of Texas School of Law, last night expressed relief in a statement, saying, “As a result of this action, the Court will have more time to determine whether to hear his appeal. This action suggests that the Court believes there are important issues that require closer examination. We remain hopeful that the Court will agree to hear Mr. Skinner's case and ultimately allow him the chance to prove his innocence through DNA testing.”

The main issue raised by Skinner that may have captured the Court’s attention is whether a state inmate seeking access to DNA testing of evidence may raise that claim in a Section 1983 civil rights action instead of a federal habeas petition.

In Skinner’s petition for review, Owen told the justices that seven of nine federal courts of appeals have approved of the civil rights vehicle. Two, including the U.S. Court of Appeals for the 5th Circuit which rejected Skinner’s claim, do not.

Last term, the civil rights versus habeas issue was raised in a case from Alaska -- District Attorney’s Office for the Third Judicial District v. Osborne. The Court decided Osborne on other grounds.

ABC News posted, "Down to His Final Meal, Hank Skinner Granted Stay of Execution in Texas Murder Case," by Eamon McNiff.

Hank Skinner never wavered in his insistence that he did not murder Twila Busby and her two sons.

According to toxicology tests, Skinner had taken a mixture of Xanax and alcohol and a nearly-lethal dose of codeine the night of the murders; Skinner claims he was passed out on Busby's couch at the time she was killed. An affidavit from Skinner's friend Howard Mitchell said that Mitchell found Skinner "out cold" when Mitchell arrived to take him and Busby to a New Year's party.

Skinner also maintained that the real killer was Busby's uncle, Robert Donnell, whom Skinner claimed was a violent man who had made unwanted sexual advances toward Busby earlier on the night of her death. Donnell was killed in a car crash in 1997.

In 2000, Skinner's case was picked up by a group of students from the Medill Innocence Project at Northwestern University in Evanston, Ill. Led by their teacher, David Protess, the students had already helped win stays of execution for 11 inmates on death row in Illinois by the time they took up Skinner's case.

They quickly began interviewing witnesses, including Andrea Reed, the prosecution's star witness at the time of the trial who said Skinner told her he killed Busby. Reed later recanted her testimony and told Protess' group she "felt pressured" by prosecutors to implicate Skinner, the group's report on the case says.

They also interviewed Donnell's widow, who they say claimed Donnell became violent when he drank. The report also says Donnell's neighbors claimed he wore a windbreaker similar to one found at the crime scene, and was spotted cleaning out his truck a few days after the murders.

The group's biggest find -- and the central point in Skinner's plea to have his case reexamined -- was DNA evidence never tested for trial, partly because Skinner's attorney at the time didn't want it.

Skinner's DNA was found at the crime scene, but Harold Cormer, his attorney at the time, said in reports then that he felt the samples would have implicated Skinner in the killings.

"It was obvious from the start that DNA would determine the truth of what happened in that house," Northwestern's Protess said today in an e-mail to ABC News.

Earlier coverage begins with the preceding post.

Editorials Praise Skinner Stay

Today's Wichita Falls Times Record News contains the editorial, "Beyond the shadow of doubt."

Skinner has long since declared his innocence — as doomed convicts typically do — and has requested that additional DNA testing be performed that could exonerate him. His lawyers, according to The Associated Press, want testing on several pieces of evidence gathered at the time of Busby’s autopsy, including vaginal swabs, fingernail clippings, a knife, a jacket found next to her body and any hairs not destroyed during previous testing. Initially, the AP reported, only hair had been tested, and the DNA findings were inconclusive.

Inconclusive should be enough to give officials pause.

Skinner’s appearance at the time of the murder must have been hard for a jury to forget. He was found splattered with the blood of at least two of the victims, hiding in the closet of a friend. That, a jury may suppose, aren’t the actions of an innocent man. Skinner was reportedly high on vodka and codeine at the time of the slaying, passed out on a couch and unable to club Busby 14 times.

But he was there.

Is he guilty, though?

Before Texas executes someone, we better be for darn sure.

At every step of his appeals process, courts have ruled against his request for additional DNA testing, with prosecutors long ago arguing he wasn’t entitled to testing of evidence not analyzed before his trial.

Not entitled to be for darn sure?

Skinner may very well be guilty of this brutal murder, and his execution could give the Busby family the closure many families need. They were climbing the steps leading up to the Huntsville, Texas, death chamber to witness the execution when the Supreme Court decision came down.

Then again, he may only be guilty of being at the wrong place at the wrong time.

Either way, what does the state of Texas have to lose?

If the testing confirms the conviction, he’ll face his fate.

If the testing exonerates him, we would have come inexcusably close to killing an innocent man.

In New York, the Watertown Daily News editorial is, "Death penalty: A reason for DNA testing."

The Supreme Court made the right decision in blocking the execution of a Texas man who has been refused DNA testing that could prove his innocence.

And:

"While I understand that Mr. Skinner was convicted of a brutal triple murder, remember that 11 other people on Texas' death row have been convicted of brutal murders over the years before they were exonerated," wrote Houston state Sen. Rodney Ellis in support of a stay.

Nationally, DNA testing has led to the reversal of hundreds of convictions, including inmates on death row. The same day the Supreme Court stepped into the Skinner case, a Broward County, Fla., man was exonerated of rape and murder after spending 26 years — more than half his life — in prison.

The high court's order does not mean it will take up the case, but the delay gives Texas authorities the time to reconsider their arbitrary refusal to give Skinner the chance he is asking for to prove his innocence.

Earlier coverage begins with this post; next, additional news coverage of the stay.

Oral Argument in Magwood v. Patterson

Yesterday, the Supreme Court heard Magwood v. Patterson, an Alabama death penalty case.  The transcript is in Adobe .pdf format.

Today's New York Times reports, "Court Weighs Timing of Death Row Appeal."  It's written by Adam Liptak.

As is his custom, Justice John Paul Stevens did not ask a question on Wednesday until the lawyer before him had almost finished his argument. When Justice Stevens did speak up, it was in a seeming effort to guide his colleagues on the Supreme Court toward what he considered to be the central argument advanced by the death row inmate in the case.

“Let me just ask,” Justice Stevens said, “is this the case in which the claim is he’s ineligible for the death penalty?”

Corey L. Maze, Alabama’s solicitor general, said that was so.

“The merits of the claim have never been decided?” Justice Stevens went on.

Mr. Maze said no, adding that the question should be left unresolved and that the inmate should be executed because his lawyers had raised the issue too late.

The other justices had been focused solely on that procedural question, and it was not clear whether Justice Stevens’s attempt to reorient their thinking had had any effect.

The inmate, Billy Joe Magwood, shot and killed an Alabama sheriff in 1979. At the time, Alabama law allowed defendants to be sentenced to death only if they had committed murders in connection with at least one of several listed “aggravating circumstances.”

Though Mr. Magwood’s crime did not fit any of those circumstances, he was sentenced to death in 1981. In 1985, a federal judge ordered Mr. Magwood resentenced for unrelated reasons, and he was again sentenced to death the next year.

Over the years, Mr. Magwood’s lawyers have challenged his sentence on various grounds, but it was not until 1997 that they raised the question of whether his was a capital crime under Alabama law in the first place.

A 1996 federal law, the Antiterrorism and Effective Death Penalty Act, imposes strict limits on successive federal habeas corpus petitions. Under the law, a second petition challenging Mr. Magwood’s original 1981 death sentence would almost certainly be barred.

But Jeffrey L. Fisher, a lawyer for Mr. Magwood, said his client was challenging his 1986 resentencing for the first time.

“You can’t waive something by failing to raise it in a different case,” he said. “This is an entirely different case.”

"Court to decide if man can fight death sentence," is the AP report by Jesse Holland, via Google News.

The Supreme Court on Wednesday questioned whether an Alabama death row inmate can challenge his second death sentence with an argument state officials said he didn't use when he was first sentenced to die for shooting a county sheriff.

Lawyers for Billy Joe Magwood want to argue that Alabama law was changed to make Magwood's crime a capital offense after it had already been committed.

Defendants aren't allowed to appeal using arguments that could have been brought in the original case, but Magwood's lawyers say that since he was sentenced to die a second time, he should be able to use a new argument in his second round of appeals.

"If it's the second time around, then it's just barred," Justice Anthony Kennedy said.

"Well, it shouldn't be barred. Because it's a new judgment, the defendant should be able to get relief the second time around," said Jeffrey L. Fisher, Magwood's lawyer.

Magwood, 58, has been on Death Row since 1981 for the shooting death of Coffee County Sheriff Neil Grantham in 1979. He got that death sentence thrown out, but then was resentenced to death.

A federal judge overturned the new death sentence after Magwood complained that state law was changed to make his crime a capital offense after it had already been committed. But the 11th U.S. Circuit Court of Appeals in Atlanta reinstated the death penalty, saying Magwood should have complained about the change in Alabama state law in his first round of appeals.

The Birmingham News has, "Some U.S. Supreme Court justices express reservations as Alabama Death Row inmate seeks new appeals opportunity," by Mary Orndorff.

Earlier coverage begins here.

Larry King Examines the Skinner Case and Greg Taylor's Recent Exoneration

Last night's Larry King Live on CNN examined the Hank Skinner case, as well as Greg Taylor's recent exoneration in North Carolina.  The transcript is here; video, here.  Some excerpts:

KING: Brandi, a reporter for "The Texas Tribune," this stay is only whether the court will consider it, right?

I mean they could, technically, in two days, vote as a group to not consider it, right?

BRANDI GRISSOM, REPORTER, "THE TEXAS TRIBUNE": That's right. It's an indefinite stay. So what the court is considering right now is whether or not they -- they feel there is a need for them to take up and intervene in this case.

KING: The technical question is DNA was not around at the time he was convicted and he wanted to introduce it later and that the lower courts denied that, is that right?

GRISSOM: Actually, the DNA was available at the time of his original trial in 1995. What happened was that, at that time, his original trial attorney decided not to have that DNA evidence tested. And I've spoken with that original trial attorney. His name is Harold Comer. He's still practicing in Pampa, Texas. And what he said was he was worried that having additional DNA tested at that time would further implicate Skinner in this case. And so he didn't ask for the testing on the evidence that Skinner is now asking to be tested.

KING: Well, then that's the crux of the case, right?

Why didn't Skinner...

GRISSOM: That's correct.

KING: -- since he's the client, why didn't he tell his lawyer, I want the DNA introduced?

GRISSOM: There's some dispute there about whether or not he did ask for the testing at the time. Skinner says that he did. His attorneys have a different answer. And they say that they -- that he agreed with them at the time that that testing shouldn't be done. So there's some dispute there about whether or not that testing was asked for at the time of the trial.

And:

And in New York, Nina Morrison, senior attorney with The Innocence Project. She's worked with "Hank" Skinner's legal team trying to get this DNA test. And, by the way, she just told me that The Innocence Project has gotten 251 inmates out of prison with DNA testing. That means they were incorrectly convicted.

But based on some of the evidence here, Texas authorities say that he was found close by wearing heavily bloodstained jeans and socks, bearing a gash on his right hand. Authorities also say blood on the shirt he was wearing at the time of the arrest was Twila's and her sons.

Nina, frankly, isn't that pretty incriminating?

NINA MORRISON, SENIOR ATTORNEY, THE INNOCENCE PROJECT: Well, you know, one thing we've learned at The Innocence Project through these 251 cases and counting is that no amount of speculation about a person's guilt can substitute for a DNA test. You know, people said a lot of the same things about Curtis McCarty, one of our former clients who you just saw, who is a free man today -- and innocent.

And really -- and I think that the Supreme Court stay will hopefully allow us to make clear, whether or not "Hank" Skinner is guilty or innocent, everyone agrees he should have an opportunity to prove that innocence through DNA testing before he's executed and the ultimate punishment is carried out.

And:

Greg Taylor is with us. He was convicted of murder and exonerated last month after serving 6,149 days. That's nearly two decades. Christine Mumma, Greg's lawyer, is here as well. She's director of the North Carolina Center for Actual Innocence. What freed him, Christine?

CHRISTINE MUMMA, CENTER FOR ACTUAL INNOCENCE: There was lots of evidence that we had to present to free him. We had to actually prove to the judges that he was innocent, not just not guilty, but innocent. We showed that there was some testing that was done in 1991, some evidence that was obtained from his truck that was reported to be blood. In actuality, it was not human blood. There were some witnesses who were very questionable, snitch testimony, that we had to call into question. And we had to basically relive that night with the judges. Go ahead.

KING: Has the killer been found?

MUMMA: Not yet. We're working on it. Raleigh police have reopened the investigation. We have information to share with them. We're hoping to do that next week.

KING: What was it like for you, Greg, to be in prison when you know you didn't do it?

GREG TAYLOR, WRONGLY IMPRISONED FOR ALMOST 20 YEARS: Well, it's kind of left me searching for a purpose, was the main thing. So the purpose that I found was to better myself throughout all those years and to fight my case.

KING: Did you always think you would get free?

TAYLOR: In my darkest moments, sometimes I thought I would spend the rest of my life in prison. But, for the most part, I held out the hope that eventually the truth would prevail.

KING: What do you make of the Skinner situation we've just been talking about?

TAYLOR: Well, I believe if there's evidence to be tested, that -- you know, that hasn't been tested yet, that it should be. I don't think anybody should be afraid of the truth.

King also talked with Skinner's wife, Sandrine Ageorges-Skinner:

AGEORGES-SKINNER: Hank has been denied DNA testing through the habeas process. His attorneys filed a complaint against the current Gray County D.A. because she's refusing to release the evidence to this current attorney for private testing.

Let's not forget that for 15 years, the defense has asked for DNA testing -- privately funded DNA testing. It's not going to cost the state anything.

KING: All right...

AGEORGES-SKINNER: Why would Hank be searching and asking for DNA testing for so long if he's guilty?

Earlier coverage begins with the preceding post.

Blog Coverage of the Skinner Stay

Retired Federal Judge H. Lee Sarokin posts, "Supreme Court Grants Stay of Execution of Henry Skinner," at Huffington Post.

It is difficult to imagine what it must mean for someone scheduled for execution to believe that they are innocent and that they are going to die nonetheless. One half hour before Henry Skinner was to be executed, the U.S. Supreme Court stayed his execution. I found myself sitting at the computer for hours waiting for a decision by the Court or the Governor. I cannot conceive what that same time period must have been like for Mr. Skinner.

I have been advocating, as have many others, that DNA testing should be conducted in his case either to exonerate him or confirm his guilt. Inconceivably, the prosecution and the Texas courts have rejected his petitions. Evidence exists that will either prove his innocence or his guilt, but he has consistently been denied access to that information.

Judge Sarokin's earlier writing on the case is noted here and here.

Shamai Leibowitz post's "Supreme Court Stays Execution of Skinner; Will They Take the Only Logical and Just Step and Grant Certiorari?" at his Pursuing Justice blog.

In an 11th-hour intervention, the Supreme Court today prevented the State of Texas from executing Hank Skinner, and issued a stay of the execution [Court order] to allow the Justices more time to consider whether to grant certiorari.

Thank God, the values of integrity, decency and justice prevailed in the minds of the Supremes. Our society has been spared, temporarily, the terrible shame of murdering a man despite nagging doubts of his guilt, caused by critically-important DNA evidence that was left untested.

More from Leibowitz on the Skinner case at Pursuing Justice.

At True/Slant, Steve Weinberg posts, "Texas did not execute Hank Skinner, but why is so much last-minute drama the norm?"

My point for today is this: Why has the practice of last-minute reprieves–or denial of reprieve requests–the norm? Why does anybody in a supposedly civilized society tolerate this way of doing business with death? Everyb0dy involved with the Skinner case knew about the execution date way in advance. Why not litigate the possibility of a reprieve and a new evidentiary hearing weeks ago, or at least a few days ago?

Skinner might seem like an unsympathetic character, and he might be guilty of murder or he might be innocent or he might fall somewhere in between–at the murder scene but not the murderer, for example. But why should he suffer from uncertainty about whether he will die by order of the Texas governor on the date scheduled for the execution? Why should the relatives and friends of the murder victims also suffer from such uncertainty?

There is no inexorable reason in the law or in common sense. Why should last-minute reprieves ever again be thought of as humane or logical?

His earlier post on the Skinner case is noted here.

Earlier coverage begins with the preceding post; next, Larry King's coverage

News Coverage of the Skinner Stay

There is a good deal of coverage on the Supreme Court's stay in Hank Skinner's case.  I'll break it out into the next several posts.  News coverage, here; blog posts, next; followed by a link to the Larry King Live transcript.

Again, the Supreme Court's order is available thanks to SCOTUS Blog in Adobe .pdf format.

Lyle Denniston expanded his SCOTUS Blog post, "Execution delayed in DNA case."

For ten years, his lawyers have said, he has sought access to DNA evidence that was never tested by prosecutors.   He filed his federal civil rights claim only after those efforts had failed, his counsel has said. Although prosecutors arranged for some DNA tests on some of the evidence, and used the results to  help convict Skinner, his attorneys contend that prosecutors only sought selective testing of crime scene materials.

In his petition for review, Skinner contended that he has a constitutional interest under state law in seeking to use evidence that would help prove his innocence, but that he has been frustrated in trying to vindicate that interest in state proceedings.   In addition, the petition argued that the conflict among lower courts on whether a DNA access claim can be pursued under civil rights law, or only under habeas law, has intensified since the Supreme Court agreed to examine that issue in the Osborne case last Term.  Thus, it said, the need for Supreme Court guidance is now “more urgent.”

Lawyers on both sides have completed all of the filings in the case on that issue, so the Court is expected to schedule it for Conference within a matter of weeks.  In the meantime, the postponement granted Wednesday will stay in effect until the petition is acted upon and, if granted, until it is decided.  If review is denied, the postponement will expire automatically and the state could then schedule execution anew.  If review is granted, a ruling would not be expected until next Term, starting next October.

Brandi Grissom, whose original two-part series on Hank Skinner (noted here) first brought attention to issues in the case, writes, "Skinner Gets a Stay," in the Texas Tribune.

All she could do was cry. The day after Kristen Keaton first met her dad, death row inmate Hank Skinner, the U.S. Supreme Court spared his life.

“I’m just so excited, and I thank God,” said the 26-year-old mother and accountant who lives in North Carolina. “I’m so relieved.”

Skinner was set to die Wednesday for the 1993 murders of his live-in girlfriend, Twila Busby, and her two mentally disabled adult sons — a massacre he says he did not commit. For more than a decade, Skinner has been asking Texas courts to test a slew of DNA evidence that was not analyzed during his 1995 trial. His entreaties have been repeatedly rejected. In the days before his death, Gov. Rick Perry’s office was inundated with thousands of letters from around the world requesting such testing. Some state lawmakers asked Perry to postpone the execution to allow for analysis of the evidence. But he didn’t have to act on Wednesday. About an hour before Texas officials were scheduled to push a poison cocktail through Skinner’s veins, the U.S. Supreme Court issued a stay.

Skinner got the news as he was eating his last meal at the Texas Department of Criminal Justice’s Walls Unit in Hunstville. Officials there said he was tucking in to a cheeseburger that was among the smorgasbord of items he ordered to eat before his execution: a salad with ranch dressing and bacon bits, Popeye’s chicken, fried catfish, onion rings and a chocolate milkshake. “I had made up my mind I was going to die,” Skinner said. “I feel like I really won today.”

The court issued an indefinite stay, but it did not agree to accept Skinner’s case. The court said it needed more time to review Skinner’s claims and to decide whether to intervene. “This action suggests that the court believes there are important issues that require closer examination,” said Rob Owen, Skinner’s attorney and co-director of the University of Texas School of Law's Capital Punishment Clinic. “We remain hopeful that the court will agree to hear Mr. Skinner’s case and ultimately allow him the chance to prove his innocence through DNA testing.”

Allan Turner writes, "U.S. Supreme Court delays Texas execution," for today's Houston Chronicle.

The stay will remain in effect until the high court rules on a second petition filed by Skinner's attorneys asking for a review of an appellate court decision denying a request for DNA testing of bloody knives, material beneath the dead woman's fingernails, rape kit samples and other items found at the murder scene. Skinner's request for testing was denied because it was filed as a civil rights claim.

Lead attorney Rob Owen of the University of Texas' Capital Punishment Center said in his petition for a writ of certioari that seven of the nation's nine federal circuit courts of appeal would have accepted a civil rights claim. Only two, including the Circuit Court of Appeals for the Fifth District, which turned Skinner down, would not.

"Death Row inmate gets last-minute reprieve," is the AP dispatch filed by Michael Graczyk, via the Fort Worth Star-Telegram.

Wednesday's order by Justice Antonin Scalia came about an hour before Skinner was scheduled to be taken to the death chamber. Scalia granted a delay until the full court decides whether to consider his appeal. The order does not ensure that Skinner will get the DNA testing.

Skinner's attorneys had asked the high court and Gov. Rick Perry to delay his execution in the hopes that DNA tests of semen and skin samples, as well as two bloody knives and a windbreaker, will clear him of the slayings on New Year's Eve 1993.

Neither Skinner's trial attorney nor the Gray County district attorney's office sought to have the evidence tested before his trial. In subsequent appeals, state and federal courts have ruled that if the evidence could have been tested then, Skinner has no right to ask for the testing now.

Skinner has sued Gray County District Attorney Lynn Switzer seeking DNA testing, which she has refused to do.

Perry has made no comment about Skinner's request for a stay. Asked about it on Friday in Fort Worth, the governor said he had not be briefed on the matter.

David Savage has, "Supreme Court stops execution of convicted killer in Texas," in today's Los Angeles Times.

The justices issued a stay of execution and said they wanted more time to consider Skinner's appeal. It will probably be several weeks before the court decides whether to hear his case.

Last year, the court ruled 5 to 4 that the Constitution does not give convicts the right to demand DNA testing of crime-scene evidence. The case, however, did not involve a prisoner facing execution.

The New York Times has a brief, "Texas: Condemned Man Gets a Stay," by James McKinley.

Lucile Malandain posts, "Supreme Court halts Texas execution," for AFP, via Google News.

Skinner, who has proclaimed his innocence since his arrest, claims that DNA testing on items that were not examined during his trial will clear him.

Earlier Wednesday the French ambassador in Washington contacted Texas Governor Rick Perry urging a stay of execution.

Both French President Nicolas Sarkozy and Foreign Minister Bernard Kouchner have expressed their support to Skinner's French wife, Sandrine Ageorges-Skinner.

"Our ambassador in Washington has contacted the governor of Texas to request a reprieve for Mr. Skinner and that his request for an additional inquiry be accepted," said foreign ministry spokesman Bernard Valero.

France abolished capital punishment in 1981.

CNN posts a lengthy examination of the case, "High court gives last-minute stay to condemned Texan."

State Sen. Rodney Ellis and state Rep. Elliott Naishtat were among those who have called for a reprieve.

"It has come to my attention that there are numerous problems with Mr. Skinner's case that raise serious questions regarding the fairness of his trial and whether or not he is guilty," Ellis wrote in a letter to Perry on Tuesday.

Earlier coverage begins with this post; next, blog coverage.

Statement From Hank Skinner's Attorneys

Rob Owen, Co-Director of the Capital Punishment Center at the University of Texas School of Law, has issued the following statement:

"We are relieved that the U.S. Supreme Court has intervened to prevent Mr. Skinner’s execution. As a result of this action, the Court will have more time to determine whether to hear his appeal. This action suggests that the Court believes there are important issues that require closer examination. We remain hopeful that the Court will agree to hear Mr. Skinner's case and ultimately allow him the chance to prove his innocence through DNA testing."

Earlier coverage begins with the preceding post.

BREAKING - Supreme Court Stays Hank Skinner Execution

The U.S. Supreme Court has stayed the execution of Hank Skinner.  He had been scheduled to be executed shortly after 6:00 pm, tonight, in Huntsville.  Skinner is seeking DNA testing of evidence in his case, which his lawyers say will demonstrate his innocence.

Earlier this week the Board of Pardons and Paroles rejected a reprieve for Skinner.  Governor Rick Perry had not acted on a request for a 30-day reprieve in the case when the Court issued a stay.

AP reports, "High Court Blocks Texas Execution," via the New York Times.

The Supreme Court has blocked the execution of a Texas man who says DNA testing could clear him of the triple slaying that has sent him to death row.

The justices' order Wednesday could allow Hank Skinner access to evidence that he says could demonstrate his innocence.

Lyle Denniston posts, "Execution delayed in DNA case," at SCOTUS Blog.

The Supreme Court on Wednesday evening delayed the execution in Texas of Henry W. Skinner, at least until the Court acts on his new case seeking to pursue a civil rights claim that he was denied a chance to have DNA evidence tested in an attempt to prove his innocence of a triple murder more than 16 years ago.  The Court’s order blocked an execution that had been scheduled for 7 p.m. Washington time.  The Court has not yet scheduled its consideration of his pending appeal (Skinner v. Switzer, 09-9000; his stay application was 09A743).

Skinner is seeking to raise an issue that the Justices had agreed to review last Term in District Attorney’s Office v. Osborne (08-6).  The Court decided the Osborne case on June 18, but left unresolved that specific issue.  The question is whether a state inmate seeking access to and testing of DNA evidence may pursue that claim under civil rights law (Section 1983), rather than in a federal habeas challenge.

Thanks to SCOTUS Blog, you can view the Court's order in Adobe .pdf format.

Earlier coverage begins with this post.  The Hank Skinner case and issues of DNA testing will be the topic of Larry King Live tonight on CNN at 9:00 pm (EDT), 8:00 pm (CDT).

In Alabama

Today's Birmingham News carries the editorial, "A committee in the Alabama House should vote in favor of a bill that would place a three-year hold on executions in the state."

With all the things that need to be fixed with Alabama's broken death penalty system, it ought to be a no-brainer for lawmakers to call a timeout on executions.

Members of the House Judiciary Committee have a chance today to advance a perennial piece of legislation which would do just that -- impose a three-year freeze on executions.

The House moratorium bill, sponsored by state Rep. Merika Coleman with the backing of a number of other Birmingham-area lawmakers, would put a hold on capital punishment to give the state an opportunity to address some of the more glaring problems with the death penalty.

To be specific, the bill would require the state to use the break to put in place the necessary safeguards to make sure the death penalty is applied fairly, that capital defendants get proper legal representation, and that people aren't executed for crimes they did not commit. It also would require the state to finally put its laws in line with U.S. Supreme Court rulings that forbid the execution of people with mental retardation and people who were juveniles when they committed a capital crime.

There's every good reason for the Judiciary Committee to approve this bill so the full House can consider it. So, too, the Senate Judiciary Committee, which has passed a similar bill several times but has not yet voted this year on the moratorium bill sponsored, as always, by Sen. Hank Sanders of Selma.

This newspaper does not support the death penalty, but believes if the people of Alabama continue to support its use, steps must be taken to address the worst of its practices. Indeed, the moratorium bill ought to be something even those who favor capital punishment can back without shame.

And:

The state needs to take a break and make sure, at the very least, that it is getting it right in inflicting a punishment that can't be undone. The House Judiciary Committee can take the first step today with a vote for the moratorium.

The current issue of Lagniappe reports, "Indigent Defense Reform on the Way?"  It's by Peter Teske.  It's a must-read for followers of indigent defense.

Last year Mobile County’s top-earning indigent defense attorney, Habib Yazdi, billed the state $267,193 for 523 cases, according to state comptroller records. But claims like Yazdi’s containing plump sums earned solely from representing the poor might be a thing of the past if the Alabama State Senate can get Senate Bill 497 through the committee where it currently sits.

The bill, sponsored by Sen. Roger Bedford (D-Russellville), among several other objectives, proposes to amend existing law by creating a state level 14-member Alabama Indigent Defense Commission, an office of Indigent Defense Services and 41 five-person indigent defense advisory boards in each of Alabama’s judicial circuits.

“Judge (Sue Bell) Cobb asked me to introduce it. I’ve been introducing it for the past two or three years,” Bedford said. “We’ve got to the spark conversation.”

A conversation would likely involve the groups created working together to determine the best delivery of indigent defense on a county-by-county basis, according to John Pickens, the executive director of Alabama Appleseed Center for Law and Justice.

“Basically the local indigent defense advisory board — which is made up of five members within each circuit — that if those five members agree on a particular method of delivery of services and then if three members of the (state level) commission agree with them, then that would be the system used in that particular circuit,” Pickens said. “In the bill it provides that people who serve on this (the commission) have substantial experience in criminal defense and are committed to indigent defense services.”

Under the current system, in the majority of Alabama’s circuit judges appoint attorneys who volunteer to provide their services to the indigent. Accordingly, the circuit’s presiding judge must approve subsequent billing of services, which are then paid for by the state and processed by the state comptroller’s office. Just fewer than 10 counties in Alabama have public defenders’ offices. Auditing the bill of service statements is left to each individual circuit’s presiding judge.

Earlier coverage from Alabama is here and here.

Tonight - Larry King Live to Feature Skinner Case & DNA Testing

Larry King Live appears on CNN at 9:00 pm (EDT), 8:00 pm (CDT).

Death Row Inmate's Last Request!

A death row inmate scheduled to be executed in hours has one last request: Don't kill me until you test my DNA! He says it will prove his innocence in the murders of three people. We're live outside the death chamber.

CNN has also posted, "Texas inmate awaiting last-minute stay of execution seeks DNA test."  It's written by Ashley Hayes and William Mears.

Texas state lawmakers are among those calling for a last-minute reprieve for a condemned inmate who is requesting DNA testing of evidence, even as he is set to die Wednesday night.

Henry "Hank" Skinner, 47, is scheduled to be executed by lethal injection at 6 p.m. (7 p.m. ET) for the New Year's Eve 1993 murder of his live-in girlfriend, Twila Busby, and her two sons, Elwin Caler, 22, and Randy Busby, 20, in Pampa, Texas.

"Since his arrest in the early morning hours of January 1, 1994, Mr. Skinner has always and consistently maintained that he did not commit the crimes for which he was convicted," defense attorney Robert Owen wrote this month in a 30-page letter to Texas Gov. Rick Perry, seeking a 30-day reprieve of Skinner's execution.

Skinner's attorneys maintain that DNA testing of the evidence could establish his innocence and determine the real killer.

The U.S. Supreme Court is expected to issue a ruling on a stay of execution in the case Wednesday. If the high court denies Skinner's request to review the case, the decision falls to Perry, according to David Protess, a Northwestern University professor and director of the university's Medill Innocence Project, which has investigated Skinner's case.

On Monday, the Texas Board of Pardons and Paroles recommended Perry reject a reprieve for Skinner on a unanimous vote and also voted against granting Skinner's request for a commutation of his death sentence.

State Sen. Rodney Ellis and state Rep. Elliott Naishtat both sent letters to Perry on Tuesday urging him to issue the reprieve.

And:

Recently, questions have swirled in Texas regarding the 2004 execution of Cameron Todd Willingham for a fire that killed his three daughters. And on March 19, Perry issued a posthumous pardon to the family of Timothy Cole, who was serving a 25-year sentence for aggravated sexual assault when he died in prison from an asthma attack.

Ed Brayton posts, "In Texas, Only the Dead are Innocent," at Science Blogs.

On Wednesday at 6 pm CDT, the state of Texas is going to put Hank Skinner to death for killing his ex-girlfriend and her two sons. But there is good reason to believe that Skinner is innocent of the crimes he has been convicted of. And there is DNA evidence available from the crime scene that was never tested.

Hank Skinner is to be put to death on Wednesday night at 6 pm CDT. Perry has consistently ignored pleas from innocence advocates to put that execution on hold so that DNA evidence can be tested. And the Supreme Court, at the urging of the Obama administration, ruled earlier this year that he has no constitutional right to have it tested even though it could prove his innocence.

I guess you only get to be innocent after you're dead in Texas.

Earlier coverage begins with this post from earlier today.

Maryland Legislation

John Wagner posted, "Death penalty bill sought by Md. Senate president seems derailed," yesterday afternoon at the Washington Post Maryland Politics blog.

Death penalty opponents appear to have derailed a bill sought by the Maryland Senate president that would have loosened rules passed last year on prosecuting capital cases.

Under the year-old law, prosecutors can now seek the death penalty only when at least one of three kinds of evidence are available: biological or DNA evidence; a videotaped confession; or a video recording linking the defendant to the crime.

A bill co-sponsored this year by Senate President Thomas V. Mike Miller Jr. (D-Calvert) would add fingerprints and photographs to the categories of acceptable evidence. Death penalty opponents have fought the bill, saying it was a step in the wrong direction after Maryland adopted some of the tightest restrictions in the nation.

During a Judicial Proceedings Committee voting session late last week, Chairman Brian E. Frosh (D-Montgomery) -- an opponent of capital punishment -- successfully added an amendment to the bill that would change the standard juries use when imposing the death penalty.

Under current law, juries must conclude by a "preponderance of the evidence" that aggravating factors (such as committing murder while committing another felony or murdering multiple people) outweigh mitigating factors (such as a defendant's history of abuse as a child). Frosh's amendment, which passed the committee 6 to 5, would raise that standard to "beyond a reasonable doubt."

With Frosh's "poison pill" amendment attached to the legislation, few on the committee wanted both parts of the bill. A vote on the entire bill, whose primary sponsor is Sen. Norman R. Stone Jr. (D-Baltimore County), failed on a 9 to 2 vote.

This morning, Aaron Davis updates with "Death penalty bill sought by Miller, others derailed," also at the Post Maryland Politics blog.

A bill co-sponsored this year by Senate President Thomas V. Mike Miller Jr. (D-Calvert) ... would add fingerprints and photographs to the categories of acceptable evidence. Death penalty opponents have fought the bill, saying it was a step in the wrong direction after Maryland adopted some of the tightest restrictions in the nation."

Earlier coverage from Maryland is here.

What the Blogs Are Saying About Hank Skinner's Case

Radley Balko posted, "Hank Skinner Scheduled for Execution Tomorrow," yesterday afternoon at his Hit & Run blog at Reason.

As noted earlier today, tonight I'll be moderating a panel that will discuss the case of Cameron Todd Willingham, the Texas man executed in 2006 who critics say was innocent.

Coincidentally, unless the U.S. Supreme Court or Texas Gov. Rick Perry intervene, Texas will execute Henry "Hank" Skinner tomorrow. The Medill Innocence Project has raised serious questions about Skinner's guilt. In Skinner's case, there is untested crime scene DNA evidence that could either confirm his guilt, strongly suggest his innocence, or call his guilt enough into doubt to merit halting his execution. For eight years, prosecutors have refused to allow the evidence to be tested, and have to this point been backed by both Texas and federal appeals courts.

I wrote about Skinner's case last month.

At CounterPunch, Dave Lindorff posts, "Texas Set to Execute Another Possibly Innocent Man."

The bloody-minded, death-obsessed state of Texas, which has already demonstrably executed at least one innocent man, Cameron Todd Willingham (who was falsely accused and ultimately killed by the state for the alleged arson “murder” of his two little children when in fact they’d died because of a fire caused by an electrical fault), may be about to execute yet another innocent man.

This time it’s Hank Skinner, 47, a man who has spent 16 years on the state’s busy death row protesting his innocence in the 1993 New Year’s Eve murder of his girlfriend, Twila Busby, and her two sons, aged 20 and 22.

The thing about Skinner’s case is it would be relatively easy to prove whether or not he was really the killer of the three. There are two bloody knives that have never been tested for Skinner’s DNA--or for the DNA of Twila’s uncle, the man who had reportedly made several unwanted sexual advances at her earlier that evening, leading her to leave a party early, and who Skinner claims is the real killer. Nor was semen that was found on Twila Busby, who was raped, or skin found under her fingernails, ever DNA tested to see who they belonged to.

And:

To take action on this outrageous case, and call on Gov. Perry to grant Skinner’s reasonable request to have the evidence in his case DNA tested, go here to write to Gov. Perry.

Liliana Segura posts, "With DNA Still Untested, Texas Prisoner Hank Skinner Scheduled to Die Tonight," at AlterNet.

Skinner sits on death row for the 1993 murder of his girlfriend, Twila Jean Busby, and her two adult sons, who were stabbed to death on New Years Eve. Subsequent investigations into his case, however, have revealed alarming evidence that Skinner could be innocent of the crime. (Read about the case in detail here.)

“In more than twenty years of investigating and researching possible wrongful convictions, I have rarely seen a case this circumstantial and shaky in which the prisoner was actually guilty,” says Medill Innocence Project Director David Protess.

Many Texans share his alarm.

“The state’s determination to execute Hank Skinner tomorrow should make even death-penalty supporters go pale,” the Dallas Morning News wrote in an editorial yesterday.

And:

Unfortunately, as we have seen again and again and again and again, Rick Perry has never let concerns over innocence get in the way of a good execution. With 212 executions under his belt, killing Hank Skinner tonight will be business as usual.

At True/Slant, Steve Weinberg posts, "Will the state of Texas execute an innocent man?"

The Skinner case from Texas is omnipresent in news coverage this week. Will the state of Texas execute a Death Row inmate who has proclaimed his innocence, and who has persuaded lots of smart people that a wrongful conviction occurred? Or will Texas uphold the standard of finality woven in to the fabric of the criminal justice system? Finality proclaims that after a jury and judge have spoken, it’s time to close the case and move on to so many others needing attention.

Learning about any criminal prosecution in depth usually takes months or years for a conscientious journalist. The files proliferate, and the information is often contradictory. I lack that huge amount of time to study the Skinner conviction before his Wednesday execution–a dying date for sure unless the United States Supreme Court intervenes.

I (and others who study the causes of wrongful convictions) can offer Texas officials simple advice, however, if they want to halt the death penalty machinery and commission an in-depth review of the Skinner conviction.

Earlier coverage begins with the preceding post.  More on the panel that Radley Balko moderated last night is here.

Legislators Urge Reprieve

Hank Skinner is scheduled to be executed shortly after 6:00 pm, tonight, in Huntsville.  Thanks to the Texas Tribune you can read the letters from Rep. Elliott Naishtat and Sen. Rodney Ellis.  Both are in Adobe .pdf format.

Brandi Grissom posts, "Lawmakers Urge Perry to Grant Skinner Reprieve,"  at the Texas Tribune.

State Sen. Rodney Ellis, D-Houston, and state Rep. Elliott Naishtat, D-Austin, wrote Gov. Rick Perry letters today urging him to grant a 30-day reprieve for death-row inmate Hank Skinner, who is scheduled for execution tomorrow.

And:

As the hours wind down to his execution, Skinner and his attorneys are awaiting decisions from Perry and from the U.S. Supreme Court. They've asked both to postpone the execution and order testing on the DNA. A Perry spokeswoman said today he still has not made a decision about granting the reprieve. The Texas Board of Pardons and Paroles yesterday denied Skinner's application for a reprieve.

The letters today from Ellis and Naishtat are among about 8,000 letters Skinner's attorneys said have been sent to Perry urging him to grant a reprieve. Skinner advocates have also taken over Perry's Facebook wall. Nearly every post on the page urges Perry to postpone the execution and allow the testing.

France has also called upon Gov. Perry to issue a reprieve. Expatica reports, "France asks US to spare death row convict."

France has asked the US state of Texas to grant a stay of execution to a convicted murderer due to be killed Wednesday and to reexamine the man's claims that he is innocent, officials said.

"Our ambassador in Washington has contacted the governor of Texas to request a reprieve for Mr. Skinner and that his request for an additional enquiry be accepted," said foreign ministry spokesman Bernard Valero.

Both France's President Nicolas Sarkozy and Foreign Minister Bernard Kouchner have expressed their support for Henry "Hank" Skinner to his French wife, Sandrine Ageorges-Skinner, he told reporters.

Both AP and AFP have filed news reports.  The AP report, "Condemned Texas man seeks reprieve for DNA testing," by Michael Graczyk is via Google News.

Skinner and his lawyers said the actual killer could have been Twila Busby's uncle, Robert Donnell, who died in 1997. Donnell, described in court documents as a "hot-tempered ex-con" known for getting more violent when he drank, attended the same New Year's Eve party Busby attended. Skinner couldn't go because he was passed out.

"Take the time necessary to be scientifically certain of Mr. Skinner's guilt before permitting him to be executed," Skinner's attorneys, led by University of Texas law professor Rob Owen, urged the governor.

To the Supreme Court, they argued there were "troubling, unresolved questions about whether Mr. Skinner could have committed the murders."

"Hours before execution, Texas inmate seeks DNA tests," is the AFP report, also via Google News.

In the next post, I'll link to what the blogs are saying about the Skinner case.  Earlier coverage begins with this post.

Georgetown Law Webcast Tonight - Bad Science & Todd Willingham

The Innocence Project has issued a news release, "With Forum Tonight in DC and Resolutions in Several States, Momentum Builds for Basing Arson Analysis on Solid Science.  Panel of leaders will speak at Georgetown Law tonight, as legislators introduce resolutions in Arizona, Nebraska and Oklahoma," announcing details.

The webcast will be available here, at 7:00 pm (EDT) / 6:00 pm (CDT), tonight.

From the IP news release:

A panel of experts will speak tonight at Georgetown University Law Center about the state of forensic science and arson investigations, and it will discuss the Willingham case in particular.  The panel will also discuss the need for reform to ensure that the criminal justice system relies on solid science.

Two leading national arson experts who have reviewed the Willingham case will speak: Craig Beyler and John Lentini. Beyler, a renowned expert, was hired by the Texas Forensic Science Commission to review the Willingham case as part of a formal investigation. A report he issued to the commission in August 2009 found that there was no scientific basis for determining that the Willingham fire was arson, but the commission has not acted on that report. In October 2009, Texas Governor Rick Perry replaced several commission members just two days before they were to discuss the report and question Beyler about his work, and the commission’s work on the case has been stalled ever since. Lentini led a peer-review report on the Willingham cases commissioned by the Innocence Project; that panel’s report also found no scientific basis for determining that the fire was arson. The Innocence Project submitted the report to the Texas Forensic Science Commission in 2004, kicking off the formal investigation that is still pending.

Following are logistics for tonight’s event:

What: Panel Discussion: “Bad Science: The Execution of Cameron Todd Willingham and the Case for Forensic Reform”

Who: Craig Beyler and John Lentini, nationally renowned fire investigation experts; Stephen Saloom, Policy Director, The Innocence Project; Radley Balko (Moderator) Senior Editor, Reason magazine
                      
Where: Georgetown University Law Center 

McDonough Hall; Hart Auditorium 600 New Jersey Avenue, NW in Washington, DC

Also from the release:

Legislators in several states will introduce resolutions today clarifying that solid science should be used in arson investigations and leaders in the field will speak at a major forum tonight at Georgetown University Law Center. The developments come amid growing recognition that arson investigations nationwide were based on junk science for decades, leading to an unknown number of wrongful convictions.

The issue has become prominent in part because of growing concerns about the case of Cameron Todd Willingham, who was executed in Texas in 2004 for allegedly setting a fire at his home that killed his young children. Willingham was convicted in 1992 based largely on the testimony of fire investigators who relied on forensic techniques that have been widely discredited. The National Fire Protection Agency issues directives rooted in science to guide how fires are investigated. One such directive, known as NFPA 921, adopts the scientific method for fire investigations and explicitly debunks the so-called “indicators” of arson (such as the type of cracks in glass at the scene of a fire) that were routinely used by fire investigators for decades but are not rooted in science. NFPA 921 was first published in January 1992 and has been updated several times since then, but not all fire investigators use it routinely (as evidenced by the Willingham case).

Today, legislative resolutions are being introduced in Arizona, Nebraska and Oklahoma clarifying that NFPA 921 is the minimum standard that should be used in all fire investigations. The resolutions also make it clear that the government has an obligation to review arson convictions obtained using evidence that is now known to be unreliable.

“Junk science was passed down through generations of fire investigators. They were taught to look for indicators of arson that were, in reality, nothing more than folklore. When matters of life and liberty are at stake, we must rely on solid science,” said Stephen Saloom, Policy Director at the Innocence Project, which is affiliated with Cardozo School of Law.  “Law enforcement agencies and policymakers should make it clear that they are using the highest scientific standards available, and they should identify past cases that may not have been based on science.”

More than 64,000 fires in the nation were deemed arson in 2007 (the last year for which government statistics are available) including 1,041 in Oklahoma, 381 in Arizona and 158 in Nebraska.

All Willingham coverage is available through the Todd Willingham category index.

Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

David Grann's September 2009 New Yorker article is noted here.    

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format.

More Editorials Call for DNA Testing in Hank Skinner Case

Today's Austin American-Statesman carries the editorial, "Death row inmate entitled to delay for DNA tests."

If all goes as planned by the state of Texas, tomorrow will be the final sunrise Henry W. Skinner ever sees. Skinner, 47, is scheduled to be executed at 6 p.m. Wednesday for a brutal triple-murder committed in Pampa on New Year's Eve 1993.

We believe that even the most ardent supporters of capital punishment, confronted with the facts below, will join Skinner in asking Gov. Rick Perry for a 30-day reprieve.

In fact, the most ardent supporters of capital punishment — those most invested in making sure Texas does not execute an innocent person — are the ones who should be leading the call for the delay.

There are seven untested items that contain DNA that could be dispositive of Skinner's claim that he was falsely convicted.

The state has blocked that testing, noting that Skinner passed on a chance to have the testing done prior to his 1995 trial. That decision was made by Skinner's trial lawyer, who, noting that other DNA tests on items found at the crime scene damaged his case, didn't want further testing.

Now, Skinner — represented by the Capital Punishment Center at the University of Texas School of Law — wants Gov. Rick Perry to use his authority to delay the execution for 30 days and order the DNA testing. The Texas Board of Pardons and Paroles, in a 7-0 vote, on Monday recommended against a commutation or reprieve.

Can there be anybody who does not see the reprieve request as a harmless one that should be granted, especially because there is Texas precedent for it?

And:

Perry is very familiar with the importance of DNA testing. He recently, as a result of DNA evidence, pardoned Tim Cole, who spent 13 years in prison for a rape the tests showed he did not commit. Sadly, as Perry noted, the pardon — the first posthumous one granted in Texas — came nine years after Cole died in prison.

Last Friday, Perry went to Fort Worth to present the pardon to Cole's family.

"Hold up Skinner execution for DNA tests," is the title of an editorial in today's Dallas Morning News.

Key evidence in the 1993 murder case has never undergone DNA analysis. Skinner may be guilty of a bloody triple slaying in Pampa, but every sliver of doubt must be eliminated before the state exercises its life-or-death authority.

We trust that Gov. Rick Perry agrees with that, and we urge him to use the power of his office to postpone tomorrow's planned execution as insurance against miscarriage of justice. The Texas Board of Pardons and Paroles decided against Skinner on Monday, which means a temporary reprieve by the governor may be the last chance to buy time to carry out critical forensic tests. State courts and the prosecution have thwarted proper DNA analysis, but Perry ought to send the message that Texas settles for nothing less than absolute certainty.

Earlier coverage begins with the preceding post.

BPP Rejects Skinner Reprieve Request

Yesterday afternoon, the Board of Pardons and Paroles rejected a 60-day reprieve for Hank Skinner to allow time for DNA testing.  Thatnks to the Texas Tribune, you can read the Board's letter in Adobe .pdf format.

Brandi Grissom posts, "Pardons Board Rejects Skinner Request," at the Texas Tribune.

The seven-member Texas Board of Pardons and Paroles today unanimously rejected death-row inmate Hank Skinner's request for a reprieve from his execution, which is scheduled for Wednesday.

And:

With the board's decision today, Skinner's last hopes for testing on that evidence before he dies are Gov. Rick Perry and the U.S. Supreme Court. Skinner's attorneys have asked Perry to grant a one-time, 30-day reprieve to allow the testing. Perry has granted such a reprieve only twice before, and spokeswoman Allison Castle said today he had not made a decision yet about Skinner. The attorneys have also asked the Supreme Court to issue a stay and order testing on the DNA.

An Arizona-based lab has offered to do the testing for free and within 30 days.

Today's Houston Chronicle reports, "Board declines reprieve for man convicted in Panhandle slayings," written by Allan Turner.

Skinner's lawyers are awaiting U.S. Supreme Court action on petitions for a stay and for a writ of certiorari related to DNA testing of previously unexamined items found at the crime scene.

And:

“We are disheartened that the Texas Board of Pardons and Paroles has turned a deaf ear to Mr. Skinner's plea for a stay of execution to allow for DNA testing of key evidence that could prove his innocence,” said Skinner's lead attorney, Robert Owen of the University of Texas Capital Punishment Center. “It is now more urgent than ever for Gov. Rick Perry not to allow Wednesday's execution to proceed until are the facts are in.”

Michael Graczyk filed the AP report, "Convicted Texas killer of 3 loses clemency bid," via the Chronicle.

The Texas Board of Pardons and Paroles unanimously rejected Monday a clemency request for convicted killer Hank Skinner, who faces execution later this week for a triple slaying more than 16 years ago in the Texas Panhandle.

The vote was 7-0, said Maria Ramirez, the board's clemency director.

Skinner, 47, had asked the panel for both clemency and a reprieve to block his lethal injection, set for Wednesday evening in Huntsville. His attorneys argued he needed extra time for DNA tests that they said could absolve him of the New Year's Eve 1993 slayings of his girlfriend and her two adult sons at their Pampa home.

Earlier coverage begins with this post.

Monday

Today's a travel day.  I'll fill in a more detailed post later today during a layover, but here are some the highlights of a great deal of coverage of the Hank Skinner case. 

Houston Chronicle editorial - It's best to test 

San Antonio Express-News editorial - DNA test needed in Skinner case

Bob Ray Sanders' latest Fort Worth Star-Telegram column - Isn't a man's life worth an extra 30 days? 

And a news article examining the case by David Savage of the Los Angeles Times - Texas death row inmate's final request: DNA testing

At Huffington Post, Judge H. Lee Sarokin posts, "Texas and Gov. Perry Apparently Indifferent to the Execution of a Possibly Innocent Man."

His scheduled execution is just two days away.  Earlier coverage begins here.

The Latest in the Hank Skinner Case

"The Secret Pardon," is the title of Brandi Grissom's latest Texas Tribune post on the Hank Skinner case. It's another must-read from this Trib reporter.

Every couple of minutes, attorney Rob Owen glances nervously at the calendar in his office. Barring the intervention of the U.S. Supreme Court, a reprieve from the secretive Texas Board of Pardons and Paroles is the last hope for his client, Hank Skinner, to avoid the poison-filled syringe that awaits him on Wednesday.

The seven-member board makes life-or-death decisions, recommending to the governor whether an execution should be delayed, called off or carried out. Yet it’s one of the least transparent agencies in state government, making it all but impossible for Owen, or any other member of the public, to decipher how or why it makes decisions. The board doesn't have to hold public meetings on clemency cases like Skinner's. It's not required to give any reasons for its recommendations. Most times, the seven members simply fax in their votes. Without a majority vote, clemency is denied. What’s more, there are no guidelines in statute or in the board’s rules that outline a basis for decision-making. And nearly all the documents the board uses to make its decisions are kept secret under state law — even after an inmate is executed. “To the extent we assume that the clemency review process is a meaningful safeguard for cases like Hank’s, where there might be doubt about guilt … our trust is misplaced,” says Owen, co-director of the University of Texas at Austin School of Law's Capital Punishment Clinic.

Criminal justice advocates and some lawmakers have called for reform of the Texas clemency process for years, calling the current system opaque and arbitrary. Especially in the wake of high-profile cases like that of Cameron Todd Willingham, who was executed in 2004 despite serious concern about his guilt in an arson that killed his daughters; and of Tim Cole, who was exonerated of a rape conviction after he died of an asthma attack in prison, proponents of reform say the time for change is now — before Texas puts an innocent person to death. Even Gov. Rick Perry has supported past efforts to require the board to meet in public in capital clemency cases. Rissie Owens, chairwoman of the Board of Pardons and Paroles, and a member of the Huntsville school board, declined an interview for this story and did not answer written questions about calls for reform. She sent an e-mailed response outlining the board's current rules.

And:

“This whole thing is about fairness,” says Houston criminal defense attorney Patrick McCann. “Clemency cannot be so random. … Otherwise, it has no meaning.” McCann started pushing for clemency reform after representing Robert Lee Thompson, one of the few death row inmates for whom the board did recommend clemency. Thompson was sentenced to death for his role in the 1996 shooting death of a Houston convenience store clerk. But he did not pull the trigger on the gun that killed the clerk; Thompson’s accomplice, who was sentenced to life in prison, made the fatal shot. The board recommended that Thompson’s sentence be commuted to life, but Perry rejected that decision. Thompson was executed on Nov. 19, 2009.

Though he had a positive experience with the board, McCann says, he is still at a loss to tell anyone else how or why they made a recommendation in his case. “Unfortunately, there’s not a record of any discussion,” McCann says. “Nor is there a formal recommendation with the reasoning behind it.” His experience prompted McCann to push for reform of the clemency process. The board, he says, should be required to meet in public, and the Legislature should issue guidelines for clemency decisions.  

Texas Appleseed, a social justice organization, and the Texas Innocence Network, a group that investigates inmates’ claims of actual innocence, published a study of the state’s clemency process in 2005. The study found that, in comparison to 37 other states that had the death penalty at the time, Texas had “unnecessary obstacles in the paths of those who seek pardon and commutation” that essentially closed the door on clemency to most applicants. Texas is the only death penalty state that does not require the board to meet for clemency decisions, according to the report. Instead, the board’s practice is to send materials to board members across the state who make full-time salaries ranging from about $95,000 to $115,000 for chairwoman Owens. They review the information and then fax in their votes, a process the Fifth Circuit Court of Appeals upheld in 1999 in a lawsuit in which a death-row inmate unsuccessfully sued the state, claiming the clemency process was unconstitutional. Like McCann, the study authors concluded that, to make the process fair, Texas should require the board to conduct open meetings and there should be some criteria for decision-making.

And:

Steve Hall, director of the Stand Down Texas Project, a group that is seeking a moratorium on the death penalty, says the reforms that advocates and lawmakers are calling for could be made by the board without legislative action. “Thus far, the board has been resistant to doing that,” he says. Because the members are dispersed throughout the state and because thousands of parole cases create an enormous workload for the board, he says, they haven’t been keen to draw additional attention to hot-button death penalty cases like Skinner’s.

Hall says he’s not optimistic that change will come to the clemency process unless a scandal rocks the board. The issue, he says, is just too low a priority for legislators who meet every other year to decide how to run a state with 24 million residents and a $180 billion budget. Until there’s a change, for Skinner and others interested in trying to predict how or why the Texas Board of Pardons and Paroles recommends some inmates get clemency and others get the needle, Hall says their best bet  “is probably a Ouija board.”

Earlier coverage of the Skinner case begins with this post.

Landmark Exoneration in NC Almost Never Happened

That's the title of an AP report on the recent exoneration by the North Carolina Innocence Commission.  It's by Martha Waggoner and is via the Washington Post.

Nearly two years ago, North Carolina's groundbreaking innocence panel received the evidence it needed to free a man who spent 16 years in prison after he was wrongly convicted of murdering a prostitute.

Yet he stayed behind bars while commission investigators overlooked the evidence. Uncovering it took a chance brainstorm by a defense lawyer, repeated questioning of a crime lab investigator and a nudge from an unlikely source - the prosecutor who sent the man to prison.

Last month, Greg Taylor was the first person to be exonerated by the 3-year-old North Carolina Innocence Inquiry Commission, a landmark for the only state-run agency in the country dedicated to proving a convicted person's innocence.

The handling of the crucial blood test, however, has prompted a sweeping review of how the state runs its crime lab and shows just what kinds of kinks the panel has to work out as it goes about seeking to free the innocent.

The jurist who came up with the commission thinks the panel should overhaul its personnel.

"It was a very horrendous oversight," said former state Chief Justice I. Beverly Lake Jr., who formed a coalition in 2002 that recommended the panel's creation. "It's very definitely a critical failure on the part of whoever had that information."

Taylor, who has maintained his innocence, agreed Tuesday to allow Raleigh police to perform DNA tests on the clothes he wore at the time Jacquetta Thomas was killed in September 1991, saying the tests will add more proof of his innocence. Raleigh police said Wednesday they are not disputing Taylor's innocence but want to test all evidence as they reopen the case.

When Taylor was convicted in 1993 of killing Thomas, prosecutors relied partly on a lab report that indicated blood was found in his SUV near the slain woman's body. However, the report used at trial didn't mention that a second test for blood was negative. The negative result was contained in more extensive, informal notes that the State Bureau of Investigation kept filed away until Taylor's case came before the innocence panel.

The eventual discovery of the notes would set Taylor free, but an Associated Press review of audio recordings, interviews and court filings shows how they almost never surfaced.

If the defense had "not found the blood evidence, we would have lost and Greg would have spent the rest of his life in prison," Joe Cheshire, one of Taylor's attorneys, said in an e-mail.

The negative blood test was listed in informal "bench notes" by the state investigators and turned over to the innocence panel in July 2008 as part of a file on the case.

Earlier coverage begins with this post.  Thanks to Gerda Stein for forwarding.

Arizona Lab Offers Pro Bono DNA Testing in Hank Skinner Case

Brandi Grissom posts, "AZ Lab Offers Free Testing for Skinner," at the Texas Tribune today.

Chromosal Laboratories, a DNA testing lab in Phoenix, Ariz., has told Gov. Rick Perry that it will test evidence in the Hank Skinner case for free and within 30 days if he grants a reprieve of the convicted murderer's March 24 execution date.

Skinner was convicted in 1995 of murdering his girlfriend and her two sons in the small West Texas town of Pampa. He has professed his innocence, though, and Skinner argues that DNA testing on a rape kit, knives, a man's windbreaker and other materials from the crime scene could prove someone else was the killer. For a decade, Texas courts have denied Skinner's pleadings for the tests, arguing that should have been done at the original trial. With his execution date less than a week away, Skinner and his attorneys are awaiting responses to their requests for both the U.S. Supreme Court and Perry to intervene and order testing on the DNA evidence.

Perry has authority to grant a one-time 30-day reprieve in capital cases, but he has only done so twice in the past.

At the Dallas Morning News Death Penalty blog, Michael Landauer posts, "DNA lab offers free 30-day test in Hank Skinner case."

The Texas Court of Criminal Appeals may be indifferent to the truth in the hank Skinner case (focusing only on procedural questions), but Chromosomal Laboratories in Phoenix, Arizona, isn't. Rick Perry should see that a 30-day reprieve in this case could really do a lot of good to:

1. Confirm the facts of the case or raise very important questions about reasonable doubt.
2. Silence critics who think the governor is not a truth-seeker in the Willingham case.
3. Give greater meaning to his pardon of Tim Cole. It's one thing to apologize for past errors; it's another to do everything you can to prevent new ones. 

Chromosal Laboratories has issued a press release, "Chromosomal Laboratories Offers Pro Bono DNA Testing to Help Stay an Execution," via Webwire.

In response to a plea by the Innocence Project, Chromosomal Laboratories in Phoenix, Arizona has offered its accredited DNA testing services to help pursue justice. The offer was made to the Honorable Rick Perry, Governor of Texas for testing DNA evidence that could prove the innocence or guilt of Hank Skinner. Mr. Skinner is set to be executed on March 24th for the murder of his girlfriend and her two adult sons, which he was convicted of in 1995. The Innocence Project has asked that concerned individuals to urge Governor Perry to order a stay of execution until the testing can be completed.

DNA evidence in this case was never tested and the Texas’ highest criminal court has refused to intervene in the case. Mr. Skinner’s attorney claim that they have uncovered evidence that substantiates his claim that another suspect is involved and places doubt on his guilt of this crime. Mr. Skinner has always maintained his innocence and requested that DNA testing be done on potentially inculpatory evidence, in particular a windbreaker, knifes and hairs recovered from one of the victim’s hands.

While the Innocence Project does not maintain the innocence or guilt of Mr. Skinner, as they do not represent him, they point out that everything possible should be done before Mr. Skinner pays the ultimate price in what may be a colossal miscarriage of justice. When simple DNA testing may help prevent such a miscarriage, it seems implausible that the Governor and State of Texas would allow the execution to proceed. In order to help prevent this, Chromosomal Laboratories has decided to offer its services without any fees. We hope that the great State of Texas will accept this offer in the manner in which it is intended, to help promote justice.

Earlier coverage of the Hank Skinner case begins with this post.

Thursday

It's a travel day.  Post may be limited, but there are developments in the Hank Skinner case.  Details in the next post.

Lethal Injection Roundup

Two Tuesday developments are in the news today.

A three-judge panel of the U.S. Court of Appeals refused to lift a stay of execution of an Arkansas inmate who has challenged the state's lethal injection procedure.  The Arkansas News Bureau reports, "Governor Halts Execution After Court Declines To Lift Stay."

Gov. Mike Beebe on Tuesday ordered a halt to execution preparations for Jack Harold Jones Jr. after a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis decided not to take any action on a request to dissolve a stay of execution issued last week.

Jones’ execution was scheduled for Tuesday night.

Beebe’s office said in a statement that the governor ordered the state Department of Correction to stop any preparations for the execution pending further rulings and orders by the courts.

In its order, the appeals court said one of the three judges, Raymond W. Gruender of St. Louis, said he would have voted to dissolve the stay.

“It could be several months, it could be a year before this case is ultimately resolved,” said Chief Deputy Attorney General Justin Allen of the court’s decision not to take action.

Jones has filed a lawsuit alleging the state’s Methods of Execution Act, approved last year, is unconstitutional because it hinders his ability to pursue a legal claim by denying him access to the actual lethal injection protocol that will be used to execute him.

U.S. District Court Judge Leon Holmes last week ruled that “the public interest would be served” if the court considered Jones’ claims.

“Clearly Judge Holmes intends to leave the stay in place until he has disposed of the case in some fashion,” Allen said, adding the case now heads back to court.

“(That) takes us back to the lawsuit that (Jones) has filed that gave rise to this stay. Now we litigate it,” Allen said.

Ohio carried out its fourth execution using a single-drug lethal injection.  Alan Johnson writes, "Murderer's last words: 'Stop the madness'," for today's Columbus Dispatch.

When it was time for Lawrence Reynolds to speak his last words, he could have expressed remorse for snuffing out the life of a family friend, an elderly widow who had been his siblings' baby sitter.

But the words would not come, as was often the case with the introverted Reynolds. Instead, he lashed out at the "flagrantly flawed system we have today. Stop the madness!"

About 10 feet away in the Death House, separated from the condemned man by a pane of glass, the niece of murder victim Loretta Foster reacted angrily.

"Yeah, yeah. It's gonna stop now, right now," Denise Turchiano said.

It did. At 10:27 a.m. yesterday, Reynolds, 43, was pronounced dead at the Southern Ohio Correctional Facility near Lucasville. He was given a large, lethal dose of thiopental sodium, a powerful anesthetic.

Thus ended a 16-year saga that began on Jan. 11, 1994, when Reynolds entered the 67-year-old woman's home in Cuyahoga Falls in Summit County, robbed her, beat her with a wooden tent pole, and strangled her with a rope.

The Rev. Ernie Sanders, Reynolds' spiritual adviser, said yesterday that Reynolds told him he planned to tell Foster's family he was sorry for what he had done.

"He wanted to express remorse," Sanders said. "It's hard to understand, but he just didn't know how."

Sanders said Reynolds was disappointed that his March7 suicide attempt by an overdose of a prescription medication was unsuccessful.

"He didn't ever want to be the center of attention," he said. "He didn't want his last act to be part of what he considered to be a sideshow or a circus. He just kind of wanted to die all alone."

Earlier coverage from Arkansas and Ohio can be found at the links; related articles are in the lethal injection category index.

Trying to Find the Board of Pardons and Paroles

Brandi Grissom posts, "You Want Me to What? Really?" at the Texas Tribune.  Because it contains an update, I've copied the entire post, but visit the Trib to see the graphic:

So, this is day two of trying to get the chairwoman of the Texas Board of Pardons and Paroles, Rissie Owens, to answer some questions for a story I'm working on. After leaving about a half-dozen messages with her secretary today and yesterday, Owens called me this afternoon to tell me she was in a hearing and too busy to talk with me. But maybe, she said, she'll have some time tomorrow.

A few minutes later, Owens' secretary, Barbara called me. Barbara asked if I would send her some of the specific questions I want to ask Owens so that she can be prepared to talk with me. No problem, that's a pretty routine request, so I asked her for an e-mail address to send the questions to. There isn't one, Barbara said. What?!? "There's really no e-mail to send you my questions?" Nope, she said, you'll have to fax them. Fax?! No e-mail?!? Okay.

Now, I've got to go find a DeLorean so I can fire up the flux capacitor and travel back to 1998 to find a fax machine. 

UPDATE: So, I found a DeLorean, got my flux capacitor revved up to 1.21 jigawatts, found the circa 1998 fax machine and sent my questions to Owens. About noon today, I got a message on my cell phone from a board lawyer. She was looking for my e-mail address so she could e-mail me a response to my questions. What?!? For real?!? Yup. A few minutes later an e-mail shows up in my in-box from the general counsel for the Texas Board of Pardons and Paroles. And the e-mail is CC'd to rissie.owens@tdcj.state.tx.us. Well, I guess that's one mystery about the parole board solved.

Related posts in the Board of Pardons & Paroles index.

CCA Rejects Hank Skinner Habeas Petition - UPDATED

The Court of Criminal Appeals Order is here.

Rob Owen of the University Of Texas School of Law Capital Punishment Center issued the following statement:

"Today, the Texas Court of Criminal Appeals refused to intervene in Mr. Skinner’s case (see attached Order). As a result, because state officials continue to refuse to conduct readily available DNA testing on evidence from the crime scene that could clear him, there remains a serious risk that Texas, one week from today, will execute an innocent man.
 
"We remain hopeful that the U.S. Supreme Court, which has often found it necessary to correct egregious injustices in Texas capital cases, will intervene to protect Mr. Skinner’s right to pursue that DNA testing in federal court. We also trust that Governor Perry, having heard the voices of Texans insisting that the death penalty not be carried out while there are unresolved doubts about a defendant’s guilt, will do the right thing and postpone Mr. Skinner's execution until all the facts are in.

"Time is growing short, and ultimately someone must have the courage and the common sense to step forward and ensure the reliability of this verdict through the best available scientific technology."

AP's Michael Graczyk posts, "Convicted killer of 3 in Texas loses bid for execution delay," via the Houston Chronicle.

The Texas Court of Criminal Appeals has refused to halt the scheduled execution next week of a man convicted of a triple slaying in Pampa in the Texas Panhandle more than 16 years ago.

The state's highest criminal court Wednesday denied a request from 47-year-old Hank Skinner to stop his lethal injection, set for March 24 in Huntsville.

And:

Skinner and his attorneys want additional time to test evidence for DNA they say could prove he's not the killer.

Earlier coverage of the Hank Skinner case begins with this post.

UPDATE - AFP filed the dispatch, "Texas court turns down convicted murderer's DNA request."

A Texas appeals court Wednesday turned down a stay of execution for a convicted triple murderer who claims a DNA test would prove his innocence.

The petition by Hank Skinner "is dismissed and his motion for a stay of execution is denied. Applicant's motion for additional time to conduct an investigation is also denied," said the court ruling.

Convicted of beating his girlfriend to death and stabbing her two daughters also to death on New Year's Eve, 1993, Skinner is scheduled for execution next week.

He claims he was under the influence of anxiolytics for anxiety and pain killers and was unconscious at the time of the murders. His lawyer Robert Owen says a DNA test would put the matter to rest.

"As a result, because state officials continue to refuse to conduct readily available DNA testing on evidence from the crime scene that could clear him, there remains a serious risk that Texas, one week from today, will execute an innocent man," Owen said in a statement.

The Latest on the Skinner Case

Allan Turner writes, "Lawyers make last bid for man convicted in Panhandle slayings," in today's Houston Chronicle.

With their client's execution for a triple homicide set for next week, Henry Skinner's lawyers are making a last bid to have so-far unexamined evidence — bloody knives, a rape kit, fingernail scrapings — subjected to DNA testing.

But attorneys for the prosecutor filed paperwork Monday asking U.S. Supreme Court justices not to review the case, arguing that such testing could not prove innocence.

And:

Skinner's lead attorney, Rob Owen of the University of Texas Capital Punishment Center, asked the high court to review lower court decisions that prohibited him from seeking additional DNA testing as a civil rights claim.

Owen asked Supreme Court justices to resolve the discrepancy between five federal courts of appeals who would consider civil rights claims for DNA testing and two, including the U.S. Court of Appeals for the Fifth Circuit, who would not. The Fifth Court upheld a lower court ruling that rejected Skinner's civil rights claim.

Earlier this month, the Supreme Court refused to review the manner in which the Fifth Court had analyzed — and ultimately denied — Skinner's claim of insufficient counsel.

In his new petition, Owen called for DNA testing of vaginal swabs taken from Busby, Busby's fingernail clippings, two bloody knives, a dish towel possibly stained with blood and a windbreaker found at the murder scene.

At the Dallas Morning News Death Penalty blog, Michael Landauer has posted, "Science may hold the answers, but people have to ask the questions."

Experts from different corners of the justice system seem to agree on one thing: Forensic science holds so much promise, but people keep getting in the way.

First, I respect Sam Milsap's opinion column in the Houston Chronicle. As a former prosecutor, he carries a lot of weight in this debate. And he says it well:

On March 24, Texas plans to execute Henry Watkins Skinner even though untested DNA evidence could show we've got the wrong man. DNA testing could resolve doubts about Skinner's guilt in the 1993 Pampa slayings of his girlfriend and her two sons, but the state inexplicably has blocked that testing for more than a decade.

I'm not an advocate for Hank Skinner. I'm an advocate for the truth. If DNA tests could remove the uncertainty about Skinner's guilt -- one way or the other -- there's not a good reason in the world not to do it.

This is but the latest call for cleaning up the processes we use to convict and execute criminals in Texas. State Sen. Rodney Ellis, Barry Scheck of the Innocence PRoject and Tim Cole's brother shared their best arguments on Skinner's behalf with our readers:

Science proved Timothy Cole's innocence 10 years too late. It threw Cameron Todd Willingham's case into doubt several years too late. And it will soon be too late for science to definitively resolve Hank Skinner's case before he is executed.

And all of this follows a finding by forensic experts that standards are lacking. Without a central set of standards, geography, as much as anything else, plays a role in how a case is decided. That's not good enough.

Earlier coverage of the Hank Skinner case begins with this post.

After Stevens

That's the title of Jeffrey Toobin's excellent article in the current issue of the New Yorker.  It's subtitled, "What will the Supreme Court be like without its liberal leader?"

Toobin will be Terry Gross' first guest on NPR's Fresh Air, today.  Check you local NPR station for time, or listen at the link.

Here's the beginning of Toobin's must-read:

Supreme Court Justices are remembered for their opinions, but they are revealed by their questions. For many years, Sandra Day O’Connor chose to open the questioning in most cases, and thus show the lawyers—and her colleagues—which way she, as the Court’s swing vote, was leaning. Today, Antonin Scalia often jumps in first, signalling the intentions of the Court’s ascendant conservative wing, and sometimes Chief Justice John G. Roberts, Jr., makes his views, which are usually aligned with Scalia’s, equally clear. New Justices tend to defer to their senior colleagues, but Sonia Sotomayor, in her first year on the Court, has displayed little reluctance to test lawyers on the facts and the procedural posture of their cases; these kinds of questions had generally been the province of Ruth Bader Ginsburg, who, at times, has not seemed entirely pleased by the newcomer’s vigor. Samuel A. Alito, Jr., often says little; Clarence Thomas never says anything. (Thomas has not asked a question at an oral argument since 2006.)

John Paul Stevens, who will celebrate his ninetieth birthday on April 20th, generally bides his time. Stevens is the Court’s senior Justice, in every respect. He is thirteen years older than his closest colleague in age (Ginsburg) and has served eleven years longer than the next most experienced (Scalia). Appointed by President Gerald R. Ford, in 1975, Stevens is the fourth-longest-serving Justice in the Court’s history; the record holder is the man Stevens replaced, William O. Douglas, who retired after thirty-six and a half years on the bench. Stevens is a generation or two removed from most of his colleagues; when Roberts served as a law clerk to William H. Rehnquist, Stevens had already been a Justice for five years. He was the last nominee before the Reagan years, when confirmations became contested territory in the culture wars (and he was also, not coincidentally, the last whose confirmation hearings were not broadcast live on television). In some respects, Stevens comes from another world; in a recent opinion, he noted that contemporary views on marijuana laws were “reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student.”

Ever since last fall, when it emerged that Stevens had hired only one law clerk for the next year, instead of his customary four, there has been growing speculation that he will soon retire.

Related posts are in the Supreme Court index.

More on Judge Fine and the Harris County Case

"State's Death Penalty Statute at Issue in Upcoming Hearing," is the title of Mary Alice Robbins' report in the current issue of Texas Lawyer.

A Houston judge who declared the state's death penalty statute unconstitutional has set an April 27 hearing to consider the issue.

The statute is Texas Code of Criminal Procedure Article 37.071, which sets out the requirements when the state seeks the death penalty against a defendant in a capital case.

John Niland, trial project director for the Texas Defender Service (TDS) in Austin, predicts that 177th District Judge Kevin Fine's holding in the capital murder case of John E. Green will have a "ripple effect," prompting more criminal-defense attorneys to file motions seeking rulings that Texas' death penalty scheme is unconstitutional.

"This will not be the last case in which similar arguments are made," says Niland, who is not involved in State v. Green.

Alan Levy, head of the criminal division in the Tarrant County District Attorney's Office who also is not involved in Green , says he believes the biggest impact of the Green case has been to attract public attention to the death penalty issue.

"I'm sure prosecutors will prevail in this case," says Levy . "The strategy among the defense bar and anti-death penalty people is to wear the state down."

And:

At a March 9 hearing, Fine rescinded his order, asked prosecutors and defense attorneys involved in Green to submit briefs by April 12, and scheduled the hearing, according to the following four lawyers who were there.

Keirnan says Fine indicated at the hearing that he wants briefing on whether innocent people have been executed in Texas and how that applies to a person's constitutional right to due process.

Kari Allen, one of the Harris County assistant district attorneys prosecuting Green, offers a slightly different interpretation of what Fine said he wanted. Allen says Fine asked for limited briefing regarding the possibility that an innocent person could be executed and whether Article 37.071 is unconstitutional.

Alan Curry, appellate division chief in the Harris County DA's office, says Fine wants the following question answered: "Is it OK for innocent people to be executed so we can maintain the death penalty in Texas?"

Robert K. Loper, another Houston solo representing Green, says Fine agreed to rescind his decision in order to hear evidence presented by the defense and prosecution regarding the constitutionality of the death penalty statute. But Loper says Fine "certainly did not change his mind" regarding Article 37.071.

Saturday's Houston Chronicle carried the OpEd, "Fine misused judicial rule in death penalty statement," by Katy resident Claire St. Amant.

State District Judge Kevin Fine has attracted national scrutiny for his actions regarding a pretrial motion in the capital murder case of John Green. On March 4, Fine granted a motion filed by defense lawyers Robert Loper and Casey Keirnan to declare the state's statute setting out the procedure for death penalty cases unconstitutional. Five days later, Fine rescinded his ruling and scheduled a new hearing for April 27. The lawyers have until April 12 to submit briefs.

While this case is getting a lot of attention for its potential to affect the use of capital punishment in Texas, so far all it's proven is Fine's troubles with a rule of evidence known as judicial notice.

And:

Fine did the right thing by rescinding his ruling. In many ways, it's a shame he muddled the facts. The correct numbers are startling enough on their own. It's not a stretch to say that if 139 people have been cleared from death row then it's possible, if not likely, that an innocent person has been or will be executed.

It's probably not a coincidence that it's hard to prove definitively that an innocent person has been executed in Texas. Once an inmate is dead, the case generally goes cold. But basic logic dictates that innocent people have died or likely will die at the hands of a flawed legal system. Two very different Texas cases depict situations where men died under a presumption of guilt that has since been challenged.

One example is Cameron Todd Willingham, who was executed in 2004 for allegedly setting his house on fire, killing his three children. In 2008, the Texas Forensic Science Commission hired arson expert Craig Beyler to investigate the case. Beyler's findings stated that the forensic evidence used to convict Willingham was unsound. After canceling a hearing in October 2009 to discuss the case, the commission renewed its pledge to examine it a month later. To date, no hearing has been scheduled or taken place. Willingham maintained his innocence throughout his trial and incarceration.

Another contentious case is that of Timothy Cole, who posthumously received a pardon from Gov. Rick Perry just this month. Cole died in prison in 1999 of an asthma attack while serving a 25-year sentence for a rape he did not commit. Eleven years after his death, DNA evidence exonerated him. Although Cole wasn't executed, he nonetheless died under a false label of guilt.

Earlier coverage of the case begins with this post.

News Coverage of the Skinner Reprieve Request

"Skinner Asks Perry for Reprieve," is the title of Brandi Grissom's Texas Tribune post.  The letter from Skinner's lawyers to Governor Perry and other documents are at the link.

Lawyers for death row inmate Hank Skinner sent Gov. Rick Perry a letter yesterday asking him for a 30-day reprieve from Skinner's scheduled March 24 execution. The lawyers also asked Perry to order DNA testing on evidence that Skinner says could prove his innocence.

Skinner was sentenced to death for the 1993 murder of his live-in girlfriend, Twila Busby, and her two mentally disabled adult sons. But Skinner has vehemently asserted his innocence. He claims that DNA evidence from the crime scene, including material from two knives, a rape kit, Busby's fingernail clippings and a man's windbreaker, could show that another person committed the slaughter. But Texas courts have denied the testing, asserting that Skinner had the chance at his original trial in 1995 to have that DNA checked.

As Skinner's execution date approaches, his lawyers are exhausting every opportunity to get the DNA tested. In addition to the letter to Perry, they have appealed to the U.S. Supreme Court and have filed renewed pleadings with the Texas Court of Criminal Appeals.

At the Dallas Morning News Death Penalty blog, Michael Landauer posts, "Making the case for DNA testing in the Hank Skinner case."  Landauer has also posted a link to the letter.

If you've wondered whether DNA testing would really make a difference in the Hank Skinner case -- of if it's just a desperate plea to save the man's life -- you should really read this letter prepared by his lawyers. It explains in detail why DNA testing would provide new evidence that the jury never had a chance to consider.

This letter is written to Rick Perry in an effort to gain a 30-day reprieve. To me, the most compelling argument is this:

As the foregoing review of the evidence shows, Mr. Skinner is not the person who should have been convicted of the murders of Twila Busby and her sons. Equally disturbing, however, there is DNA evidence in this case that has never been tested. That evidence, if tested, could--and Mr. Skinner adamantly maintains, would--establish his innocence.

Earlier coverage begins with the preceding post.

Trusting Science in Life and Death

That's the title of an OpEd by State Senator Rodney Ellis, Barry Scheck, and Cory Session.  It appeared in the Saturday edition of the Dallas Morning News.  LINK  Cory Session is the brother of Timothy Cole; Barry Scheck, Co-Director of the Innocence Project.  Here's an extended excerpt of this must-read:

When Gov. Rick Perry pardoned Timothy Cole earlier this month, it ended the Cole family’s long fight to clear his name. It is a heartbreaking case — and a stark reminder that we need to do more to ensure that our criminal justice system relies on solid evidence.

In Tim Cole’s case, solid science came too late. Perry was right to pardon him, but he would do well to learn from this case and make sure it doesn’t happen to anyone else.

One such person might be Hank Skinner, who is set to be executed March 24. Skinner has requested DNA testing for 10 years, and there is no good reason for state officials to continue blocking these efforts.

We don’t know whether Hank Skinner is guilty or innocent. But we know the governor has the power to step in and delay the execution so DNA testing can be done to resolve this case once and for all — before Skinner is executed.

Cole’s pardon and Skinner’s execution date come as questions continue to grow about the case of Cameron Todd Willingham, who was executed in 2004 for allegedly setting a fire that killed his children. At Willingham’s trial, forensic experts testified that evidence showed the fire was intentionally set. Several independent reviews — including one that was sent to Perry just hours before he failed to stop Willingham’s execution — have shown that the forensic science used in the case was invalid and that the analysts should have known that at the time.

Nearly four years ago, the Innocence Project asked the Texas Forensic Science Commission to review the cases of Willingham and another man, who was exonerated and pardoned by Perry because of faulty arson evidence. The Forensic Science Commission was asked whether the arson analysis in these cases was flawed, if other cases across the state might have been based on the same kind of faulty forensic analysis, and what improvements could prevent this from happening in other cases.

We believe it’s likely that there are other people in Texas prisons for arson convictions based on faulty forensic analysis. Unfortunately, politics interfered with the commission’s independent scientific work several months ago, when Perry replaced several commissioners. Days before the commission was to review the Willingham case, the new chairman canceled the meeting and has spent the past six months working on procedural issues.

Science proved Timothy Cole’s innocence 10 years too late. It threw Cameron Todd Willingham’s case into doubt several years too late. And it will soon be too late for science to definitively resolve Hank Skinner’s case before he is executed.

These cases remind us that much work remains to be done to ensure the integrity of Texas’ criminal justice system.

Sunday's Amarillo Globe-News carried a column by Amarillo attorney Matthew Wright, "DNA testing would resolve doubt in convicted killer's guilt."

Henry "Hank" Skinner is scheduled to be executed on March 24 for the murder of his girlfriend Twila Busby and her two teenage sons. The crime itself was horrible, so horrible that it is easy to see why most Texans continue to support the death penalty in appropriate cases.

The facts are so horrible that decent people cringe whenever they are discussed.

Hank Skinner and his supporters argue that he is innocent of the murders. They admit that he was present at the house that horrible night, but they claim that he was too intoxicated - on vodka and codeine - to have the strength or presence of mind necessary to commit the heinous acts. They say someone else - possibly, Twila's uncle, who has since died - actually committed the horrible acts.

More to the point, Hank Skinner and his supporters claim that the Gray County District Attorney's Office has possession of a rape kit, skin from the victim's fingernails, a windbreaker, and two weapons from the crime scene that were never tested for DNA. They claim that testing on those items would prove, once and for all, who committed the murders.

At the time of his original trial, Hank Skinner's controversial attorney decided not to test those items. (Skinner's trial attorney had previously prosecuted his client twice. Then he was removed from his office because of a scandal).

In 2000, the state agreed to test some of the evidence, expecting it to disprove Skinner's claims. But that didn't happen; a hair found clutched in the victim's hand came, not from Skinner, but from one of the victim's relatives. So far, the courts have ruled against Skinner's request to have the rest of the evidence tested. At the risk of oversimplification, the courts say they won't second-guess the questionable attorney's decision. The case has garnered a lot of attention recently because of the impending execution date, but Skinner and his supporters have been fighting to have those tests for more than a decade.

And:

That's why I encourage all responsible state officials to "take the high road" and order the DNA tests, then publish the results. That would show confidence in the outcome of the original trial. Those who believe Skinner is guilty don't believe they have anything to lose from the results, but they have much to gain.

I am troubled by the recurring suggestion that Texans are bloodthirsty and care nothing about innocence. Most people who support the death penalty believe it is the appropriate and moral punishment for someone who commits a heinous murder. No one believes that efficiency, finality, deterrence, or closure is so important that we should risk executing an innocent person.

Earlier coverage of the case begins with this post.

Last Words

Eric Dexheimer has posted, "Does who’s watching change a condemned man’s last words?" at the Austin American-Statesman Focal Point blog.  Here's an extended excerpt:

If you knew your victim’s friends and relatives were watching your execution, would it change what you said just before the lethal cocktail started flowing?

That’s the question behind this recent study of Texas’s death row inmates’ final words. The hypothesis: That the presence of relatives and friends of victims during the execution more often provokes the condemned to offer expressions of guilt, or words of contrition and remorse.

Why study this in Texas? Sheer numbers, for one. With more than a third of all of the nation’s executions occurring here, Texas is to executions what Nevada is to slots. To study the death penalty and not come to Texas would be malpractice.

Another reason is that Texas has been cataloging the final words of its ex-death-row residents for nearly three decades. Most condemned prisoners take advantage of the opportunity to make a last statement; of the 345 executions between December 1982 and June 2005 the study examined, 269, or 71 percent, did so. (Interestingly, every one of the 105 inmates executed since then has taken advantage of the opportunity to speak.) The result is a veritable Library of Congress of last words.

Finally, in 1996, the state started permitting family members of the convicted’s victims view the proceedings, so the content of final utterances could be compared before and after the change.

According to the study, “Of Guilt, Defiance, and Repentance: Evidence from the Texas Death Chamber,” by Stephen Rice and co-authored by University of Texas-Austin doctoral student Danielle Dirks, the final statements were analyzed by assigning “thematic codes” to various sentiments expressed in the moments before inmates were executed.

The findings? For one, inmates opted to utter a final statement more often if a victim’s representative was present than if not: 82 percent versus 68 percent.

Prisoners were also slightly more likely to admit guilt — and much more likely to express repentance...

Latest Developments in the Hank Skinner Case

Attorneys representing Hank Skinner have formally asked Governor Rick Perry to issue a 30-day reprieve of Skinner's March 24 execution date and to order DNA testing in the case.  You can view the letter and the appendices, which contain supporting documentation.

By this letter, we respectfully request that you exercise your authority to grant a 30-day
reprieve of execution to our client Henry W. Skinner, and order the DNA testing that Mr.
Skinner has unsuccessfully pursued for more than a decade, and which could resolve
longstanding and troubling questions about his possible innocence.

As set forth more fully below, since his arrest in the early morning hours of January 1,
1994, Mr. Skinner has always and consistently maintained that he did not commit the
crimes for which he was convicted. Physical evidence from the crime scene, witness
accounts, and expert testimony all demonstrate that Mr. Skinner was so severely impaired
at the time of the murders as a result of his extreme intoxication from drugs and alcohol
that he would have lacked the physical and mental coordination even to perform simple
tasks, let alone these three murders. Forensic DNA testing has a very strong likelihood of
either confirming or disproving his claim of innocence. Indeed, even the evidence
presented at Mr. Skinner's trial raised disturbing doubts about whether he could have
murdered the victims, and since that time substantial new evidence has been uncovered
that supports Mr. Skinner's claim of innocence.

And:

Mr. Skinner’s case has understandably attracted a great deal of public attention in recent
weeks. While Texans undoubtedly support capital punishment, they insist that it be
reserved for those who are clearly guilty. Their view is reflected in comments like those
of former Bexar County District Attorney Sam Millsap:

Last week, Gov. Rick Perry granted the state's first posthumous pardon to
a man who was innocent of a crime for which he had spent 13 years in
prison. DNA testing cleared Tim Cole of a rape he did not commit, but
unfortunately it came too late — nine years after he had died in prison.
The state must do everything it can to prevent this kind of tragedy from
happening again.

On March 24, Texas plans to execute Henry Watkins Skinner even though
untested DNA evidence could show we've got the wrong man. DNA
testing could resolve doubts about Skinner's guilt in the 1993 Pampa
slayings of his girlfriend and her two sons, but the state inexplicably has
blocked that testing for more than a decade.

I'm not an advocate for Hank Skinner. I'm an advocate for the truth. If
DNA tests could remove the uncertainty about Skinner's guilt — one way
or the other — there's not a good reason in the world not to do it.

Rob Owen, Co-Director of the Capital Punishment Center at the University of Texas School of Law, is one of Skinner's lawyers and signed the letter to Governor Perry.  The Medill Innocence Project at Northwestern University is also active in Skinner's case.  Professor David Protess, the Director of the Medill Innocence Project, and eight of his journalism students conducted an extensive investigation of Mr. Skinner’s case in 2000. Their findings and additional background on the case can be found here.

The Texas governor's clemency authority is limited to issuing a single 30-day reprieve.  Additional reprieves or longer reprieves can only be granted upon a positive recommendation by the Texas Board of Pardons and Paroles.  In Texas, governors do not sign a death warrant setting an execution date, and the governor has no legal authority over the execution date.  The state district court in which the capital murder trial was held retains control of the case; the judge of that court orders the execution date.

More on clemency in Texas can be found in The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform, which examined best practices in executive clemency.  The 2005 report was issued by Texas Appleseed and the Texas Innocence Network.  The Appendix contains comparative state information.

Earlier coverage of the controversial case begins with this post noting Sam Millsap's OpEd.