The StandDown Texas Project

An Update on Walter Quijano

The Texas Tribune posts, "Texas Ends Deal With Psychiatrist Over Race Testimony," this afternoon.  It's by Brandi Grissom.

The Texas Youth Commission terminated its contract Friday with a psychiatrist who testified repeatedly in death penalty cases that Hispanic and black men were more likely to be dangerous in the future. The termination followed a Texas Tribune inquiry into the agency's six-year agreement with the doctor.

Despite more than a decade of court controversy in six death penalty cases, including one that was stayed by the U.S. Supreme Court last month because of the testimony Walter Quijano provided, the TYC began using the psychiatrist in 2005. The Tribune obtained the contracts under public information laws. The TYC most recently renewed its agreement with Quijano last month, just days before the high court stayed the execution of Duane Buck because of Quijano's testimony.

Upon receiving a public information request from the Tribune regarding the Quijano contracts, TYC officials said Wednesday that they had recently learned of Quijano’s testimony and that the agency was "reviewing its agreements for Dr. Quijano’s services.”

State Sen. John Whitmire, D-Houston, wrote the agency a letter Friday demanding that the TYC stop using Quijano's services. And he urged TYC officials to review every case Quijano was involved with.

“I find it extremely alarming that someone with Mr. Quijano’s bias has had any control over their health care and well-being,” wrote Whitmire, who is chairman of the Senate Criminal Justice Committee.

And:

Starting as early as 1991, Quijano provided testimony during the punishment phase in six death penalty cases. He told jurors about factors that could make a person more likely to be a danger to society in the future. Quijano explained that African American and Hispanic men were more likely to be violent again.

In 2000, then-Texas Attorney General John Cornyn admitted the state had erred in the 1996 trial of Victor Hugo Saldana, along with six other death penalty cases, in which Quijano testified regarding race and future dangerousness.

"Because the use of race in Saldano's sentencing seriously undermined the fairness, integrity, or public reputation of the judicial process, Texas confesses error," Cornyn wrote in a court filing.

Earlier coverage of Quijano's work in death penalty cases begins at the link.

Karlan on Capital Punishment

Stanford Law School's Pamela Karlan posts, "The Cost of Death," at the Boston Review.  It's an excellent reminder that capital punishment serves as the tip of the iceberg of America's criminal justice system.  Problems we see in death penalty cases are generally present throughout the criminal justice system.

Over the past 40 years, while the Supreme Court has been “tinker[ing] with the machinery of death,” in Justice Harry Blackmun’s haunting phrase, other components of the system have broken down untended.

And:

Because the Court and Congress convinced themselves that death row inmates were dragging out the process of post-conviction appeals, they have dramatically restricted the ability of all defendants to seek habeas corpus, the primary vehicle for bringing constitutional challenges against state court convictions. The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) create a procedural obstacle course that prevents federal courts from addressing the merits of a defendant’s constitutional claims. For example, in the first week of the current Supreme Court term, the Court heard oral argument in the case of Cory Maples, a death row inmate in Alabama who so far has been unable to get the federal courts to hear his claim that his trial lawyer was ineffective at his sentencing. The reason? The volunteer lawyers who later represented him moved on to new jobs, and when the state court ruled against his claim, there was no one at their former law firm to receive the letter announcing the decision. The letter was stamped “Return to Sender,” and the deadline for appeal passed before anyone noticed. As a result, federal courts accepted the state’s argument that Maples had “defaulted” his claims.

A fortnight before, the Court stayed the execution of Duane Buck, whose death sentence Texas seeks to insulate from federal review despite the fact that, under questioning from a prosecutor, a psychologist told the jury that being black “increases [Buck’s] future dangerousness”—a necessary element for a death sentence under that state’s law.

Cases such as these—not to mention the recent execution of Troy Davis, which spurred worldwide protests—receive focused attention both inside and outside the Court. The Court’s rules single out capital cases for special treatment, directing that the notation “CAPITAL CASE” appear at the beginning of any such request for review and mandating that the government, which often waives its right to reply, file a response. The clerk’s office has a special staff attorney charged with overseeing the voluminous, often last-minute filings in death penalty cases. The justices and their law clerks often scrutinize the filings with great care. The bar has also responded: death row inmates typically receive superb legal assistance before the Supreme Court. Former Bush Administration Solicitor General Gregory Garre is now representing Maples. Current Solicitor General Donald Verrilli previously represented several death row inmates pro bono before the Court.

But the concentration on capital cases comes at a cost. Ineffective trial lawyers, inconclusive evidence, inconsistent testimony, and impenetrable procedural thickets are hardly unique to capital cases. Nonetheless, the Court is far less likely to pay attention to these claims when the consequences to the defendant seem less harsh. Criminal law and procedure scholars such as Robert Weisberg of Stanford and Douglas Berman of Ohio State have described how the Court’s concern with death leads it to shortchange the constitutional claims of defendants facing lesser punishments. Berman has calculated that about one in ten thousand state felony sentences is a death sentence, yet the Court devotes more resources to reviewing death sentences than to reviewing claims in all other criminal cases combined. And while the Court has repeatedly considered whether a death sentence is proportionate to a particular class of crimes—for example, barring death sentences for non-homicide offenses or for juvenile or mentally retarded defendants—it has set virtually no limits on the severity of prison sentences. In the 40 years that the Court has been actively policing capital punishment, prison sentences have lengthened and the U.S. prison population has skyrocketed. With execution at the top end of the scale of punishment, a life sentence begins to look something like leniency, and other sentences are inflated in turn.

Karlan's column on law is a regular feature of Boston Review.

Related posts are in the Supreme Court index.

Perry Displays Varied Stance Toward Crime

That's the title of an article in today's New York Times written by Deborah Sontag.  It begins with an account of the case of Kelsey Patterson, a severely mentally-ill individual executed in 2004.  The Board of Pardons and Paroles had recommended a commutation of his sentence, which was rejected by Governor Perry.  The article includes extensive coverage of Mr. Patterson's case.  It's a must-read, if only for those portions.

To critics here, Mr. Perry’s denial of a rare offer of mercy by his board indicates that he is excessively zealous about what he has called “the ultimate justice in the state of Texas.”

But Mr. Perry’s record on criminal justice is more mixed than his tough stance on the death penalty might suggest, partly because of changes in the political and legal climate over his three terms as governor.

Death sentences and average yearly executions have declined during his tenure compared with that of his predecessor, George W. Bush. And persistent efforts to fix Texas’s troubled justice system have finally borne some fruit. Mr. Perry has not been a crusader, but he has signed reform-minded legislation and acknowledged some of the system’s mistakes, once referring to an exonerated prisoner’s murder conviction as a “great miscarriage of justice.”

And:

To some here, Mr. Perry’s championing of the death penalty seems crystallized by his 2001 veto of a bill banning the execution of the mentally retarded and by his refusal to stay the execution of Cameron Todd Willingham in 2004 after a last-minute report from an arson expert cast doubt on his guilt in his three daughters’ deaths in a house fire.

After that execution, Mr. Perry did not impede the Legislature’s creation of a commission to strengthen the state’s use of forensic science. But he did intervene in the commission’s investigation of the Willingham case, replacing its chairman, a defense lawyer, with a prosecutor who derailed the inquiry for over a year.

At the same time, though, Mr. Perry was signing bills to create a life without parole alternative to the death sentence, punish hate crimes more harshly, improve criminal defense for the poor, guarantee a right to post-conviction DNA testing, upgrade the use of eyewitness identifications and award generous compensation to exonerated prisoners.

State Senator Rodney Ellis, a Democrat who has led the push for criminal justice changes, said the governor should not be given too much credit for declining to veto legislation. “We’ve had to work against the grain to get that stuff passed,” he said.

On the parole board’s recommendation, Mr. Perry pardoned 35 people arrested in a tainted drug sting in Tulia and posthumously pardoned Timothy Cole, who was wrongfully convicted of rape and died in prison of an asthma attack. He also lobbied for significant compensation for a man who was exonerated after 18 years in prison for murders he did not commit.

Earlier coverage of Rick Perry, the death penalty in Texas, and 2012 politics begins at the link.

FSC Investigation on Willingham Ends; 700+ Arson Cases to Get Review

The Texas Forensic Science Commission's Addendum to the Willingham/Willis Investigation Report, what appears to be the Commission's final word, is available in Adobe .pdf format.

"Willingham inquiry ends, but effects linger," is the title of Chuck Lindell's report for the Austin American-Statesman.  It appeared in the Saturday edition.

A state investigation into the science used to convict and execute Cameron Todd Willingham came to a quiet close Friday, but its results might echo across the justice system and the nation's death penalty debate for years to come.

Making final changes to its report on the Willingham case, the Texas Forensic Science Commission signed off on a document acknowledging that unreliable fire science played a role in the Corsicana man's conviction for the murder-by-arson deaths of his three young daughters in 1991. He was executed in 2004.

Following commonly held beliefs now known to be wrong, arson investigators testified that the Willingham house fire was intentionally set using a liquid accelerant, the commission concluded.

Modern fire experts working for the commission and for the New York-based Innocence Project, which is representing Willingham posthumously, have determined that none of the more than 20 "arson indicators" identified by fire investigators in 1991 are reliable evidence of accelerant use. The cause of the fire should have been "undetermined," the experts said.

Though the commission's inquiry was never intended to weigh Willingham's guilt or innocence, the findings have added fuel to the debate over capital punishment.

"The world should now know that the evidence relied upon to convict and execute Cameron Todd Willingham for the fire that killed his daughters was based on scientifically invalid and unreliable evidence," said Stephen Saloom , policy director for the Innocence Project. "By any fair estimate, that indicates he was innocent, that he did not set that fire."

And:

The agency's final report includes a commitment from the state fire marshal's office — whose investigator was the chief prosecution witness at Willingham's trial — to review old arson rulings to determine whether convictions were based on now-debunked assumptions.

The Innocence Project of Texas will provide most of the heavy lifting — about 40 forensic science and law students — to help the fire marshal identify and review old arson cases, said Jeff Blackburn, chief lawyer for the Texas nonprofit legal organization.

"I think this is a great opportunity," Blackburn said during Friday's commission meeting in Austin. "As far as I know, this is the only example of this kind of cooperation going on anywhere in the country."

The Texas Tribune post is, "Forensic Science Panel Recommends Arson Probe," by Claire Cardona.

Now, a new stage of work begins that will require time and cooperation to conduct an exhaustive review of previous arson cases. But Blackburn said with the Fire Marshal's involvement, all the pieces are falling into place. 

The commission's recommendations include the creation of a questionnaire for inmates convicted of arson to see if their cases are worth reviewing. The panel also recommended a review of death certificates in cases where the murder charge is listed as arson.

The recommendations also include new certification criteria for expert witnesses, and additional rules and regulations aimed at preventing the use of outdated science and improving the quality of testimony and analysis.

Since his 2004 execution, Willingham's family has continued a fight to prove his innocence. Willingham's cousin, Patricia Ann Willingham-Cox, thanked the commission for its work. 

"Have we gotten justice for Todd in the state of Texas? No, not yet, but we will," Cox said. "Has Todd's death effected needed change? Yes."

"Texas forensic board recommends review of arson convictions," is the title of Will Weissert's AP report.  It's also available via the Fort Worth Star-Telegram.

A Texas commission no longer allowed to investigate a case where death penalty opponents say a man may have been executed based on a faulty arson investigation recommended Friday that all cases involving people locked up on arson convictions be reviewed.

The reviews were among 17 recommendations for improving arson inquiries approved by the Texas Forensic Science Commission. The State Fire Marshall's Office has agreed to scrutinize forensics in cases where determinations that fires were deliberately set led to an arson conviction or a murder by arson conviction.

The Innocence Project of Texas, the state arm of a national non-profit that specializes in using DNA evidence to overturn wrongful convictions, will help identify cases for review by providing written surveys to prisoners. State officials also will examine death certificates to ensure qualifying murder cases are identified — since some that involve fires don't list arson as the official cause of death.

Jeff Blackburn, the Innocence Project of Texas' chief attorney, said priority will be given to Texas death row inmates. How many prisoners could have their cases reviewed is unclear, but just looking at arson convictions could involve 750 to 900 cases.

The eight-member panel made its recommendations after the state attorney general limited the scope of its investigation in the case of Cameron Todd Willingham, who was put to death in 2004 for setting a 1991 fire that killed his three children. Arson experts hired by the forensic commission determined the evidence used to convict Willingham didn't meet modern scientific standards and the fire was most likely accidental.

The commission took up Willingham's case after the New York-based Innocence Project filed a complaint in 2007. It couldn't have overturned his conviction but might have determined whether evidence was collected and analyzed properly, supplying grounds for an appeal if it wasn't.

Earlier coverage of the Todd Willingham case begins at the link. All Willingham coverage is available through the Todd Willingham 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 has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

This is also a perfect time to point readers back to Dave Mann's enterprise reporting on questionable arson convictions in the Texas Observer.

Austin American-Statesman on the Hank Skinner Case

"Skinner execution should wait for DNA," is the title of an Austin American-Statesman editorial.  It appeared in the Saturday edition.

Remember the words of Michael Morton who was freed from prison earlier this month after serving nearly 25 years on a life sentence for killing his wife: "I thank God this wasn't a capital case. I only had life."

We are thankful, too, because we now know from recent DNA testing on old evidence that Morton did not kill Christine Morton. He still would be serving hard time for a crime someone else committed, however, if a district attorney got his way. Williamson County District Attorney John Bradley (who was not in that office when Morton was convicted in 1987) for years blocked DNA testing of evidence that ultimately cleared Morton. And now the state is taking a similar posture in the Hank Skinner case. But this time it is a capital murder case.

Skinner is scheduled to be executed Nov. 9. Texas must test the DNA evidence in that case prior to executing him. DNA testing will tell us whether the right person is being put to death. That should be a key goal of any criminal justice system.

And:

We all should have learned from the Morton case that post-conviction DNA testing is a prudent and necessary tool to bring our criminal justice system back into balance when it errs. That is especially true in capital murder cases. Prosecutors should welcome that tool and test the DNA evidence in Skinner's case.

Earlier coverage of Hank Skinner's case begins at the link.

The State of Criminal Justice in the States

"State budget cuts clog criminal justice system," a major examination by the Associated Press.  It's written by Greg Bluestein, with additional reporting from aul Elias in San Francisco, Mike Glover in Iowa, and Bob Johnson in Alabama.  It's also available from the Bloomington Pantograph and Huffington Post.  Here are two excerpts from the article:

Prosecutors are forced to ignore misdemeanor violations to pursue more serious crimes. Judges are delaying trials to cope with layoffs and strained staffing levels. And in some cases, those charged with violent crimes, even murder, are set free because caseloads are too heavy to ensure they receive a speedy trial.

Deep budget cuts to courts, public defenders, district attorney's and attorney general offices are testing the criminal justice system across the country. In the most extreme cases, public defenders are questioning whether their clients are getting a fair shake.

Exact figures on the extent of the cuts are hard to come by, but an American Bar Association report in August found that most states cut court funding 10 percent to 15 percent within the past three years. At least 26 states delayed filling open judgeships, while courts in 14 states were forced to lay off staff, said the report.

The National District Attorneys Association estimates that hundreds of millions of dollars in criminal justice funding and scores of positions have been cut amid the economic downturn, hampering the ability of authorities to investigate and prosecute cases.

"It's extremely frustrating. Frankly, the people that do these jobs have a lot of passion. They don't do these jobs for the money. They are in America's courtrooms every day to protect victims and do justice," said Scott Burns of the National District Attorneys Association. "And they're rewarded with terminations, furloughs and cuts in pay."

The ripple effects have spread far beyond criminal cases to even the most mundane court tasks, such as traffic violations and child custody petitions. The wait to process an uncontested divorce in San Francisco, for example, is expected to double to six months as the system struggles to absorb state budget cuts that have led to layoffs of 40 percent of the court's work force and the closing of 25 of 63 courtrooms.

And:

Public defenders, whose offices also are absorbing cuts, are taking more clients.

"If you don't have enough lawyers to handle the cases, it leaves them open to speedy-trial challenges and ineffective assistance of counsel," said Ed Burnette, a vice president of the National Legal Aid & Defender Association.

Some of the lapses are testing speedy-trial rules, in some cases resulting in dismissals that otherwise are hard to win. In Georgia, trial and appellate courts have dismissed a handful of indictments against suspects accused of violent crimes because they could not be brought to trial fast enough.

In one case, a judge tossed out murder charges against two Atlanta men because it took Fulton County prosecutors four years to indict them after they were arrested and charged with a 2005 shooting. Local prosecutors say strained resources were partly to blame for the delay.

Legal agencies that represent the poor and depend on government grants also have been hit hard.

State funding for the Georgia Resource Center, which represents indigent death penalty defendants in post-conviction proceedings, has fallen by about $250,000 over three years. This year, the center fell short on a $300,000 grant from a foundation, forcing layoffs of a paralegal and an assistant administrator and the reduction to part-time status of a staff attorney.

"We've been running on a shoestring for years and we are minimally available to take care of all the guys on death row," said Brian Kammer, the center's executive director, who said he is writing grant applications at the same time he is representing death row inmates. "But with this kind of funding loss, we're getting crippled."

Related posts are in the cost, indigent defense, and state legislation indexes.

Kirk Bloodsworth on the Hank Skinner Case

"Texas Must Test DNA Before Carrying Out Skinner Execution," is the title of Kirk Bloodsworth's essay at Huffington Post, this morning.  He was the first DNA exoneree convicted of a capital crime in America.  His story is told in Bloodsworth: The True Story of One Man's Triumph over Injustice by Tim Junkin.

Test the DNA. That is the simple request of Hank Skinner to Texas officials before they carry out his execution, which is scheduled for November 9. I do not know if Mr. Skinner is innocent or guilty -- but I do know firsthand the critical importance of DNA testing. Nearly twenty years ago, I became the first person in the United States exonerated from death row when post-conviction DNA testing proved my innocence.

In 1985, I was convicted and sentenced to death in Maryland for a crime I did not commit. I spent eight years in prison, two of those on death row, before I obtained the testing that led to my exoneration.

DNA testing not only proved my innocence. Ten years after I was released from prison, DNA helped identify the true person who committed the tragic murder of a young girl for which I had faced execution. That person confessed and is serving life in prison.

The only reason my name was cleared, and the right man brought to justice, is because prosecutors agreed to test the evidence. I am living proof that when scientific evidence is available, there is simply no excuse to refuse testing.

Texas officials have senselessly fought against DNA testing in Mr. Skinner's case for over a decade. Mr. Skinner came within one hour of execution last year before the U.S. Supreme Court intervened. He now faces execution again despite the State's continuing to vehemently block testing of key pieces of never-tested DNA evidence.

And:

Since my exoneration, I have worked to ensure that no defendants are denied the critical testing that saved my life. That is why I helped champion a federal law in 2004 to provide funds for post-conviction DNA testing.

Just this year, Texas lawmakers similarly recognized the vital importance of DNA testing. In May, the Texas Legislature passed a law expanding access to post-conviction DNA testing. The new law is designed for cases like Mr. Skinner's, where available DNA evidence has never been tested. Testing reliable scientific evidence can provide certainty and help maintain confidence in the criminal justice system.

The State has absolutely nothing to lose by putting off Mr. Skinner's upcoming execution to allow these tests to be conducted. Whether DNA proves Mr. Skinner's guilt or innocence, Texas officials should not be afraid of seeking the truth.

DNA allowed the mistakes in my case to be caught in time. Texas must test the evidence in Mr. Skinner's case before it is too late.

Earlier coverage of Hank Skinner's case begins with the preceding post.

Additional Coverage of the Skinner Letter

At Texas News Service, Peter Malouf writes, "Will New Texas Law Stop Skinner Execution?"

A Texas man scheduled for execution Nov. 9 is hoping a new state law will help save his life.

Lawyers for Hank Skinner say they've been fighting for a decade to persuade courts to allow DNA analysis of key pieces of previously untested evidence, which could prove he was wrongly convicted of a triple homicide in 1993. Lawmakers cited the Skinner case this year as one of the reasons to remove some of the procedural barriers to testing evidence after convictions.

Skinner attorney Rob Owen says the new legislation is the basis for asking state and federal courts to reconsider past objections.

"This opens the door for us to say to the courts, ‘The provision of the law that you said keeps us from getting DNA testing has been removed for the specific purpose of affecting this case.’ "

The new law was mentioned in a letter from 17 current and former lawmakers, judges and prosecutors, sent Thursday to Gov. Rick Perry, Atty. Gen. Greg Abbott and the district attorney in charge of the case. The letter says the state should "ensure certainty" before carrying out the "irreversible step" of execution.

Prosecutors have said Skinner is just trying to delay his death, and that the new testing law doesn't apply to his case. Owen, a visiting clinical professor at Northwestern Law School, says he can't imagine why anyone would be against learning the truth.

"Common sense would dictate that you'd do the DNA testing, since it can bring us closer to certainty about what happened. Why the DA would not want to remove these doubts is a mystery to me."

"Perry asked to grant DNA testing to death row inmate," by Allan Turner for the Houston Chronicle.

With convicted killer Henry Skinner's execution less than two weeks away, a group of legislators and former prosecutors and judges on Thursday called on Gov. Rick Perry for prompt DNA testing of items that could help clear the one-time paralegal of the triple murder that sent him to death row.

Skinner, 49, consistently has contended he was too impaired by alcohol and codeine to have fatally bludgeoned his girlfriend and fatally stabbed her two adult sons in a 1993 New Year's Eve rampage at the couple's Pampa home.

Skinner, who came within an hour of execution in March 2010, before the U.S. Supreme Court granted a stay, has petitions to obtain the DNA testing before state and federal courts. He is scheduled to be executed on Nov. 9.

And:

Perry spokeswoman Lucy Nashed referred requests for comment to Abbott and Switzer, saying the governor would not comment on a case in the courts. Abbott's office did not respond to inquiries.

"Letter seeks DNA tests before Texas execution," is the AP report.  It's also available from the Fort Worth Star-Telegram.

Current and former prosecutors and lawmakers are asking Texas Gov. Rick Perry and other state officials to delay an upcoming execution so DNA evidence in the case can be tested.

Hank Skinner is to be executed Nov. 9 for the 1993 deaths of his girlfriend and her two sons. His lawyers have asked state and federal courts to order the tests they contend will clear him.

Prosecutors have called the requests merely an attempt to delay the 49-year-old's execution.

And:

Perry's office referred comment to prosecutors, calling it "a matter pending before the courts." Abbott's office didn't have any immediate comment on the letter.

"Officials urge Perry to delay execution," at AFP.

More than a dozen current and former prosecutors and lawmakers urged Texas Governor Rick Perry, a Republican presidential candidate, to delay a condemned man's execution to allow for DNA testing.

And:

The letter -- addressed to Perry, Texas Attorney General Greg Abbott and Gray County District Attorney Lynn Switzer -- was even signed by a former Texas governor, Mark White.

Skinner, 48, repeatedly has denied he committed the murders and has pleaded with authorities for over a decade to test DNA he says could prove that someone else killed the trio.

The state has long refused, citing a restrictive state DNA testing law. But lawmakers made changes to the law this year that lifted many of the restrictions.

"That legislation passed with overwhelming bipartisan support, not least because polls show that 85 percent of Texans agree that prisoners should have broad access to DNA testing," the officials said in the letter.

They pointed to the exoneration of Michael Morton this month thanks to DNA tests after 25 years in prison.

The letter to Governor Perry, Attorney General Abbott, and the Gray County District Attorney -- signed by former Texas Governor Mark White and others -- is available in Adobe .pdf format.

Readers who wish to sign a petition urging DNA testing can do so at the link.

Earlier coverage of Hank Skinner's case begins at the link.

Texas Execution

Texas carried out its 12th execution of the year, last night in Huntsville.  It was be the state's 476th post-Furman execution since 1982.

Tonight's execution was the 237th conducted under the administration of Rick Perry.  He became Governor of Texas upon the resignation of George W. Bush in December 2000.  152 men and women were executed in five years under Governor Bush's tenure.

The Huntsville Item reports, "San Antonio cop killer is put to death," written by Cody Stark.

Convicted cop killer Frank Garcia sang and praised his Heavenly Father in the moments before he was to be put to death Thursday.

“Thank you for this, my God is a God of salvation,” Garcia said. “Only through you Jesus Christ people will see that your still on the throne.”

When the lethal drugs began flowing through his veins at 6:52 p.m., 30 minutes after the U.S. Supreme Court denied his final appeal, Garcia’s breathing suddenly slowed. Ten minutes later he became the 12th death row inmate to be executed in Texas this year.

To date there have been 39 executions in the nation this year; a total of 1,273 post-Furman executions since 1977.

TDCJ notes that two additional executions are scheduled for 2011, in November.  Two Texas executions are already set for 2012.

The Skinner Letter

"Officials Urge Perry to Halt Skinner Execution," is the title of Brandi Grissom's Texas Tribune post.

More than a dozen current and former lawmakers, prosecutors, judges, police officers and even a former Texas governor sent a letter today calling on Gov. Rick Perry and other state officials to allow for DNA testing death row inmate Hank Skinner says could prove his innocence.

They asked Perry, Attorney General Greg Abbott and Gray County District Attorney Lynn Switzer to halt Skinner's scheduled Nov. 9 execution until the testing is done.

“There is simply no justifiable reason why Texas continues to waste taxpayer dollars in its decade-long fight to prevent scientific testing in Mr. Skinner’s case,” the group wrote. “We implore you to take the lead in the search for truth in this case.”

Skinner was convicted in 1995 of killing his live-in girlfriend and her two sons in Pampa. He has maintained his innocence from the start, arguing that he was too inebriated from a mixture of vodka and codeine to overpower the three victims. He has pleaded with the state for more than a decade to test DNA he argues could show that another man was the killer.

The letter sent today and signed by former Gov. Mark White and current state Sens. Juan “Chuy” Hinojosa, D-McAllen, and Rodney Ellis, D-Houston, cites the recent DNA-based exoneration of Michael Morton as an example of the importance of scientific analysis. Morton was convicted in 1987 of murdering his wife Christine Morton. He was released from prison this month, after serving nearly 25 years, based on DNA testing that showed another man likely killed Morton’s wife and another Austin woman. Investigators are currently seeking the man implicated by DNA testing in those killings.

Earlier coverage of the letter and the Hank Skinner case begins at the link.

The letter to Governor Perry, Attorney General Abbott, and the Gray County District Attorney -- signed by former Texas Governor Mark White and others -- is available in Adobe .pdf format.

Readers who wish to sign a petition urging DNA testing can do so at the link.

Texas Indigent Defense Symposium

The newly renamed Texas Indigent Defense Commission, formerly the Task Force, is holding its 2011 Indigent Defense Symposium in the Texas Capitol, today.  It marks 10 years of the Texas Fair Defense Act, passed in the 2001 Texas Legislature.

It includes excellent programming, and it's being live-streamed via the Texas Senate website.  Scroll to the Capitol Extension Auditorium and click to view using Real Player.

Because of the name change I am now adding a Texas Indigent Defense Commission category.  New items involving the agency will be noted with that category.  The Task Force on Indigent Defense category will remain in the index for older entries.

 

An Update on the Hank Skinner Case

Attorneys representing Hank Skinner have issued a news release this morning, "Current and Former Elected Officials, Former Judges, Prosecutors and Law Enforcement Urge State Officials to Test DNA in Skinner Case."

Here's the text:

Hank Skinner remains scheduled for execution on November 9 despite the fact that key pieces of evidence in his case have never been subjected to DNA testing.  Today, former judges, prosecutors and law enforcement officers, along with current and former elected officials from Texas, delivered a letter to state officials calling on them not to execute Mr. Skinner until that DNA testing can be performed.  The letter was sent to Governor Rick Perry, Attorney General Greg Abbott and Gray County District Attorney Lynn Switzer.  
 
The State previously obtained the November 9 execution date even though Mr. Skinner is awaiting two separate court decisions, either of which could compel District Attorney Switzer to provide access to the previously untested evidence. Mr. Skinner’s federal court appeal follows a March 2011 decision by the U.S. Supreme Court, which confirmed Mr. Skinner’s right to sue for access to the DNA evidence using a federal civil rights law. A motion is also pending in state court under a new Texas law that went into effect in September designed to remove procedural barriers from post-conviction DNA testing.

In the letter, the prominent Texans express “grave and growing concerns about the State’s stubborn refusal to date to test all the evidence in the Skinner case. Executing Mr. Skinner without testing all the relevant evidence would suggest official indifference to the possibility of error in this case and needlessly undermine public confidence in Texas’s criminal justice system.”

Signatories to the letter include: Rodney Ellis, Texas State Senator and author of the recent legislation reforming Texas’ post-conviction DNA testing law; Mark White, former Governor of Texas; Morris L. Overstreet, former Judge of the Texas Court of Criminal Appeals and former Amarillo Assistant District Attorney; Sam Millsap, former Bexar County District Attorney; Kenneth J. Mighell, former United States Attorney for the Northern District of Texas; and Earl D. Musick, former Lieutenant of the Houston Police Department.

The letter cites widespread public support for using DNA testing when available, with eighty-five percent of Texans agreeing that an inmate should have access to testing if it has a chance of proving him innocent. In May, the Texas Legislature voted with overwhelming bipartisan support to pass reforms that increase access to post-conviction DNA testing.

Earlier this month, Michael Morton was exonerated after 25 years in prison for a crime he did not commit. DNA testing cleared Mr. Morton’s name and identified the true perpetrator of the crime.  Mr. Morton’s case, the letter states, highlights the need for the State to consent to DNA testing when untested DNA evidence is available.

The never-tested evidence in Mr. Skinner’s case includes: a man’s windbreaker found next to victim Twila Busby’s body, which had blood splatter, perspiration stains and human hairs on it; two knives, at least one of which was a likely murder weapon; a bloody towel; scrapings from Ms. Busby’s fingernails, which may contain blood or skin cells of the perpetrator; and swabs from a rape-kit.  

The letter concludes: “There is simply no justifiable reason why Texas continues to waste taxpayer dollars in its decade-long fight to prevent scientific testing in Mr. Skinner’s case. We implore you to take the lead in the search for truth in this case.  Test the DNA evidence before moving forward with Mr. Skinner’s execution.  If that requires a brief reprieve of Mr. Skinner’s scheduled November 9 execution, that short delay will be a small price to pay to maintain public confidence in Texas’s criminal justice system.”

The letter to Governor Perry, Attorney General Abbott, and the Gray County District Attorney -- signed by former Texas Governor Mark White and others -- is available in Adobe .pdf format.

Readers who wish to sign a petition urging DNA testing can do so at the link.

Earlier coverage of Hank Skinner's quest for DNA testing begins at the link.

Texas Execution - Thursday

Texas is scheduled to carry out its 12th execution of the year, tonight in Huntsville.  It would be the state's 476th post-Furman execution since 1982. 

Tonight's execution would be the 237th conducted under the administration of Rick Perry.  He became Governor of Texas upon the resignation of George W. Bush in December 2000.  152 men and women were executed in five years under Governor Bush's tenure.

"San Antonio man to be executed for officer's death," is the AP report by Michael Graczyk.  It's via the Fort Worth Star-Telegram.

A San Antonio street gang member set for execution Thursday told police that he knew officers often wore bulletproof vests so when one responded to a domestic violence call at his home, he shot him in the head.

Frank Garcia, 39, was sentenced to die for the fatal shooting of police Sgt. Hector Garza, 48. Authorities say Garcia killed his wife, Jessica, in the same outburst. She was shot three times - one bullet to her forehead and two others lower on her face.

"I just turned and went: 'Pow, pow.' And I shot the officer," Garcia later told detectives. He said he didn't notice whether Garza had pulled a gun but "just went crazy."

Garcia's attorneys asked a San Antonio judge last week to halt his execution date, contending Garcia was mentally impaired and ineligible for the death penalty under U.S. Supreme Court rulings. The court refused the request.

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.

To date there have been 38 executions in the nation this year; a total of 1,272 post-Furman executions since 1977.

TDCJ notes that two additional executions are scheduled for 2011, in November.  Two Texas executions are already set for 2012.

California Roundup

Today's San Francisco Chronicle reports, "Death penalty foes launch initiative drive.  It's by Kevin Fagan.

Capital punishment opponents launched a drive Tuesday to place an initiative on the November 2012 ballot to replace the death penalty in California with a sentence of life in prison without possibility of parole.

Organizers must collect 504,000 valid voter signatures by the March 18 deadline to qualify the initiative for the election. They've dubbed their measure the Savings, Accountability and Full Enforcement for California Act.

"Californians are ready for the SAFE California Act because now they realize we have wasted literally billions of dollars on a failed death penalty system," said Natasha Minsker, statewide campaign manager for the effort. "It's time to take our resources and put them instead toward public safety."

Minsker, an attorney in the American Civil Liberties Union of Northern California who has long specialized in opposing executions, said the campaign has 800 volunteers and expects to have 2,000 by March. She estimated the campaign to qualify for the ballot will cost as much as $1.5 million, "and we have some great donors."

"Former inmate heads movement to abolish death penalty," is the KGO-TV report.

A San Francisco man who was freed by a judge after spending 21 years in jail is spearheading a campaign to abolish the death penalty in California.

Maurice Caldwell spoke in favor of the Safe California Act, a ballot proposal that would end capital punishment in the state and replace it with life in prison without the possibility of parole.

Caldwell says he's proof the criminal justice system makes mistakes.

Proponents began gathering signatures Tuesday and plan to put the initiative on the November 2012 ballot.

"Efforts Underway for Ballot Measure to End Death Penalty," at KPBS by Jenny O'Mara of the California Capitol Network.

Signature-gathering efforts are getting underway in California for a ballot measure that would end the death penalty. Supporters of the “Savings, Accountability and Full Enforcement for California Act” want to place the measure on the November, 2012 ballot. Campaign Manager Natasha Minsker said the initiative would replace death sentences with life in prison without parole.

“Murder victim family members are part of this campaign and that includes murder victim family members, where the perpetrator, the killer of their loved one is on death row in California and what they say first hand is that California’s death penalty is a cruel and empty promise to victims’ families,” said Minsker.

There is also commentary on the California campaign.  Today's Long Beach Press-Telegram carries the editorial, "The high cost of death penalty."

The long-standing debate about California's death penalty may soon become more than an abstract philosophical argument. At least 12 inmates on death row in San Quentin have exhausted their legal appeals and could face imminent execution once the courts resolve a challenge on the use of lethal injections.

Prison officials have notified a federal judge that they will have a new execution team in place shortly, which could mean the case will get a hearing early next year.

Death penalty opponents also are working to get an initiative on the November 2012 ballot that seeks to end executions. How a resumption of executions on a regular basis would affect California voters' views remains to be seen.

However, it is unlikely that executing a prisoner a month, as Ohio is doing now, would significantly affect the feasibility of the death penalty.

It still would be a policy that fails to accomplish its purpose of lowering murder rates and would continue to cost far more than an effective alternative.

Since the state's death penalty was reinstated in 1978, taxpayers have spent more than $4 billion on capital punishment. California has more than 700 inmates on death row, more than any other state. However, only 13 executions have been carried out, the last one in 2006. That amounts to $308 million per execution.

"State's death penalty ‘failed system'," is Susan Meeker's column for Tri-County Newspapers.

A ballot initiative could make its way to the voters in 2012 aims to replace the death penalty with life in prison without parole.

Backers of an initiative were given approval to begin gathering signatures by Secretary of State Debra Bowen on Friday.

Erin Mellon, a spokeswoman for Taxpayers for Justice, the organization behind the initiative, said a number of recent polls mean only one thing: California could be on the verge of dumping the death penalty.

"Californians are ready for change," Mellon said Tuesday. "People have wisened up to the fact that the death penalty is too expensive. It is a failed system."

The initiative is partly based on a study released in June by U.S. Court of Appeals Judge Arthur L. Alarcon that found California's death penalty system is costing the state about $184 million per year.

A field poll, released Sept. 29, shows 48 percent of California voters have a strong preference for life without the possibility of parole over the death penalty — a substantial increase from 20 years ago.

Cost is the key reason for the shift, Mellon said.

Catholic San Francisco carries the column, "‘The better angels of our nature’," by John Garvey.

Steven Pinker, a psychology professor at Harvard, recently published a book entitled “The Better Angels of Our Nature,” which argues that the age that we live in is less violent than any other period in history.

Archeological studies of pre-state societies suggest that as many as 15 percent of the population met violent deaths. Murder rates in Europe today are 10 to 50 times lower than they were in the Middle Ages.

Pinker attributes this “civilizing process” to a number of causes – the increasing power of the state, the growth of commerce, improvements in the status of women and even progress in our moral reasoning.

Whether we actually do get better at moral reasoning is a very complicated question. It may be that we reach different conclusions when we apply the same principles in different social situations.

Take the issue of capital punishment.

Today's Los Angeles Times carries the OpEd, "The death penalty: valid yet targeted," by David B. Rivkin Jr. and Andrew Grossman, lawyers in Washington, D.C.

Unable to convince the public on the merits of abolition, death-penalty opponents have a new strategy, attacking capital punishment on fiscal grounds. That is the basis for a ballot initiative to stop executions in California that backers of a capital punishment ban hope to qualify for the November 2012 ballot. They do have half a point: Litigation has driven up the cost of executions, and delays and expense mean that states don't always seek death for the worst of the worst.

But this argument is beyond hypocritical, coming from the same groups that have thrown up every possible roadblock to timely and efficient administration of capital punishment.

If these groups took their fiscal rhetoric seriously, they would do better to acknowledge the Constitution's text and history and drop their endless campaigns to litigate the death penalty out of existence, which cost taxpayers millions to defend. The public should not be denied the choice that the Constitution allows: an affordable and effective ultimate punishment.

NBC LA posts, "Anti-Death Penalty Budgeting Bungle," by Joe Mathews.

Specifically, the initiative takes money out of the general fund -- which is to say, out of the famously distressed and unbalanced state budget -- and puts it into a special fund called the "SAFE California Fund."

Over four years, from 2012 to 2016, a total of $100 million would be taken from the budget for this fund. These funds, according to the text of the initiative,

"shall be used exclusively for the purposes of this Act and shall not be subject to appropriation or transfer by the Legislature for any other purpose."

What are the purposes? To speed the solving of cases of rape and murder.

Who could argue with such a good cause? No one -- which is why it's smart politics to have this sort of thing in the act.

But it's terrible policy.

The act gives the attorney general -- not the legislature or governor -- control over the money, essentially giving a state official the ability to influence how local police departments allocate resources.

Earlier coverage of the California SAFE initiative begins at the link.

The Week Looks at the Death Penalty

The weekly magazine's current in-deptah briefing is, "The death penalty in decline."

How many countries have the death penalty?
Capital punishment laws are on the books in 91 countries, but only 23 of them carried out any executions last year. The U.S. executed 46 people last year, and 37 so far this year — more than any other country, except for the dictatorships of China, North Korea, Iran, and Yemen. In most parts of the modern world, the practice appears to be in steep decline. Since 1976, a total of 123 countries have effectively abolished the death penalty as a barbaric legacy of the past. All signs point to an unmistakable downward trend, says Mario Marazziti, co-founder of the World Coalition Against the Death Penalty. "There is worldwide growth of a new moral standard of decency and of respect for human rights," he said, "even the rights and lives of those who may have committed severe crimes."

Is that trend likely to extend to the U.S.?
It already has, in parts of the country. Illinois scrapped the death penalty in March of this year, and New Jersey did so in 2007. Lawmakers in California, Connecticut, Florida, Ohio, and Maryland introduced legislation this year to abolish the death penalty in those states. A recent Gallup poll found that the U.S. public's approval of the death penalty had dropped by 19 percentage points over the past 17 years, and currently stands at 61 percent, the lowest level since 1972. And although 34 states retain capital punishment laws, only 11 states executed prisoners last year, down from 20 in 1999. In effect, the death penalty has become a regional practice: Texas, Oklahoma, and Virginia alone account for more than half of U.S.

And:

A warden's change of heart
Three times in his 22-year career in Florida's corrections system, warden Ron McAndrew presided over an execution in the electric chair. Each time, his private doubts grew. During the third execution he witnessed, the condemned prisoner's head burst into flames, and McAndrew had to give the order to continue. "This is wrong," he decided. McAndrew, now a prison consultant, joined a small group of ex-wardens turned death penalty abolitionists, including Jeanne Woodford of San Quentin in California and Donald Cabana of Parchman Penitentiary in Mississippi. These wardens say that participating in the planned, cold-blooded killing of human beings has haunted them, and that it inflicts lasting trauma on corrections officers. "Many colleagues turned to drugs and alcohol from the pain of knowing a man died at their hands,'' McAndrew said. "The state dishonors us by putting us in this situation. This is premeditated, carefully thought-out ceremonial killing." He advocates "an alternative that doesn't lower us to the level of the killer: permanent imprisonment.''

Coverage of the statement on capital punishment by former wardens is at the link; Ron McAndrew has spoken of the trauma prison staff suffer.

Death Penalty's Unlikely Opponents

That's the title of a report at CNN, posted by Eliott C. McLaughlin.  There is video at the link.  Here are two excerpts from this must-read:

Charisse Coleman has no real compassion for the man who walked into the Thrifty Liquor Store in Shreveport, Louisiana, in 1995 and put three bullets in her brother, Russell.

But she doesn't want Bobby Lee Hampton -- one of more than seven dozen killers on Louisiana's death row -- executed, either.

"My opposition to the death penalty has nothing to do with Bobby Lee Hampton," Coleman said. "He's a bad dude. He's never going to be a good dude. If I got a call that said Bobby Lee Hampton dropped dead in his cell last night, I don't think it would create a ripple in my pond."

She added, though, "I will be goddamned if I will let Bobby Lee Hampton make me a victim, too, by taking me down that road of bitterness and revenge."

Coleman, 50, is among the most unlikely opponents of the death penalty, people who lost loved ones to unspeakable violence yet believe executing the killer will do nothing for family members or society.

Their stance is backed by groups like Murder Victims' Families for Reconciliation and Murder Victims' Families for Human Rights, and their reasons aren't as religious or political as one might think. Some feel so strongly they've spoken against the death penalty even when it wasn't an option in their loved one's case.

And:

Jan Brown of Houston said she can't pinpoint why she loathes the death penalty, but she always has, even when her 9-year-old daughter's killer was executed.

A Southern Baptist until 1984, Brown said capital punishment is tantamount to "legalized murder." She said she doesn't know when she developed her disdain. The first time she considered it may have been when she told a prosecutor she didn't want James Earhart to die, she said.

"Maybe I'm just selfish," she said. "Maybe he'd tell me what her last words were. Maybe he'd tell me why she had to die. Maybe because I think it's barbaric. Maybe if one of my children ended up in the same situation, I wouldn't want them to die."

Brown, 65, said the entire process leading up to Earhart's lethal injection was more about the perpetrator than the victim. Brown was a suspect until police found Kandy Janell Kirtland's deteriorating body, her hands bound, in a rubbish pile in Bryan, Texas. Brown said she was further devastated when protesters staged a vigil at Earhart's 1999 execution -- not for the innocent girl who never got to see fifth grade, but for her killer.

Brown said she went through 12 years of hell because a prosecutor seemed to care more about Texas' reputation for being tough on crime than about helping Kandy's family heal.

Related posts are in the victims' issues index.

Use of Federal Death Penalty in Western District of New York

"William Hochul puts death penalty to frequent test," is the Buffalo News report by Dan Herbeck.

It's hard to find a federal prosecutor anywhere in the nation who has filed as many potential death penalty cases as William J. Hochul Jr., the U.S. attorney for Western New York.

So far, none of those cases has led to an execution.

But they have cost taxpayers a bundle of money -- more than $661,000 in the past year.

Since taking office in March 2010, Hochul has filed potential death penalty cases against 24 people. That's more than those filed by federal prosecutors in Los Angeles, Chicago, Detroit, Miami or any city in Texas.

In fact, among the 94 federal prosecutors throughout the land, only two others -- both from New York City-area districts far more populous than Western New York -- have filed as many potential death penalty cases with Washington as Hochul in the past two years.

So far, Washington has not approved any of Hochul's cases for a death penalty prosecution, though a dozen decisions are pending before the U.S. attorney general. But it often takes months from the time a U.S. attorney files a potential death penalty case until the attorney general decides whether to pursue the death penalty. As a result, the Buffalo and Rochester federal courts where Hochul files cases spent more than $661,000 during his first full year in office on lawyers and other defense costs for defendants in the early stages of death penalty-eligible cases.

The $661,000 is more than the combined amount spent by the region's four previous U.S. attorneys on death penalty-eligible cases over the previous 11 years. During those 11 years, a total of 12 death penalty-eligible cases were filed. Hochul has filed twice that many in less than two years.

"The numbers in Buffalo are not part of a national trend. It does not appear to be something that is coming out of Washington. It's something that Mr. Hochul does far more often than almost any other federal prosecutor," said James P. Harrington, one of a handful of Buffalo defense lawyers who are certified to handle death penalty-eligible cases.

And:

Nationally, the Justice Department has authorized about 500 death penalty prosecutions -- only one in Western New York -- since Congress reinstated federal capital punishment in 1988. And since 1988, only three men in the nation have been federally executed. There have been no federal executions in more than eight years.

Also:

Though hundreds of millions of dollars have been spent on such cases since Jones was put to death, no one has been executed under the federal death penalty since. At least 66 federal defendants have been sentenced to death since 1988, but their executions have been held off by legal appeals.

According to court statistics, federal death penalty prosecutions can cost up to eight times as much as a non-death penalty prosecution.

Death penalty experts estimate the Justice Department and the courts spend at least $86 million a year on federal death penalty cases. They can only estimate because the Justice Department declines to say how much of its $28 billion annual budget goes toward death penalty prosecutions.

Related posts are in the federal death penalty and geographic disparity index.

David Protess on the Hank Skinner Case

Protess is President of the Chicago Innocence Project.  He posts, "Keeping You Posted: Is Texas About to Kill an Innocent Man?" at Huffington Post.

On October 4th, I wrote about the latest outrage in the case of Hank Skinner, a resident of Texas' Death Row. Although Skinner recently won his case before the U.S. Supreme Court and in the Texas legislature -- giving him two opportunities to ask for DNA tests that could prove his innocence -- he still faces imminent death by lethal injection. That's because a Texas judge, indifferent to Skinner's requests to scientifically scrutinize untested crime scene evidence, has set his execution date for November 9th -- two weeks from today.

Believing this wouldn't really happen, even in Texas, I expressed my optimism to one of Skinner's lawyers at a recent benefit for the Southern Center for Human Rights. The lawyer assured me that Texas was dead serious. He had asked the Texas judge for a stay of execution but, having heard nothing, was heading to Amarillo to argue the DNA motion in federal court. If the federal magistrate defers to the state courts, he will be back in the Panhandle to ask a judge to apply the Texas statute that mandates DNA testing in cases like Skinner's. Unfortunately, that would be the same judge who signed Skinner's latest death warrant. So goes the ping-pong life of a death penalty lawyer.

Knowledgeable sources in Texas tell me that Skinner's chances will plummet if he loses before the lower court judges. The Texas Court of Criminal Appeals rarely sides with criminal defendants (Skinner already has lost there three times), and the U.S. Supreme Court has returned Skinner's case to the lower courts.

And:

Sensing the urgency, Skinner's wife, Sandrine, a French national, has booked a flight from Paris so she can be near her husband in what could be his final days. Skinner's daughter, Natalie, will be joining them from Virginia, the state where her father was raised.

They have posted a petition imploring the local district attorney to release the evidence for testing. Since the cost of the tests will be borne by the defense, there is no compelling reason to let the evidence sit in storage. Not when a man's life hangs in the balance.

Earlier coverage begins with Hank Skinner's federal court hearing, at the link.

More From Pennsylvania

Today's Philadelphia Inquirer carries the editorial, "Income shouldn't decide the quality of justice."

What defendant on trial for his life would willingly turn to a divorce lawyer with no experience in death-penalty cases?

Or to an attorney who had prepped for all of 15 minutes?

Or a Bible-quoting counsel who rattled off the one verse that, whoops, convinced jurors to hand down a death sentence?

As it turns out, dozens of people on trial for murder in Pennsylvania have had to rely on such ill-prepared, inept, and incompetent court-appointed counsel provided when defendants couldn't afford an attorney.

These are attorneys who - mostly because they're paid a pittance to prepare a complex death-penalty defense - prove to be well short of the task. The problem has been long-known, but it's finally gotten the full attention of the state's highest court.

In September, the Pennsylvania Supreme Court named a veteran Philadelphia judge, Benjamin Lerner, to investigate the compelling accusation of a Philadelphia-based death-penalty defense group that the courts are scrimping on justice by shortchanging the poor in capital cases.

That's a welcome and overdue step by the Supreme Court - a point driven home even more by an Inquirer review of death-penalty cases published Sunday.

In nearly one out of every three capital convictions stretching back over three decades, the courts have reversed or sent cases back for new hearings due to inadequate representation.

With so many botched legal defenses, no Pennsylvanian can be assured that the state's system of capital punishment is being administered fairly.

The Inquirer's news report on problems with Pennsylvania Capital Cases is noted at the link.

Today's Harrisburg News Patriot also features a lengthy news article, "How much is Pennsylvania's death penalty costing taxpayers?"  It's written by Sara Ganim.

Since it was reinstated in 1978, only three people on death row in Pennsylvania have actually died by lethal injection, and those three defendants basically signed their own death warrants by waiving their rights to appeal.
    
A much higher number, about 140 people, have been released from death row following successful appeals.
    
Some were found to be innocent. Most simply had their sentences commuted to life in prison. But in the meantime, taxpayers were footing the bill for their lengthy appeals, and by lengthy, we’re talking decades.
    
State Sen. Stewart Greenleaf, a former prosecutor from Montgomery County and the chairman of the state Senate Judiciary Committee, has commissioned a bipartisan task force to take a look at what this bottleneck has cost taxpayers over the last 40 years. Right now, there are no estimates.
    
The task force will also explore whether the death penalty is worth keeping. Gov. Tom Corbett’s office has no position on the Greenleaf’s resolution.

And:

But if anyone has come close to compiling numbers that give a big-picture perspective, it’s Robert Dunham.
    
He’s a Harrisburg-based assistant federal defender, who began researching the results of cases by hand when he was director of the Death Penalty Resource Center in the 1990s.
    
People on both sides of this issue agree that he has the most accurate statistics on Pennsylvania death penalty cases.
    
His recordings show that 237 people have had their death penalty sentence overturned since 1978, but because he didn’t start researching them until the 1990s and the state keeps no records of these cases, he said it’s unclear what happened to about 75 of those defendants. He does know that about 15 defendants were sent back death row and are still there.
    
About 123 were resentenced to spend life in prison.
    
At least 12 people resentenced to less than life.
    
There were six complete exonerations — Nicholas Yarris and Harold Wilson, Jay Smith, William Nieves, Neil Ferber and Thomas Kimbell.
    
Another, Fred Thomas, got a new trial and died waiting for it.
    
Those results make Dunham believe that often the simple answer to Pennsylvania’s problem is that there is too little funding for poor defendants.
    
In many other states, when an inmate on death row exhausts appeals and the governor signs the death warrant, he or she is executed.
    
In Pennsylvania, the end of that same road is a new sentencing — sometimes an entirely new trial — and Dunham said many times it’s because it’s very common for public defenders on death penalty cases to be so underfunded that their defense is inadequate by the standards of the law.
    
Instead of paying for a better defense up front, Pennsylvanians are paying the price of years of appeals, hearings and re-investigations that often don’t even lead to death by lethal injection, Dunham said.
    
Former state Attorney General Ernie Preate said he witnessed that when he was a prosecutor.

Related posts are in the indigent defense index.

Morton Prosecutor Continues to Fight Investigation

"Former Morton prosecutor appeals subpoena to testify," is the title of Chuck Lindell's Austin American-Statesman report.

Ken Anderson, the former Williamson County district attorney who prosecuted Michael Morton in 1987, asked the state's highest criminal court Tuesday to void a subpoena demanding that he testify about Morton's wrongful conviction for murder.

Anderson, now a district judge in Georgetown, told the Court of Criminal Appeals that the subpoena was improperly issued by a lower court that no longer had jurisdiction over Morton's case.

"The requested (deposition) will thus involve an undue burden and invasion of his rights, including privacy rights," said the petition, filed on Anderson's behalf by his lawyer in the Morton matter, Mark Dietz.

The Court of Criminal Appeals recently declared Morton innocent of murder and threw out his life sentence after DNA tests showed another man, who has not been publicly identified, killed his wife in the bedroom of their home.

Morton's lawyers are seeking to force former Williamson County officials to testify under oath about the investigation and prosecution of Morton to flesh out allegations that leads were disregarded and evidence favorable to Morton was hidden before his trial.

On Monday, District Judge Sid Harle, overseeing the Morton case at the trial-court level, denied Anderson's request to quash a subpoena requiring him to provide a videotaped deposition on Oct. 31.

Anderson turned to the Court of Criminal Appeals on Tuesday, arguing that Harle exceeded his authority by enforcing the subpoenas. Only the appeals court has jurisdiction over Morton's case — and then only until Nov. 7, when its ruling on Morton's innocence is final, Anderson argued.

Morton's lawyers plan to file reply briefs today , and a ruling from the nine-judge appeals court is expected in the next several days.

"Ex Morton Prosecutor Calls For End to Misconduct Probe," is the title of Brandi Grissom's Texas Tribune post.

In an 80-page motion, an attorney for Anderson — who is now a state district court judge — told the Texas Court of Criminal Appeals that the court in Williamson County has no jurisdiction over the Morton case and called on the justices to halt the inquiry underway into alleged prosecutorial misconduct on Anderson's watch and to prevent him from giving testimony in a deposition conducted by Morton's lawyers.

In a separate motion also filed today, Anderson's lawyer, Round Rock attorney Mark Dietz, called the efforts of Morton's lawyers to get Anderson to testify "an undue burden" that "causes unnecessary expense, is brought for harassment, annoyance ... and as a fishing expedition for possible future litigation."

Morton's attorneys — John Raley of the Houston law firm Raley & Bowick and lawyers at the New York-based Innocence Project — allege that the Williamson County district attorney's office intentionally withheld a transcript in which Christine Morton’s mother told a sheriff's investigator that the couple’s 3-year-old son saw a "monster" who was not his father brutally attack his mother.

The defense attorneys also claim prosecutors withheld information about Christine Morton's credit card being used and a check being cashed with her forged signature days after her death.

And:

Morton's lawyers filed subpoenas to force Anderson, who was the district attorney at the time of Morton's 1987 trial, and Davis to testify and to provide documents related to the case. Anderson and Davis both filed motions to quash the subpoenas, but Bexar County Judge Sid Harle, who is overseeing the case, denied those requests. 

Don Wood did not oppose his subpoena and testified at length in a closed deposition today.

Earlier coverage of Michael Morton's exoneration begins at the link.

In the States - Connecticut & Texas

"In Connecticut, Executions Are Highly Rare Events," is the Hartford Courant report by Josh Kovner.

The execution process varies widely from state to state.

Compared with the most prolific death penalty states, Connecticut's post-conviction regimen takes longer and has more layers.

But the biggest difference isn't the average time our 10 death-row inmates have been there; or the years it takes before the first appeal to the state Supreme Court runs its course; or the fact that the 7,200-page trial transcript for Steven Hayes won't be ready until Christmastime at the earliest, when the first convicted Cheshire co-defendant has passed his one-year anniversary on the row.

"The biggest difference,'' says Kathryn Kase, director of the Texas Defender Service in the most prolific of all death-penalty states, "is that we execute people, and, by and large, you guys don't.''

Texas has executed 475 people since 1976. There have been 11 so far this year; 17 in 2010; 24 in 2009.

The much-publicized facts about our death-penalty system — that the lone execution in the last 51 years occurred only because serial killer Michael Ross begged to die; that senior death-row resident Robert Breton has been there since 1989 and still hasn't exhausted his state appeal process — amount to one thing: We haven't gotten the main cog going in the death-penalty apparatus.

And:

"A system motivated toward execution,'' says Kase, whose office tracks the death penalty in Texas and represents some death-row inmates, "can process people through very quickly. We're motivated down here.''

Her humor only partially conceals how she feels about the Texas system from a defender's viewpoint.

"Abhorrent,'' she says.

She and other advocates look longingly at some of the attributes of the Connecticut structure: a centralized office of highly qualified, full-time state public defenders; judges and prosecutors who are appointed rather than elected; and time — to craft appeals and root out error and inequity.

"There have been issues about the quality of our counsel appointed to represent death-row inmates,'' said Maurie Levin, an adjunct professor in the capital punishment clinic at the University of Texas Law School and a lawyer who has represented condemned inmates.

"We've got elected district attorneys and judges at every level running on tough, law-and-order platforms,'' said Levin.

Only recently was a professional state public defender's unit formed to represent defendants in capital cases, and the office was immediately swamped and underfunded.

"Our system," says Levin, "is not structured to maximize the possibility of discovering that someone is innocent.''

Texas also has a broader range of crimes that qualify for capital punishment than Connecticut has. For example, a person who commits a homicide in the course of a burglary would qualify for a death sentence in Texas, but not here.

Texas has an annual murder rate of 5.2 killings per 100,000 people; Connecticut's is 3.6 per 100,000.

Earlier coverage of capital punishment in Connecticut begins at the link; links to the legislative debate over repeal are also available.

In the States - Pennsylvania

The Philadelphia Inquirer posts an extensive report, "In life and death cases, costly mistakes."  It's written by Nancy Phillips.  Here's the beginning:

Willie Cooper, convicted of strangling his brother's girlfriend to death in a Germantown apartment, was awaiting a jury's decision on whether he should be sentenced to death, when his lawyer rose to speak on his behalf.

Citing the biblical passage "an eye for an eye," the lawyer told jurors that the ancient edict called for the death penalty only in the killing of a pregnant woman.

Cooper had killed a pregnant woman.

Inexplicably, his lawyer had forgotten that.

The jury voted to impose the death penalty.

Cooper's case is among more than 125 capital murder trials in Pennsylvania - 69 in Philadelphia alone - that state and federal appeals courts have reversed or sent back for new hearings because mistakes by defense lawyers deprived the accused of a fair trial.

That amounts to nearly one-third of the 391 capital convictions in Pennsylvania since the modern death penalty took effect in 1978.

An Inquirer review of death-penalty appeals spanning three decades found that defense lawyers in these high-stakes cases failed their clients in ways large and small.

Lawyers fighting for defendants' very lives often spend little time preparing their cases and put on only the barest defense. They neglect basic steps, such as interviewing defendants, seeking out witnesses, and investigating a defendant's background.

The problem is particularly acute in Philadelphia, where legal experts say the lawyers who handle such cases - typically at taxpayers' expense because defendants are indigent - are often overworked and underpaid.

Court-appointed lawyers get $2,000 for trial preparation and $400 a day in court to handle cases that a veteran defense attorney said required a minimum outlay of $35,000 to $40,000.

"The number of reversals on these cases is staggering," said Ronald L. Greenblatt, chairman of the Philadelphia chapter of the Pennsylvania Association of Criminal Defense Lawyers. "The attorneys who are doing this work, because of the low pay, are not doing it the right way. We really need it to stop."

The price of replaying such proceedings is costly. Death-penalty appeals consume hundreds of hours of work by dozens of lawyers, judges, police officers, and witnesses, and, even by modest estimates, cost taxpayers hundreds of thousands of dollars.

Earlier coverage of death penalty issues in Pennsylvania begins at the link.

Former Prosecutors in Morton Case Must Answer Questions

Today's Austin American-Statesman reports, "Judge orders former prosecutors to testify in Morton case."  It's written by Chuck Lindell.

Two former Williamson County prosecutors will have to testify under oath about allegations that they hid evidence before Michael Morton's 1987 murder trial, a judge ruled Monday.

The former prosecutors, now-District Judge Ken Anderson and Round Rock lawyer Mike Davis, had sought to void subpoenas ordering them to submit to questioning from lawyers for Morton, who was recently freed after almost 25 years in prison when DNA tests indicated another man killed his wife, Christine.

Anderson and Davis argued that Morton's lawyers lacked the authority to order them to provide sworn, videotaped depositions. But after a morning hearing via conference call, District Judge Sid Harle declined to quash the subpoenas, paving the way for Davis to be deposed this afternoon in Georgetown.

Anderson's deposition was delayed until Oct 31.

Anderson is expected today to ask the 3rd Court of Appeals to overturn Harle's ruling and issue an emergency stay halting his deposition, Morton's lawyers said.

Davis' plans were unknown, but he had not filed an appeal by Monday night, according to Jeff Kyle, clerk of the 3rd Court of Appeals in Austin.

Earlier coverage of Michael Morton's exoneration begins at the link.

News Coverage of the Hank Skinner Hearing

Following yesterday's hearing Rob Owen, counsel for Hank Skinner, ssued the following statement:

"Based on the magistrate judge's comments during the hearing today in federal district court, the focus of this controversy regarding DNA testing will now likely shift to the state courts. It will now be up to the state courts to decide if Mr. Skinner gets access to the DNA testing that we have been pursuing for more than 10 years in his case. The Texas legislature changed the law this year to eliminate disputes over assigning fault for why DNA testing was not previously performed. The State conceded in federal court today that the legislature intended that change in the law to reach Mr. Skinner. The State should stop wasting taxpayer money fighting the DNA testing in Mr. Skinner's case. At a minimum they should drop their insistence on executing Mr. Skinner on November 9 so that the courts have adequate time to settle this issue."

Owen is Co-Director of the Capital Punishment Center at the University of Texas School of Law.

AP coverage of the hearing is by Betsy Blaney, "Death row inmate asks court to keep lawsuit alive."  It's via the Lubbock Avalanche-Journal.

Skinner, 49, came within an hour of lethal injection last year before the U.S. Supreme Court stepped in and now has a Nov. 9 execution date. His lawsuit claims the state violated his civil rights by withholding access to the evidence he wants tested. Monday’s hearing came after the U.S. Supreme Court ruled in March that Skinner could ask for the untested evidence, but left unresolved whether the district attorney had to surrender those items. A state court will make that decision.

Skinner’s attorneys asked U.S. Magistrate Judge Clinton E. Averitte to recommend the civil rights suit not be dismissed until the state court acts. A final ruling on the lawsuit will be issued by U.S. District Judge Mary Lou Robinson in Amarillo.

The request for DNA testing is the third from Skinner, but the first since a state law about evidence testing took effect Sept. 1. The new law allows DNA testing of evidence even if the offender chose not to seek testing before trial.

"Skinner Lawyer: DNA Decision Likely Up to State Court," is the title of Brandi Grissom's Texas Tribune post.

For years, Skinner has sought DNA testing on the additional items, but the state has refused, citing restrictions in Texas' 2001 post-conviction DNA testing law. Last year, less than an hour before he was to be executed, the U.S. Supreme Court granted a stay. After a subsequent hearing, the high court sent the case back to the federal district court to decide whether Skinner's civil rights were being violated by the state's application of the 2001 DNA law in restricting the DNA testing Skinner requested.

That was the question before the federal court in Amarillo today. State lawyers argued that Skinner had his chance at trial to have all the DNA testing done, but he forfeited that opportunity and is now trying to game the legal system to stall his demise. "If Skinner is allowed to test this DNA evidence, then every guilty criminal defendant will want to forgo DNA testing at trial and then use the untested DNA evidence as a post-conviction litigation tool to endlessly delay or hinder implementation of the sentence," state lawyers wrote in a brief to the court.

But the primary question the federal court had to answer about whether Texas' DNA testing law violated Skinner's civil rights faced a major change during the legislative session this year.

Lawmakers passed a measure that expanded access to DNA testing and eliminated the limits that prosecutors have cited in their objections to Skinner's requests. State Sen. Rodney Ellis, D-Houston, who helped write the bill, has said that Skinner's case is one the law was designed to affect.

Last month, Skinner's lawyers filed a request in Gray County District Court for DNA testing under the new law. They are now awaiting a decision on that request.

"The State conceded in federal court today that the legislature intended that change in the law to reach Mr. Skinner," Owen said in an emailed statement. "The State should stop wasting taxpayer money fighting the DNA testing in Mr. Skinner's case. At a minimum they should drop their insistence on executing Mr. Skinner on November 9 so that the courts have adequate time to settle this issue."

The Amarillo Globe-News report is, "Wrangling continues in Skinner DNA case," by Bobby Cervantes.

The federal case Monday stemmed from a U.S. Supreme Court ruling in March that allowed Skinner to use a federal civil lawsuit to advance his motion for DNA testing. The suit states that 31st District Attorney Lynn Switzer violated Skinner’s civil rights by not turning over crime scene evidence he long has said would exonerate him and possibly implicate Busby’s late uncle as the real killer.

Skinner has identified seven items that were never tested: a blood-splattered windbreaker often worn by Busby’s uncle, hair found next to her body, two knives, a rape kit, her fingernail clippings and a bloody dish towel.

Monday’s hearing centered largely around how two appeals cases might affect Skinner’s latest motion, filed Sept. 6 and still pending in 31st District Judge Steven Emmert’s court.

Earlier coverage of Hank Skinner's case and his struggle for DNA testing begins at the link.

Federal Court Hearing Today on Hank Skinner DNA Request

"Texas death row inmate asking courts to force prosecutor to turn over evidence for DNA tests," is this morning's AP post via the Washington Post.

Just weeks away from execution, a Texas death row inmate is asking the courts to force prosecutors to turn over knives and clothing that were never tested for DNA, claiming that the evidence could show he didn’t kill his girlfriend and her sons nearly two decades ago.

But prosecutors say the latest request from Henry Watkins Skinner, who came within an hour of lethal injection last year before the U.S. Supreme Court stepped in, is an empty tactic to again delay his death.

Both sides will argue their case Monday in Amarillo before federal Magistrate Judge Clinton Averitte. The hearing comes after the U.S. Supreme Court ruled that Skinner could ask for the untested evidence, but left unresolved whether those items had to be surrendered by Gray County District Attorney Lynn Switzer.

The ruling came in a federal lawsuit that Skinner filed against Switzer, claiming the state violated his civil rights by withholding access to the evidence. Prosecutors want the lawsuit tossed, while defense attorneys are asking Averitte to delay ruling on the federal suit until the DNA testing issue is decided at the state-court level.

Skinner, 49, is scheduled for execution Nov. 9.

And:

Skinner’s lawyers have already asked the state courts to delay the execution and want Averitte to withhold any decision on the federal lawsuit until a request for DNA testing before Skinner’s trial court — the third such request from Skinner — is resolved there. Defense attorneys also argue that a new state law allows DNA testing of evidence even if the offender chose not to seek testing before trial.

Ariane de Vogue posts, "Texas Death Row Inmate Wants Access to Untested DNA," at ABC News.

A Texas death row inmate who was hours from execution in 2010, now finds himself with two new avenues of appeal to attempt to prove his innocence through DNA testing.

For years since his murder conviction, Henry “Hank” Skinner had unsuccessfully sought access to untested DNA evidence found at the scene of the crime.

Last year, hours before his scheduled execution, a final appeal to the Supreme Court went in Skinner’s favor. The justices halted the execution and eventually ruled that he could go back to court and argue his case.

The ruling from the Supreme Court, coupled with a new DNA law passed in Texas last month, have given Skinner new hope that he might one day be found innocent of the death of his girlfriend and her two sons.

And:

While the Supreme Court did not weigh in on his guilt or innocence it said he could go to federal court and attempt to sue state officials under federal civil rights law.

At the same time, Skinner’s lawyers are pursuing a separate appeal in state court. Just last month Texas revised its DNA law to ensure that procedural barriers do not prevent prisoners from testing biological evidence that hadn’t been tested. Skinner’s lawyers have filed papers asking the court, pursuant to the new law, to compel the DNA testing.

“We are proceeding both in federal court and state court,” says Skinner’s lawyer, Rob Owen, “to leave no stone unturned.” Complicating Skinner’s appeal is that the trial judge set a new date for his execution in early November.

But the State of Texas believes that Skinner is abusing the system.

In court papers, Jonathan F. Mitchell, the Solicitor General of Texas, argues that at the time of his trial Skinner’s original attorneys made an “informed, tactical” decision to forego the testing because they feared it would further implicate their client.

The Amarillo Globe-News reports, "Skinner looks to federal court for hope," by Bobby Cervantes.

On Monday, the latest chapter in Skinner’s case begins at a federal courthouse in Amarillo, where U.S. Magistrate Judge Clinton E. Averitte will hear Skinner’s civil rights lawsuit. Another execution date looms, this one set for Nov. 9.

The new proceedings are the product of a last-minute stay of execution the United States Supreme Court granted in March — Skinner’s second since he has been on death row.

At issue was whether a federal civil rights lawsuit is a proper vehicle for a convicted prisoner to petition for access to DNA testing. A 6-3 majority on the court thought so, and Skinner’s attorneys swiftly filed the federal lawsuit that will be heard Monday.

Skinner contends additional DNA testing would exonerate him and implicate Busby’s late uncle.

In addition to the Supreme Court ruling, Skinner scored another victory in June, when lawmakers stripped Texas’ post-conviction statute of a once-powerful tool prosecutors and judges wielded to deny prisoners’ DNA petitions.

Previously, those who challenged their convictions citing untested DNA evidence had to prove, among other things, that the evidence was not tested at trial through no fault of their own.

"Federal judge to hear Texas death row inmate's civil rights case," is the AHN report written by Kris Alingod.

A federal judge on Monday was set to hear the case of a Texas death row inmate, Hank Skinner, who filed a civil rights lawsuit claiming prosecutors repeatedly denied him additional DNA testing.
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The hearing in Amarillo comes two months after a motion from Skinner that evidence should be turned over to the defense under a bill passed by the state legislature in May expanding access to post-conviction DNA testing.

The U.S. Supreme Court early this year ruled 6-3 in favor of Skinner, saying he could seek such tests under the federal civil rights statute. It issued a temporary stay last year while it considered the lawsuit, saving Skinner from the lethal injection by only 45 minutes.

No DNA tests have been conducted following the ruling and Texas has set a new execution date of Nov. 9.

The case has attracted widespread attention, with advocacy groups,  pundits and some state lawmakers saying that while testing could show Skinner to be guilty, it could also prevent the execution of an innocent man.

Texas has the highest number of executions nationwide. In 2004, it executed Cameron Todd Willingham, who was later found to have been prosecuted using “flawed science" in an investigation by the Texas Forensic Science Commission.

Earlier coverage of Hank Skinner's quest for DNA testing begins at the link.

Continued Coverage of the Morton Investigation

"Morton lawyers ask judge to enforce subpoenas," is the title of Chuck Lindell's report from the Saturday edition of the Austin American-Statesman.

Lawyers for Michael Morton on Friday asked a district judge to enforce subpoenas ordering two former Williamson County prosecutors to testify under oath.

The former prosecutors, District Judge Ken Anderson and Round Rock lawyer Mike Davis, earlier this week filed motions seeking to quash the subpoenas, saying the court and Morton's lawyers lacked the authority to force their testimony.

Morton's lawyers responded Friday with their own motion arguing that the subpoenas were a legally proper attempt to pursue allegations that Anderson and Davis hid evidence that pointed to Morton's innocence before and after his 1987 murder trial.

The defense motion urged District Judge Sid Harle to allow the subpoenas to stand and, if necessary, issue a ruling ordering Anderson and Davis to testify in videotaped depositions.

Harle is expected to rule before Tuesday, when Davis is scheduled to be deposed. Anderson's deposition is scheduled for Wednesday.

And:

According to defense lawyers, the authority to subpoena Morton's prosecutors was outlined in a discovery agreement with the current district attorney, John Bradley. More importantly, the discovery agreement was attached to findings that Harle approved Oct. 3, making them part of a valid court order that Harle can — and should — enforce, the motion said.

Defense lawyer John Raley noted in the motion that Anderson and Davis could not be expected to know details about the discovery agreement because Harle ordered the details to be kept secret in a sealed court file.

"Morton Lawyers: Former DAs' Claims 'Wholly Deficient'," by Morgan Smith for the Texas Tribune.

Michael Morton's legal team responded today to claims from the exonerated man's original prosecutors that they cannot be forced to testify as part of an investigation into how Morton was wrongfully convicted of murdering his wife in 1986 and sent to prison until his release earlier this month.

And:

They have asked to question Mike Davis and Ken Anderson, the assistant district attorney and the district attorney of Williamson County at the time of the Morton trial. Both men filed motions to quash the depositions saying, among other things, that the court had no jurisdiction to compel their testimony.

Anderson is now a state district judge in Willliamson County and said in his filing that he has 43 matters pending on his judicial docket and a previously scheduled medical procedure on the day defense attorneys have requested his presence. 

Davis, now a lawyer in private practice, submitted a 17-page motion in which he objected hotly to the subpoena, writing that he "is now an innocent bystander in the crossfire" of political and media battles between attorneys with the Innocence Project, who along with Houston attorney John Raley, are representing Morton, and current Williamson County District Attorney John Bradley.

The Southwest edition of the New York Times carries, "After 23 Years, a Suspect Emerges and a Family’s Wounds Are Reopened," by Brandi Grissom.

Almost everything that Caitlin and Jesse Baker know about their mother, who was mysteriously murdered 23 years ago when they were small children, comes from memories shared by relatives and from fading family photos of the smiling, petite brunette.

Over the years, aunts and uncle told them stories about their protective and generous sister. Their father recalled the loving wife who seemed to live in her pink sweat suit. Their grandmother shared pictures of their mother’s favorite horse, Molly, and tattered newspaper clippings of articles she wrote as a student journalist.

But no one has been able to answer the question that has tormented the Baker children for years: Who entered their North Austin home on Jan. 13, 1988, and beat Debra Masters Baker to death?

“I’ve never really seen an investigation happen,” said Jesse Baker, now 31. “It’s sort of just been fits and spurts over the last 20 years.”

This month, in a courtroom in Williamson County, just north of Austin, the siblings learned of the most dramatic development in the case in two decades. DNA from hair retrieved at the scene of their mother’s murder — evidence that the Bakers did not know existed — matched a biological sample found near the home where another young wife and mother, Christine Morton, had been murdered in August 1986. Her husband, Michael Morton, had been convicted in her death in Williamson County and sentenced to life in prison, but was exonerated last week.

“Not only was there something in our case, but there was maybe another case,” Jesse said. “It was shocking.”

Brandi Grissom also writes, "Morton Prosecutor Says He is Victim of a Media War," for the Texas Tribune.

Mike Davis, one of the original prosecutors who worked on the murder case against Michael Morton in 1987, said in court filings today that he is a victim of a media and political war between the exonerated man's lawyers and Williamson County District Attorney John Bradley.

Davis filed a motion to quash Morton's lawyers' request to interview him about his role in the trial that led to Morton's wrongful conviction and nearly 25-year imprisonment for his wife's murder.

And:

He contends the lawyers have no legal authority to question him and that they are attempting to conduct an unauthorized investigation.

Davis wrote that his recollection of the trial was "very limited after 25 years." He said he had no memory of any conversation about Morton's son seeing the killer or of any issues relating to credit cards or checks.

But in the motion, Davis offered an apology to Morton for the years he spent behind bars for a crime he did not commit, and he offered to sit down with Morton and his lawyers informally and tell them everything he remembers about the case. "Movant's words can never give back to Michael Morton his lost life, his lost wife, nor his son, and a simple apology is not sufficient but that is all Movant has to offer at this late date," Davis wrote. In a letter to Morton's lawyer, Davis asked them to withdraw the subpoena.

Further, Davis argued that Morton's lawyers' investigation of prosecutorial misconduct in the case is moot because the Texas Court of Criminal Appeals has already exonerated him.

Finally for today's post, Houston Chronicle columnist Patricia Kilday Hart writes, "Apology just not enough for exonerated man," for the Houston Chronicle.

Morton's immediate nightmare may be over, but the courtroom drama rages on. Since his release, Morton's appellate attorneys have pressed for an investigation into how crucial evidence that pointed to their client's innocence was never shared with his original trial defense team - or his jury. This week, the State Bar of Texas, which has authority to discipline lawyers, announced it also would review the facts surrounding the Morton case.

What both Morton's lawyers and the State Bar want to know is this: Did Williamson County Judge Ken Anderson, the district attorney at the time of Morton's prosecution in 1987, or Georgetown attorney Mike Davis, who was Morton's prosecutor, intentionally withhold facts that demonstrated the former grocery store manager's innocence?

And:

Davis, the motion says, "would like to personally explain to Mr. Morton (his) deep sorrow and regret that Mr. Morton spent 25 years in prison for a crime he did not commit."

The former prosecutor goes on to say that he "can never give back to Mr. Morton his lost life, his lost wife, nor his son, and a simple apology is not sufficient but that is all (he) has to offer at this late date."

He also offers to "sit down with Mr. Morton and his counsel on an informal basis and tell him everything he remembers about this case."

Apologies carry a lot of healing power. But Morton, Raley said Thursday, wants something even larger: "Michael has asked us to try to do whatever we can to prevent this from happening to another innocent man."

That cannot be accomplished without a serious and thorough investigation into the entire Morton saga.

Earlier coverage of Michael Morton's exoneration begins at the link.

Friday

I'll be at the Batson at 25 Symposium, most of the day.

Texas Bar Examining Morton Case

"State Bar of Texas, in rare move, launches Morton investigation," is the title of Chuck Lindell's report in today's Austin American-Statesman.

The State Bar of Texas is investigating actions taken by trial prosecutors in the 1987 wrongful conviction of Michael Morton, an official said Wednesday.

The bar took the rare step of acknowledging an ongoing disciplinary investigation because of the attention Morton's case has received since mid-August, when his lawyers announced that DNA tests showed another man killed his wife, Christine, in their Williamson County home.

Morton was freed Oct. 4 after serving almost 25 years in prison, and the state's highest criminal court later proclaimed his innocence and tossed out his murder conviction and life sentence.

"We decided, because of the high-profile nature of the thing, that we were going to tell the public that we were looking into it," Maureen Ray, with the bar's office of chief disciplinary counsel, said Wednesday.

Also Wednesday, the former district attorney who prosecuted Morton, Ken Anderson, filed a motion to quash a subpoena forcing him to testify under oath about allegations that he improperly hid evidence favorable to Morton.

Morton's lawyers are set to depose Anderson, now a district judge in Georgetown, on Oct. 26. However, through his attorney Mark Dietz, Anderson said District Judge Sid Harle lacked the jurisdiction to issue the subpoena and that he was not provided 10-day notice as required by court procedures.

Morton's lawyers declined to comment on Anderson's motion. Anderson also has declined to comment, saying he could not discuss a pending case.

The State Bar of Texas, which licenses and disciplines state lawyers, began the Morton investigation on its own initiative — also a relatively rare event in the complaint-driven grievance process against lawyers.

Ray said she could provide no other details, including who is the target of the investigation or how far the investigation has progressed.

But Morton's lawyers have filed court documents that include accusations of professional misconduct against Anderson and former assistant district attorney Mike Davis, now a Round Rock lawyer, for allegedly withholding evidence that could have helped establish Morton's innocence.

And:

Available sanctions include disbarment, suspending a law license for a set time or placing a lawyer on a form of professional probation. The bar also can issue a public reprimand or a private admonition.

The state bar action becomes the fourth investigation related to the Morton case.

Earlier coverage of Michael Morton's exoneration begins at the link.

Thursday

I'll be traveling Thursday to attend the Batson at 25 Symposium & Tribute to David Baldus.  Posts will resume as layovers and WiFi allow.

Events Roundup

The Texas Book Festival takes over the Capitol complex this weekend in Austin.

Michele Deitch will be moderating a panel at the Texas Book Festival dealing with juvenile justice and the treatment of children and youth in Texas.  The panel features two great authors--Bill Bush, the author of The State of Our Children: Texas as a Parent, on the history of juvenile justice crisis and reform in Texas, and Sherry Matthews, the author of an oral history of the Waco State Home--a children's home for neglected and dependent youth. 

The session is Saturday, October 22nd from 1:30 - 2:30 pm, in the Capitol Extension, Rm. E2.014

Earlier coverage of Michele Deitch's work in juvenile justice is noted at the link. 

Also:

The Trials of Eroy Brown: The Murder Case That Shook the Texas Prison System is Michael Berryhill's book on prison civil rights and the collapse of Jim Crow justice in Texas. He presents Brown's story in his own words, set against the backdrop of the chilling plantation mentality of Texas prisons. Berryhill chairs the journalism program at Texas Southern University.  The program is moderated by Texas Monthly editor Nate Blakeslee.

It's Sunday, October 23rd from 11:00 - 11:45 am in Capitol Extension Room E2.014.

On October 24th in San Antonio, the Catholic Mobilizing Network and the Texas Coalition to Abolish the Death Penalty  are co-sponsoring a “Religious Leaders Dialogue on the Death Penalty”."

The event, will take place at Trinity University, from 7-9 p.m. in Laurie Auditorium, will be moderated by CMN Executive Director Karen Clifton.

Leaders from the following institutions are confirmed to attend: the Roman Catholic Archdiocese of San Antonio; Mission Presbytery; the Episcopal Diocese of West Texas; the Evangelical Lutheran Church -  Southwestern Texas Synod; Temple Beth-El; and the United Methodist Southwest Texas Conference.

Related posts are in the books, event, and religion indexes.

News Coverage of the Alabama Lawsuit

"Suit claims blacks wrongly excluded from jury service for years in Houston and Henry counties," is at the Montgomery News site.

Five blacks who were wrongly excluded from serving on juries have filed a lawsuit challenging that prosecutors in Houston and Henry counties have for years excluded blacks based on race.

A group called the Equal Justice Initiative filed the claim contending District Attorney Douglas Valeska has illegally excluded qualified blacks from serving on juries in serious felony cases, especially capital cases, for decades.

The plaintiffs are five African Americans who state court rulings previously found were illegally excluded from jury service, according to a statement released by EJI. The lawsuit seeks, among other things, ongoing monitoring of jury selection in Houston and Henry counties by a federal court.

Filed in U.S. District Court in Montgomery, the suit alleges violations of the U.S. Constitution and federal anti-discrimination laws.

Earlier coverage of the Alabama civil rights lawsuit begins at the link.  The pleading in Hall, et al v. Valeska is available in Adobe .pdf format.  Related posts are in the jury and race indexes.

Alabama Lawsuit Filed Over Jury Selection

Equal Justice Initiative has filed a civil rights lawsuit in Alabama and issued a news release, "African Americans Illegally Barred From Serving on Juries Sue Alabama Prosecutor Over Racial Discrimination.  Civil Rights Lawsuit Challenging District Attorney's Decades-Long Exclusion of African Americans from Jury Service Is First of its Kind."  Here's the text of the news release:

Today, the Equal Justice Initiative (EJI) filed a civil rights lawsuit contending that District Attorney Douglas Valeska has illegally excluded qualified African Americans from serving on Houston and Henry County, Alabama, juries in serious felony cases, especially capital cases, for decades. The lawsuit, filed on behalf of African Americans who were barred from serving on juries after being summoned to court, was filed in the federal district court in Montgomery, Alabama, and alleges violations of the U.S. Constitution and federal anti-discrimination laws. Lawyers believe today's class action is the first-ever civil suit directed at a prosecutor's racially discriminatory use of peremptory strikes and filed by actual victims of discrimination.

The plaintiffs are five African Americans who state courts previously found were illegally excluded from jury service because they are black. The lawsuit seeks declaratory and injunctive relief, including ongoing federal court monitoring of jury selection in Houston and Henry Counties.

The complaint alleges that, from 2006 to 2010, state prosecutors in Dothan used peremptory strikes to exclude 82% of qualified black jurors in death-penalty cases. As a result, the jury in every death-penalty case in Houston County over this period has been all white or had only a single black juror despite the fact that the circuit is nearly 25% African American. Houston County has the highest per capita death sentencing rate in Alabama.

"Removing people from a jury on the basis of race is shameful and inexcusable," said Plaintiff Vicky Allen Brown. In 1998, an Alabama appellate court concluded that Valeska's office illegally struck Brown from jury service in a capital trial because of her race. An accountant who was born and raised in Houston County, Brown joined the lawsuit to expose and challenge Valeska's illegal jury selection practices because "many times you cannot do anything about discrimination – especially when it is committed by public officials who know how to disguise and justify their behavior."

Alabama appellate courts have reversed several cases after finding that Valeska's office excluded black prospective jurors in order to ensure that African Americans would not be on juries and that Valeska and his assistants were unfairly suspicious of black potential jurors.

"Mr. Valeska has repeatedly been found to have illegally excluded black people from jury service with peremptory strikes in capital cases but he continues the practice because most people don't know about it," said Bryan Stevenson, lead attorney for the plaintiffs. "The underrepresentation and exclusion of people of color from juries has seriously damaged the credibility and reliability of the criminal justice system. Individual case reversals haven't stopped this illegal practice, so there must be greater accountability."

The complaint also alleges that Valeska's racially discriminatory use of peremptory challenges violates the federal Civil Rights Act of 1875, which provides criminal penalties for officials who exclude any qualified citizen from jury service on account of race, color, or previous condition of servitude. The Department of Justice has not enforced this anti-discrimination law since its passage more than 135 years ago.

"Reports and advocacy are important for exposing racial discrimination," said Houston County civil rights leader Pastor Kenneth Glasgow. "But we need a lawsuit like this one to give anti-discrimination laws some teeth."

The plaintiffs are among hundreds of people of color called for jury service throughout the South who have been illegally excluded from juries after prosecutors asserted pretextual reasons to justify their removal, as documented in EJI's recent study, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy. African Americans have been barred from juries because they wore eyeglasses; were single, married, or separated; were too old for jury service at age 43 or too young at 28; and for countless other reasons that courts have rubber-stamped as "race-neutral." Many of these assertions are false, humiliating, demeaning, and injurious.

Attorneys contend that Valeska's illegal removal of qualified African Americans subjected the plaintiffs and all excluded African Americans to profound personal humiliation and harms the entire community by undermining public confidence in the fairness of the justice system.

Plaintiffs are also represented by attorneys with the law firm of Drinker Biddle & Reath LLP, in Philadelphia, Pennsylvania.

The civil rights lawsuit, Hall, et al v. Valeska, is available in Adobe .pdf format.  Related posts are in the jury and race indexes.

Last Meals

Today's New York Times Asked and Answered feature is, "Ex-Inmate Shares Stories of Stint as a Death Row Chef."  The interview with Brian Price is conducted by Timothy Williams.  Here's an excerpt:

Last month, Texas prison officials decided to end the tradition of special meals for inmates facing execution after Lawrence Russell Brewer, 44, requested a large dinner before his Sept. 21 lethal injection. Mr. Brewer, a white supremacist gang member, had been convicted of chaining James Byrd, Jr., a 49-year-old black man, to a pickup truck and dragging him along a road until he died. As his final meal, Mr. Brewer had requested a pound of barbecue with half a loaf of white bread; three fajitas “with fixings”; a cheese omelet with “ground beef, tomatoes, onions, bell peppers and jalapenos”; two chicken fried steaks “smothered in gravy with sliced onions”; a “triple meat” bacon cheeseburger with “fixings on the side”; a “large bowl” of fried okra; a “meat lovers” pizza; a pint of vanilla ice cream; a “slab” of peanut butter fudge with crushed peanuts; and three root beers. He was given some of the items, in smaller portions, but ate nothing. After the state’s decision, Brian D. Price, 60, a former inmate who as jailhouse chef cooked last meals for 218 prisoners on death row in Huntsville, Tex., offered to prepare meals for the condemned for free. Texas said thanks but no thanks. Mr. Price discusses:

QUESTION How did you get started cooking last meals for death row inmates?

ANSWER In 1989, I was sent to prison for assaulting my ex-wife and kidnapping my brother-in-law. I was sentenced to 15 years, and when I first arrived at the prison at the Walls Unit, they asked what I was doing in the free world as a profession. I was a professional bass player in rock bands and a professional photographer. When I relayed that to them, they just laughed. They said, “Well, there’s nothing like that here, boy.” So the warden looked over at the head of the steward’s department and said, “Put him in the kitchen.” And that’s how I got in the kitchen. On the dinner shift, or supper — which is what we call it down this way — we’re the ones who prepared the last meals because executions took place there at the Walls Unit. My friend, a four-star chef who was doing last meals at the time, didn’t want to do them any more. He wanted me to take over. I didn’t have any desire to do so at that point in time. But about a year later, my friend, Terry, the four-star chef, he wasn’t around, so I told the sarge that I’d do it, so I went ahead and did it to the best of my ability at what we had at our means. And so, the next day sarge called me into his office and said, “Hey Price, that guy they killed last night sent a word of thanks to the chaplain over here and said he appreciated what you did. He really liked it.” That blew me away. I went back to my cell that night, and I really reflected upon it and that was probably the last thanks that guy gave anyone before he left this world. And so the next day I went back in and told Terry, “I’ll do the last meals if you want to go ahead and back out.”

Q. Do prisoners actually get what they request?

A. The Texas Department of Corrections has a policy that no matter what the request, it has to be prepared from items that’s in the prison kitchen commissary. And, like if they requested lobster, they’d get a piece of frozen pollock. Just like they would normally get on a Friday, but what I’d do is wash the breading off, cut it diagonally and dip it in a batter so that it looked something like at Long John Silver’s — something from the free world, something they thought they were getting, but it wasn’t. They quit serving steaks in 1994, so whenever anyone would request a steak, I would do a hamburger steak with brown gravy and grilled onions, you know, stuff like that. The press would get it as they requested it, but I would get their handwritten last meal request about three days ahead of time and I’d take it to my captain and say, “Well, what do you want me to do?” And she’d lay it out for me. I tried to do the best I could with what I had. Amazingly, we did pretty well with what we did have. They are served two hours before they are executed and it is no longer a burger and fries or a bacon, lettuce and tomato sandwich or whatever they requested. All it is, two hours later, is stomach content on an autopsy report.

Q. What do you think about the decision to do away with special last meal requests?

A. It’s politically motivated. They waited for a heinous crime — the most heinous one in years here in Texas, first off — and then someone who ordered a lot of food, which they do that quite often anyhow. And they decided to stop the last meal request and give them what was on the line for that day. What raised the fur on my back was — how can one person do this? The State of Texas sends these people to the death chamber. It’s up to the folks of Texas if they want to stop a tradition, an age-old tradition. One or two men shouldn’t have the stroke of power to do that. What I’m trying to get across is to take this to the Legislature and put it to a vote. If the taxpayers want to stop last meal requests and show a calloused heart — but I truly believe it’s going to be turned around and they’ll reinstate the last meal request. No, these people don’t deserve a last meal request, but we as a society have to show that softer side, that compassion. It’s bad enough that we have the death penalty, it’s so archaic, but then to turn around and say, “No, we’re not going to feed you,” just out of pure meanness or something. I don’t know. We have to show that we are not distorting that justice with revenge.

Earlier coverage of the new TDCJ policy on last meals begins at the link.  Price is author of the prison cookbook Meals to Die For.

Connecticut Capital Punishment Commentary

 

"Don't Put Cheshire Killer To Death," is the title of the Hartford Courant editorial from the Sunday edition.

If ever there was a case for capital punishment, the Cheshire slayings seem that case. One man is on death row for the murder of a mother and her two daughters in the horrific home invasion. The other is facing sentencing for triple murder, arson, sexual assault in the first degree.

But in all likelihood, the sentence won't matter. These two cretins are almost assuredly going to die in jail whether they are sentenced to death or not.

That is because Connecticut's death-penalty law doesn't work. It is a cruel and expensive con that only ensures years — decades — of appeals, delays and revisited agony for the families of victims.

When do we stop doing this?

And:

The state shouldn't be in the business of death. It doesn't stop other murders, it's a huge waste of money and judicial resources and, worst of all, it sentences victims' families to the hell of reliving the loss of loved ones over and over with every appeal.

All this to satisfy blood lust?

The Courant also has, "The Courant's Changing View On The Death Penalty — From 1791 To Now," written by Carolyn Lumsden, the Courant's opinion editor.

The Courant first ran anti-death penalty opinions more than two centuries ago. But the newspaper hasn't always been consistent in its own view on one of the great moral issues facing society.

At times, the newspaper has seemed unable to make up its mind.

And:

In 1928, the Courant wrote, "We believe that when capital punishment is used more frequently, we shall have fewer murders and that our present aim should be not to abandon it, but to apply it."

The turning point came in 1929, when a graphic news story about a hanging so disgusted Courant Editor Maurice Sherman that he came out swinging against the death penalty by any method. In a series of editorials that winter, he wrote of the "inherent fallacies of the death penalty" and quoted, approvingly, former Sing-Sing prison warden Lewis E. Lawes:

"He is today, as a result of his studies and observations, convinced that capital punishment is a tremendous mistake. Not only does he find fewer homicidal crimes in states which have abolished the death penalty that in those, comparable in character, where it is retained, but he says, 'No punishment could be invented with so many inherent defects.'"

Another editorial that year argued that there were more homicides in states with the death penalty and quoted a Windsor Congregational pastor as saying that execution "seems to me to be matching one horrible murder by another."

The following year, Mr. Sherman, evidently repulsed by the execution of a woman in Arizona, wrote: "We have hanged men, we have electrocuted and shot them, stifled them to death in lethal chambers. Yet others continue to murder, and will continue to do so. … [W]ould we not be wiser to substitute life imprisonment for a form of punishment that is brutally inconsistent with the avowed ideals of a Christian civilization?"

Even so, the ambivalence continued. A March 1959 editorial advocated execution for serial killers: "Indeed it is time to refine our state laws on the subject, to confine capital punishment to those few beasts in human form who kill repeatedly."

But by June 1981, the editorials had returned to advocating the abolition of the death penalty, and would continue to do so: "Frustration over the growing crime rate is understandable, but the death penalty would not curb that rate. Anger over the assassination, and attempted assassination, of the president or other high federal officials is understandable, but the death penalty would merely compound the atrocity."

The Norwich Bulletin carries the editorial, "Cheshire home invasion sentences are only symbolic."

Joshua Komisarjevsky was found guilty last week of triple murder, arson and first-degree sexual assault. That came as little surprise to anyone aware of the 2007 Cheshire home invasion.

The penalty phase will now be held to determine what his punishment will be. His partner in crime, Steven Hayes, has already been sentenced to death and is now one of 10 men on Connecticut’s death row awaiting execution.

The jury in the penalty phase will decide if Komisarjevsky will join him on death row or be sentenced to life in prison with no chance of parole.

Either way, both will reside in prison until their death, most likely the result of old age.

And:

Komisarjevsky’s death sentence, if it comes, would be merely symbolic. It’s far more likely the death penalty will be abolished long before any death sentence will ever be carried out.

Lawmakers would do themselves, and the families of the victims of all those on death row, a favor to act sooner rather than later in repealing the state’s death penalty. That would at least bring closure to the endless appeals that only frustrate and cause more pain for those still suffering.

And those on death row can begin serving the sentence they actually have — life in prison with no chance of parole.

The Courant has additional commentary on both sides of the issue, including:

"Death Penalty: No Justice In Rage," by Norman Pattis

"People Who Murder Should Be Put To Death," by Frank Harris, III.

"Dr. William A. Pettit Jr.: Death Penalty Is Justice For Murderers," reprinted from 2009.

Idaho Lethal Injection Challege

"Idaho asks federal court to toss execution lawsuit," is the AP report via the Idaho Press-Tribune.

The Idaho Department of Correction has asked a federal judge to reject a lawsuit over the state's method of execution, saying its newly revised lethal injection policy mirrors other states whose methods have already passed muster with the courts.

The motion to dismiss was filed late Friday. It comes in response to a lawsuit filed by death row inmate Paul Ezra Rhoades last month. Rhoades, who was convicted of three murders in Idaho Falls and Blackfoot in 1988, says lethal injections are frequently botched and that Idaho's protocol doesn't require enough training for its executioners. Rhoades also contends that there are several other problems with Idaho's execution policy and that they would render his execution unconstitutional.

Related posts are in the lethal injection index.

Texas AG to Act as Special Proseuctor on Morton Murder Case

"Texas attorney general to lead new investigation of Morton murder," is the title of Chuck Lindell's report in today's Austin American Statesman.

A special prosecutor from the Texas attorney general's office will lead the reinvestigation of the 1986 murder of Christine Morton after DNA evidence recently revealed that her husband, Michael Morton, was wrongly convicted of the crime.

Williamson County District Attorney John Bradley said Monday that he requested a special prosecutor because the state agency has expertise leading complex cases, particularly cold cases that require considerable investigation — from finding witnesses again to developing new evidence.

"Given the complexities and age of the Morton case, I wanted to make sure that we had an office and a special prosecutor with substantial experience who could carry this case forward," Bradley said.

Bradley also urged Michael Morton's trial prosecutors, including former District Attorney Ken Anderson, to cooperate in a separate investigation — led by Morton's lawyers — into allegations that evidence favorable to Morton was improperly hidden to ensure his conviction and life sentence.

Details of that investigation remain in sealed court files, but Anderson, now a district judge in Georgetown, and former Assistant District Attorney Mike Davis, now a Round Rock lawyer, are expected to be subpoenaed to give Morton's lawyers depositions under oath.

"I encourage Mr. Anderson and Mr. Davis to provide Mr. Morton with an explanation of what happened 25 years ago during the discovery process for his trial," Bradley said.

And:

Bradley, saying he will remain involved in the investigation into the misconduct allegations, also promised to cooperate fully with Morton's lawyers.

Morton's Houston lawyer, John Raley, welcomed Bradley's pledge.

"As the husband of the murder victim and someone who was wrongfully convicted of the crime, Mr. Morton has a deep personal interest in seeing justice done, so we will want to consult with the attorney general as the new investigation proceeds," Raley said Monday.

The Texas Tribune has, "Bradley Announces Special Prosecutor in Morton Case," by Brandi Grissom.

Williamson County District Attorney John Bradley this morning announced the appointment of the Texas Attorney General's office as special prosecutor in the Michael Morton case and the ongoing investigation and possible prosecution of any new suspect in the 1986 murder of his wife, Christine Morton. A special grand jury is also being formed to investigate and hear any witnesses related to the case, he said.

“Given the complexities and age of the Morton case, I wanted to make sure that we had an office and a special prosecutor with substantial experience who could carry this case forward,” Bradley said in a statement.

Molly Hennessy-Fiske posts, "Texas attorney general reinvestigating botched murder case," for the Los Angeles Times.

The Texas attorney general's office is reinvestigating a murder case that sent the wrong man to prison for nearly 25 years.

"We have taken over the investigation and prosecution in the Christine Morton murder case," Lauren Bean, a spokeswoman for Texas Atty. Gen. Greg Abbott's office, told The Times on Monday.

Christine Morton was found bludgeoned to death at her home in Williamson County, about 20 miles north of Austin, on Aug. 13, 1986. Her husband, Michael Morton, was convicted of murdering her and sentenced to life in prison the following year. Morton insisted that he was innocent, that he was at work at the time his wife was killed and that she had been attacked by an intruder.

Earlier this month, Morton, 57, was released from prison and exonerated after DNA tests identified another man as a suspect in the death of his wife and the 1988 murder of another woman in the area under similar circumstances. According to court records, the suspect, identified only as John Doe, lived in the area at the time and has felony convictions or charges in four states, including California.

Williamson County sheriff's officers reinvestigating the Morton case will now report to Abbott's office.

Earlier coverage of Michael Morton's exoneration begins at the link.

Maryland's Revised Death Penalty Law Gets Test

"In Bishop case, Maryland death penalty law gets first trial," is the title of Arthur Hirsch's Baltimore Sun report.

The man accused of fatally shooting a Towson gas station owner in a murder-for-hire scheme is due in court this week — the first trial under Maryland's revamped death penalty law, legal experts say.

And the trial of Walter P. Bishop Jr., scheduled to begin Tuesday with jury selection in Harford County Circuit Court, could eventually test Maryland's definition of a capital case, as his lawyers argue that police improperly obtained a crucial piece of evidence.

Considered one of the most restrictive capital punishment laws in the 34 states that have the death penalty, the Maryland statute that went into effect two years ago put new limits on such prosecutions. The death penalty only be sought only in cases where there is DNA or other biological evidence, a video recording that "conclusively" links the defendant to the crime or a video of a "voluntary interrogation and confession."

Prosecutors have a video recording of Bishop talking for hours to homicide detectives in an interrogation room at Baltimore County police headquarters on March 6, 2010, the day he was arrested in the slaying of William R. Porter. Bishop sat there from the afternoon into the night and, according to an investigator's report, he confessed to killing Porter at the Hess station on East Joppa Road on the morning of March 1, 2010.

But defense lawyers say police never told Bishop his words were being recorded — or the consequences that those words carried. "He was never told that by giving a videotaped confession, he was making himself eligible for the death penalty, where otherwise he would not be eligible," said Stefanie McArdle, one of his public defenders.

And:

Lawyers on both sides say they expect the trial in Harford County to run three to four weeks.

Earlier coverage of Maryland's 2009 revised capital punishment statute begins at the link.

Jim Dunnam on the Michael Morton Exoneration

"Another innocent man freed from a Texas jail," is the title of Jim Dunnam's OpEd in the Houston Chronicle.  Dunnam is a former state representative from Waco.  He's now a senior fellow at the Texas First Foundation.

In 1986 the Space Shuttle Challenger blew up shortly after launch. Lady Gaga was born and the forensic use of DNA technology in criminal courtrooms began. 1986 is also the year Christine Morton was murdered. Christine's husband, Michael Morton, was convicted of that murder and sent to prison for life. Twenty-five years have passed.

This year brought us the final Space Shuttle mission and Lady Gaga at the top of the charts. Since 1986, the science and accuracy of DNA testing has progressed to incredible levels, and this month DNA testing exonerated Michael Morton.

The prosecutors claimed Michael Morton was a sex-crazed lunatic who beat his wife to death one morning before work. Michael maintained his innocence, insisting his wife was alive when he left that morning.

The jury that convicted Michael was never shown a blood-stained bandana found behind the Morton home. The jury never learned that Morton's 3-year-old son witnessed the assault on his mom, had described the murderer and said that his father was not home at the time. The jury also was not told that Christine Morton's purse had been stolen from the house, or that her credit card and a check were later used by someone other than Michael. Instead, prosecutors misled the jury, arguing that since nothing was stolen there was no evidence to support Michael's claim of a burglar. The prosecutors also withheld this evidence from Michael's lawyers, even though required by law to turn it over.

The new evidence was ultimately discovered in the prosecutor's files years later by pro bono lawyers representing Morton. In 2006, these new lawyers asked that the bandana be tested using the latest DNA test methods. John Bradley, the Williamson County district attorney, refused the request and successfully won a hearing to prevent it. Five years passed.

And:

In the 11 years surrounding 1986, 51 people were executed in Texas. The 234 executions presided over by Perry in his 11 years as governor now serve as an applause line during Republican presidential debates. Currently, Texas houses 8,500 inmates serving life sentences, and Texas will spend more than $3 billion this year on criminal justice. Forgetting for a moment the real loss of 25 years for Michael Morton, it cost Texans more than $400,000 to incarcerate him all this time. Meanwhile, the real murderer walked through America committing more crimes and another murder. Shouldn't we use all the tools science has to offer and a little of that money to assure we've got the right man?

Earlier coverage of Michael Morton's exoneration begins at the link.

The Death Penalty’s De Facto Abolition

That's the title of an editorial from the Saturday edition of the New York Times.

A new Gallup poll reports that support for the death penalty is at its lowest level since 1972. In fact, though, the decline, from a high of 80 percent in 1994 to 61 percent now, masks both Americans’ ambivalence about capital punishment and the country’s de facto abolition of the penalty in most places.

When Gallup gave people a choice a year ago between sentencing a murderer to death or life without parole, an option in each of the 34 states that have the death penalty, only 49 percent chose capital punishment.

That striking difference suggests that more Americans are recognizing that killing a prisoner is not the only way to make sure he is never released, that the death penalty cannot be made to comply with the Constitution and that it is in every way indefensible. But there are other numbers that tell a more compelling story about the national discomfort with executions.

And:

Only one-seventh of the nation’s 3,147 counties have carried out an execution since 1976. Counties with one-eighth of the American population produce two-thirds of the sentences. As a result, the death penalty is the embodiment of arbitrariness. Texas, for example, in the past generation, has executed five times as many people as Virginia, the next closest state. But the penalty is used heavily in just four of Texas’s 254 counties.

Opposition to capital punishment has built from the ground up. It is evident in the greater part of America’s counties where people realize that, in addition to being barbaric, capricious and prohibitively expensive, the death penalty does not reflect their values.

Coverage of the latest Gallup poll results is at the link.

Is John Bradley Trying to Close Prosecutorial Misconduct Inquiry?

Today's Austin American-Statesman reports, "DA files, retracts motion called hindrance to Morton case inquiry."  It's by Chuck Lindell.

Williamson County District Attorney John Bradley filed, but later withdrew, a motion to speed Michael Morton's appeal after Morton's lawyers objected Thursday, calling the move a cynical attempt to short-circuit an investigation into alleged misconduct by former county officials.

Morton, freed last week after serving almost 25 years in prison for a murder he did not commit, has made the investigation a priority in hopes of fleshing out charges that evidence was hidden that could have prevented his guilty verdict in 1987, his lawyers said.

Bradley denied trying to impede the investigation and said Morton's lawyers overreacted. Still, he said via email that he was "sorry for the misunderstanding."

Thursday's contretemps surrounded an agreement, negotiated two weeks ago between Bradley and defense lawyers, that allowed Morton to go free on only a signature bond. The agreement acknowledged that recent DNA tests pointed to another man as the killer of Morton's wife, Christine, in the bed of their Williamson County house in 1986.

The agreement also gave defense lawyers limited time to pursue an investigation into their allegations that then-District Attorney Ken Anderson, now a district judge in Georgetown, hid evidence that could have established Morton's innocence. Morton's lawyers also claim investigators ignored leads that could have caught the killer.

But the agreement stipulates that the investigation would end if the Texas Court of Criminal Appeals were to establish Morton's innocence, which it did Wednesday.

Morton's lawyers believe they have until Nov. 7, when the court issues its mandate and the ruling becomes official, to complete their investigation, which was to be overseen by District Judge Sid Harle.

But in a motion filed late Wednesday, Bradley asked the appeals court to "immediately" issue its mandate on the Morton case.

The motion said the request was being made for Morton's good, freeing him from the conditions of his bond and allowing him to more quickly seek state compensation for his wrongful conviction.

And:

Morton was prepared to delay his release from prison to ensure that his claims of misconduct were investigated by the courts, the brief said. He agreed to the signature bond only because he believed his lawyers would be allowed to conduct the same investigation, the brief added.

"Mr. Morton is entitled, at a minimum, to hold the State to its promise to let him make a limited inquiry as to how and why he was wrongfully convicted in the first place," the brief said.

"The State should not be permitted to use this Court's procedural rules to short-circuit that process," the brief said. "Mr. Morton did not request, and does not agree to, an expedited issuance of the mandate under these circumstances."

The objections prompted Bradley to withdraw the motion to expedite.

"Bradley Withdraws Motion to Rush Morton Case," is the Texas Tribune post by Brandi Grissom.

Williamson County District Attorney John Bradley this afternoon withdrew a motion he filed on Wednesday asking the court to quickly finalize its decision to exonerate Michael Morton.

The filing drew quick criticism from Morton's attorneys, who worried that Bradley was attempting to stymie efforts to investigate allegations of prosecutorial misconduct.

In the two-page withdrawal motion filed today, Bradley wrote that his filing to expedite the dismissal of the case "was a simple misunderstanding of the terms of the agreement" he had made last week with Morton's lawyers.

And:

In his motion, Bradley — who was not the prosecutor at the time of Morton's original trial — wrote that an expedited dismissal would benefit Morton because it would release him from the personal recognizance bond of the court and allow him to "immediately pursue any compensation" from the state for the nearly 25 years he was wrongfully imprisoned.

John Raley, a Houston pro-bono lawyer, and Nina Morrison and Barry Scheck, of the New York-based Innocence Project, however, argue in an unusual court filing opposing Bradley's request that his motives are not purely to help the newly exonerated man move on with his life. The request to hurry-up the process, they indicate, is an effort to stymie an investigation into whether prosecutors intentionally and illegally suppressed evidence that could have prevented Morton's wrongful conviction.

Morton's lawyers allege that the district attorney's office withheld a transcript of a conversation between Rita Kirkpatrick, Christine Morton's mother, and a sheriff's investigator in which she told the officer that Morton's 3-year-old son saw a "monster" who was not his father attack and kill his mother.

They also allege prosecutors withheld information about Christine Morton's credit card being used in San Antonio two days after she was killed and about a check made out to her that was cashed with her forged signature nine days after her death.

Bradley's office has denied allegations of wrongdoing. Ken Anderson, who was the prosecutor at the time of Morton's trial and is now a Williamson County district judge, has not commented publicly.

In an agreement that Morton's lawyers said they negotiated over a three-day period with Bradley, the two sides agreed that an investigation into the alleged wrongdoing would continue while the appeals court was considering the motion to overturn Morton's conviction. If the discovery process was not completed by the time the appellate court issued an order, then the two sides agreed the investigation could continue for at least 30 days. Typically, the court takes a month or longer to issue a decision, but in this case, the court took just a week.

The ABA Journal focuses on another issue, "Ex-Prosecutor, Now a Judge, Accused of Hiding Exculpatory Evidence."  It's by Mark Hansen.

A former Texas prosecutor, now a sitting judge, has been accused of withholding exculpatory evidence in the prosecution of an Austin-area man who spent 25 years in prison for a murder he didn't commit.

Lawyers for Michael Morton, whom DNA evidence has exonerated in the 1986 murder of his wife, Christine, say former Willamson County District Attorney Ken Anderson, now a sitting judge in the same county, failed to turn over evidence to the defense that cast doubt on Morton's guilt, the Associated Press reports.

The evidence includes a statement by the victim's mother, who told investigators at the time that her 3-year-old grandson—Morton's son—had described seeing a "monster" beat his mother to death. It also includes evidence that the victim's credit card was used in San Antonio two days after her murder and that a forged check in her name was cashed a week later.

"I think everybody can see how offensive this conduct is, if true," said Innocence Project co-founder Barry Scheck, one of Morton's lawyers. "I am profoundly troubled by this. Profoundly troubled, and determined to get answers."

Earlier coverage of Michael Morton's exoneration begins at the link.

The Latest Public Opinion Polling From Gallup & CNN|ORC

"In U.S., Support for Death Penalty Falls to 39-Year Low," is the title of the report by Frank Newport of the Gallup Organization.  Charts and graphs are at the link.

Sixty-one percent of Americans approve of using the death penalty for persons convicted of murder, down from 64% last year. This is the lowest level of support since 1972, the year the Supreme Court voided all existing state death penalty laws in Furman v. Georgia.

And:

Support for the death penalty in cases of murder has varied substantially over the past 75 years. A majority of Americans supported the death penalty when Gallup first asked about it in 1936, and less than a majority supported it in various Gallup polls between 1957 and 1971, but support has returned to a majority level since. Support peaked in the 1990s as concerns about crime rose, but since that point it has declined, although a clear majority of Americans still favor its use in cases of murder.

Recent years have seen renewed controversy over the death penalty's use, including the 2010 execution of Teresa Lewis in Virginia, the first woman to be executed in that state in almost 100 years, and the execution of Davis in September of this year. It is not clear whether the death penalty will be an issue in next year's presidential race, although Texas Gov. Rick Perry was asked in a recent Republican debate about his state's status as the most frequent in carrying out the death penalty.

Historic trends from Gallup polling on capital punishment is available in an Adobe .pdf document.

News coverage of the polling includes:

"Gallup Poll: 35% oppose death penalty," by Gary Strauss at USA Today.

More than one-third of Americans now oppose the death penalty — the highest level in nearly 40 years — according to a Gallup Poll out Thursday.

Moreover, those who believe the death penalty is being applied fairly, and those who say it isn't used often enough, are at the lowest levels in a decade, underscoring significant changes in attitudes.

Gallup found that 35% of those polled oppose the death penalty — the highest opposition since March 1972. That year, the Supreme Court effectively ruled that the death penalty was constitutional unless it was applied unfairly. By 1976, several states had reinstituted capital punishment.

Just 40% of those polled last week believe the death penalty isn't imposed often enough, the lowest level since May 2001.

The poll was conducted shortly after two controversial cases drew attention: the September execution of Troy Davis and last week's Supreme Court hearing involving Alabama death row inmate Cory Maples.

CNN posts, "Number who prefer death penalty on decline."

When offered a choice between sentencing a murderer to capital punishment or life in prison with no chance of parole, half of all Americans say they prefer a life sentence over the death penalty - the first time that has happened in CNN polling.

Fifty percent would opt for a life sentence; 48% said they would choose the death penalty, revealing a nation divided when it comes to capital punishment.

Full results (pdf)

The remaining two percent had no opinion in the survey released Wednesday.

"That's not to say that Americans want to abolish the death penalty entirely," said CNN Polling Director Keating Holland. "But there is a difference between thinking that the government should have the death penalty as an option and actually wanting to see it applied."

Seven years ago, 56% of the nation said they preferred the death penalty, a number that decreased to 53% in 2009 and to 48% now. At the same time the number of Americans who believe that at least one person in the past five years has been executed for a crime that he or she did not commit increased to 72%.

The issue of the death penalty has even found its way onto the 2012 campaign trail, with some media attention given to the controversy surrounding the execution of death row inmate Todd Willingham. Willingham, who maintained his innocence, received the death penalty while GOP contender Rick Perry served as governor of Texas.

In 2005, when a solid majority preferred the death penalty, 59% believed that an innocent person had been executed within the previous five years. The CNN/ORC International survey reveals that figure has risen thirteen points.

"Support for death penalty declines," at UPI.

Support for the death penalty is most often expressed by white, male Republicans more than 30 years of age who live in southern and Midwestern states, Gallup said.

The Gallup poll results are based on telephone interviews with 1,005 adults. The margin of sampling error is 4 percentage points.

"Poll: Death penalty support lowest ever," by MJ Lee at Politico.

The survey also indicates that Americans feel less confident that the death penalty is applied fairly than they have in recent years, with 52 percent saying they think the punishment is used fairly, down from 58 percent last year.

Republicans and independents who lean Republican are far more likely to approve of the death penalty — 73 percent of them said they approve, compared with 46 percent of Democrats and independents who lean Democrat. More men also expressed stronger support for capital punishment, with 64 percent of men saying they approve of the method while 57 of females said the same.

Support for the death penalty was highest in the mid-1980s through the mid-1990s, with an all-time high of 80 percent expressing support for it in 1994.

Related posts are in the public opinon polling index.

The Latest News Coverage of Michael Morton's Exoneration

"Prosecutor misdeeds may have let killer kill again," is the title of Will Weissert's AP report.  It's via the Fort Worth Star-Telegram.

Caitlin Baker was 3 when her mother, Debra, was beaten to death and left naked in bed in her Austin home. Although the pain of the loss has faded in the 23 years since, her anger that her mother's killer was never caught has not.

Less than two years before that January 1988 slaying, unbeknownst to all but a few people until recently, the mother of another woman bludgeoned to death in bed during an attack at her home about 15 miles away told an investigator that her 3-year-old grandson watched a "monster" do the killing, not his father, as police suspected. She urged him to pursue other leads, but her daughter's husband, Michael Morton, was instead convicted of murder and sentenced to life.

New DNA testing linked the killings of Debra Baker and Christine Morton to another man with a prison record in several states. Police have not publicly identified the suspect, whom they are trying to locate, but his genetic links to both slayings led to Morton's release from prison last week after nearly 25 years behind bars, and his formal exoneration by an appeals court on Wednesday.

But lawyers for the Innocence Project, a New York-based group that spent years fighting for DNA testing in Morton's case and the release of his police case files, say he likely never would have been convicted if the prosecutor in charge of the case hadn't withheld key evidence from the defense, including his mother-in-law's statements. And if, as the lawyers contend, investigators disregarded and hid evidence that cast doubt on Morton's guilt, could they have more doggedly pursued leads that might have helped them prevent Baker's killing?

In filings before state District Judge Sid Harle, the Innocence Project has alleged misconduct by Ken Anderson, now a sitting judge in Williamson County just north of Austin, who was the county's district attorney at the time, and prosecuted Morton's case. The charges could lead to the state bar taking disciplinary action against Anderson, or Harle himself possibly urging state and federal prosecutors to investigate, said Barry Scheck, the Innocence Project's co-founder.

"I think everybody can see how offensive this conduct is, if true," Scheck said. "I am profoundly troubled by this. Profoundly troubled, and determined to get answers."

At Time, "In Perry’s Texas, a Well-Connected DA with a Knack for Blocking New Evidence," is the title of Mark Benjamin's post.

Michael Morton faced a throng of reporters last Tuesday just after a Texas judge freed him following 25 years in prison for a murder he did not commit. Now gray-haired and 57, Morton looked on the bright side. “I thank God that this was not a capital case,” he said.

In the final years of a legal battle spanning more than two decades, attorneys at the New York-based Innocence Project fought for DNA testing that ultimately exonerated Morton in the murder of his wife and pried loose exculpatory information from Texas government files that officials had withheld from Morton’s attorneys since before his 1987 trial.

These efforts probably would have sprung Morton from prison years ago were it not for the role of Williamson County District Attorney John Bradley, a well-connected ally of Texas Governor Rick Perry, who fought tenaciously for six years to keep Morton behind bars. Twice a Perry appointee to influential legal posts, Bradley has generated controversy in his handling of two high-profile cases: Morton’s incarceration and the forensic review of evidence against Cameron Todd Willingham, a man who was executed in 2004 despite a cloud of uncertainty around the expert testimony that led to his conviction.

In early 2005, Morton’s attorneys sought DNA testing on a blood-stained bandana found outside the Morton home on the day after the brutal murder, which took place on Aug. 13, 1986. Court records show that Bradley, who was appointed by Perry in 2001 and was not Morton’s original prosecutor, sought to prevent that testing from ever taking place and tried to limit its effect on the case.

At first, Bradley argued that testing the bandana would open the floodgates to an indeterminable amount of new evidence. “One has to wonder whether petitioner would file another motion at some future date seeking additional testing of even more items,” he wrote in October of 2005. In a 2009 filing, Bradley argued that the bandana was irrelevant because it was found “a football field’s length” from the Morton’s house, and that if any DNA testing did take place “it should not incorporate the possibility of a match of any DNA profile recovered from the bandana to a known offender.

District attorneys vary widely in their willingness to consider new evidence, but Bradley’s efforts make him an outlier. The Innocence Project says it has to fight a prosecutor’s objections to DNA testing in less than half of its cases, and most resistance dries up quickly. Death penalty opponents are particularly critical of prosecutors who resist DNA testing. Steve Hall, director of the StandDown Texas project, called Bradley’s behavior in the Morton case “abhorrent.”

"Texas man jailed 25 years for murder is exonerated," by Molly Hennessy-Fiske for the Los Angeles Times, via the Sacramento Bee.

Morton has been staying with his parents in East Texas since his release. Nina Morrison, an Innocence Project lawyer, told the Times that she called Morton on Wednesday to tell him about the ruling.

"He's thrilled and relieved and looking forward to the next chapter in his life, but also still determined to get to the bottom of how and why he was wrongfully convicted in the first place and make sure it doesn't happen to anyone else," Morrison said. "There's still a lot of unanswered questions and he very much wants answers."

Chuck Lindell, who broke the story of the tangled case in mid-August writes, "Court affirms Morton's innocence," for today's Austin American-Statesman.

Wednesday's ruling by the Texas Court of Criminal Appeals qualified Morton for compensation from Texas — $80,000 for each year he was wrongly imprisoned, or about $2 million, with another $2 million annuity that would earn 5 percent interest and pay out monthly.

But the rapid ruling may jeopardize Morton's plans to pursue evidence supporting allegations that then-prosecutor Ken Anderson, now a district judge, improperly suppressed pretrial evidence that pointed to Morton's innocence. Defense lawyers also accused sheriff's investigators of ignoring leads that could have solved Christine Morton's murder.

Under an agreement reached last week with Bradley, Morton's lawyers were given a chance to conduct a limited investigation into the allegations of misconduct — but only until the appeals court ruled on Morton's innocence claim.

Defense lawyers believe they have until Nov. 7 to complete that investigation because appellate court rulings do not become final until a mandate issued 25 days after a ruling is announced.

"I am confident we will find a way to get it done in the next (month), if not after," Morrison said, providing no details because District Judge Sid Harle placed the investigation agreement under seal in court files.

But if defense lawyers hope to force Anderson and others to answer questions under oath, they may have trouble convincing Harle to order the depositions.

The claims of official misconduct were included in the same petition that urged the appeals court to declare Morton innocent. Now that appellate judges have established Morton's innocence, the petition is disposed of and the remaining claims are considered moot.

Bradley declined to comment on the defense-led investigation, citing the sealed court records.

And:

John Raley, a Houston civil lawyer who has represented Morton for free since 2005, said Morton is considering additional schooling after earning a master's degree in literature from the University of Houston while in prison.

"He said something about Shakespeare during one of our phone calls years ago," Raley said. "So I sent him the complete works of Shakespeare, and he was thrilled."

Their letters and conversations, Raley said, are frequently sprinkled with Shakespearean quotes and references to literary works by John Milton and others.

Beyond suddenly having a future to plan, however, Morton is still adapting to life outside prison, Raley said.

"All of the everyday things people take for granted, Michael thinks are wonderful. This is a brave new world for him," Raley said.

Earlier coverage of Michael Morton's exoneration begins with the preceding post.

Alberta Phillips on the Morton Exoneration

Her column in today's Austin American-Statesman is, "Sadly, justice for Michael Morton 25 years too late."  Phillips is also a member of the Statesman editorial board.  It's a must-read

I had been in Austin about a year when Christine Morton was murdered in 1986. It was a crime that made women feel vulnerable.

And:

Evidence now shows us our nightmares were real: There was a monster.

The intruder did not know Christine Morton. He beat her to death, and he is suspected of fatally bludgeoning another woman in Travis County two years later. His DNA connects him to both crimes. He is not in custody.

Law enforcement officials and prosecutors now are on the spot to answer questions about why they ignored key clues. Why was evidence that might have cleared Michael Morton hidden from his lawyers and a jury? Was it incompetence or misconduct?

Among the evidence withheld is a transcript of a taped phone conversation between Sgt. Don Wood, the lead investigator, and Christine Morton's mother, Rita Kirkpatrick. In it, Kirkpatrick recounts her talk with 3-year-old Eric Morton, who said, "Mommy's crying because the monster's here. He hit Mommy. He broke the bed." In that same conversation, Eric told Kirkpatrick that his father was not home, just "Mommy and Eric was there."

Other evidence withheld included a document that detailed a telephone tip regarding a $20 check made out to Christine Morton but not cashed until nine days after her death. The document stated that the signature on the back of the check appeared to be a forgery.

There was another document that reported a tip that Morton's Visa card apparently had been recovered at a San Antonio store.

Last week, I asked Anderson, now a state district judge, if he had apologized to Michael Morton and when we could expect to hear from him on this case.

"I'm not going to be talking about the case," Anderson said. I could hear the emotion in his words: "There is an awful lot to say, but this is not the time to say it. If I had my way, I would have said something a month ago.

Earlier coverage of Michael Morton's exoneration begins at the link; today's news coverage, in the next post.

Court of Criminal Appeals Vacates Michael Morton's Conviction

Chuck Lindell posts, "Appeals court declares Morton innocent," at the Austin American-Statesman.

The Texas Court of Criminal Appeals agreed today to toss out Michael Morton’s 1987 conviction and life sentence for the murder of his wife, Christine, in Williamson County.

‘I just called Michael and told him the news. He was thrilled,” said Nina Morrison, a lawyer with the Innocence Project of New York. “This is the first time in almost 25 years he has not had a wrongful conviction on his record and hanging over his head, and obviously it’s a great day for him.”

Noting that recent DNA tests indicate that another man, unidentified in court documents, was the killer, the state’s highest criminal court unanimously declared: “We determine that (Morton) is entitled to relief on his actual innocence claim.”

Morton’s request to vacate his conviction was sent to the court on Oct. 3, a day before he was released from prison in an agreement between defense lawyers and Williamson County District Attorney John Bradley.

That agreement also gave Morton’s lawyers a chance to conduct a limited investigation into allegations that prosecutors and investigators improperly withheld that pointed to Morton’s innocence — but only until the Court of Criminal Appeals ruled on Morton’s innocence claim.

Morrison said defense lawyers believe they have 30 days to complete their investigation into the misconduct claims because appellate court rulings do not become final until a mandate issues 30 days after a ruling is announced.

The Court's ruling in Ex Parte Morton is available in Adobe .pdf format.

Earlier coverage of Michael Morton's case begins at the link.

Supreme Court Roundup

The Philadelphia Inquirer reports, "Supreme Court refuses to reinstate Abu-Jamal death sentence."  It's by Joseph A. Slobodzian.

The U.S. Supreme Court on Tuesday refused to hear a petition by the Philadelphia District Attorney's Office seeking to reinstate the death penalty against Mumia Abu-Jamal.

The ruling in the case of Abu-Jamal - convicted of murder in the 1981 shooting of Philadelphia Police Officer Daniel Faulkner - was one of more than 250 appeals summarily rejected by the high court without comment. It means that, unless the District Attorney's Office decides to conduct a new sentencing hearing, Abu-Jamal, 57, will continue serving a life sentence with no chance of parole.

Tasha Jamerson, spokeswoman for District Attorney Seth Williams, said the prosecutor's office would not comment on the ruling while its appeals unit decides what to do next.

The prosecutor's unsuccessful appeal to the nation's highest court followed a decision in April by the U.S. Court of Appeals for the Third Circuit in Philadelphia.

The Third Circuit reaffirmed its ruling that Abu-Jamal's sentencing hearing was unfair, giving the District Attorney's Office the choice of conducting a new death-penalty hearing or letting Abu-Jamal serve life.

And:

Regardless of the district attorney's decision on a sentencing hearing, pending appeals by Abu-Jamal on other issues in federal and state appeals courts could take years to resolve.

Abu-Jamal is housed at the state prison in Greene County in Western Pennsylvania, where he has achieved the distinction of living longer on death row than any other of the state's 208 condemned men and women.

David G. Savage writes, "Supreme Court refuses to restore death penalty in Abu-Jamal case," for the Tribune Washington Bureau

The Supreme Court refused to revisit one of the nation's most controversial and racially charged death-penalty cases, leaving it to a Philadelphia prosecutor to decide whether to convene a jury and seek a new death sentence against Mumia Abu-Jamal for murdering a police officer in 1981.

Without comment, the justices turned down an appeal from Philadelphia District Attorney Seth Williams, who urged the high court to restore a death sentence for the former Black Panther, author and radio reporter.

The action left in place rulings that upheld Abu-Jamal's murder conviction, but set aside the death penalty. A federal judge and the U.S. court of appeals in Philadelphia had set aside the death sentence on the grounds that the instructions to his jury were flawed and unclear.

The district attorney now has a choice. He could convene a new jury to seek another death sentence for Abu-Jamal, or he could let him remain in prison for life under the terms of his murder conviction. A spokeswoman for Williams said the district attorney would take some time to make a decision.

And:

In other action Tuesday:

• The court refused to overturn a decision to throw out the confession of a man convicted of killing nine people at a Buddhist temple near Phoenix as a juvenile. Prosecutors plan to seek a retrial of Jonathan Doody, who had been convicted of the slayings of six priests, a nun and two helpers during a robbery at the temple. The 9th U.S. Circuit Court of Appeals threw out the conviction, saying his Miranda warnings were inadequate.

The NAACP Legal Defense Fund, which represents Abu-Jamal issued a statement, "United States Supreme Court Rejects Appeal from Philadelphia DA’s Office.  Mumia Abu-Jamal’s Death Sentence is Unconstitutional."  Here's an excerpt:

The Court’s decision brings to an end nearly thirty years of litigation over the fairness of the sentencing hearing that resulted in Mr. Abu-Jamal’s being condemned to death.  Mr. Abu-Jamal will be automatically sentenced to life in prison without the possibility of parole unless the District Attorney elects to seek another death sentence from a new jury.

The NAACP Legal Defense & Educational Fund, Inc. (LDF) and Professor Judith Ritter of Widener Law School represent Mr. Abu-Jamal in the appeal of his conviction and death sentence for the 1981 murder of a police officer in Philadelphia, Pennsylvania.  The Supreme Court’s decision marks the fourth time that the federal courts have found that Mr. Abu-Jamal’s sentencing jury was misled about the constitutionally mandated process for considering evidence supporting a life sentence.

The AP report on the Golden Temple case is, "Retrial planned in temple killings," by Jacques Billeaud.

Prosecutors plan to seek a retrial for a man whose conviction for killing nine people at a Buddhist temple was overturned after the U.S. Supreme Court refused to reverse a decision that threw out his confession.

Jerry Cobb, a spokesman for the Maricopa County Attorney's Office, said Tuesday that prosecutors will file charges in the coming days against Jonathan Doody in the 1991 killings at the Wat Promkunaram temple west of Phoenix. Cobb said it will take some time to prepare the charges.

"This is a 20-year-old case," Cobb said. "We have to get our arms around it."

The Supreme Court on Tuesday refused to hear an appeal by Arizona officials who asked for a re-examination of a lower court's decision to throw out Doody's confession.

Doody was convicted of the slayings of six priests, a nun and two helpers during a robbery at the temple. The bodies were found arranged in a circle, and all had been shot in the head.

Doody, who was 17 at the time of the killings, was sentenced to 281 years in prison after he was convicted of murder, armed robbery and other charges in the slayings. He maintained that he's innocent.

The 9th U.S. Circuit Court of Appeals found Doody's Miranda warnings were inadequate and threw out the conviction, ruling the confession was involuntary, partly because he wasn't properly read his rights by the officers interrogating him.

Earlier coverage of Mumia Abu-Jamal and the Jonathan Doody cases begins at the links.

Florida Legislator: Drop Lethal Injection, Add Firing Squad

"State Rep. files bill to add firing squad to death penalty laws," is the NW Florida Daily News report by Lauren Sage Reinlie.

State Rep. Brad Drake filed a bill Tuesday that would eliminate lethal injection as a method for execution in Florida. Instead, people facing the death penalty would be allowed to choose execution by firing squad.

Electrocution still would be allowed under the bill.

Drake, R-Eucheeanna, said in a news release issued Tuesday night that he filed the bill in response to debate over the effectiveness of certain drugs used in lethal injection executions.

“So, I say let’s end the debate,” he said in the release. “We still have Old Sparky. And if that doesn’t suit the criminal, then we will provide them a .45 caliber lead cocktail instead.”

In the release, Drake said the bill was in reaction to a group of doctors and legal experts who had been asking Gov. Rick Scott for a stay of execution for Manuel Valle, a 61-year-old man convicted of murder in the death of a law enforcement officer in Miami in 1978.

Valle was executed late last month after 33 years on death row. He was the first Florida inmate executed using pentobarbital as the first of three drugs in the injection.

His lawyers questioned the drug, saying it had not been tested for use to render an inmate unconscious.

The Florida Current has, "Give condemned inmates firing squad option, lawmaker says," by Gray Rohrer.

A bill filed Tuesday by Rep. Brad Drake, R-Eucheeanna, would allow for executions by firing squad. HB 325 would eliminate Florida's standard method of execution, lethal injection, and allow for executions only by electrocution or firing squad.

He said he filed the bill after overhearing a conversation in his district this past month while U.S. Supreme Court deliberated over the fate of Manuel Valle, convicted in the 1978 murder of a Coral Gables police officer. Valle's lawyers filed numerous appeals, the last few of which centered around the use of a drug used in lethal injections.

In a Waffle House in DeFuniak Springs, Drake said he heard a constituent say, "'You know, they ought to just put them in the electric chair or line them up in front of a firing squad.'" After a conversation with the person, Drake, 36, said he decided to file the bill.

"There shouldn't be anything controversial about a .45-caliber bullet. If it were up to me we would just throw them off the Sunshine Skyway bridge and be done with it," Drake said.

Under the bill, electrocution would be the standard method of executions, but the bill would allow inmates to opt for an execution by firing squad.

And:

On the other side of the spectrum in the Florida House is Rep. Michelle Rehwinkel-Vasilinda, D-Tallahassee, who filed HB 4051 last month to eliminate the death penalty completely in the state. She hopes to eliminate costs related to death penalty cases and apply that money to hiring more police officers and law enforcement, and is wary of the lawsuits Drake's bill could spark.

"It seems to be little bit regressive, frankly," she said. Rehwinkel-Vasilinda, 51, did hold out hope that the bill could help "clarify" the issue of the death penalty.

More on Florida HB 325, including the full text, is at the link.  News coverage and commentary of Utah's 2010 firing squad execution begins at the link.

South Dakota Looks at Single-Drug Lethal Injection Switch

"South Dakota weighs execution change," is the title of John Hult's Sioux Falls Argus Leader report.

South Dakota is considering a change in its lethal injection protocol to allow for a single-drug execution after the Drug Enforcement Administration advised the state against using a recently purchased supply of a key drug.

The DEA on Sept. 23 told the state that the India-produced sodium thiopental could not be used because of concerns about its importation, Attorney General Marty Jackley said Tuesday.

The announcement comes days after lawyers for death row inmate Donald Moeller were told that the state will consider the creation of a one-drug injection protocol and finalize its decision by Saturday.

The DEA's move was one of many considerations as the state explores its options for execution in the face of a tightened supply of lethal injection drugs nationwide, Jackley said.

"If you look at the shortage of drugs, if you look at what's happened in other states, all of those are considerations," Jackley said.

The DEA took similar positions on foreign-purchased supplies of the barbiturate obtained by Alabama, Arkansas, Georgia, Kentucky, Nebraska, South Carolina and Tennessee.

The AP filing is, "South Dakota may change lethal injection method after DEA raises concerns about drug supply," by Kristi Eaton.  It's via the Republic.

South Dakota is considering changing its lethal injection procedure after the U.S. Drug Enforcement Administration said it could not use its supply of a key ingredient in executions, South Dakota Attorney General Marty Jackley said Tuesday.

The DEA notified the South Dakota Department of Corrections last month that it had concerns over the importation and use of sodium thiopental from a company based in Mumbai, India, Jackley said. The drug is part of a three-drug protocol used by South Dakota in its executions.

The DEA has been investigating whether several states properly registered with federal regulators before importing the sedative, which is no longer manufactured in the United States and is in scarce supply worldwide. Stockpiles of sodium thiopental were confiscated from a handful of states that use it in executions, including Georgia, Alabama, Kentucky, South Carolina and Tennessee.

And:

Deborah Czuba, Moeller's attorney, questioned the quality of the sodium thiopental supply in her motion, saying it was ordered "from a ramshackle basement office in Mumbai, India."

She said the state did not research the background of the drug manufacturer and did not obtain instructions on how to use or store the drug.

Jackley said he is open to the DEA independently testing the drug supply, but said the state will not forfeit the supply without a hearing and appeal, if necessary.

A spokeswoman for the DEA did not respond to a message seeking comment.

"AG Voices Concern About Lethal Injection," at KDLT-TV.

A ruling from federal drug officials could put future executions in South Dakota on hold. The U.S. Drug Enforcement Administration has informed the South Dakota Department of Corrections that one of it's lethal injection drugs cannot be used.

The South Dakota Department of Corrections uses a three drug cocktail to execute inmates in the state. One of those drugs is called sodium thiopental purchased from India. It's a drug the US Drug Enforcement Administration has concerns about.

KELO-TV reports, "State Finalizing One-Drug Lethal Injection Method," by Ben Dunsmoor.

Changes to South Dakota's lethal injection procedures were made in 2007 after Governor Mike Rounds delayed the execution of Elijah Page over fears that the use a three-drug lethal cocktail would violate state law. The legislature changed the law so Department of Corrections officials could create set their own lethal injection standards, and Page was executed a year later.

Earlier coverage of South Dakota lethal injection issues begins at the link.

 

The David Leonard Wood Case

Today's El Paso Times reports, "Hearing to decide if convicted killer David Leonard Wood will die starts today."  It's by Diana Washington Valdez.

A hearing begins today to determine whether convicted serial killer David Leonard Wood is mentally retarded and should be spared the death penalty.

The presiding judge will submit the findings and recommendations to the Texas Court of Criminal Appeals. The high court stayed Wood's execution two years ago to give his lawyers time to prepare his case.

Court records indicate that Wood's witnesses for the hearing may include a retired El Paso elementary school teacher and a sister who's lived elsewhere in Texas.

A Dallas jury convicted Wood in 1992 in the murders of six teenage girls and young women whose bodies were found buried in the Northeast El Paso desert. He was sentenced to death.

And:

The U.S. Supreme Court ruled in 2002 in Atkins v. Virginia that executing a mentally retarded person constitutes cruel and unjust punishment in violation of the U.S. Constitution.

The Texas Health and Safety Code states that " 'Mental retardation' means significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates

during the developmental period."

It also states that a doctor or state-certified psychologist can determine whether someone is mentally retarded.

The threshold for mental retardation includes an IQ test score of 70, plus or minus a few points, below-average intellectual function, and deficiencies in adaptive behavior.

"Mental Retardation Hearing Begins For Local Serial Killer," is the KFOX-TV report by Jacob Rascon.

A hearing to determine whether local serial killer David Leonard Wood is mentally retarded and should be spared the death penalty for decades-old killings began on Tuesday.

A former teacher of Wood's, a former friend and his elder sister testified that he was a slow learner.

The defense rested and the prosecution will begin calling witnesses on Wednesday.

Wood was convicted in 1992 of capital murder and sentenced to death for killing five teenage girls and a 26-year-old woman. All were murdered and buried in desert areas of the northeast in 1987.

In August, 2009, the day before Wood was scheduled to be executed, the Texas Court of Criminal Appeals granted him a stay of execution to allow his attorneys to prepare to argue that he is mentally retarded.

Earlier this year, an unrelated hearing was held in the Wood case; coverage begins at the link.

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

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

 

A Roundup of World Day Against the Death Penalty Activities

"Okla. group pushes for repeal of death penalty," is the title of Sean Murphy's AP report, via the Alva Review-Courier.

A group of religious leaders and academics cited Oklahoma's frequency in imposing the death penalty and the number of condemned inmates who have been exonerated as reasons Monday to halt executions in the state.

The Oklahoma Coalition to Abolish the Death Penalty held a community roundtable at the Capitol as part of the 9th annual World Day Against the Death Penalty.

"Executions, regardless of the method used, are cruel and inhumane, and can and have gone wrong in many cases," said Kenny Fikes, co-chairman of the coalition.

The Rev. Edward Weisenburger of the Cathedral of Our Lady of Perpetual Help in Oklahoma City said religious leaders have a responsibility to speak out against the death penalty.

"Human life, in all its stages, is sacred," Weisenburger said.

Oklahoma has executed 96 inmates since 1976, putting the state third behind Texas and Virginia, according to the Death Penalty Information Center. But when weighted for population, Oklahoma leads the nation in both executions and death row exonerations, said Susan Sharp, a death penalty researcher at the University of Oklahoma.

"We're the state with the highest per-capita execution rate and the highest per-capita wrongful conviction rate," Sharp said. "There's something wrong with that picture."

The Tulsa World carries, "Oklahoma death-penalty critics point out problems."  It's by Barbara Hoberock.

The Swiss Federal Department of Foreign Affairs issued the statement, "The International Commission against the Death Penalty moves its headquarters to Geneva."

President of the Swiss Confederation Micheline Calmy-Rey today took part in the opening of the fourth meeting of the International Commission against the Death Penalty in Geneva. She welcomed the decision by the Commission to move its headquarters from Madrid to Geneva, where it will be integrated into the Academy of International Humanitarian Law and of Human Rights

The abolition of the death penalty is a central plank in Swiss human rights policy. This is why Switzerland supported Spain's initiative to establish an independent international commission against the death penalty. This decision was taken at the fourth World Congress against the Death Penalty in February 2010 in Geneva with the aim of persuading as many countries and actors as possible to commit themselves to the goal of abolition.

The Commission consists of high-ranking personalities from various countries and is chaired by Federico Mayor Zaragoza from Spain. It is assisted by a support group consisting of representatives of several countries. As of October 2011, the support group will be chaired by Paul Koller, the Swiss ambassador for human rights issues.

The Financial Channel posts, "The EU and the abolition of the death penalty in the world."

The global abolition of the death penalty is one of the main objectives of the EU’s human rights policy. In 2010, the EU issued more than 15 statements on the death penalty, most of which were on individual death penalty cases, and carried out numerous demarches against the death penalty. HR/VP Catherine Ashton also declared, in her speech to the European Parliament in June 2010, the EU’s work on abolishing the death penalty worldwide a “personal priority”.

The abolition of the death penalty is one of the thematic priorities under the European Instrument for Democracy and Human Rights (EIDHR). Since 1994, the European Commission has funded through the EIDHR over 50 projects worldwide, with an overall budget of more than €33 million.

"Today, October 10, is World Day Against Death Penalty," by JohnThomas Didymus is at Digital Journal.

Activists worldwide campaigning for abolition of the death penalty are today marking World Day Against Death Penalty. This year, opponents of the death penalty are emphasizing to governments that the death penalty is cruel and inhumane.

A declaration by Catherine Ashton, European Union High Representative for Foreign Affairs and Security Policy, and Thorbjørn Jagland, Secretary General of the Council of Europe, in commemoration of the World Day Against Death Penalty, said:

"The European Union and the Council of Europe reaffirm their united opposition to the death penalty, and their commitment to its worldwide abolition. We consider capital punishment to be inhumane, and a violation of human dignity. Experience in Europe has taught us that the death penalty does not prevent an increase in violent crime, and nor does it bring justice to the victims of such crimes. Any capital punishment resulting from a miscarriage of justice, from which no legal system can be immune, represents irreversible loss of human life."

IPS News posts, "'The Death Penalty Has No Dissuasive Effect'," by Gustavo Capdevila.

Capital punishment continues to exist because in some countries people are barraged with propaganda depicting it as a curb on crime, which it is not, said Federico Mayor Zaragoza, chair of an international commission against the death penalty that inaugurated its new headquarters in Geneva Monday.

And:

So far, 104 countries have abolished the death penalty while another 35 have a moratorium on executions, Mayor Zaragoza pointed out. "That makes a total of 139 countries without executions, which is good news," he enthused.

"Death row: America's torture chamber.  Inmates are locked up for 23 hours a day in solitary confinement for an average of 14 years. That meets the definition of torture," is by Rachel Meeropol for the Guardian.

Monday being the 9th anniversary of the World Day Against the Death Penalty seems an appropriate moment to examine why I believe this.

According to the Convention Against Torture, a treaty ratified by the US in 1994, torture is defined, in part, as "any act by which severe pain or suffering, whether physical or mental, is inflicted on a person for such purposes as […] punishing him for an act he […] has committed or is suspected of having committed." The experience of American death row inmates fits this definition.

Among the approximately 3,250 prisoners on death row in the US, the vast majority will serve years in solitary and crippling conditions, awaiting execution. Of the 34 states that still kill people, at least 25 hold death row inmates in solitary confinement for 23 hours or more a day. Sensory deprivation is prevalent. On death row in Texas, hundreds of condemned men are isolated in 60-square-foot, single-person, solid-front cells for 23 hours a day. The prisoners exercise alone for one hour each day in a metal cage. Meals are served through a locking metal flap in the cell door. There are no work or group recreation programs; nor can the prisoners speak to each other through the solid cell walls and door.

Death row prisoners in the United States spend decades in these dehumanising conditions. Of the 52 people executed in the United States in 2009, the average length of time on death row was 169 months – over 14 years. Many spend much longer. Manuel Valle, for example, was executed last month by the state of Florida after 33 years on death row. Over those decades of lost time, it is not uncommon for prisoners repeatedly to come within hours of death, only to get a temporary reprieve, and then a new execution date.

California's Death Row

The Atlantic's November issue carries, "The Appeal of Death Row," written by Mary A. Fischer.

Experts on both sides of the death-penalty debate have long agreed that California’s system is the nation’s costliest and least efficient. This June, a landmark report by Paula M. Mitchell, a professor at Loyola Law School, and Arthur L. Alarcón, a senior judge on the Ninth Circuit Court of Appeals, unearthed new data that reveal just how bad the system is.

Their report showed that since the current death-penalty statute was enacted in 1978, taxpayers have spent more than $4 billion on only 13 executions, or roughly $308 million per execution. As of 2009, prosecuting death-penalty cases cost upwards of $184 million more each year than life-without-parole cases. Housing, health care, and legal representation for California’s current death-row population of 714—the largest in the country—account for $144 million in annual extra costs. If juries continue to send an average of 20 convicts to San Quentin’s death row each year, and executions continue at the present rate, by 2030 the ranks of the condemned will have swelled to more than 1,000, and California’s taxpayers will have spent $9 billion to execute a total of 23 inmates.

“I was stunned by the report,” said Loni Hancock, a Democratic state senator from Oakland and a member of the senate budget committee. Hancock had spent the previous five months agonizing over deep cuts to California’s general budget, and “it broke my heart,” she said. “That’s when I decided the time had come for Californians to reconsider the death penalty.”

And:

For the time being, Governor Brown has no comment on this issue, says a spokesman. As governor in 1977, he vetoed a pro-death-penalty bill, and last April, he stopped a $356 million expansion of San Quentin’s death row, calling the cost “unconscionable” in a time of deep budget cuts to education and social services.

"Repeal of death penalty could save millions of dollars, analysis finds," is the title of Will Evans' post at California Watch.

A nonpartisan analysis of a California ballot initiative to abolish the death penalty found that it could save the state and counties in the "high tens of millions of dollars" every year.

The Legislative Analyst’s Office review of the proposed initiative, which hasn't been cleared for signature gathering yet, put it in the middle of a debate over what the death penalty costs and what should be done about it. Some critics of the death penalty think it actually costs much more than the analysis said, while supporters of capital punishment think executions should be streamlined, not stopped, in order to cut costs.

The initiative was proposed in August after a bill to repeal the death penalty stalled in the state Legislature. In addition to eliminating capital punishment, the measure would require those convicted of murder to work in prison and provide $100 million over four years to local law enforcement to help solve homicide and rape cases. The proposal likely faces a rough road ahead, as a recent Field Poll [PDF] found a strong majority of Californians want to keep capital punishment, even as an increasing number prefer life in prison without parole.

And:

Loyola Law School professor Paula Mitchell, co-author of a recent study on the cost of California's death penalty, said the analyst's office report "severely underestimated" costs to taxpayers. Her study [PDF], written with U.S. 9th Circuit Court Judge Arthur Alarcón, found that California has spent $4 billion on the death penalty since 1978 and $184 million in 2009 alone. It was critical of past estimates by the Legislative Analyst's Office.

Mitchell said it was disappointing that the latest report did not include the hundreds of millions of dollars it would take to build a new complex for death row inmates, "which will be required if California keeps the death penalty."

"If the initiative process in California is going to function as an effective part of the democratic process, voters MUST be fully informed about the full costs of the programs they are asked to vote for or against," Mitchell wrote in an e-mail.

Earlier coverage from California begins with reporting on the Field Poll.