The StandDown Texas Project

Is DNA Evidence Enough Evidence

That's the title of a Q&A with David H. Kaye, a Penn State Law professor and DNA expert.  He's the author of The Double Helix and the Law of Evidence.  Michael Bezilla conducted the interview for Reseach Penn State and the Gant Daily.  LINK

Why should the ordinary citizen be interested in how DNA is used in court?

The public has a vital interest in the criminal justice system. I’ve tried to illuminate the extent to which we can find truth in that system, because the subtleties of DNA evidence are not well understood outside of a small group of people. The popular perception is that DNA speaks the truth — you’re either guilty or you’re innocent, there’s no ambiguity. But DNA is only a tool. It gives information depending on the nature of the samples and how well the analysis is done. “Garbage in, garbage out” is one concern, and the risk of overstating the implications of the evidence is another.

Who determines the quality of that analysis? Do lawyers and judges have to be scientists, too?

They don’t have to be scientists, but they do have to know enough to understand what’s going on and to know whether the statements the experts are making are well founded. Lawyers need to translate lab work into a form that a judge or jury can understand. They need to understand more about statistics and probability because these quantitative aspects of science have become significant in cases with scientific testimony. It’s an area that’s been neglected in the law school curriculum. That’s changing, but those law schools that offer even one course in scientific evidence, let alone statistics, are probably still in the minority.

And:

Your book has been acclaimed as the definitive history of the use of DNA evidence. Is there a historical turning point that made DNA acceptable to the courts?

Actually there were two watershed events. The first was a case known as People v. Castro in a trial court in New York. The defense, with the aid of an astute molecular biologist, showed that what the DNA labs were testifying to was not always an open and shut matter—there could be mistakes. Once that happened, the defense bar became better able to raise challenges to DNA evidence, and a number of scientists presented criticisms of the reasoning of the experts for the prosecution — particularly on the probabilities of DNA matches. The event that marked the end of this controversy in the mid-1990s was not a case. It was an article entitled “DNA Fingerprinting Dispute Laid to Rest,” published in the journal Nature and written by two scientists who had been adversaries in court — one being the chief DNA scientist for the FBI, the other being the main defense scientist in the People v. Castro case. This rapprochement gave the courts more confidence in DNA evidence, and a series of opinions soon reinforced the view that the basic method of calculating probabilities was reasonable.

Kaye maintains the Double Helix Law blog.  I'll add it to the left-column Essential Law Blogs webroll. 

An Update on California LI Regulations

"California lethal injection method is under scrutiny," is the title of Layla Bohm's report in today's Lodi News-Sentinel.

The latest proposal to restart California's lethal injection method is back in the hands of state officials, though it's not known when the death penalty moratorium could be lifted.

After yet another round of tweaks and changes, the California Department of Corrections and Rehabilitation earlier this month finalized 42 pages of changes to the lethal injection procedure.

Corrections officials addressed various questions concerning who may witness an execution, whether a pre-execution doctor's report form allows space for comments, and how a warrant of execution will be served on an inmate.

It's now once again in the hands of the state's Office of Administrative Law, which reviews any changes to state procedures. Their team of lawyers then has 30 working days to see if the proposal meets all state requirements, or has any loopholes, according to Susan Lapsley, director of the OAL.

The latest changes were submitted July 6, which means the OAL has until mid-August to raise any objections.

Earlier coverage of the issue begins with this post.; related posts are in the lethal injection category index.

Crack/Cocaine Sentencing Disparity Addressed

The New York Times report from yesterday's paper was, "Congress Moves to Narrow Cocaine Sentencing Disparity," written by Erik Ekholm.

The House of Representatives passed a bill on Wednesday that would reduce the disparities between mandatory federal sentences for crack and powder cocaine violations, a step toward ending what legal experts say have been unfairly harsh punishments imposed mainly on blacks.

The bill, which passed the Senate in March, was adopted by the House in a voice vote and now goes to President Obama for his signature.

Administration officials have described the sentencing disparity as “fundamentally unfair,” and Mr. Obama said during the 2008 presidential campaign that it “disproportionately filled our prisons with young black and Latino drug users.”

I'm noting this to point out a rich OpEd in today's Dallas Morning News by Baylor Law prof Mark Osler, "The slow fade of Len Bias' ghost."

Twenty-four years ago, a talented young player from the University of Maryland was drafted No. 2 overall by the Boston Celtics. Two days later, he was dead of a drug overdose.

This simple tragedy led to one of the most frivolous detours in American history – the onerous federal sentencing statute for crack, which was finally amended by Congress on Wednesday. The story of Len Bias is a wonderful example of the potential dangers of legislation based on anecdote rather than study and analysis.

And:

The result of the new law was startling: Thousands of black men received extraordinarily long sentences, yet at the same time, crack prices fell, indicating that supply was growing. In other words, we achieved mass incarceration while failing to address the underlying problem. We were imprisoning the wrong people. Crack is made out of powder cocaine and usually not "rocked up" until the street dealer handles it. Thus, the least culpable and most easily replaceable parts of the supply chain were the ones locked up.

An equivalent plan would be to try to close down America's Walmarts by arresting the greeters or stock boys.

Osler is the author of Jesus on Death Row .  An earlier OpEd he wrote is noted here.

The State of Federal Judicial Nominations

We have several different reports examining the sad state of the U.S. Senate confirmation process for federal judicial vacancies.

The Center for American Progress memo is titled, "Falling Off a Cliff: Judicial Confirmation Rates Have Nosedived in the Obama Presidency."  It was prepared by CAP policy analyst Ian Millhiser.  

Judicial confirmations slowed to a trickle on the day President Barack Obama took office. Filibusters, anonymous holds, and other obstructionary tactics have become the rule. Uncontroversial nominees wait months for a floor vote, and even district court nominees—low-ranking judges whose confirmations have never been controversial in the past—are routinely filibustered into oblivion. Nominations grind to a halt in many cases even after the Senate Judiciary Committee has unanimously endorsed a nominee.

Such tactics are completely unprecedented, and so are their results. Fewer than 43 percent of President Obama’s judicial nominees have so far been confirmed, while past presidents have enjoyed confirmation rates as high as 93 percent. And President Obama’s nominees have been confirmed at a much slower rate than those of his predecessor—nearly 87 percent of President George W. Bush’s judicial nominees were confirmed.

The CAP memo has a number of charts at the LINK

Doug Kendal posts, "After Kagan, Lower Court Vacancy Crisis Looms," at Huffington Post.  He's president of the DC-based Constitutional Accountability Center.

With this frustration boiling over, several Senate Democrats took to the Senate floor yesterday to protest the unprecedented delays directed against President Obama's judicial nominees. Sen. Mark Udall (D-CO) requested consent to hold floor votes on 20 nominees who have been approved by the Senate Judiciary Committee and who are awaiting confirmation, and to each Sen. Jeff Sessions (R-AL), Ranking Republican on the Senate Judiciary Committee, objected. Meanwhile, numerous other Senators including several members of the Committee -- Ben Cardin (D-MD), Amy Klobuchar (D-MN), Herb Kohl (D-WI), Sheldon Whitehouse (D-RI), and Ted Kaufman (D-DE) -- also came to the floor and protested the standstill. The Senators emphasized the Senate's long tradition of quickly confirming judicial nominees who have been approved by the Committee and, in particular, those who have the support of their home state Senators - as most of President Obama's nominees do. They also emphasized the impact the shortage of judges, especially district (trial) court judges, is having on Americans seeking justice.

And:

What makes these numbers particularly remarkable is that President Bush faced a much more difficult political climate than does President Obama. Every Bush judge confirmed up until this point in his presidency was confirmed by a Senate controlled by the opposing party. Obama, on the other hand, has "enjoyed" at least 59 Democratic votes in the Senate throughout his term, yet his nominees have faced a much more difficult path to confirmation. These disturbing numbers demonstrate that Senator McConnell and his allies have taken the partisan war over the courts into uncharted territory -- delaying up-or-down votes on the Senate floor for even the most qualified and uncontroversial of the President's judicial nominees.

National Law Journal reports today, "Three of Obama's Judicial Nominees Sail Through Hearing."  It's written by David Ingram.

Three judicial nominees to federal courts in Washington, D.C., faced little opposition when they appeared for their confirmation hearing before the Senate Judiciary Committee on Wednesday. Mostly, they met with friendly questions from a few Democratic senators.

Beryl Howell, a member of the U.S. Sentencing Commission, and Robert Wilkins, a partner at Venable, are nominees for the U.S. District Court for the District of Columbia. Kathleen O'Malley, a federal district judge in Ohio, is a nominee for the U.S. Court of Appeals for the Federal Circuit.

Only Sens. Sheldon Whitehouse, D-R.I., and Al Franken, D-Minn., were there to ask questions of Howell and Wilkins. O'Malley's turn in the spotlight was just slightly livelier, with Sen. Jeff Sessions, R-Ala., questioning her about her views on the death penalty -- a standard question for Sessions, although the Federal Circuit hears no capital punishment cases. Sessions said he would submit written questions to Howell and Wilkins.

Whitehouse adjourned the hearing after less than an hour.

Though even noncontroversial nominees have stalled in the full Senate, the hearing is a good sign for President Barack Obama as he tries to fill four vacancies on Washington's federal trial court. The court is notable for a docket stocked with Guantanamo Bay detainee cases and issues of federal regulation.

David Ingram also posts, "Durbin's Judiciary Counsel Headed for DOJ."

A longtime lawyer for Sen. Dick Durbin (D-Ill.) is taking a job vetting judicial nominees at the U.S. Department of Justice.

Michael Zubrensky has been on Durbin's staff for seven and a half years, serving most recently as the senator's senior counsel for issues before the Senate Judiciary Committee. Zubrensky’s responsibilities extended to judicial nominations, including four successful nominees for the Supreme Court and hundreds of others for lower courts, Durbin said today. At a committee meeting during which Durbin announced the jump, committee lawyers gave Zubrensky an ovation.

And:

His new job will be deputy assistant attorney general in the Office of Legal Policy, which, among other things, reviews candidates for judicial vacancies. He’ll succeed Jonathan Meyer as the department’s top, full-time official for judicial nominees. Meyer is staying in the office, moving into a policy role.

A reminder that you can track federal judicial vacancies and appointments at the new ACS project Judicial Nominations.

Related posts are in the judiciary index.

Judge Keller Seeks Dismissal of Warning & Charges

Judge Keller's Petition for Writ of Mandamus and her motion to stay certain time limits in the case are at the links.

The Austin Chronicle reports, "Judge Sharon Keller wants her rebuke voided."  It's written by Chuck Lindell.

Claiming that she was improperly reprimanded for her role in a botched execution-day appeal in 2007, Judge Sharon Keller asked the Texas Supreme Court on Thursday to throw out the rebuke and order all charges against her dismissed.

The State Commission on Judicial Conduct issued a "public warning" to Keller on July 16, saying she failed to properly perform her duties when she closed the Court of Criminal Appeals clerk's office at 5 p.m. despite knowing that defense lawyers wanted to file an appeal in a pending execution.

But in Thursday's Supreme Court petition, Keller argued that the commission acted in a "lawless" manner because the Texas Constitution forbids it from issuing such a warning.

"The order violates the constitution and is void. At the very least, it is a gross abuse of discretion," wrote Keller lawyer Chip Babcock.

Babcock asked the court for a writ of mandamus ordering the commission to expunge the warning from all records and to drop its charges against Keller, saying the agency "should not be given rein to wreak additional mischief."

The petition also said the commission appeared to be illegally constituted, with one of the 13 commissioners serving beyond his six-year term, and two others serving despite living in the same appeals court district, contrary to constitutional restrictions.

"We're opposing the motion," said Seana Willing, the commission's executive director, who acted as a co-prosecutor of Keller. "We think there is an adequate appellate process \u2026 to address his concerns."

Willing also said the Texas Constitution has a "holdover provision" for commissioners who serve beyond their terms and that an informal opinion from the attorney general's office allows commissioners to serve despite residing in the same court district.

The commission, an independent state agency that investigates accusations of misconduct against judges, rebuked Keller for unilaterally denying a request to keep the court clerk's office open past 5 p.m. on Sept. 25, 2007, to accept a late appeal from death row inmate Michael Richard.

Several papers carry the AP brief.  From the Fort Worth Star-Telegram, it's titled, "Top Texas criminal judge appeals rebuke."

The presiding judge of the Texas Court of Criminal Appeals is appealing a judicial conduct panel's reprimand of her handling of an execution-day appeal.

The State Commission on Judicial Conduct had issued a "public warning," one of the least severe sanctions at its disposal, to Judge Sharon Keller. That's after Keller said "We close at 5" and closed the court as attorneys for a twice-convicted killer scrambled to file a last-minute appeal for Michael Wayne Richard. With no appeal filed, Richard was put to death that night for the 1986 rape and slaying of a Houston-area nurse.

Mary Alice Robbins posts, "CCA Presiding Judge Sharon Keller seeks Supreme Court mandamus to vacate public warning, dismiss all charges against her."

According to the petition, Keller seeks mandamus relief because SCJC executive director Seana Willing, who serves as the examiner in cases involving alleged judicial misconduct, “has publicly admitted” that the commission’s public warning order “does not comport with the Texas Constitution.” [See “Bad Law?” Texas Lawyer, July 26, 2010, page 1.]

Keller further alleges that the commission lacked authority to issue the public warning and that its warning is “void on its face because it was rendered contrary to limiting constitutional authority.” As alleged in the petition, “[T]he SCJC had no more authority to render a public warning against Keller than it would to order her home to be forfeited.” Keller alleges that the SCJC based its public warning on Rule 10(m) of the Rules for the Removal or Retirement of Judges, which purports to allow the commission to issue a public warning. But Keller alleges that under the state constitution, after the commission initiates formal proceedings against a judge, it has authority to impose only three remedies: dismissal of the charges, public censure, or a recommendation for removal or retirement of the judge. 

Earlier coverage of the case begins here.

The Commission's Findings, Conclusions and Order of Public Warning is here.

Other key documents in the case include:

• Examiner's Objections and Responses filed by attorney John McKetta
• Objections filed by attorney Chip Babcock
• Findings.by Special Master David Berchelmann
• Charges brought by the Commission on Judicial Conduct

Some of the critical early reporting is noted in these posts:

• More on the CCA's Refusal to Consider Richard Stay Request
• Editorial Outrage at CCA Closed Door
• More on the CCA Closed Door
• Ethics Complaint Filed Against CCA Presiding Judge
• More on the Ethics Complaint Against Judge Keller
• Continued Criticism of Presiding Judge Sharon Keller

Keller is also facing a record fine issued by the Texas Ethics Commission over her financial disclosure filings, noted here.

Lethal Injection Challenge in Washington State Dismissed

"Wash. high court lifts stay of execution for Brown," is the title of the AP dispatch filed by Rachel La Corte.

Washington state's Supreme Court has lifted the stay of execution for a death row inmate who claimed the state's method of lethal injection violated constitutional bans on cruel and unusual punishment.

The high court unanimously ruled Thursday that Cal Coburn Brown's claims are moot because the state Department of Corrections changed its method of execution earlier this year from a three-drug cocktail to a one-drug system.

The Seattle Times has posted, "State Supreme Court lifts stay of execution for convicted murderer."  It's written by Jonathan Martin.

The Washington State Supreme Court upheld the state's use of lethal injection for condemned inmates on Thursday, likely resulting in at least one execution in September.

In a unanimous opinion, written by Justice Debra Stephens, the court denied an appeal by death row inmates Cal Coburn Brown, Jonathan Gentry and Darold Stenson that sought to have the method of lethal injection declared unconstitutional.

A trial judge in Thurston County last year upheld the constitutionality of the lethal injection method, a three-drug cocktail that has been challenged around the country as meting out cruel and unusual punishment.

After the decision, the state Department of Corrections revised its method to a one-drug method, making the appeal moot.

In March, Washington became the second state to adopt a single-drug lethal injection procedure; coverage begins here. 

Ohio changed its lethal injection protocol to use a single-drug following a botched execution attempt, last year.  The first single-drug lethal injection execution was carried out by the state on December 8, 2009.  Ohio has carried out 7 executions under the new protocol.  Related posts are in the lethal injection index.

Capital Litigation Costs in Hill County

"Capital Murder Trials Bring New Expenses," is the title of a report in today's Hillsboro Reporter.  Hill County is located between Dallas and Waco on IH-35.

For the fourth time since 2006, capital murder indictments have been handed up by a Hill County grand jury, this time two at a time. 

Thirty-three-year-old James Christianson Jr. of Plano and 32-year-old Jennifer Alvarez of Amarillo are the latest capital murder suspects to be held in the Hill County Law Enforcement Center.

Only time will tell what effect that could have on the county financially as County Judge Justin Lewis prepares to file his 2011 preliminary budget later this week.

This time last year, the county was facing two capital murder trials with court-appointed lawyers as budget time approached.

Roger McClure was awaiting trial in the October 2006 death of Kenneth Wayne Hillyard near Penelope, and Debra Janelle Jeter stood charged with capital murder and attempted capital murder in connection with attacks on her daughters.

That prompted commissioners to create a capital murder line item in the jury fund containing $250,000 as a precautionary measure.

McClure was convicted of capital murder in November and received a life sentence. Jeter recently entered pleas in her cases in exchange for life sentences.

In both cases, the county sought or is seeking financial relief through the Texas Task Force on Indigent Defense (TTFID).

The program allows counties with little means to seek reimbursement for defense attorney fees, investigation expenses, expert witness expenses and other litigation expenses.

But, no funds may be sought to pay for investigation or legal expenses of the attorney for the state.

The maximum amount for which a county may seek reimbursement is $100,000 per case.

Related items are in the cost index.

More Coverage - Arson, FSC, & John Bradley

Jordan Smith writes, "Who to Blame for Faulty Fire Science?," for the current Austin Chronicle, out today.

Members of the state's Forensic Science Commission have concluded that fire investigators relied on flawed and outdated science when they fingered arson as the cause of the 1991 fire that destroyed Cameron Todd Willingham's home and killed his three young children. Still, members of the commission concluded that reliance on bad science did not mean the investigators were negligent.

And:

At the commission's July 23 meeting, Innocence Project Co-Director Barry Scheck got into a heated exchange with Williamson County District Attorney John Bradley, who chairs the commission. Scheck protested that the commission should be focusing on whether the State Fire Marshal's Office had been negligent both in relying on science it knew was flawed and in not telling Willingham's prosecutors about the flawed techniques used to conclude that the fire at his home was arson. Scheck argued that the fire marshal's office, which ultimately adopted new fire standards, had an "obligation to go back and notify prosecutors" in individual cases that their experts could "no longer stand behind" their original testimony in the cases. (Always the charmer, Bradley retorted that Scheck was simply interested in being on camera and creating "drama.") The question of negligence is exactly what Innocence Project board member Sen. Rodney Ellis, D-Houston, said the commission should be considering. "The Commission is off track in terms of what it should be investigating," he said in a statement. "It was painfully apparent that many FSC members believe that flawed science was used in the Willingham conviction, but the FSC does not seem interested in looking at the bigger picture: When did the State Fire Marshal start using modern arson science and did the State Fire Marshal commit professional negligence or misconduct when it failed to inform the courts, prosecutors, the Board of Pardons and Parole, and the Governor that flawed arson science had been used to convict hundreds of defendants?"

At the Dallas Morning News Death Penalty Blog, editorial writer Rodger Jones posts, "Q&A rejected by John Bradley."  Here are two excerpts -- you'll want to read his entire post.

Our newspaper has a Sunday feature in the Points section called Point Person. It's a question-and-answer session with a person in the news or a person with an interesting perspective on life or current events.

This week my bosses asked me if I'd see about doing the Q&A with Williamson County District Attorney John Bradley, who chairs the Texas Forensic Science Commission. The subject would be the commission's handling of the Cameron Todd Willingham case.

Bottom line: no dice.

And:

Bradley's reponse, via email, to the questions and interview request:

The questions have the distinctive vocabulary of a New York lawyer, filled with the sort of leading statements that would cause any Texas judge to sustain an objection on the grounds of "leading" and "propaganda". Regardless, the Forensic Science Commission has unanimously adopted policies and procedures that state, "FSC members and employees shall avoid discussing the details of pending matters with the media, except upon final disposition of those matters."

My response to Mr. Bradley, though his commission office:

Please let him know that I am neither a lawyer nor from New York. I neither sought nor got help from Barry Scheck's group in formulating my questions. I asked a question specifically about Scheck because my boss wanted me to.

My interest in bill language is not confined to criminal justice issues. I try to read the fine print so I can minimize the number of really dumb or naive questions I ask.

I realize the commission intends to confine its attention to "accredited," DPS-recognized facilities and entities that do forensic work. I read the memo. My questions about a more expansive role stem from 1) statements from lawmakers who support a more expansive interpretation, and 2) the fact that the commission undertook the Willingham case, which involves no DPS-accredited lab.

Again, thank you for your time.

In his post, Rodger Jones linked to, "Who accredits the accreditors?"  It's written by Walter Reaves at his Texas Criminal Law blog.  It was posted July 16, prior to the FSC meeting.  Reaves was Todd Willingham's appellate lawyer.  Prior to Todd Willingham's execution , Reaves brought to the Board of Pardons and Paroles and Governor Rick Perry's attention the faulty arson science used in Willingham's trial.

What struck me about the memo is the power DPS has to both decide what is a forensic discipline, and who gets accredited. DPS is not without its own problems, but despite those problems they apparently have the all knowing ability to determine who should or should not be accredited. It reminds of a story a someone told me about an individual who couldn't  get certified as a fire investigator. He ended up establishing his own organization, and certified himself; that organization now certifies others.

DPS is an arm of law enforcement, and no matter how hard they try they cannot divorce themselves from their identity.  One of the main recommendations of the National Academy of Sciences was that crime labs be separated from law enforcement. If the crime lab should be separate, then surely the authority to accredit such labs should also be separate.

Reaves also has post-meeting thoughts posted at Texas Criminal Law.  I'll be adding his blog to the left-colum Essential Law Blogs webroll, next.  

Earlier coverage begins here.  All Willingham coverage is available through the Todd Willingham category index.

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

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

The Innocence Project, which webcast Friday's FSC meeting, has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

Judicial Nominees & the Senate

"Obama Pushes Senate to Confirm Judges," is the title of David Ingram's report at National Law Journal.  It's also available at the BLT.

President Barack Obama called on the Senate Tuesday to vote on long-stalled nominees for the federal judiciary -- dipping a toe into an issue that has appeared relatively low among his priorities.

In remarks at the White House, Obama said he wants to work with Republicans to fill judicial vacancies. He did not name any individual nominees, but he appeared to reference Nashville, Tenn., labor lawyer Jane Stranch when he said nominees have been waiting as long as eight months to be confirmed.

Obama nominated Stranch in August 2009 to the 6th U.S. Circuit Court of Appeals, based in Cincinnati. Although she has bipartisan support and there's no organized, public effort to block her, she's been waiting since November for a confirmation vote by the full Senate.

"Most of these folks were voted out of committee unanimously, or nearly unanimously, by both Democrats and Republicans," Obama said. "Both Democrats and Republicans agreed that they were qualified to serve. Nevertheless, some in the minority have used parliamentary procedures time and again to deny them a vote in the full Senate."

A week ago, Senate Minority Leader Mitch McConnell, R-Ky., objected to a vote on Stranch's nomination, saying he would work with Democrats to set a time later. Republicans have also blocked full Senate votes on two nominees for the 4th Circuit: state Judges Albert Diaz and James Wynn Jr., who have been awaiting votes since January.

The Senate has confirmed 37 Obama nominees, including nine for circuit courts, 27 for district courts and one, Justice Sonia Sotomayor, for the U.S. Supreme Court. At this point in George W. Bush's presidency, the Senate had confirmed about 60 nominees, with the largest disparity between his and Obama's record coming in the district court category. There are currently about 100 vacancies.

As The National Law Journal reported in February, the fights over Obama's judicial nominees have provided a stark contrast to the noisy "judge wars" under Bush. Under Obama, the fights have been quiet, relying on the subtle use of Senate procedure. Moreover, Obama has rarely pushed the issue in public, focusing instead on legislative priorities such as health care and financial regulation. Democratic leaders in the Senate have followed suit.

Tuesday's remarks signal a possible shift. "If we want our judicial system to work, if we want to deliver justice in our courts, then we need judges on our benches," Obama said. "I hope that in the coming months, we'll be able to work together to ensure a timelier process in the Senate."

This is a wonderful opportunity to mention Judicial Nominations, a project of the American Constitution Society.  You can track vacancies, nominations, and news of federal judicial appointments.

The Porter Exoneration in Harris County

Allan Turner writes, "From life in prison to life of comfort?" for the Houston Chronicle.

Once facing the prospect of spending his life in prison, 39-year-old Allen Wayne Porter now faces the possibility of spending his remaining years as a wealthy man thanks to a state program that reimburses inmates for time wrongfully spent in prison.

Porter's lawyer, Casey Garrett, said Monday that her client, a convicted sexual assailant who last week won the first round of his "actual innocence" case in a Houston courtroom, hasn't given any thought to the money he could receive for the 19 years he spent behind bars.

"It's not an issue until everything is final," she said. "He's waiting for the ruling to be official."

And:

If Porter elects to pursue reparations from the state, he could be eligible for payments through the Tim Cole Act passed by the Legislature in 2007.

The reparations program, named for a Texas Tech student who died while wrongfully imprisoned for sexual assault, is administered by the state comptroller's office.

Comptroller's spokesman R.J. DeSilva said Porter will have to provide a court order verifying his innocence and prison documents confirming time served. After a successful agency review, he should be eligible to receive payments.

Sixty-two wrongfully convicted former prisoners now receive payments in the program, DeSilva said.

Related posts are in the exoneration index.

Arson, Todd Willingham, & the FSC

Editorials in the Austin American-Statesman and Houston Chronicle this morning take on the Forensic Science Commission following its meeting last week.

"Science - like death - has its limits," is the Statesman editorial.

It is a finding that is at once exculpatory of individuals and damning of a system.

In a preliminary determination reached Friday, the Texas Forensic Science Commission said arson investigators used flawed — or at least now-outdated — science in their review of a 1991 Corsicana fire that killed three children and led to capital murder charges against Cameron Todd Willingham, their father.

Williamson County District Attorney John Bradley, the commission chairman, said at the meeting that investigators cannot be second-guessed for adhering to standards in place at the time of the crime.

"We should hold people accountable based on standards that existed when they were working on these things," he said.

It's hard to argue with that, just as it's hard to argue with Bradley's point that arson science — like much of forensic science — has made tremendous advances in recent years. But the updated arson science is of no use to Willingham because the state killed him in 2004.

And:

"There is always going to be an imperfect system," he said. "It doesn't matter if you are building a car or writing a newspaper article or prosecuting people. All you can do is apply the best methods you have available at the time."

Cars can be recalled. Newspaper articles can be corrected or subjected to lawsuit. Execution, however, carries a certain finality.

Bradley said death penalty foes operate on the "false premise ... (that) if you can't build a perfect system, you should abandon the criminal justice system ... ."

We don't think anybody is arguing that. All we seek is a system that offers ready remedy for inherent imperfection.

Bradley said the current system gives "every possible opportunity" for those charged with crimes to defend themselves and those convicted of crimes to use new evidence to establish their innocence.

But, as he also told us, science evolves. Please think about that as you mull the death penalty.

The Chronicle editorial is, "Questions of innocence."

In two very different venues in Houston last week, progress was made in addressing an endemic stain on Texas justice: the wrongful conviction of innocent people.

In an emotional courtroom scene, a teary-eyed state District Judge Joan Campbell announced she would recommend the release of 39-year-old Allen Wayne Porter, who has served 19 years of a life sentence in state prison for participation in a 1990 robbery-rape in southwest Houston.

I'll have more on the Porter exoneration in a subsequent post.  This, also from the editorial:

Ironically, a day later another district attorney was in Houston leading an effort to undercut the Texas Forensic Science Commission's ability to determine the validity of arson evidence that led to the execution of a Corsicana man, Cameron Todd Willingham. A national arson expert who consulted with the commission, Craig Beyler, concluded that the evidence was flawed and investigators should have known that.

The Innocence Project estimates that more than 600 inmates in Texas prisons were convicted using the same kind of questionable evidence.

Williamson County District Attorney John Bradley was appointed chairman of the commission by Gov. Rick Perry, who had refused a last-minute stay of execution request by Willingham. Bradley was part of a shake-up of the commission membership by the governor shortly before a scheduled presentation by Beyler to the group. Bradley canceled the meeting. Critics charged that Perry used Bradley to ice the probe and prevent political embarrassment to the governor before the November election.

Before last week's meeting, Bradley had issued a memo that if adopted would have restricted the commission's jurisdiction to evidence processed in state-accredited crime labs. That would have effectively taken the Willingham matter out of consideration.

Finally:

Most significantly, the commission voted 8-0 to reject Bradley's memo. Chronicle columnist Rick Casey called the vote a defining moment for the commission in asserting its independence and authority.

It was a good week in Houston for Texas justice. One DA did her job and helped free an innocent man, while another was prevented from sabotaging the commission created by the state Legislature to improve Lone Star forensic science.

Also today, Rick Casey takes another post-meeting look at the FSC and arson.  It's titled, "Of science, witches and arson trials."  His earlier column, referenced in the Chronicle editorial, is noted here.  It's a must-read:

According to the scientific standards of the time, the test for determining whether a woman was a witch was solid enough to justify her execution.

The test: She was shackled with weights sufficient to keep her down and thrown into a body of water. If she didn't bob to the surface, she was innocent.

If she did rise up gasping, she was obviously a witch and was hanged.

Science progresses.

Members of the Texas Forensic Science Commission disclosed they are wrestling with the issue of scientific progress in their investigation of the case of Todd Willingham, the Corsicana man executed for murdering his two daughters and a stepdaughter by arson.

Members said they unanimously agree with experts who have found that testimony given by a Corsicana arson investigator and by an expert from the State Fire Marshal's Office is contradicted by today's science.

Ironically, that science is codified in an extensive document put out within months of Willingham's 1992 trial. Assembled by a group of highly regarded arson scientists for the National Fire Protection Association, NFPA 921 asserts that such things as burn patterns on floors and in glass that formed the basis of testimony in the Willingham case could as easily have been produced in an accidental fire.

But NFPA 921 was not widely accepted for years, and the panel investigating the Willingham case agreed it could not find the two arson experts to have been guilty of negligence or misconduct for not following the report's recommendations. The members decided to further investigate the standards in Texas at the time of the investigation and the trial.

But attorney Barry Scheck, director of the Innocence Project which filed the Willingham complaint triggering the commission investigation, rose and, over the objections of commission Chairman John Bradley, reminded the commission that two years ago he had raised another issue.

The state Fire Marshal's Office would be negligent if it did not familiarize itself with NFPA 921, Scheck argued.

And:

Several years ago scientists convinced the FBI that it had for years relied on bad science in identifying bullets. After an exposé by the Washington Post and 60 Minutes, it agreed to work with the Innocence Project to identify hundreds of cases where faulty testimony had been given and to alert the courts and the defendants.

Here in Texas, hundreds of men and women may be sitting in prison based on the same bad science that helped convict Willingham and Willis. Shouldn't the Fire Marshal's Office follow the lead of the FBI? I called the office twice Tuesday, but didn't get my calls returned.

I hope the Forensic Science Commission will ask them the same question.

Earlier coverage begins with this post.  All Willingham coverage is available through the Todd Willingham category index.

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

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

The Innocence Project, which webcast Friday's FSC meeting, has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

More on the FBI's faulty bullet lead analysis is here and here; related posts, the forensics index.

Behind Closed Doors ... and Padded Words

Craig Haney posts, "Hiding From the Death Penalty," at Huffington Post.  Haney is a professor of psychology at the University of California, Santa Cruz, and the author of Death by Design.

Here's an excerpt from this must-read:

Last month, Utah prison officials took a death row prisoner named Ronnie Gardner to a specially designed room, strapped him tightly into a chair, and draped a black hood over his head. By a prearranged signal, a group of five volunteer executioners aimed their Winchester rifles at a target placed over his heart, and opened fire.

I met Ronnie Gardner more than 10 years ago, when his appellate attorneys asked me to analyze his background or "social history" to see whether the early trauma and abuse that he had suffered helped explain the tumultuous path his life had taken, and to form an opinion about whether that kind of analysis should have been presented in his capital trial. This past June, I testified during a clemency hearing on his behalf. Our efforts were rebuffed, and Ronnie's request for clemency was denied. A few days later, the state of Utah killed him.

Twenty-eight people were put to death in the United States this year, before Ronnie Gardner's execution. Aside from the method by which it was carried out, his was unlikely to have drawn much public or media interest. But Ronnie's case garnered international attention when his words -- "the firing squad, please" -- spoken at a court proceeding in April, brought the true nature of capital punishment back into clear focus. For a short time, those words and the event they foreshadowed forced death penalty supporters and opponents alike to reflect on what it truly means for the state to take the life of one of its citizens.

Ronnie Gardner's choice to die by firing squad pierced what Albert Camus called the "padded words" with which we have smothered and hidden capital punishment in our society, preventing us from seeing clearly what it "really is" and honestly debating its legitimacy. "The firing squad, please," came as close as humanly possible to showing the nation, and the world, what Camus described as "the machine" of the death penalty, making us "touch the wood and steel" of it.

The truth is that many of the ugly realities of capital punishment are still covered up in our society, described with euphemisms that make the death penalty seem deceptively palatable. We understandably focus on the terrible crimes that capital defendants have committed, but we refuse to examine the origins of their violence. Thus, we are still a nation that largely ignores the plight of desperately poor children, does little to alleviate the suffering of those who are traumatized by neglect and abuse, and turns a blind eye toward underfunded, incompetent, and sometimes callously cruel juvenile institutions that frequently do more harm than good to troubled and vulnerable young people. Instead, we rise up in indignation when one of these profoundly poor, chronically ignored, and badly mistreated children grow up to become, as Ronnie Gardner described himself, a "nasty little bugger," only then paying much attention, with many clamoring for the death penalty to be imposed.

And:

Ronnie Gardner's case was painfully instructive about another aspect of the death penalty that our society labors mightily to keep hidden. The term "lethal injection" describes the execution process now in widespread use in most parts of the United States, a method we have been reassured allows state-sanctioned killings to be carried out "humanely." It is a bland, denatured term, one that conjures the image of an antiseptic, medical procedure more than anything else. In this way, of course, the padded words with which we cloak the process -- "lethal injection" -- brilliantly belie the violent outcome it is designed to bring about. This seems to explain why the Gardner execution drew so much media attention and pubic interest. After all, why would someone reject an obviously more humane procedure in favor of one that seemed so brutal, even barbaric?

In fact, Ronnie had carefully read the Utah "lethal injection" procedure, one very similar to those in use in many other states, and it terrified him. He did not trust the procedure and feared it could not be carried out correctly. He worried that he would be left lying motionless on a prison gurney -- literally paralyzed -- and publicly put on display for a prolonged, perhaps unbearably long period of time, possibly in excruciating pain, but unable to move or express any feeling, as a group of strangers watched him slowly but imperceptibly die. For him, the firing squad seemed far less inhumane, degrading, and cruel. For those who witnessed the event, of course, and for others who stopped to contemplate what actually happened, it was another matter entirely.

And this seems to underscore the primary -- perhaps only -- advantage that lethal injections have over more seemingly primitive ways for the state to kill: their ability to hide the ugly truth of what we are actually doing. Yet, for a brief moment last month, the spectacle of a firing squad shooting to death a strapped down, hooded man in Utah reminded us of what the death penalty is really about.

Coverage of Gardner's execution begins here.

Harris County Indigent Defense Update

"Harris County sweetens public defender proposal," is the title of Chris Moran's report in today's Houston Chronicle.

Seeking to strengthen its bid for state funding to open a public defender office, Harris County has changed its application to ask for less money and to propose public defenders in more courtrooms.

If the state Task Force on Indigent Defense approves the county's request for $4.1 million on Aug. 25, the county will launch a hybrid system of a public defender and court-appointed attorneys in February. The county's indigent defendants currently are represented by court-appointed attorneys selected from a pool of private practitioners.

Today, Commissioners Court will consider reducing the amount of grant money sought from $4.4 million to $4.1 million in response to concerns from the Task Force that the county was not covering enough of the administrative costs of running an office. It also will consider authorizing the county's purchasing agent to start looking for a chief public defender to run the office.

The county's previous version of the application received criticism from academics, local ministers, defense advocacy groups and the local state senator who authored the law authorizing the creation of public defender offices in Texas counties. Among the criticisms were that not enough judges planned to participate, that the office would not serve high-level felony defendants and that the office was subject to control by the judiciary and Commissioners Court.

Originally, 11 of 22 district court judges had volunteered to use a public defender on felony trial cases and only three agreed to the new office's use on appellate cases. Now, 20 judges have bought in on felony trials and 18 on appeals.

And:

The county's pitch for the state money has changed in other ways:

To protect the public defender from meddling by Commissioners Court or the judiciary, an independent oversight board would be established for the office. Judges, attorneys, indigent defense groups, the county attorney and Commissioners Court all would get to make appointments to the board.

In the original application, public defenders would represent felony defendants accused only of low-level crimes such as possession of small amounts of drugs. The revamped proposal would have the public defender take on more serious felony trials. The plan also continues to provide for juvenile, appeals and mental health cases.

State Sen. Rodney Ellis harshly criticized the previous proposal for not going far enough to change what he called a "sleazy" and "old-school" system of indigent defense. A spokesman for Ellis said Friday that the senator is much more supportive of the revised proposal.

Earlier coverage of the Harris County proposal begins with this post.  Related posts are in the indigent defense and  Task Force on Indigent Defense category indexes.

Official 'Oops' in the Willingham Case

That's the title of an editorial in today's Dallas Morning News.  LINK

The Texas Forensic Science Commission appears to be steering toward a vague zone in the Cameron Todd Willingham case, a direction that would fail to address exactly how wrong arson investigators may have been in making a case that sent him to the death chamber.

Clarity, not obfuscation, is what the public deserves in this long-running legal drama.

A four-person committee investigating the Willingham case offered draft recommendations last week that would absolve arson investigators of negligence because they used outmoded standards that were common at the time in Texas in probing the fire.

Those state and local investigators, probing the 1991 house fire that killed Willingham's three daughters in Corsicana, concluded it was set. That finding was central to the murder conviction that led to his execution in 2004.

The draft findings to the Forensic Science Commission said investigators "simply applied the standard of practice" accepted at the time.

This is not where the commission's work should go – a blithe-sounding official "oops." The commission's final word on the matter should deliver a level of detail of who knew what about evolving arson-science methods and when they knew it. The commission's findings should help assure Texans that the convictions sought in their names are based on the latest available science.

The panel was created in 2005 to help upgrade forensic science in Texas, a move that stemmed in part from scandalous misfeasance at the Houston police crime lab. The mission of the new commission was to identify cases of negligence and when corrective action is required of a facility or entity.

The State Fire Marshal's Office is one of the entities that concluded arson was the cause of the fatal Willingham fire. It would be negligent of the commission not to do a detailed post-mortem on the fire marshal's own level of awareness of improvements in forensic standards.

And:

The commission's job now is to make sure the state learns from the shortcomings in the Willingham case, and that requires a level of detail that preliminary work has skirted.

Dave Mann writes, "Why Willingham-Arson Report Will Be So Important," at the Texas Observer.

Let’s start with an assertion on which everyone can agree: Cameron Todd Willingham is deceased.

The time to help him passed six years ago, when Willingham was led into the death chamber in Huntsville and executed. There’s also little disputing that the arson evidence that sent him there was flawed and has since been disproved. But arguing endlessly about his guilt or innocence serves little practical purpose.

What we need to focus on is the discredited evidence that led to his conviction.

That’s because there are many wrongly convicted people serving time in Texas prison on bogus arson convictions. How many? We don’t know exactly, because hardly anyone has looked into it. But there are quite likely several hundred of them. Yes, hundreds.

I’ve done quite a bit of reporting on arson convictions—as part of an investigative series last year—and I’m convinced there are hundreds of innocent people who have been convicted of arson in Texas alone. (For more details, read this overview story.)

And:

Arson convictions in this state need to be examined—by the Attorney General, DPS, someone. To date, no one has looked at these cases in depth (besides the Innocence Project of Texas and myself).

The Forensic Science Commission report—if it details the exact kinds of flawed arson evidence that was used in the Willingham case—can provide the basis for a larger official investigation. And perhaps help people like Curtis Severns. And Ed Graf. And Alfredo Guardiola.

It’s too late for Willingham. But it’s not too late to help many others. 

Earlier coverage of the FSC begins with this post; more from Dave Mann, starts here.

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

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

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

The Innocence Project, which webcast Friday's FSC meeting, has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

From Nebraska

"Efficient death doesn't make it right," is the title of the editorial in today's Lincoln Journal Star.

We take little comfort in the state's apparently efficient preparation, in this case, of the state's remodeled execution chamber.

Earlier this month, the state gave news media an introduction to the place where people used to die in the electric chair.

Now, it's equipped to use lethal injection.

This newspaper stands against the death penalty.

But it is the law in Nebraska. Wrong though we may believe it to be, it is important for the state to be as transparent as possible about it.

So we thank state officials for being forthright about a process we oppose.

The reporting from that news media introduction was as hard and spare as the death chamber itself.

"Everything is in place to carry out an execution, except for the three drugs that would be used," our reporter wrote. They have been ordered, but a worldwide shortage of one of the drugs, sodium thiopental, has delayed delivery, Department of Correctional Services Director Robert Houston said.

Houston and Warden Dennis Bakewell did not take questions on execution issues, other than to refer journalists to the written protocol and procedures documents.

And:

The details become secondary when the capital punishment itself is repugnant to civilized people, arguably immoral and applied in patterns that are demonstrably unjust.

The Journal Star maintains its opposition to capital punishment.

Earlier coverage of Nebraska's new death chamber begins here.

The Sioux City Journal reports, "Sentencing panel named in Camacho-DeJesus case."  It's written by Molly Montag.  I don't believe that I have noticed this feature of the Nebraska sentencing scheme before.

The three judges who will decide whether Melecio Camacho-De Jesus will be executed or face life in prison for the brutal rape and killing of a 3-year-old girl have been chosen.

Judges William Binkard, Robert B. Ensz and William T. Wright will sit on the sentencing panel, according to documents filed Friday in the Nebraska Supreme Court. Chief Justice Michael G. Heavican appointed the three.

He ordered Binkard, who presided over the Sioux City man's trial, to act as presiding judge in the matter.

On July 1, a jury found Camacho-De Jesus guilty of first-degree murder in the death of 3-year-old Evelyn Verdugo Paniagua, of South Sioux City. Later, the jury determined aggravating factors existed during the crime, finding that the crime was especially heinous, atrocious or cruel. That decision made Camacho-De Jesus eligible for the death penalty.

And:

The panel of judges named Friday will determine whether Camacho-De Jesus lives or dies, but its decision must be unanimous.

The next step is a hearing at which attorneys for Camacho-De Jesus will attempt to prove circumstances existed that should prevent their client from receiving the death penalty. The judges will preside over the hearing and determine which set of circumstances outweighs the other.

The order did not say when or where the hearing will take place.

Editorial Reaction to the North Carolina Race Study

Today's Fayetteville Observer carries the editorial, "Justice - Death penalty data show need for Racial Justice Act."

The proof is in the killing, and a newly released study of death sentences in North Carolina proves that our year-old Racial Justice Act was not only well-motivated, but urgently needed.

This doesn't mean that every death sentence is a miscarriage of justice. It does mean that we need the brake on human passions that the act provides.

The study, covering death sentences from 1980 through 2007, was conducted by researchers from the University of Colorado in Boulder and the Northeastern University school of criminology and criminal justice in Boston. They examined more than 15,000 homicides.

Unlike earlier findings that blacks convicted of capital crimes are more likely to be executed than whites convicted of capital crimes, this one focused on victims. And it found that people accused of killing whites are three times as likely to be sentenced to die as people who are accused of killing blacks.

That's bound to feel like a punch in the gut to prosecutors, because the decision to try a homicide case as a capital case rests with the prosecutor, not the jury. And the vast majority of prosecutors think of themselves as scrupulously fair.

"Prosecutors do not look at skin color," said Seth Edwards, president of the N.C. Conference of District Attorneys. "We consider lots of things, but race is not one of them."

That certainly reflects the ideal. In fact, it reflects perfection, which means it is to some degree at odds with reality because there are no perfect humans. You don't have to "look at" race in any formal or even conscious way for it to have an influence.

If Edwards can point to scientific error in the researchers' methodology, so be it. But "three times as likely" is no statistical anomaly. The researchers considered variables, too. And while researchers are human and therefore imperfect, these findings are not inconsistent with related research.

News coverage of the Radelet-Pierce study is here.

More on Familial DNA

Natasha Singer writes, "In Fighting Crime, How Wide Should a Genetic Net Reach?" for the Saturday edition of the New York Times.

Recently, forensic scientists in California used a genetic analysis procedure called “familial searching” or “kinship searching” to help the police identify a suspect in the “Grim Sleeper” serial murder case — and they did so by using a DNA sample collected for another purpose from the suspect’s own son. The Los Angeles police later arrested the father, Lonnie David Franklin Jr., who has since been charged with 10 counts of murder.

Forensic scientists routinely use a standard search method to try to identify a suspect who has left bits of DNA at a crime scene. They use a computer analysis to compare DNA from the scene to DNA profiles of known convicted offenders stored in a state database. When the profiles match exactly, genetic analysts call it a “cold hit.”

But the Grim Sleeper case (so named because of an apparent hiatus in a killing spree that dates back to 1985) is unusual because, after regular searches came up empty, officials at California’s Bureau of Forensic Services decided to use familial searching, a more controversial technique.

The procedure involved widening the genetic net to include convicted felons whom they knew had not committed the murders but whose DNA profiles were partial matches to the suspect — similar enough to the suspect’s that they might be related to him.

Lo and behold, Mr. Franklin’s son had recently been convicted on a felony weapons charge, and his DNA offered a partial match to crime-scene DNA. And for the first time in California, that kind of one-degree-of-separation search ultimately led to an arrest.

Although Britain has been using the technique for years, familial searching in the United States is the Botox of criminal investigation. Early-adopter states like California and Colorado have tried it, like it and plan, where appropriate, to use it again. The wait-and-see states are holding out while they consider the potential side effects and longer-term social ramifications.

Some critics have contended that the technique might lead to an abuse of the system or, over time, to the disproportionate arrest of African-American males because they have a higher incarceration rate than men in other ethnic groups.

But the immediate concern is that kinship searches could produce a long list of convicted felons who are only partial matches to an unidentified suspect. The risk is that the police, while looking for a suspect’s family members, might intrude on people who have not committed a crime. Some lawyers call it guilt by genetic association.

“Our concern is that the initial comparison that generates a list of partial matches does not narrow it down to a single suspect’s likely family member,” says Peter Bibring, a lawyer with the American Civil Liberties Union in Southern California. “It’s a list and, at that point, the invasion of privacy depends on how the police go about their business.”

And:

California, under its attorney general, Jerry Brown, has developed a precise set of guidelines

that limit the use of familial searching. A committee made up of forensic and legal experts must meet at each stage of the process to discuss the latest findings and decide whether the search should continue to the next step.

The familial search in the Grim Sleeper case began at a lab of the state’s Bureau of Forensic Services in Richmond, Calif., where forensic scientists came up with a list of 200 partial DNA matches from a database that contains 1.3 million profiles.

To narrow down their list of 200, they analyzed the Y chromosome, the male sex-determining chromosome that is passed from father to son. One person, a man who had recently been convicted on a felony weapons charge, was an exact match to the Y chromosome of crime-scene DNA. Next, using corroborating information like birth certificates and Google mapping, researchers figured out that the matching person’s father would be a viable suspect.

Now, the committee had to vote on whether to give that name to police detectives.

“We would all discuss, ‘Are we going to hand over that name?’ ” said Jill Spriggs, chief of the Bureau of Forensic Services. “In the Grim Sleeper case, we all voted to hand it over.”

WITH this one case, California has become the model in the United States for how to conduct a kinship search. But the model is based on guidelines, not laws.

The Daily News of Van Nuys carries the OpEd, "How familial DNA has become a key to building criminal cases.  It's written by Los Angeles County District Attorney Steve Cooley, the Republican nominee for Attorney General of California.

To fully grasp the extent of these achievements requires an examination of the relatively brief history of the use of "genetic fingerprinting" in the criminal justice system.

DNA evidence was first used in 1986 in Leicester, England, when detectives were unable to identify a suspect in the savage rape and murder of two girls. Police took blood samples from more than 4,500 males and compared them to biological evidence recovered from the crime scene. Based on this novel scientific technique, a popular 27-year-old baker was arrested and convicted of those crimes.

In 1989, then-Attorney General John Van de Kamp declared that DNA "was ready to go to court."

In the first criminal case in California, a Ventura County judge found DNA evidence to be compelling and convicted the defendant, Lynda Axell, of murder in a bench trial.

About the same time, Los Angeles County prosecutors were poised to introduce DNA evidence in the courtroom. After months of legal and scientific wrangling over the admissibility of this new scientific evidence, a judge ruled that DNA evidence had widespread acceptance by the scientific community and could be used at trial. That evidence was presented to a jury and, in March 1990, Henry Wilds was convicted of multiple rapes.

Over the next decade, DNA was increasingly used in criminal investigations and prosecutions.

In 1998, the state Legislature enacted Penal Code Section 296, establishing the first statewide database of DNA samples. Though limited to collections from those convicted of specific violent felonies, it marked another major achievement.

With the increased reliance on DNA evidence to solve cold cases and put away killers, Bruce Harrington launched a statewide campaign in support of Proposition 69, The DNA Fingerprint, Unsolved Crime and Innocence Protection Act.

Harrington hoped the creation of an all-felon database would increase the chances that he and other family members of murder victims and rape survivors might some day get justice.

Earlier coverage of familial DNA begins with this post.

Keller rebuke raises questions, possible challenge

That's the title of Chuck Lindell's article in the Sunday edition of the Austin American-Statesman.  It's subtitled, "Lawyer says commission's public warning may be in violation of state constitution."  Here are two extended excerpts:

Given three options for dealing with charges against Judge Sharon Keller exoneration, censure or removal from office the State Commission on Judicial Conduct threw proceedings into disarray July 16 by choosing a fourth path.

For the first time in its 45-year history, commissioners with the investigative agency voted to issue a "public warning," which might sound like a censure but is not.

Censures are meant to denounce a judge's "offending conduct." Warnings, a lighter punishment, are considered to be a remedial step to deter similar misconduct from judges, according to Supreme Court rules.

The difference goes far beyond definitions, however, raising questions about how Keller's expected appeal will be conducted and prompting her lawyer to explore other legal avenues, including challenges alleging that the agency exceeded its authority or violated the Texas Constitution.

So despite the long-awaited decision from the 13-member commission, Keller's legal saga appears far from over — 17 months after she was charged with improperly closing the Court of Criminal Appeals to an after-hours execution-day appeal and 34 months after that inmate, Michael Richard, was put to death for rape and murder without his final appeal being heard in court.

"I don't think (public warning) is an option they have under the Texas Constitution," said Keller's lawyer, Chip Babcock. "The question is: How do you raise that (challenge), and who do you raise that with? It has got us scratching our heads."

Even the commission's director, Seana Willing, was caught off guard.

"In my opinion, the constitution requires that they do either a censure or a recommendation for removal, and they didn't do that," said Willing, who did not advise commissioners or sit in on their deliberations because she was, by law, a co-prosecutor in the Keller case.

And:

Public rebukes — known as admonitions, warnings or reprimands, in order of rising severity — are published on the agency's website with the judge's name and details of the offense.

But the commission can take a third route, as it did with Keller, by initiating "formal proceedings" with very specific rules that call for charges to be filed, a trial and oral arguments before commissioners.

Keller is the 96th Texas judge to undergo formal proceedings since the commission was created in 1965. None of the other judges received a warning, Willing said.

Also:

The judge has 30 days to appeal the warning by asking the chief justice of the Texas Supreme Court, Wallace Jefferson, to create a three-judge review panel from 13 of the state's 14 Courts of Appeal (the Austin court is exempt because Keller lives and works in the district).

That gives Keller's lawyer until mid-August to explore options for challenging the commission's action as a potential constitutional violation.

Keller's attorney reiterates in the article that an appeal will be filed.

This issue was also written about by Mary Alice Robbins for Texas Lawyer, noted here; that's also where earlier coverage begins.  The Commission's Findings, Conclusions and Order of Public Warning is here.

Other key documents in the case include:

• Examiner's Objections and Responses filed by attorney John McKetta
• Objections filed by attorney Chip Babcock
• Findings.by Special Master David Berchelmann
• Charges brought by the Commission on Judicial Conduct

Some of the critical early reporting is noted in these posts:

• More on the CCA's Refusal to Consider Richard Stay Request
• Editorial Outrage at CCA Closed Door
• More on the CCA Closed Door
• Ethics Complaint Filed Against CCA Presiding Judge
• More on the Ethics Complaint Against Judge Keller
• Continued Criticism of Presiding Judge Sharon Keller

Keller is also facing a record fine issued by the Texas Ethics Commission over her financial disclosure filings, noted here.

Rick Casey Revisits the Forensic Science Commission

"Science defeats DA 8-0," is the title of his column in today's Houston Chronicle.

Here's the triumphant score from Friday's Texas Forensic Science Commission:

Science 8, District Attorney 0.

The battle was for the scientific soul of the commission. Chairman and Williamson County District Attorney John Bradley had distributed a "memorandum on jurisdiction" that concluded the Legislature authorized the commission to investigate only complaints involving crime labs accredited by the Department of Public Safety.

This would exclude the controversial case of Cameron Todd Willingham, who was executed for the arson murder of his two young children based on allegedly bad science.

In other words, Bradley was asking the members of the commission, seven of whom are scientists, to give up most of their power to investigate the questionable use of police science in Texas.

It would be a severe blow to one of the few statewide efforts in the United States to address what the National Academy of Sciences last year reported was an epidemic of bad police science.

The victory for science was so overwhelming that even Bradley voted against adopting his own "memorandum."

And:

He said the interpretation expressed in the memorandum would lead to "absurd consequences" that the courts would not uphold.

Then he moved that "we not adopt the memorandum," which passed 8-0.

By this time Bradley had almost comically backed off. He couldn't quite bring himself to confess to having written the memo but did admit that "I helped coordinate and was the finger that hit the keyboard the most times."

He repeated several times that the memo was not intended to be binding but was "merely for reference," whatever that means.

Bradley's retreat may have been partly forced by statements to the commission by two senators, including one who sponsored the bill establishing the commission, and four members of the House committee with jurisdiction over it that his memo was entirely wrong.

Later in the meeting Bradley said he and another member of the four-member panel screening the high-profile case Willingham case had found the argument that it didn't fall under the commission's jurisdiction "compelling and interesting." But he also said he had publicly committed to completing that investigation and would do so.

(Note: Bradley chairs the Willingham panel but did not appoint himself as I reported Friday. He was elected by other members in closed session.)

The Willingham case survives, but it is only part of the importance of Friday's meeting. In what was literally a defining moment, the commissioners decided it is their job to address the broad issues of forensic science, not just what happens in a limited number of labs.

News coverage of the Forensic Science Commission meeting is at this post.  All Willingham coverage is available through the Todd Willingham category index.

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

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

The Innocence Project, which webcast Friday's FSC meeting, has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

FSC: Flawed Science, but No Negligence

CNN posts, "Texas state board says arson investigators used flawed science."

A Texas state board said Friday that arson investigators used flawed science but were not negligent in an investigation that led to a controversial 2004 execution.

The panel also said that investigators did not commit misconduct.

Cameron Todd Willingham was executed in 2004, 13 years after a fire killed his three daughters. Prosecutors argued that Willingham deliberately set the 1991 blaze -- but three reviews of the evidence by outside experts have found the fire should not have been ruled arson.

The last of those reports was ordered by the Texas Forensic Science Commission, which has been looking into Willingham's execution since 2008. A September 2009 shake-up by Texas Gov. Rick Perry kept that panel from reviewing the report.

But on Friday, the panel declared that investigators were using the science available to them at the time, even though it was flawed. The board said it would present its final report for a vote at a meeting in October.

The AP report by Juan Lozano is, "Texas panel finds flaws but no negligence in arson inquiry that led to execution," via the Dallas Morning News.

A commission reviewing a disputed arson finding that led to a Corsicana man's 2004 execution for the deaths of his three young children said in a preliminary report Friday that the fire investigators used flawed science but didn't commit negligence or misconduct.

Texas Forensic Science Commission members said they believed there was insufficient evidence to establish whether investigators botched their 1991 investigation of the fire that killed Cameron Todd Willingham's three daughters.

Investigators with the State Fire Marshal's Office had ruled that the blaze was an arson started by an accelerant. Willingham, 36, was later convicted of capital murder for setting the blaze.

Since Willingham's execution, persistent questions have been raised by arson experts and national media reports about the forensic evidence used in the prosecution.

In a report prepared last year for the commission, fire expert Craig Beyler said the original investigation was so seriously flawed that the finding of arson couldn't be supported. He said the investigation didn't adhere to fire investigation standards in place at the time or to current standards.

The controversy increased in September when Gov. Rick Perry replaced three members of the forensic commission, including its chairman, two days before it was to review Beyler's report.

And:

Patricia Cox, Willingham's cousin, told commission members that she appreciated the group's acknowledgment that the forensic evidence used to convict her loved one was flawed.

"Even though there may not have been any malice or intent by fire investigators about not being informed on current standards, that doesn't excuse the fact that, based on this misinformation, Cameron Todd Willingham was executed, and that can't be corrected," said a tearful Cox.

Willingham's stepmother, Eugenia Willingham, was too upset to speak during the meeting's public comment section. But during a break, she said she couldn't believe the panel's conclusion and vowed to continue fighting for her stepson's exoneration.

Both Cox and Eugenia Willingham came from their hometown of Ardmore, Okla., to attend the meeting. Two other women at the meeting held signs with photographs of Willingham that read: "No More Cover Up! Todd: Innocent and Executed!" and "Put Todd Willingham on the Agenda."

The Austin American-Statesman reports, "Commission: No negligence or misconduct by investigators in fatal fire," by Chuck Lindell.

A majority of the Texas Forensic Science Commission has tentatively concluded that there was no professional negligence or misconduct by arson investigators whose flawed work in a fatal Corsicana fire contributed to the conviction and 2004 execution of Cameron Todd Willingham.

It would be wrong to punish investigators for following commonly held beliefs about fire conditions that are known, in hindsight, to be invalid indicators of arson, said John Bradley, chairman of a four-member panel reviewing Willingham's case.

"We should hold people accountable based on standards that existed when they were working on these things," Bradley said during the commission's quarterly meeting Friday.

All four members of the investigative panel agreed with the preliminary finding, which was reached during two meetings that were closed to the public, said Dr. Sarah Kerrigan, a forensic toxicologist and director of the Sam Houston State University crime lab in Huntsville.

"The panel unanimously felt the science was flawed by today's standards, but the question for us was, was there professional negligence or misconduct?" Kerrigan said, adding that scientific arson standards — though adopted nationally in 1992, the year Willingham was convicted — had not filtered down to the front-line investigators in Texas.

The other three members of the commission had little to add to the discussion.

But with the commission appearing to head toward a vote directing the investigative panel to write a final report on its Willingham findings, lawyer Barry Scheck interrupted, starting the first of two shouting matches with Bradley.

"I must protest that," said Scheck, co-founder of the Innocence Project in New York, which filed the original commission complaint about the Willingham case.

"I am going to ask you to please sit down and be quiet or leave," Bradley said.

But Scheck pressed on, saying the commission's inquiry was heading down the wrong path.

Instead of focusing on the fire investigators, Scheck implored commissioners to analyze the state fire marshal's office , which he said adopted scientifically based standards for determining when a fire is arson yet failed to reinvestigate hundreds of arson convictions obtained from investigations now known to be flawed.

"Was it the fire marshal's office that engaged in professional neglect or misconduct?" Scheck asked. "Does the (agency) have a duty to correct any past representations that are wrong, that are scientifically invalid?"

In the end, commissioners voted to give Scheck and other interested parties three weeks to submit objections to the proposed finding.

In addition, the panel will ask fire experts to submit information on what Texas arson investigators knew — or should have known — when the Willingham fire was investigated in 1991 and when he was prosecuted in 1992.

The investigative panel will then spend about three weeks compiling the information and writing a final report about the Willingham fire, which will be presented to the full commission during an as-yet unscheduled special meeting, probably in September.

Allan Turner writes, "Panel cites 'flawed science' in arson case," for the Houston Chronicle.

Friday's action was the latest chapter in the contentious review of the arson investigators' work spurred by a complaint filed by the New York-based Innocence Project. The commission is not tasked with determining whether Texas might have executed an innocent man, but whether the arson investigators followed sound scientific principles.

At least three expert reviews, including a commission-financed study by Baltimore fire expert Craig Beyler, have been critical of the arson investigations. Burn patterns, multiple points of origin and other phenomenon investigators found at the scene wrongly were interpreted as signs the fire deliberately was set, the experts concluded.

Beyler, who wrote that investigators observed neither the standards of the National Fire Prevention Association, adopted shortly after the blaze, nor standards applicable at the time of the fire, was scheduled to appear before commissioners last September.

Days before the meeting, however, Gov. Rick Perry replaced the commission chairman with Bradley, district attorney in Williamson County. The session at which Beyler was scheduled to speak was canceled, and the fire expert never appeared before the body.

Morgan Smith updated her Texas Tribune post after the meeting.

State Sen. Rodney Ellis issued the following statement about today’s proceedings:

    "I am happy to hear that the Forensic Science Commission is moving forward on the Todd Willingham investigation, but unfortunately the Commission is off track in terms of what it should be investigating. It was painfully apparent that many FSC members believe that flawed science was used in the Willingham conviction, but the FSC does not seem interested in looking at the bigger picture: When did the State Fire Marshal start using modern arson science and did the State Fire Marshal commit professional negligence or misconduct when it failed to inform the courts, prosecutors, the Board of Pardons and Parole, and the Governor that flawed arson science had been used to convict hundreds of defendants?

Earlier coverage begins with this post; all coverage is available through the Todd Willingham category index.

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

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

The Innocence Project, which webcast Friday's FSC meeting, has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

A Note on the Bruce Webster Case

I've had several questions and comments from readers regarding the case of Bruce Webster.  The Dallas Morning News highlighted the case in a recent news article and editorial, noted at the links.

The Webster case is a federal death penalty case, prosecuted under and controlled by federal law, rather than a state death sentence.  

The Morning News editorial called on the Texas Legislature to pass legislation that would spell out the process to determine whether or not a defendant has mental retardation in capital cases.  Such a law, if passed by the Texas Legislature, would apply only to state prosecutions.

The Texas Legislature passed legislation in 2001 to ban the execution of those with mental retardation, but the legislation was vetoed by Governor Rick Perry.  One year later the Supreme Court ruled in Atkins v. Virginia that the death penalty was unconstitutional for those with mental retardation. 

In the four subsequent Texas legislative sessions, lawmakers have been unable to agree on legislation dealing with the issue; establishing a process for those currently on death row to investigate and examine claims of mental retardation, as well as a process for those individuals charged with capital murder who need to present evidence of mental retardation.  In both instances, state courts deal with the MR issue on an ad hoc basis.

Related posts are in the mental retardation index.

California Public Opinion Polling

"Poll finds strong California support for death penalty," is the AP brief via the Silicon Valley Mercury News.

A new poll finds that 70 percent of Californians favor the death penalty.

The Field Poll released today shows support for executions has increased after a slight dip over the last decade.

Support is still lower than in the mid-1980s, when the death penalty was favored by as much as 83 percent of voters.

Executions resumed in California in 1977 after they were halted by the U.S. Supreme Court. There have been no executions in California since 2006 because of legal challenges to the lethal-injection procedures.

More than 700 inmates remain on death row.

Bob Egelko writes, "Field Poll finds 70% support death penalty," for the San Francisco Chronicle.

The survey of registered voters found 70 percent backing for capital punishment, up from 67 percent in the last statewide poll in 2006. Substantial majorities supported it, regardless of age, gender, race, religion or party. Twenty-four percent opposed the death penalty and 6 percent had no opinion.

But when a smaller number of voters were asked which sentence they preferred for a first-degree murderer, 42 percent said life in prison without parole and 41 percent said death. Another 13 percent said it would depend on the circumstances, and 4 percent had no opinion.

The last time the Field Poll asked that question, in 2000, it found that 44 percent chose the death penalty and 37 percent favored life without parole.

Field has been asking the broader question about capital punishment since 1956. In recent decades, support has ranged from a high of 83 percent in the mid-1980s to a low of 58 percent in 1971.

And:

The survey was released while candidates are preparing for a November election in which Attorney General Jerry Brown and San Francisco District Attorney Kamala Harris, the Democratic candidates for governor and attorney general, oppose the death penalty. Both say they will follow the law if elected.

The poll said 63 percent of Democrats, 82 percent of Republicans and 69 percent of third-party members and independents surveyed supported the death penalty. It was also backed by 60 percent of those who said they are likely to vote for Brown, and by 53 percent of Harris' supporters. Margins among supporters of their Republican opponents, Meg Whitman and Steve Cooley, were much wider.

When asked whether they preferred death or life without parole for murderers, however, respondents divided across party lines, with 56 percent of Democrats and 21 percent of Republicans opting for a life sentence.

The survey was conducted by telephone between June 22 and July 5. The question on support for capital punishment was asked of 1,390 voters; 485 of them were asked the question about the death penalty vs. life in prison for murderers.

The Press-Enterprise reports, "POLL: Voters favor death penalty."  It's written by Richard Deatley.

"There is a very large majority who want to have the penalty of death for some types of serious crime," said Field Poll director Mark DiCamillo. "That 70 percent represents an array of voters with different thresholds for using the death penalty. But they largely agree they would like to keep it."

Poll respondent Lora Hassani, a non-partisan voter who lives in the East Valley area of San Bernardino County, said she favored the death penalty but would let circumstances determine capital punishment or life in prison without parole.

"If there are five gang members involved in a shooting, in my opinion only the one that pulled the trigger should face the death penalty," said Hassani, who said she was on a jury that returned convictions in a non-death penalty murder trial earlier this year.

Related posts are in the public opinion polling index.  Thanks to Natasha Minsker for distributing.

North Carolina Study: Race Matters

Specifically, the race of the victim matters in death penalty charging decisions and death sentences.

"Disparity seen in death penalty," is the title of Michael Hewlet's report in today's Winston-Salem Journal.

A new study examining the death penalty in North Carolina over a 28-year period makes the same point other studies have made over the years: The race of the victim is a factor in who gets the death penalty.

According to the study, the odds of a death sentence for those suspected of killing whites are three times higher than for those suspected of killing blacks.

And that racial disparity remained, the study found, even taking into consideration whether the person is charged with killing multiple people or with killing someone while committing another felony, such as rape or robbery.

The study was done by Michael Radelet, a professor of sociology at the University of Colorado at Boulder, and Glenn Pierce, a research scientist in the School of Criminology and Criminal Justice at Northeastern University in Boston. The study will be published next year in the N.C. Law Review.

The findings come on the heels of the passage last year of the Racial Justice Act, which allows defendants to use statistics and other evidence to prove racial bias in the application of the death penalty.

People already on death row have until next month to file appeals based on the law. This study as well as another study being done by two Michigan State University professors will provide data that defendants will likely use in their claims.

Other studies over the years have pointed to a clear link between race and the application of the death penalty. A major 2001 study by two UNC professors showed that people convicted of murdering white victims are 3.5 times more likely to be given the death sentence than those convicted of murdering black victims.

But Radelet said this study is the most comprehensive one done on the death penalty and race because it covers a 28-year period between 1980 and 2007. Radelet and Pierce examined 15,281 homicide cases. Out of those, they examined 352 cases in which someone was sentenced to death.

What the study can't explain is why the racial disparity exists, Radelet said.

Anne Blythe writes, "Victim's race skews death penalty," for the News & Observer of Raleigh.

Someone accused of killing a white person in North Carolina is nearly three times as likely to get the death penalty than someone accused of killing a black person, according to a study released Thursday by two researchers who looked at death sentences over a 28-year period.

The findings come as many in North Carolina are focusing on the death penalty and race. Death-row inmates have only a few more weeks to file challenges to their sentences under the Racial Justice Act approved by the legislature last year.

For the study, touted as one of the most comprehensive examinations to date of the modern administration of the death penalty in North Carolina, Michael L. Radelet, a sociology professor at the University of Colorado in Boulder, and Glenn L. Pierce, a research scientist in the Northeastern University school of criminology and criminal justice in Boston, examined 15,281 homicides in the state between Jan. 1, 1980, and Dec. 31, 2007. Of those, 368 resulted in death sentences.

The researchers looked at many factors, such as the number of victims and whether other crimes such as burglaries and robberies were committed during the homicide. They also tried to consider similar homicide cases.

And:

Executions in North Carolina have been on hold for roughly three years. A push to stop doctors from assisting in executions, and a lawsuit filed by some death row inmates challenging the use of lethal injections as cruel and unusual punishment, have created a de facto moratorium.

And last summer, the legislature passed the Racial Justice Act, one of only two laws of its kind in the nation. The law allows judges, for the first time, to consider statistical evidence that suggests race was a key factor in prosecutors' seeking, or a court's imposing, the death penalty on a disproportionate number of people from a racial group.

Current death row inmates have until Aug. 10 to file their challenges.

The Daily Camera of Boulder, Colorado carries, "CU-Boulder researcher: Victim's race matters in death penalty."  It's written by Brittany Ana.

The odds of a death sentence for those suspected of killing white people are about three times higher than those accused of killing blacks, according to a new study from a University of Colorado professor who combed through death sentences in North Carolina over a 28-year period.

The study, which will be published in the North Carolina Law Review next year, was conducted by Michael Radelet, a sociology professor at CU's Boulder campus, and Glenn Pierce, a research scientist in the School of Criminology and Criminal Justice at Northeastern University in Boston.

"It's just kind of baffling that in this day and age, race matters," Radelet said.

Radelet, one of the nation's leading experts on the death penalty, said the study will be used in appeal cases.

Leading up to the study, legislators in North Carolina had raised concern about the racial disparities of those on death row -- but there was no hard evidence.

"It confirmed the worst fears," Radelet said.

The U.S. Supreme Court ruled in 1987 that statistical evidence of racial bias could not be considered in individual cases, but that states could pass their own legislation to do so.

North Carolina has one of the nation's largest death rows, with 155 men and four women now facing execution. The state became the second in the nation, following Kentucky, to allow murder suspects and those already on death row to present statistical evidence of racial bias.

The law is intended to make sure that the race of the defendant or victim doesn't play a key role in sentencing. The study by Radelet and Pierce is the first to be released since North Carolina passed the Racial Justice Act.

Radelet and Pierce examined 15,281 homicides in North Carolina between 1980 and 2007, of which 368 resulted in death sentences for those convicted.

Related posts are in the race index.

More Coverage of the Keller Sanction

Today's Corpus Christi Caller-Times carries the editorial, "Reprimand fits judge’s error."

An Associated Press article last week described Justice Sharon Keller as “the top criminal judge in Texas.” That’s a technically correct paraphrase for presiding judge of the Texas Court of Criminal Appeals. It wasn’t meant as a value judgment, thank goodness.

And:

The reprimand reported last week, known as a public warning, is one of the least-severe sanctions at the judicial conduct panel’s disposal. Keller could have faced removal from office, and understandably there was sentiment in favor of it. But the reprimand confirmed the widespread condemnation of Keller’s actions, and fit her transgression. As has been said before in this space, the threat of removal for bad or merely unpopular decisions would undermine the independence of the judiciary.

Keller therefore remains for now “the top criminal judge in Texas.” Presumably that will be the case until her term expires in 2012. She has not indicated whether she will seek re-election. If she does, voters will be better acquainted with her and might make a more informed decision than last time. Keller’s case is a cautionary tale for voters, for sure – and a strong argument for an appointed judiciary. But that’s a whole ‘nother discussion.

The Commission's Findings, Conclusions and Order of Public Warning is here.

"Judicial Conduct Commission Examiner Questions Basis for Public Warning in Keller Case," is the title of Mary Alice Robbins' report for Texas Lawyer.

Questions are being raised about the State Commission on Judicial Conduct’s July 16 public warning of Court of Criminal Appeals Presiding Judge Sharon Keller. The order concerned her conduct on the day the state executed Michael Richard.

Seana Willing, the commission’s examiner, contends in an e-mail that the order is based on a rule that does not comport with the Texas Constitution. As examiner in judicial misconduct cases, Willing acts as a prosecutor does in a criminal case, gathering and presenting evidence, often assisted by a private attorney.

Willing says, “I’m not criticizing the commission for what they did, but I don’t understand why they did what they did.” But Willing is concerned that the commission’s public warning in Keller could result in “bad law” and cost taxpayers more money.

She argues the commission should have based its order on the constitution, which allows the commission only three options after it begins formal proceedings against a judge and after a special master issues a report: issue a censure, recommend removal or retirement, or dismiss the charges.

But John J. “Mike” McKetta, the special counsel who prosecuted Keller, thinks the constitution allows the commission to take the action it did.

Bob Warneke, the commission’s counsel in Keller, says the commission’s position is that the order “speaks for itself.” He declines further comment.

In its Order of Public Warning in Inquiry Concerning Honorable Sharon Keller, the commission found that Keller’s conduct on Sept. 25, 2007, failed to accord Richard “access to open courts or the right to be heard according to law.”

And:

Charles “Chip” Babcock, Keller’s attorney and a Jackson Walker partner in Dallas and Houston, isn’t weighing in on Willing’s critiques, but he says, “We are definitely going to challenge the order of the commission.”

Babcock says, “This has never happened where the commission has initiated a formal proceeding, the trial judge has recommended no sanction and the commission has issued a public warning.”

While Babcock is discussing an appeal, how such an appeal would proceed is unclear. That’s because there are different procedures for appeals after formal and informal proceedings. A public warning typically follows informal proceedings, but in Keller’s case, the commission issued a public warning after formal proceedings.

Earlier coverage of the Keller sanction begins with this post.

Todd Willingham and the Forensice Science Commission

As it has done before, the Innocence Project is webcasting today's Forensic Science Commission meeting at this LINK.

"Texans wonder if they executed an innocent man," is the CNN report posted as the Forensic Science Commission meets.

A Texas state board is set Friday to revisit questions surrounding a controversial 2004 execution, with supporters of the man's family warning the panel is trying to bury its own critical review of the case.

Cameron Todd Willingham was executed in 2004 for a fire that killed his three daughters. Prosecutors argued that Willingham deliberately set the 1991 blaze -- but three reviews of the evidence by outside experts have found the fire should not have been ruled arson.

The last of those reports was ordered by the Texas Forensic Sciences Commission, which has been looking into Willingham's execution since 2008. But a September 2009 shake-up by Texas Gov. Rick Perry has kept that panel from reviewing the report, and the commission's new chairman has ordered a review of its operating rules. Critics say that may kill the probe.

"They are attempting permanently to keep the investigation from continuing and moving on, and I do believe it's because they don't like the direction the evidence is leading," Willingham's cousin, Pat Cox, said Thursday.

At the Texas Tribune, Morgan Smith writes, "Forensic Science Commission Narrowing Its Jurisdiction?"

A memo from the Texas Forensic Science Commission circulated in advance of tomorrow’s meeting indicates the agency may believe it has no authority to consider the Cameron Todd Willingham complaint.

The document interprets the Commission’s enacting statute as limiting its jurisdiction to laboratories accredited by the Department of Public Safety. That could prevent it from taking up Willingham's case, which hinges on allegedly faulty testimony of experts at trial, not analysis conducted in a laboratory. Willingham was convicted of the 1991 arson deaths of his daughters and was executed in 2004.

The memo is unsigned, though it states that it “has been drafted, reviewed, and edited through the combined efforts of counsel for the Attorney General’s Office, the Office of Court Administration and the Department of Public Safety, along with the two members of the FSC who are lawyers.” (Those lawyers are Commission chairman John Bradley, the Williamson County District Attorney, and Fort Worth criminal defense lawyer Lance Evans. Both are on the subcommittee charged with reviewing the Willingham complaint.)

The sponsor of the bill that created the Commission, state Sen. Juan "Chuy" Hinojosa, D-McAllen, issued an open letter to the Commission disputing that interpretation, saying the agency’s scope “includes all forensic science analysis and procedures, which help the Commission identify best practices and eliminate the state’s use of ‘junk science.

And:

Update: John Bradley has just addressed the jurisdictional memo at the meeting. Bradley said the memo is a "legal description, not a legal conclusion" and was supposed to be a reference document for members, who are free to "come up with their own ideas as to how they should apply them." 

"This memo was not intended to stop [the Willingham] investigation" he said, though "certainly some of the issues that were raised in the memo could question whether the commission has jurisdiction over the Willingham case." He added that "whatever hindsight we might have" about those issues would not apply retroactively to the cases they've already decided to take up — meaning Willingham.

Rick Casey writes, "Dousing a troublesome arson probe," in his Houston Chronicle column today.

If you see smoke coming out of the Doubletree Hotel near Bush Intercontinental Airport today it won't be caused by arson.

It will be the eruption when Texas Forensic Science Commission Chairman John Bradley tries to end an investigation into whether the testimony of arson investigators that helped lead to a man's execution for murdering his children was "junk science."

Last fall, two days before one of the nation's top arson scientists was about to appear before the commission to explain his harsh criticism of evidence used to help convict Corsicana man Cameron Todd Willingham of deliberately setting the fire that killed his young children, Gov. Rick Perry abruptly named Bradley, district attorney of Williamson County, to replace the commission's founding chairman, Austin defense attorney Sam Bassett.

The matter was of some sensitivity to the governor. He had been asked by a prominent Texas arson expert to stay Willingham's execution based on a similar critique of the arson evidence against him. Perry ignored the request.

Bradley's first act was to cancel the meeting that was to hear arson expert Craig Beyler.

Bradley would later persuade the commission of seven scientists and two lawyers, which had previously pursued its work in public sessions as a body, to assign investigations to committees that would not be subject to the Open Meetings Act and could meet in secret.

Bradley named himself to chair the Willingham investigative committee.

Now Bradley has presented the commission with a legal memorandum that would severely limit the scope of its activities and would remove its authority to investigate the Willingham case.

The memorandum is peculiar in that it is neither dated nor signed. It says it was "drafted, reviewed and edited through the combined efforts of the two members of the FSC (Bradley and Fort Worth defense attorney Lance Evans), counsel for the Attorney General's Office, the Office of Court Administration and the Department of Public Safety."

And:

Hundreds of Texas inmates sit in jail based on arson investigations, and many more throughout the nation.

Texas is the first state to seriously address the quality of these and other forensic disciplines. If Bradley gets his way today, that experiment will effectively be over.

Earlier coverage of the Willingham case begins with this post; all coverage is available through the Todd Willingham category index.

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

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

The Innocence Project, which webcast Friday's FSC meeting, has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

Thursday

I'll be traveling to Netroots Nation today.  Posts will resume this evening.

More on the Case of Bruce Webster

Today's Dallas Morning News carries the editorial, "Mental retardation and the death penalty."

Bruce Carneil Webster is a brutal thug, one of three whose pursuit of two men who had stiffed them on a drug deal ended with the kidnapping, rape and hellish murder of a 16-year-old honor student.

Shed no tears for Webster: He beat the Arlington girl with a shovel, dragged her into a grave in Arkansas, stripped her, doused her with gasoline and burned her alive.

He should never see the outside of a prison.

Nonetheless, new evidence about his mental capacity, uncovered 13 years after his conviction, raises serious questions about whether Webster, who indisputably committed the crime, can be legally put to death.

The U.S. Supreme Court should review Webster's case, and the Texas Legislature should adopt clearer procedures to determine the mental capacity of defendants accused of capital crimes. To do otherwise would be a serious breach of justice.

And:

This newspaper would like to see the state Legislature pass measures that would allow a judge or separate jury to hear evidence to determine whether a defendant is mentally retarded. And the Supreme Court would be wise to intervene to make sure a man is not executed despite evidence showing mental retardation. Even in the most reprehensible and revolting crimes, the Constitution still applies.

Earlier coverage is here.

Related posts are in the mental retardation index.  Mental retardation is now generally referred to as a developmental disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

Kevin Keith

Friends of Kevin Keith in Ohio are renewing the call for signatures to a petition seeking clemency in his case.  Keith has a clemency hearing on August 11.

You can sign the petition by clicking on the Take Action box in the right-column.

He has a September 15 execution date.

Earlier coverage of his case begins with this post.;related posts are in the eyewitness identification index.

From Connecticut

"More Than Reasonable Doubt About Death Penalty," is the title of Terrence Dwyer's OpEd in today's Hartford Courant.  Dwyer, a lawyer, is an assistant professor at Western Connecticut State University and a retired investigator from the New York State Police, Bureau of Criminal Investigation.

There was a time when I would have agreed with Gov. M. Jodi Rell's veto last year of a bill to repeal Connecticut's death penalty. As a former New York State Police investigator whose job was to lock up murderers, I've never had any sympathy for vicious killers or qualms about them suffering.

At the same time, we should respond smartly to crime. I cannot conclude, as Gov. Rell did, that the death penalty works. Events just this past year have shown the death penalty could lead to gross miscarriages of justice.

Last August, new DNA evidence led state prosecutors to drop charges against Kenneth Ireland, a Wallingford man jailed for more than 20 years for a rape and murder he did not commit.

And:

Though some want to shorten the legal process in capital cases, that is not going to happen. Because of past wrongful convictions, the courts have mandated safeguards. Capital cases will always be a marathon.

But there is an alternative. As a police investigator, I worked a brutal home invasion and murder of a mother, father and their three children in 2007, three years after the state court of appeals ruled the death penalty unconstitutional. This change in the law never hindered our work, but rather expedited the legal process. Within a year of the crime, the two perpetrators were locked away to serve sentences of life without parole, and the conviction was recently upheld on appeal. The media circus ended, the victims' families had privacy to grieve, and everyone forgot about these killers. This is a smart way to punish and respond to murder.

Given the delay and wasted resources in capital cases, more members of law enforcement are questioning the death penalty's effectiveness. Last October, in a nationwide poll, police chiefs rated increased use of the death penalty as the least effective way to reduce crime. The message is clear: The death penalty is not a deterrent, and law enforcement personnel don't need it to do their job.

When Gov. Rell vetoed the death penalty repeal bill, she kept in place a broken system that fails to deter crime, wastes $4 million a year and often adds to the pain of victims' families. Next time the death penalty comes up for debate, I hope the state's political leaders will have the courage to repeal it and further Connecticut's efforts to respond effectively to violence.

Earlier coverage from Connecticut is here.

Piper Kerman on Incarceration Costs

Kerman posts, "Lindsay's Jail Life," at Daily Beast.  She's the author of Orange Is the New Black: A Year in a Women's Prison. While Kerman's essay is pegged to the Lindsay Lohan drama in Los Angeles, it addresses wider issues.

Does all this misery add up to better public safety? While some people watch Lohan’s predicament with glee, it’s sobering to think that California spends an average of more than $45,000 per prisoner per year, a price the state government can ill afford. The American correctional system is unquestionably punitive, but it certainly doesn’t rehabilitate; a staggering number of prisoners return to jail or prison despite its horrors. There is little clear path visible to a different life for most of the millions of Americans behind bars, and there are huge barriers in employment, housing, health, and family reunification that are known to consistently trip people up in their efforts to go straight.

Given that a big swath of the prison and jail population is nonviolent offenders, especially among female prisoners, it seems like there are smarter alternatives to a safe society. I spent time with just a handful of the thousands of women who are released from prisons and jails every year in this country. If Lohan leaves her incarceration with something productive drawn from the experience, she will be among the few nonviolent offenders for whom jail time was not a waste of time and taxpayer dollars.

More on Piper Kerman is here.

Changing Lives Through Literature

Today's Guardian reports, "Novel approach: reading courses as an alternative to prison," by Anna Barker.

With one of the highest incarceration rates in the world, and the death penalty, the US state of Texas seems the last place to embrace a liberal-minded alternative to prison. But when Mitchell Rouse was convicted of two drug offences in Houston, the former x-ray technician who faced a 60-year prison sentence – reduced to 30 years if he pleaded guilty – was instead put on probation and sentenced to read.

"I was doing it because it was a condition of my probation and it would reduce my community hours," Rouse recalls.

The 42-year-old had turned to drugs as a way of coping with the stress of his job at a hospital where he frequently worked an 80-hour week. But cooking up to a gram of crystal meth a day to feed his habit gradually took its toll on his life at home, which he shared with his wife and three young children. Finally, fearing for his life, Mitchell's wife turned him into the authorities. "If she hadn't, I would be dead or destitute by now," he says.

Five years on, he is free from drugs, holding down a job as a building contractor, and reunited with his family. He describes being sentenced to a reading group as "a miracle" and says the six-week reading course "changed the way I look at life".

"It made me believe in my own potential. In the group you're not wrong, you're not necessarily right either, but your opinion is just as valid as anyone else's," he says.

Rouse is one of thousands of offenders across the US who, as an alternative to prison, are placed on a rehabilitation programme called Changing Lives Through Literature (CLTL). Repeat offenders of serious crimes such as armed robbery, assault or drug dealing are made to attend a reading group where they discuss literary classics such as To Kill a Mockingbird, The Bell Jar and Of Mice and Men.

Rouse's group was run by part-time lecturer in liberal studies at Rice University in Houston, Larry Jablecki, who uses the texts of Plato, Mill and Socrates to explore themes of fate, love, anger, liberty, tolerance and empathy. "I particularly liked some of the ideas in John Stuart Mill's On Liberty," says Mitchell, who now wants to do a PhD in philosophy.

Groups are single sex and the books chosen resonate with some of the issues the offenders may be facing. A male group, for example, may read books with a theme of male identity. A judge, a probation officer and an academic join a session of 30 offenders to talk about issues as equals.

Of the 597 who have completed the course in Brazoria County, Texas, between 1997 and 2008, only 36 (6%) had their probations revoked and were sent to jail.

A year-long study of the first cohort that went through the programme, which was founded in Massachusetts in 1991, found that only 19% had reoffended compared with 42% in a control group. And those from the programme who did reoffend committed less serious crimes.

CLTL is the brainchild of Robert Waxler, a professor of English at University of Massachusetts Dartmouth. As an experiment, he convinced his friend, Judge Kane, to take eight criminals who repeatedly came before him and place them on a reading programme that Waxler had devised instead of sending them to prison. It now runs in eight states including Texas, Arizona and New York.

Related posts are in the incarceration index.

Contraband Cell Phones

"Congress moves to crack down on prison cell phones," is the title of an AP report via the Washington Post.  It's written by Jim Abrams.

Congress moved Tuesday to make it tougher for federal prison inmates to use cell phones and wireless devices to direct criminal activities within or outside prison walls.

The House voted by voice to close a loophole in federal law by banning the use or possession of cell phones or wireless devices in federal prisons and classifying those devices as contraband.

Currently, cell phones and wireless devices are not specifically defined as contraband, and inmates and guards caught smuggling the devices into prisons are rarely punished.

The Senate has passed a similar bill.

Sen. Dianne Feinstein, D-Calif., sponsor of the Senate measure, cited a recent report from her state that found that inmates pay from $500 to $1,000 for a phone and that one corrupt correctional officer made some $150,000 in one year by smuggling cell phones to inmates.

And:

The legislation would subject anyone trying to provide a cell phone to an inmate to up to a year in prison.

Rep. Bobby Scott, D-Va., said one reason that prisoners try to obtain cell phones is that they are required to call collect, at considerably more cost, when they make legitimate calls to their families. The bill requires the compiling of a study looking at the costs of providing prisoners with telephone service.

The bill is S. 1749.  Earlier coverage of the issue in Texas begins here.

Rick Casey on the Keller Sanction

His column in today's Houston Chronicle is titled, "With Keller, anatomy of a historic wrist slap."

In what might be called a historic slap on the wrist, the Texas Commission of Judicial Conduct last week issued a strongly-worded “condemnation” of the actions of the state’s top criminal appeals judge for effectively shutting the courthouse door to a last-minute appeal of a condemned man — then warned her not to do it again.

It could have been worse.

During the closed-door session in which the 13-member commission debated what sanction it should give Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, one non-lawyer member of the commission opined that Keller should be commended for saving the state money by blocking the appeal.

And:

In issuing a “public warning,” the second-lowest public sanction available, the commission rejected the recommendations of District Judge David Berchelmann of San Antonio. After a four-day “trial” during which both sides put on testimony, Berchelmann wrote a lengthy opinion in which he said the Texas Defenders Service, which represented Richard, had performed very poorly and provided no evidence of computer problems. He said Keller had suffered enough public humiliation.

Strangely, he also wrote that he didn’t believe her testimony that under similar circumstances, she would do the same thing in the future.

A majority of the panel agreed that Keller needed to be sanctioned for ignoring the procedures she admitted to knowing. Because of the poor performance of Richard’s lawyers and evidence of other problems at the Court of Criminal Appeals itself, none of the commissioners argued to remove Keller from office.

Some did urge a “public reprimand,” a step up from the “warning.” But a reprimand results in a judge being ineligible to sit as a visiting judge after retiring from the bench.

One member asked why they would prohibit Keller from sitting later if they did not did not think she needed to be removed now. That argument carried the day for the lower sanction.

Earlier coverage begins here, with a round of editorials.

Texas Execution

Texas carried out its 15th execution of 2010, tonight in Huntsville.  It was the state's 462nd 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. 

The AP report on the execution of Derrick Jackson is, "Man executed for deaths of 2 Houston opera singers," via the Houston Chronicle.

No last-day appeals were made to the courts Tuesday to try to block the 15th lethal injection this year in Texas, the nation's most active death penalty state. The Texas Court of Criminal Appeals rejected an appeal Monday, and the Texas Board of Pardons and Paroles turned down a clemency request.

Jackson's was the 114th execution ordered from Harris County; more executions than any state in the nation.  Virginia has carried out 107 executions; Oklahoma, 92. 

To date, there have been 32 executions in the nation in 2010, and 1,220 executions since 1977.

According to TDCJ, three more executions are scheduled in Texas during 2010.  More execution dates will likely be set by state district courts this year.  Karl Keys at Capital Defense Weekly notes execution dates in Texas and other states.

San Francisco Gang Cases to Test DOJ's Death Penalty Policy

That's the title of Dan Levine's news article in Law.com's Recorder.  LINK

Erick Lopez, aka "Spooky," is a hard-core MS-13 gang member who killed two people in San Francisco's Excelsior district, say federal prosecutors. He is eligible for the death penalty.

Luis Herrera, aka "Killer," is also allegedly part of MS-13, and he too is eligible for capital punishment. But while prosecutors say Herrera took part in a different murder -- the February 2009 killing of Moises Frias at the Daly City, Calif., BART station -- they don't think Herrera pulled the trigger.

Lopez and Herrera are two of six San Francisco Bay Area MS-13 defendants for whom Attorney General Eric Holder Jr. must ultimately decide whether to seek capital punishment. The relative culpability of each is a key factor the Justice Department will consider, so where Holder draws the line among those six MS-13 defendants will be one measure of prevailing death penalty attitudes in Washington, D.C., say attorneys involved in the case.

Over the past few weeks, pairs of defense lawyers representing some of the accused have filed into a conference room on Golden Gate Avenue to pitch Northern District of California U.S. Attorney Joseph Russoniello on why their clients don't deserve to die. U.S. District Judge William Alsup has set a Sept. 15 deadline for the DOJ to make up its mind.

Before becoming attorney general, Holder was critical of racial disparities in death penalty enforcement. And while he has said he is personally opposed to capital punishment, during confirmation he promised to enforce the law. At a news conference this past spring in Oakland, he called it "the toughest decision I have to make as attorney general."

Holder has green-lighted fewer death cases than his Republican predecessors, but he is still authorizing them. He OK'd seven out of 61 eligible death cases last year, or 11 percent, according to statistics provided by Federal Death Penalty Resource Counsel, an organization that assists defense lawyers nationwide. Former Attorney General John Ashcroft -- viewed as an aggressive death penalty proponent -- authorized 22 percent of 631 cases, while Alberto Gonzales said yes to 19 percent, and Michael Mukasey to 13 percent.

In the Northern District, Holder pulled back on one gang case last year and accepted a plea deal after trial had already begun. But he didn't retreat on two others. A jury convicted Dennis Cyrus last year on murder in furtherance of a racketeering enterprise, but declined to impose the death penalty. And in San Jose, a death case is currently under way against Ahn The Duong, accused of killing eight people while leading a crew of jewel robbers.

The MS-13 case appears to be the first Northern District case in which Holder will make the original call. First brought in 2008 against 29 defendants (many of whom are not charged with capital offenses), the case is typical of the huge gang prosecutions under Russoniello and former U.S. Attorney Kevin Ryan.

Per protocol, the local U.S. Attorney makes a recommendation to the DOJ's capital case unit in Washington. That group does its own workup, and the attorney general's review committee then considers the case and votes, said Hastings College of the Law professor Rory Little, who served on the committee under Janet Reno.

Holder will ultimately accept or reject their conclusions.

And:

Little, who has studied the federal death penalty and is skeptical as to its utility, served on Reno's committee with a capital prosecutor from Florida. Even though the two had radically different opinions about capital punishment, he said, they only disagreed in one out of 20 cases.

Reno never overruled a U.S. Attorney's recommendation against death, he said, while Ashcroft and Gonzales did. A spokesman for Holder did not respond to questions about current DOJ policies.

Related posts are in the federal death penalty index.

Texas Execution

Texas is scheduled to carry out its 15th execution of the year, tonight in Huntsville.  It would be the state's 462nd 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. 

The Houston Chronicle reports, "Execution set Tuesday in Houston tenors' slayings."

For seven years the investigation stagnated. Then, in 1995, sheriff's deputies using sophisticated new fingerprint technology linked a bloody print from Henderson's apartment to Derrick Jackson, a Houston man serving 12 years for aggravated robbery. Jackson denied any involvement but was convicted of the double-murder in 1998.

Jackson is to be executed Tuesday, becoming the 15th killer put to death in Texas this year. Houston lawyers last week were reviewing the case but were uncertain if they would find grounds for further appeals.

And:

Years after Jackson's conviction, the way police handled the case was criticized by Michael Bromwich, the independent investigator hired to review operations of the department's troubled crime lab.

In his 2007 report, Brom-wich found that a technician apparently manipulated lab findings to bolster the case against detectives' prime suspect of the moment.

When an early suspect had Type O blood, Bromwich wrote, the employee neglected to report that Type B blood was found on an apartment door. Only when a charge was lodged against Jackson, who has Type B blood, was the fact added to the report.

Jackson's would be the 114th execution ordered from Harris County; more executions than any state in the nation.  Virginia has carried out 107 executions; Oklahoma, 92.  To date, there have been 31 executions in the nation in 2010, and 1,219 executions since 1977.

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), tonight.

According to TDCJ, three more executions are scheduled in Texas during 2010.  More execution dates will likely be set by state district courts this year. 

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

Editorial Response to the Keller Reprimand

Today's Dallas Morning News editorial is, "Keller rebuke was necessary." 

The official warning to Texas Court of Criminal Appeals Presiding Judge Sharon Keller last week was critical to restoring respect for the state's legal system.

In deciding to rebuke Keller, the State Commission on Judicial Conduct went beyond recommendations from a special master who heard evidence in the case. "Public humiliation" was enough, the master had said in January, despite a finding that Keller's actions thwarting an 11th-hour death-penalty appeal were "not exemplary of a public servant."

It's a relief that the Commission on Judicial Conduct concluded that humiliation indeed was not enough. Keller's infamous words "We close at 5" – her response to a request for an after-hours filing – required the official condemnation meted out by the commission last week.

And:

The court has last-minute procedures in death cases, but Keller failed to follow them or to make sure that court personnel followed them. The result, the commission found, cut off Richard's "access to open courts" in violation of the Texas Constitution and brought "discredit on the judiciary."

If Keller is interested in rehabilitating her image, she's going about it in a strange way. The judge's lawyer says she wants to appeal the commission's official warning. Last year, she testified in her case that if she had it to do all over again, she wouldn't change a thing.

Maybe that's good politics in a tough-on-crime state. Maybe Keller wants to hew to the campaign statement she once made about being "pro-prosecutor."

But it would do everyone else a favor if Keller backed out of defensive mode and took her medicine. She should also heed the advice of the judicial commission to "reflect on the importance" of canons of conduct that stress "open communication, congeniality and collegiality" among judges.

"State commission's punishment of Court of Criminal Appeals chief justice not fitting," is the title of the Fort Worth Star-Telegram editorial.

There's a logical conclusion to the State Commission on Judicial Conduct's "Findings, Conclusions and Order" involving Sharon Keller, Texas Court of Criminal Appeals presiding judge.

But the commission doesn't quite get there.

After proceedings that included a public trial before a special master and a hearing before the 13-member commission, the key finding was that Keller willfully engaged in conduct that "is clearly inconsistent with the proper performance of her duties" and "casts public discredit on the judiciary or the administration of justice."

There have been many claims and counterclaims, recriminations and finger-pointing since the execution of Michael Wayne Richard on Sept. 25, 2007.

But the ensuing ethics inquiry established this: Keller knowingly disregarded court procedures, and a Death Row inmate's last-minute appeal did not receive the proper consideration that might have stayed the execution.

As the commission noted, the court has "safeguards to assure that the Court remains open up to the moment of execution, in case any issue -- slight or great -- needs attention before the irreversible event of death."

But those safeguards didn't operate for Richard; Keller didn't let them.

And:

If Texas is going to have the death penalty, every step along the way must be taken with the utmost respect for life.

That's not because killers deserve better than their victims -- it's because Texans must have confidence that criminal punishment is handled justly.

Keller's inflexibility elevated an arbitrary time on the clock above fair process. Still, the commission issued only a public warning. But that least-severe public penalty doesn't state nearly strongly enough that the people of Texas deserve more credible and humane leadership on the state's highest criminal court.

Today's San Antonio Express-News carries the editorial, "Judge Keller gets slap on the wrist."

A disciplinary panel last week reached the proper, harsh conclusions about Texas Court of Criminal Appeals Presiding Justice Sharon Keller’s actions in a controversial death-penalty case.

But the State Commission on Judicial Conduct let her off too easy with a “public warning.”

Keller should have been removed from office for her actions thwarting death-row defendant Michael Wayne Richard’s effort to obtain a stay of execution.

In the Sept. 25, 2007 episode, Keller instructed a court staff member to tell Richard’s lawyers the court clerk’s office closed at 5 p.m. and would not receive a late appeal.

And:

The commission’s ruling comes almost three months after the Texas Ethics Commission, another watchdog usually known to be toothless, fined Keller $100,000 for what the Hearst Austin bureau described as failing to report income, stock holdings and real estate holdings on personal financial disclosure forms for 2007 and 2008.

Sadly, Texas is stuck with Keller on the court through 2012. If she runs again, it will be up to voters to end the embarrassment.

Earlier coverage begins with this post.

The Case Of Bruce Webster

"Mental retardation evidence may not save Arlington teenager's killer from death chamber," is the title of Jason Trahan's report for the Dallas Morning News.  It appeared in the Sunday edition.

Bruce Carneil Webster helped kidnap, rape, torture and bury alive Arlington teen Lisa Rene.

A judge on the 5th U.S. Circuit Court of Appeals agrees that new evidence, including psychological examinations, appears to show that Webster is mentally retarded.

But although the U.S. Supreme Court banned the death penalty for the mentally retarded eight years ago, 5th Circuit Judge Jacques Wiener Jr. and his two colleagues agree that they can't stop Webster's execution. The panel says he exhausted his appeals to the point that it can't consider new evidence unless it is likely to prove he was innocent.

And since everyone agrees he's guilty, Webster still faces death.

"We today have no choice but to condone just such an unconstitutional punishment," Wiener wrote as part of the panel's April 28 ruling denying Webster's request for a hearing on the new evidence.

Experts say the case is headed for a constitutional showdown.

"It's an outrageous situation," said David Bruck, a death penalty expert at Washington and Lee University law school in Virginia. "Sometimes the law just doesn't fit the facts. This is one of those times."

Steven Wells, Webster's attorney, said he plans to ask the Supreme Court to untangle the mess.

"If we're allowed to bring this new evidence before a fair and impartial judge, they will find that Bruce Webster is mentally retarded," Wells said.

And:

Evidence claiming Webster is mentally retarded was a major part of his 1996 criminal trial, and has been a part of his appeals.

At his trial, jurors heard defense experts and Webster's family say he is mentally retarded. Prosecutors acknowledged his low IQ, but argued that he was able to adapt to his lack of intellect and knew right from wrong. A fellow inmate testified he saw Webster appear to be reading law books and making notes from them while in prison.

After the jury found him guilty, jurors were asked whether they thought Webster was or could be mentally retarded. Four of the 12 answered "yes."

U.S. District Judge Terry Means ruled then that Webster was not mentally retarded and sentenced him to death. His attorneys appealed.

In 2002, the Supreme Court clarified laws on mental retardation and execution in Atkins vs. Virginia, ruling that executing the mentally retarded constitutes cruel and unusual punishment. Webster's attorneys cited that decision in their appeal, but the 5th Circuit soon upheld Webster's death sentence, relying on the same arguments and evidence used at trial.

In February 2009, Webster's attorneys received records from when Webster applied for Social Security benefits to treat a sinus condition and headaches.

Those records, from a year before the killing, show that three doctors who examined him had found him to be mentally retarded.

And:

The "Kafkaesque" situation, as Wiener describes it, arises out of changes made to federal criminal law in 1996. After the Oklahoma City bombing and the first World Trade Center attack, Congress put strict limits on the number of times federal inmates can challenge their sentences.

To file more than one appeal, an inmate has to have new information "sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the [defendant] guilty of the offense," the law states.

In the 5th Circuit's ruling, Wiener wrote: "If the evidence that Webster attempts to introduce here were ever presented to a judge or jury for consideration on the merits, it is virtually guaranteed that he would be found to be mentally retarded."

The 5th Circuit ruling is here.

Related posts are in the mental retardation index.  Mental retardation is now generally referred to as a developmental disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

Maryland Weighs Allowing Inmates' Own Clergy at Death

That's the title of a lengthy AP report distributed this morning via Google News.  It's written by Brian Witte.  LINK

Maryland is considering becoming one of the few states to allow condemned inmates to choose a clergy member not employed by the state to be in the execution chamber when they die.

Corrections officials must balance the sensitive issues of security during one of the gravest tasks undertaken by the state and religious freedom during a condemned person's final moments.

The measure is being considered by Maryland legislators at a time when the death penalty is essentially on hold there after a court found that the way the state lethally injected its inmates wasn't properly approved.

Most of the 35 states with capital punishment allow an inmate to meet with clergy of their choice in the hours before an execution, but the majority of them require spiritual advisers to watch the execution from an adjoining room. Several states, including Maryland, Georgia, Tennessee and Texas, allow an official prison chaplain to be in the room during the execution.

Maryland based its new proposal on a similar policy Oklahoma put in place in 2004, although officials there have changed their regulations since Maryland learned about them. Oklahoma has not allowed any clergy in the death chamber for two or three years, since an inmate's religious adviser showed up wearing an ankle-monitoring device because he was on probation, said Jerry Massie, a spokesman for the Oklahoma Department of Corrections.

"We had an outside chaplain in there once that created a security issue, so we just decided not to have any chaplains in there," Massie said, noting that clergy can observe from another room.

Rick Binetti, a spokesman for the Maryland Department of Public Safety and Correctional Services, said Maryland's proposal has safeguards, chiefly a requirement that the corrections commissioner must approve the inmate's choice.

And:

Chaplain Gary Friedman, a spokesman for the American Correctional Chaplains Association, recalled intervening on behalf of a Jewish death row inmate in Texas who wanted to arrange for rabbi to be with him in the chamber about 10 years ago. At first, Friedman said, Texas officials were not going to allow a rabbi who worked for the state corrections department to attend, saying the duty had to be performed by an assigned department chaplain.

"We had to go all the way to the governor's office," Friedman said, before Texas officials relented in the case of Max Soffar, who is still on death row.

Florida does not allow a chaplain in the execution chamber, but the state does allow an inmate to choose clergy to be among witnesses. The sensitivity of the matter was evident during Martin Grossman's execution in February. Rabbi Menachem Katz, who had been Grossman's spiritual adviser for 15 years, was allowed to be with Grossman on the afternoon before his execution. But Katz said he could only be with him as long as non-Jewish chaplains employed by the state were present.

"I felt we needed privacy, and they refused," Katz said.

Friedman said that's an example of how prison systems could be more sensitive.

"Sometimes, it's the nature of the beast that security trumps humanity," Friedman said.

The proposed change in Maryland was included as part of protocols submitted in May to a legislative panel for review. The administration of Democratic Gov. Martin O'Malley, a Catholic who opposes the death penalty, proposed the changes reluctantly, after previous attempts to repeal capital punishment failed in the General Assembly.

Related posts are in the religion index.

An Update on the Hank Skinner Case

Sunday's Amarillo Globe-News ran the article, "Henry Skinner's last chance: Steady in his convictions."  It's written by Janelle Stecklein.

Henry Watkins Skinner has been on death row since 1995, when a jury found him guilty of the Dec. 31, 1993, murder of his girlfriend, Twila Busby, 40, and her two disabled sons, Elwin "Scooter" Caler, 22, and Melvin "Randy" Busby Jr., 20, in Pampa.

Minutes before Skinner's March 24 execution, the Supreme Court halted it to decide whether he can sue 31st and 223rd District Attorney Lynn Switzer for access to evidence previously untested for DNA.

Skinner long has contended that he would be exonerated if additional evidence found at the murder scene were tested. He wants two knives, vaginal swabs and fingernail clippings taken from Twila Busby's body, as well as other items, to undergo testing. But an array of crime scene and circumstantial evidence was used to convict Skinner for the killings, and he faces long odds in having that conviction overturned based on new evidence.

And:

Now, Skinner's life essentially is in the hands of the Supreme Court, in a last-ditch attempt to access evidence Skinner insists will clear him and implicate a dead man. His case remains in limbo, likely until the Supreme Court is scheduled to rule on the matter next year.

"Other than Mr. Skinner himself, I'm not sure that anybody has looked at the case and said this DNA evidence would be likely to clear him," said attorney Greg Coleman of the law firm Yetter Coleman LLP, which is representing Switzer. Switzer referred comment to the firm.

Coleman contends that the right man is behind bars and that by denying DNA testing, Switzer is setting precedent.

"It's not so much about this one case," Coleman said. "But if you say you're going to test it, aren't you basically saying you're going to take upon yourself the obligation to test it every time someone asks for it? We want to make sure we're not just wasting everybody's time. You need to make a showing that this evidence will prove you innocent."

And Skinner repeatedly has failed to do so, courts have found.

But even if the Supreme Court rules in Skinner's favor, it likely would only mean that Skinner has the right to file a civil lawsuit against Switzer. The issue of testing most likely would revert to a lower court, and the legal wrangling then would likely start all over again.

Earlier coverage of the case begins with this post.

News Coverage of Keller Reprimand

The Commission's Findings, Conclusions and Order of Public Warning is here.

"Texas Judge Reprimanded in Death Row Case," in the New York Times.A judicial panel on Friday reprimanded a Texas judge who declined to keep the courthouse open for a last-minute appeal from a death row inmate.

Judge Sharon Keller, the state’s highest-ranking criminal judge, received a public warning from the State Commission on Judicial Conduct for “willful or persistent misconduct” that “casts public discredit on the judiciary.”

The AP report is, "Top Texas criminal judge warned but keeps job," via Google News.  It's by Paul Weber.

The resolution to what became a three-year saga seemed to leave neither side satisfied. Keller sought nothing short of an exoneration, and her critics grumbled over the panel letting her off with a light rebuke.

Death penalty opponents and observers had waited nearly three years to find out whether Keller would lose her job after famously saying "We close at 5" while attorneys for a twice-convicted killer scrambled to file a last-minute appeal.

Recommending Keller's removal would have amounted to a historically extraordinary move by the panel. But the 13-member commission didn't find her without fault.

Keller's actions constituted "willful or persistent conduct that is clearly inconsistent with the proper performance of her duties," the panel wrote in a 19-page ruling.

Keller was also found to have cast "public discredit on the judiciary."

Chuck Lindell writes, "Judge rebuked but avoids ouster," for the Austin American-Statesman.

The State Commission on Judicial Conduct issued a "public warning" to Keller, saying she failed to properly perform her duties when she chose to close the Court of Criminal Appeals clerk's office at 5 p.m. despite knowing that defense lawyers wanted to file an appeal in a pending execution.

Keller's decision violated court procedures and meant death row inmate Michael Richard was executed later that night without his final appeal being heard in court, the commission ruled.

"Judge Keller's conduct...is clearly inconsistent with the proper performance of her duties as a judge" and brought discredit upon the legal system, the commission said.

Keller, who has denied wrongdoing, will appeal the reprimand.

"It is perhaps not surprising that the same commission that made the charges finds them now to be valid despite overwhelming evidence to the contrary," said her lawyer, Chip Babcock. "Judge Keller looks forward to challenging this decision."

Jim Harrington of the Texas Civil Rights Project, which filed a complaint against Keller with the judicial commission, criticized the reprimand as a slap on the wrist. Commissioners, he said, should have recommended that she be removed from office, kicking off a new inquiry by a specially created panel of seven appellate judges.

"I think the rebuke is rather weak," Harrington said. "It was just so cavalier, the way she handled everything."

In focusing solely on Keller's actions the night Richard was executed, the commission disregarded the bulk of the judge's defense, which blamed Richard's lawyers for the missed appeal and portrayed Keller as the victim of a coordinated, strident attack by opponents of the death penalty.

The commission also ignored advice from District Judge David Berchelmann Jr., who recommended that charges be dropped against Keller, saying "the public humiliation she has surely suffered" is punishment enough.

"Judge Sharon Keller reprimanded for conduct related to 2007 stay of execution filing," is Christy Hoppe's Dallas Morning News report.

Keller, the presiding judge on the Court of Criminal Appeals, has fought allegations that she failed in her duties for almost three years. A special judge that heard her case last year said that she should not be reprimanded.

But the Judicial Conduct committee heard an appeal of that decision last month and issued a different decision, saying Keller failed to perform her duties, maintain open access to the courts and that her actions constituted a “willful or persistent conduct that casts public discredit on the judiciary or the administration of justice.”

The case involves the execution of Michael Richard who was executed in September 2007. The morning of his scheduled execution, the U.S. Supreme Court agreed to hear a case that questioned the constitutionality of the drug combinations used in lethal injections.

The Fort Worth Star-Telegram has, "Judge Sharon Keller sharply rebuked, but keeps job," written by Dave Montgomery.

Judge Sharon Keller, the state's highest criminal appeals court judge, ignored the court's execution-day procedures for appeals and displayed conduct that "casts public discredit on the judiciary" by denying a late-hour appeal for a Death Row inmate in 2007, the State Commission on Judicial Conduct concluded in a report released Friday.

The 19-page document sharply rebuked Keller for her handling of the case, saying that her conduct violated legal standards for her office and effectively closed off last-minute legal avenues for inmate Michael Wayne Richard, who was executed by lethal injection at 8:23 p.m. on Sept. 25, 2007.

But the judicial oversight panel chose the least severe public sanction against Keller -- a public warning -- opting against more severe recommendations, including calling for her removal from the bench.

Nevertheless, the stinging tone of the document brought praise from some of Keller's critics, who vowed that they will press forward with efforts to oust her. Keller's attorney, Charles "Chip" Babcock of Houston, said he was "shocked and disappointed" by the findings and said that Keller is considering an appeal.

"I think she got a slap on the wrist even though she was clearly wrong," said Rep. Lon Burnam, D-Fort Worth, who called for Keller's impeachment during the 2009 Legislature. He said "it is likely" that he will renew his call for impeachment following the commission's findings.

The commission released its ruling after a hearing last month. Options before the judicial oversight panel ranged from complete dismissal of the charges to a recommendation that Keller be removed as presiding judge of the Texas Court of Criminal Appeals, the most severe measure that would have opened yet another phase of the protracted inquiry.

Peggy Fikac writes, "Keller warned, but keeps post, in death penalty case," for the Houston Chronicle.

Texas Court of Criminal Appeals Presiding Judge Sharon Keller was publicly rebuked by a state judicial commission Friday for blocking a condemned man’s lawyers from filing a last-minute appeal in 2007, but she will keep her job.

The State Commission on Judicial Conduct’s “public warning” to Keller came nearly three years after convicted murderer Michael Wayne Richard was executed.

Earlier coverage begins here.

Key documents in the case include:

• Examiner's Objections and Responses filed by attorney John McKetta
• Objections filed by attorney Chip Babcock
• Findings.by Special Master David Berchelmann
• Charges brought by the Commission on Judicial Conduct

Some of the critical early reporting is noted in these posts:

• More on the CCA's Refusal to Consider Richard Stay Request
• Editorial Outrage at CCA Closed Door
• More on the CCA Closed Door
• Ethics Complaint Filed Against CCA Presiding Judge
• More on the Ethics Complaint Against Judge Keller
• Continued Criticism of Presiding Judge Sharon Keller

Keller is also facing a record fine issued by the Texas Ethics Commission over her financial disclosure filings, noted here.

Judicial Conduct Commission Issues Public Warning to Judge Keller

The Commission's Findings, Conclusions and Order of Public Warning is here.

Chuck Lindell posts, "Keller reprimanded for role in missed execution appeal," at the Austin American-Statesman.

Sharon Keller, the state’s top criminal judge, was reprimanded today for “interfering” with attempts to file a late appeal on behalf of a death row inmate in 2007.

The State Commission on Judicial Conduct declined to recommend that Keller be removed from office, instead issuing a “public warning” over her behavior in the case of convicted killer Michael Richard.

Keller’s lawyer, Chip Babcock, has in the past said she would appeal anything short of an exoneration.

Richard’s legal team with the nonprofit Texas Defender Service had asked the Court of Criminal Appeals to stay open beyond 5 p.m. on the evening Richard was to be executed. Keller, reached at home by court personnel, declined the request, the commission found.

Commissioners ignored advice from District Judge David Berchelmann Jr., who recommended that charges be dropped against Keller.

Earlier coverage begins with this post.

Key documents in the case include:

• Examiner's Objections and Responses filed by attorney John McKetta
• Objections filed by attorney Chip Babcock
• Findings.by Special Master David Berchelmann
• Charges brought by the Commission on Judicial Conduct

Some of the critical early reporting is noted in these posts:

• More on the CCA's Refusal to Consider Richard Stay Request
• Editorial Outrage at CCA Closed Door
• More on the CCA Closed Door
• Ethics Complaint Filed Against CCA Presiding Judge
• More on the Ethics Complaint Against Judge Keller
• Continued Criticism of Presiding Judge Sharon Keller

Keller is also facing a record fine issued by the Texas Ethics Commission over her financial disclosure filings, noted here.

A History of Texas Tough Justice

At the Texas Tribune, you can listen to an interview with Robert Perkinson, author of the recently published Texas Justice, American Injustice.  It's conducted by Ben Philpott.

Texas has long been a “tough on crime” state, but there has been a movement in recent years to change the system known more for its executions than for its rehabilitations. Robert Perkinson talked with Ben Philpott of KUT News and the Tribune about the history of the state’s prison system and the possible changes ahead.

Earlier coverage of Texas Justice, American Injustice is here.

Tension in the Tarrant County Criminal Court

That's the title of an editorial in today's Fort Worth Star-Telegram.  LINK

Were the jurors twittering during the trial and improperly discussing the case on Facebook?

Did they bring forbidden materials into the jury room? Bully other jurors into voting against their conscience?

Did they claim during jury selection that they could consider the death penalty as a possible punishment -- but when it came right down to it, flatly refused to do so?

Who's to know why certain jurors' names have made it onto a list of people some Tarrant County prosecutors don't want influencing any more criminal verdicts.

Defense attorney Bill Ray wants the "bad juror" list, but the district attorney's office has told the Texas attorney general that the document should remain private.

There's clearly some value in making the list public. It could show which jurors rubbed which prosecutors the wrong way and why.

It could reveal whether the prosecutors who added names expressed improper or unconstitutional reasons for finding certain jurors objectionable.

On the other hand, what kind of precedent would be set by declaring lawyers' notes public records?

And:

It's one thing to be dissatisfied with how a juror acted. It's another to compile a blackball list. Tarrant County prosecutors should be more judicious about how they share information.

Earlier this week, the Star-Telegram published the news article, "Criminal defense attorney wants list of 'bad jurors' disclosed to public," by Gene Trainor.

Some Tarrant County prosecutors keep a secret list of people they don't want on a jury for undisclosed reasons, and a Fort Worth criminal defense attorney wants the public to have access to the list.

Prosecutors and defense attorneys typically select a jury after voir dire -- questioning potential candidates. Both sides can reject people who they believe could hurt their case. But Tarrant County prosecutors already have a "bad-juror list" of people they don't want on juries and why.

"They've got these jurors who maybe didn't like them personally," said criminal defense attorney William Ray of Fort Worth, who wants the list disclosed. "They've just blackballed them and said, 'You'll never be on a jury again.'"

Ray has written to Texas Attorney General Greg Abbott encouraging him to force the Tarrant County district attorney's office to make the list public after prosecutors refused Ray's request, sent June 24, to voluntarily provide it.

Tarrant County Assistant District Attorney Ashley Fourt has contested its release, writing in a letter to Abbott that the list is a "work product" -- a designation that could keep it private. She said last week that jurors get on the list based on the subjective impressions of prosecutors, which should not be discussed publicly.

Last year, Ray forced Tarrant County prosecutors to release a more general list of jurors and their verdict histories after filing a request that went to the state. Ray, a former Tarrant County prosecutor, suspects that only four or five prosecutors use the smaller bad-juror list because top officials in the district attorney's office did not know it existed.

Ray said he discovered that last month when prosecutors gave him documents about jurors for a case. At the bottom of one page was "Note: None of the jurors are on the Bad Juror List," he said.

District Attorney Joe Shannon and Fourt said they found out about the bad-juror list only after Ray's request. They also said that they do not know how many names are on the list or how many lawyers use it but that it's only a few pages.

Prosecutors who may have been involved in maintaining the list did not return a request for comment last week.

Thursday

I will be traveling most the day.  Posts will resume later.

Tennessee Governor Commutes Death Sentence of Gaile Owens

The commutation document is here.

The Tennessee Governor's Office has issued the news release, "Bredesen Commutes Death Sentence."

Governor Phil Bredesen today commuted the death sentence of Gaile Owens to life imprisonment. The Governor announced the commutation at the Capitol today, citing the extraordinary sentence compared to similar Tennessee cases, that Ms. Owens consistently admitted her guilt and that she had accepted a conditional plea agreement for life imprisonment prior to her original trial as the reasons for granting the commutation.

On January 14, 1986, Owens was convicted of accessory before the fact to first-degree murder in the murder-for-hire plot that resulted in the beating death of her husband, Ron Owens, in 1985.

Bredesen received a clemency petition from Owens on July 31, 2009. The state Supreme Court had set an execution date of September 28, 2010.

The Tennessean reports, "Governor commutes sentence of Gaile Owens."  It's written by Clay Carey and Chas Sisk.

Gov. Phil Bredesen said Wednesday that he had commuted the death sentence of Gaile W. Owens to life in prison.

Bredesen said his decision was based on the fact that Owens had agreed to a plea bargain that was later rescinded and might have been abused by her husband. Owens was convicted in 1986 of hiring another man to kill her husband.

"Nearly all the similar cases we looked at resulted in life-in-prison sentences," Bredesen said.

The commutation order also grants Owens a credit for 1,000 days of her sentence and the right to earn additional sentence reductions. The decision means that Owens could be eligible for parole as soon as late spring 2012, Bredesen said.

Owens has refused media requests for interviews.

Her case attracted a team of influential, well-connected Nashvillians who began working months ago to save her life. The team included the high-powered public relations firm of McNeely Pigott & Fox, former Tennessean newspaper publisher and editor John Seigenthaler, Americana singer-songwriter Marshall Chapman and noted civil rights attorney George Barrett. They were joined by national and statewide women's organizations in their crusade.

They took up her cause without charging Owens one penny. Some opposed the death penalty under any circumstances and others were convinced that Owens was a victim of a legal system that unfairly ignored the abuse she suffered during her 13-year marriage to Ron Owens.

“As heinous as the crime was, the record of how Tennessee has dealt with similar cases over the last century makes it clear that her death would have been a terrible miscarriage of justice,’’ said John Seigenthaler, former Tennessean publisher and editor, who has been an advocate for Owens.

The Memphis Commercial Appeal reports, "Bredesen commutes death sentence of convicted murderer Gaile Owens of Bartlett," by Richard Locker.

Owens, now 57, was convicted in Shelby County Criminal Court of hiring Sidney Porterfield of Memphis to kill her husband, Ronald Owens, who was beaten to death with a tire iron at the couple’s Bartlett home in 1985.

Porterfield, now 67, was also sentenced to death, but he has a hearing set for Sept. 30 to determine if he is mentally fit under the law for execution. Today’s commutation has no direct bearing on his case.

Gaile and Ronald Owens's son, Stephen Owens, had joined with his mother's lawyers in an April press conference to publicly plead for his mother's life. He said he had been estranged from his mother for more than 20 years until he met with her in prison last summer.

"I am asking for your mercy. I am the face of the victim in this tragedy," Stephen Owens said April 20. "Last year I walked into the Tennessee Prison for Women and saw my mother for the first time in more than 20 years. I looked my mother in the eyes and told her I forgive her."

He could not be reached immediately today for reaction to the governor's action.

Bredesen cited two major considerations in his decision:

— “First, there’s at least a possibility that she was in an abusive marriage. While that in no way excuses arranging for murder, that possibility of abuse and the psychological conditions that can result from that abuse seems to me at least a factor affecting the severity of the punishment.

— “Second, Mrs. Owens was offered a plea bargain prior to her trial, of life imprisonment in exchange for her guilty plea. She accepted that plea bargain, the responsibility and the punishment, and the district attorney clearly considered that an appropriate resolution as well.”

However, the governor said, that plea bargain offer was contingent on Porterfield accepting it as well. When he refused, the offer was withdrawn by prosecutors and she went to trial with Porterfield as a co-defendant.

Bredesen also said that his office reviewed 33 similar Tennessee cases of women arranging and being charged with the murder of their husbands, some involving domestic abuse and some not. He said that only two of the cases resulted in the women being sentenced to death.

Jeff Woods posts, "Bredesen Answers Questions on Gaile Owens," at Nashville Scene.

Q: Did you speak with her?

Bredesen: No. I don’t need to tell you that there was a lot of activity about this particular case. As I have with the others, I spoke with her attorney as a courtesy as I have with several of the others, but I have not met with anyone else regarding the case and have I guess I would say stiff-armed a number of people and just said I just don’t think it’s appropriate. This is not going to be decided based on who’s for it or who’s against it or political pressure or anything else. So I’ve not met with anyone on the case, including her.

Q: Why was now the time?

Bredesen: I think it’s just a matter of I’ve looked at it. It’s been a year since she asked for it. The execution is scheduled in September. I’m not interested in having this woman go through waiting for that to happen until it got close. I’ve been reasonably occupied until much of this spring. We really I think kind of in late June were able to get settled down and start looking at this thing really hard. This is the conclusion that I came to.

Earlier coverage of her case is here.

Tennessee Lethal Injection Challenge Dismissed

"Judge dismisses lawsuit by Tennessee death row inmate against lethal injection protocol," is the AP report via Memphis' KREG-TV.

A federal judge has dismissed a lawsuit by death row inmate Edward Jerome Harbison against the state's lethal injection protocol.

Harbison wanted to amend his lawsuit with information about autopsies on two inmates who have been executed.

U.S. District Court Judge Aleta A. Trauger on Monday dismissed claims in his 2006 lawsuit.

Harbison had been scheduled to be executed in January 2008 but had won a stay pending his claims.

Earlier coverage from Tennessee is here, here, and here; related posts are in the lethal injection index.

A Compilation of Final Words

"Last Words," is the title of Charles Simic post at the New York Review of Books blog.

Robert K. Elder’s Last Words of the Executed, with a foreword by the late Studs Terkel, has just been published by the University of Chicago Press.

And:

Often more interesting than the final thoughts of some of these men and women are the short descriptions Elder provides of their backgrounds and the crimes they committed. Over the years, a few of them became the basis of novels and films, but there are plenty of others in the book that are just as tantalizing. Most likely, some of the executed were innocent, while others, who were guilty, had complicated and awful lives; one tends to feel sorry for them and wishes to know more about their stories. It’s when it comes to true monsters, and there are plenty of them here, that even someone like me, who opposes capital punishment, begins to wonder if there ought to be an exception now and then. Take the case of Ted Bundy who killed at least thirty women, and of other serial killers. Whatever side in the argument one habitually takes, this book is recommended reading, so that in addition to learning how we put people to death, one can also put to the test the firmness of one’s convictions.

Related posts are in the books index.

A Yellow Light to DNA Searches

That's the title of an editorial in today's New York Times on the issue of familial DNA testing.  LINK

For nearly 25 years, a serial killer stalked South Los Angeles, murdering at least 10 people. He was caught last week through the use of a much-debated DNA technique that involves tracking down relatives of convicted criminals. The technique, known as familial searching, has significant potential as a crime-fighting tool and is likely to spread to other states now that it has passed its first successful test in this country. But there must be stringent safeguards to prevent abuse.

And:

Using a partial DNA match this way could raise all sorts of privacy and civil liberties issues if not carefully controlled. Hundreds of people could fall under suspicion simply because they are related to someone in the criminal DNA database. Because blacks and Hispanics are disproportionately represented there, a first-time black offender has a better chance of having his DNA lead to a familial match than does a first-time white offender.

These concerns are serious but should not block the use of familial searching, which has led to several successful arrests in Britain. If other states want to proceed in this area, they need to follow the example of California, which has strict requirements for the use of the technique.

Under rules set up by Attorney General Jerry Brown, familial searching cannot be used unless all other investigative leads have been exhausted. The crime must be murder or rape, and the criminal has to be an active threat to public safety — still committing crimes.

A committee of lawyers and forensic experts in the attorney general’s office evaluates all requests to do a familial search and votes on whether to proceed based on those criteria, as well as the strength of the DNA match and several other factors.

Those procedures, however, are not codified into law, and they need to be, in California and in any other state that moves in this direction. (Currently, only California and Colorado have written policies.) Another attorney general could come along and loosen the procedures to allow abusive fishing expeditions.

Greg Miller posts, "Scientists Explain How Familial DNA Testing Nabbed Alleged Serial Killer," at Science Insider.

On Friday, Science Insider spoke with two scientists involved with the DNA search, senior criminalist Steven Myers and case-work laboratory manager Gary Sims, both based at the Jan Bashinski DNA Laboratory in Richmond, California. They explained that the searches initially focus on 15 regions of DNA on 13 chromosomes. These include the 13 regions used by the Federal Bureau of Investigation's Combined DNA Index System (CODIS) and two additional regions used in California. All of these regions contain genetic stutters called short tandem repeats, in which a pattern of base pairs repeats itself over and over. The number of repeats varies from person to person, and two people who are related are likely to have the same number of repeats at more of these sites. The lab's analysis also considers how frequently a given variation occurs in the general population: two people who share a rare variation are more likely to be related than are two people who share a common one.

Sims and Myers explained that the lab's software uses this information to generate a ranked list of the convicted felons in the DNA database who are most likely to be first-order relatives—parents, children, or full siblings—of the person a DNA sample came from. (The statistics aren't strong enough to identify more distant relatives, they say.) When both individuals in question are male, the lab also looks at a similar number of short tandem repeats on the Y chromosome, which should be an exact match between fathers and sons and between full brothers.

Earlier coverage of familial DNA testing begins here.

California Politics and Capital Punishment

"Races could test voters' views on death penalty" is the title of Bob Egelko's front page article in today's San Francisco Chronicle.  Here's a brief excerpt:

For decades, capital punishment was a driving force in California politics, swaying elections for governor and the U.S. Senate and reshaping the state Supreme Court.

While executions in California have been on hold for more than four years, tied up in court challenges to lethal injection procedures that the state is now redrafting, November's elections may determine whether the death penalty still carries political weight.

The contrasts at the top of the major parties' tickets could not be starker.

Democrats Jerry Brown and Kamala Harris, the candidates for governor and attorney general, oppose capital punishment and have acted on their beliefs - Brown by vetoing a death penalty bill when he was governor in 1977, Harris by refusing to seek death sentences as San Francisco district attorney.

Their Republican opponents, Meg Whitman and Steve Cooley, support capital punishment. So do most Californians, according to Field Poll surveys going back half a century, although the majority has fallen from 83 percent in 1986 to 67 percent in 2006.

Earlier coverage from California begins with this post.