The StandDown Texas Project

Courts Taking Notice of DNA Exonerations

"Decision adds to scrutiny of death penalty cases," is the title of Michelle Mondo's report in the San Antonio Express-News.  It's also available via the Houston Chronicle.

At 3:25 a.m. on May 2, Anthony Bartee was eating breakfast, not knowing if it would be his last.

That evening, Bartee, 55, was to be strapped to the gurney in the death chamber in Huntsville for the 1996 robbery and slaying of his friend David Cook, 37.

Bartee's attorney David Dow started his day scrambling to get his client a second stay — the first was granted within a week of Bartee's original Feb. 28 execution date. In addition to the usual appellate route, Dow took an atypical one.

He filed a federal lawsuit against the Bexar County district attorney's office, claiming that Bartee's civil rights were violated by prosecutors withholding evidence for DNA testing that could prove his client's innocence.

The DA's office doubted the attempt would work because Bartee had 15 years to make evidence claims. And besides, he wasn't convicted based on DNA. But with Bartee's death imminent, Chief U.S. District Judge Fred Biery granted the temporary stay to allow more time to examine Dow's civil rights claims.

The ruling was rare, experts said, and speaks to an ever-increasing scrutiny of death penalty cases as exonerations from post-conviction DNA testing continue to mount.

“The courts are more cautious, and most people think they should be if there is a question about it,” said Cornell University Law School Professor John H. Blume.

Juries, too, are handing down fewer death sentences, nationwide and locally.

Local prosecutors have noted the trend and are taking a harder look at whether to seek death.

And:

Exonerations also have affected the entire criminal justice system, including jurors who must decide if someone lives or dies, said John Schmolesky, a professor at St. Mary's University School of Law.

“I think it's moved the pendulum to at least introduce an element of skepticism in capital cases,” Schmolesky said.

The last death sentence in Bexar County came in 2009, a year when only one person was condemned to die although prosecutors had sought the death penalty more often than that.

Given that at least 24 people were sentenced to die in the 11-year period that ended in 2006, Bartee being one of them, that's a dramatic decrease.

Death sentences in the United States also have dropped, by 65 percent in the past 12 years, with 78 handed down last year, compared with 224 in 2000, according to the Death Penalty Information Center.

The AP posted, "Experts say DNA exonerations are leading to fewer Texas death penalties," based on the Express-News article.  It's via the Republic.

Earlier coverage of Anthony Bartee's stay of execution begins at the link.

Texas Execution Scheduled for Thursday

A stay issued by a federal district court earlier this week has been lifted by the 5th Circuit.  The ruling in Adams v. Thaler is available in Adobe .pdf format.

"Court order restores scheduled Thursday execution," is Michael Graczyk's AP filing, via the Houston Chronicle.

The execution of a Texas prisoner convicted of a robbery-abduction 10 years ago that left an East Texas man dead was back on schedule for Thursday in Huntsville after a federal appeals court overturned an order that halted the punishment.

Beunka Adams won a reprieve Monday from a federal district judge in Texarkana, but the Texas attorney general's office challenged the ruling as improper, saying the judge had no jurisdiction and the appeal itself was improper. Adams' attorneys contended he had deficient legal help at his trial and in early stages of his appeals.

A three-judge panel of the New Orleans-based 5th Circuit agreed with the state Wednesday and overturned Adams' reprieve.

Adams' lawyers asked the U.S. Supreme Court to review the case. Attorney Thomas Scott Smith said an additional appeal would go to the high court Thursday.

And, this excerpt contains a quote from Cherokee County District Attorney Elmer Beckworth:

Adams was tried for capital murder under the Texas law of parties, which makes an accomplice equally culpable as the actual killer. A fellow inmate in the Cherokee County Jail testified Adams bragged to him that he did the shootings, but Beckworth said evidence from Cobb showed Cobb was the gunman.

Adams execution would be Texas' fifth execution in 2012, the state's 482nd post-Furman execution since 1982.  It would be the 243rd execution 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.

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

TDCJ notes that five additional executions are currently scheduled for 2012.

To date, there have been 16 executions in the nation this year; a total of 1,293 post-Furman executions since 1977.

Earlier coverage of Adams' case begins at the link.

Fifth Circuit Rejects Mississippi Stay

AP reports, "Mississippi execution on after court lifts stay," by Holbrook Mohr.

A federal appeals court panel vacated an order blocking an execution in Mississippi and corrections officials said they were preparing for the lethal injection of death row inmate Edwin Hart Turner at 6 p.m. Wednesday.

U.S. District Judge Carlton Reeves in Jackson issued an order on Monday that had blocked the execution until Feb. 20. But Attorney General Jim Hood filed an appeal with the 5th U.S. Circuit Court of Appeals in New Orleans.

The three-judge panel ruled 2-1 in Hood's favor Wednesday morning and lifted the stay.

Turner's lawyer, James Craig with the Louisiana Capital Assistance Center, had persuaded Reeves to temporarily block the execution after arguing that a Mississippi Department of Corrections policy prevented Turner from getting tests that could prove he was mentally ill when he killed two men during robberies in 1995.

A separate petition was filed last week with the U.S. Supreme Court. That appeal was still pending Wednesday.

That petition said Mississippi is one of 10 states that permit someone who suffered from serious mental illness at the time of the offense to be executed. Turner's lawyers want the court to prohibit the execution of mentally ill people the way it did inmates considered mentally retarded.

Related posts are in the Fifth Circuit and mental illness indexes.

Gonzalez v. Thaler

Yesterday, the Supreme Court heard oral arguments in the above-styled Texas non-death penalty case, involving the time limits to file an appeal under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).  The SCOTUSblog case file in Gonzalez v. Thaler contains all briefing in the case.

The transcript of oral arguments is available in Adobe .pdf format.

SCOTUSblog has the only coverage of oral arguments that I've seen, "Gonzalez v. Thaler: Justices focus on COA issue," by Giovanna Shay.  Here's the beginning of this detailed account:

At oral argument in the Texas state prisoner’s federal habeas case Gonzalez v. Thaler Wednesday morning, the Justices focused primarily on whether all three requirements for a certificate of appealability (COA) under 28 U.S.C. § 2253(c) are jurisdictional.  The issue that initially brought this case to the Court – what event triggers the one-year clock for a state prisoner to file a federal habeas petition under 28 U.S.C. § 2244(d)(1) of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) – received relatively less air time.  A majority of the Court seemed at least somewhat sympathetic to the notion that a technical defect in a COA should not produce a jurisdictional bar to a habeas appeal.  However, even some Justices who are typically protective of habeas rights appeared unconvinced by petitioner Gonzalez’s interpretation of the AEDPA triggering provision.  In rebuttal, Gonzalez’s counsel spoke directly to Justice Kagan, arguing that the state’s interpretation of the AEDPA triggering provision would disadvantage the ninety-nine percent of Texas criminal defendants who do not file petitions for discretionary review in the Texas Court of Criminal Appeals.

Dallas DA Says Life Sentence Appropriate in Reed Case

"Man found guilty of Braniff flight attendant’s 1978 murder won’t face death penalty," is the title of Jennifer Emily's report in today's Dallas Morning News.

For a third time in three decades, a Dallas County jury on Thursday found Jonathan Bruce Reed guilty in the slaying of 26-year-old Braniff Airlines flight attendant Wanda Jean Wadle.

But, this time, prosecutors announced after the verdict that they would not seek a death sentence for Wadle’s 1978 murder.

Prosecutors had said they would ask jurors for the death penalty if they found Reed guilty. The reasons for the change were unclear.

Dallas County District Attorney Craig Watkins declined an interview request but said in a statement that the life sentence “was appropriate” in order to “to maintain the credibility we have established with the citizens of Dallas County.”

The statement did not address the reasons for no longer seeking the death sentence. Watkins declined to elaborate through a spokeswoman.

And:

State District Judge John Creuzot sentenced Reed to life in prison.

Creuzot had ruled earlier this year that prosecutors could not seek the death penalty because Reed could not properly present enough evidence to jurors about why he deserves a life sentence instead of death. Several witnesses who could have testified about Reed’s own troubled upbringing have died, and some records have been lost in the decades since the case began.

The DA’s office appealed that decision and the Texas Court of Criminal Appeals sided with prosecutors.

Because Wadle was murdered in 1978, Reed is already eligible for parole. If the crime were committed today, he would be sentenced to life without parole because of a change in the law.

Wadle’s family and friends say they will fight against Reed ever being released from prison.

At the Dallas Oberverer Robert Wilonsky posts, "Craig Watkins On Why Man Found Guilty of Murder, For Third Time, Won't Get Death."

Watkins's office sent an explanation:

Today, a Dallas County jury found Jonathan Bruce Reed, guilty of capital murder. The Dallas County District Attorney's Office initially pursued this case with the intent to seek the death penalty. However, after Reed was convicted, the District Attorney's Office withdrew its attempt to seek the ultimate punishment and agreed to a life sentence in the Texas Department of Corrections.

"It was never a question as to guilt or innocence in this 33-year-old case," said Craig Watkins, Dallas County District Attorney. "We have been dealing with this case since 1978, and in order to maintain the credibility we have established with the citizens of Dallas County over the last four years, we concluded that a life sentence was appropriate."

The U.S Fifth Circuit Court of Appeals overturned Reed's conviction in 2009. Earlier coverage of the Reed case is at the links.

Fifth Circuit Reverses Itself on Batson Issue

"5th Circuit reverses itself; reinstates guilty decision in officer's death," is the title of Mike Tollson's report in today's Houston Chronicle.

Two years after reversing the capital murder conviction of a Houston man convicted of killing a police officer, the 5th U.S. Circuit Court of Appeals has reversed itself and reinstated his guilty verdict, apparently clearing the way for his execution.

Acting in light of a U.S. Supreme Court decision on the case last year, the 5th Circuit opinion reinstated the conviction of Anthony Cardell Haynes for the death of Houston Police Sgt. Kent Kincaid in 1998. In its opinion, issued Friday, the court ruled that the original reason for tossing out the conviction was not technically required by law.

The 5th Circuit had reversed Haynes' conviction in 2009 because of what it called an error by a trial judge during jury selection. Haynes is black, and prosecutors had used four of their peremptory strikes to knock black panelists off the jury. Race cannot be used as a reason to strike potential jurors, and Haynes' lawyers said District Court Judge Jim Wallace had erred when he overruled defense objections over the striking of two of the four. Only one black person served on the jury.

Haynes' trial was unusual. Two judges, Wallace and Lon Harper, split the pre-trial duties. Harper had witnessed the questioning of the two potential jurors at issue. But it was Wallace who had to rule on the defense objections.

Because prosecutors claimed it was the demeanor of the two potential jurors - not their race - that got them bumped, it only made sense that the judge who actually saw their demeanor should have to rule on the objection, Haynes' appellate lawyer argued.

And:

Because the Texas appeals court looked only at the written record, the 5th Circuit judges said that it did not find it necessary to defer to the TCCA's judgment on "an issue that turns entirely on demeanor."

The state, in turn, appealed to the Supreme Court. The high court overturned the 5th Circuit's reversal, saying it has never decreed precisely what a judge has to do when considering whether a juror had been improperly struck because of race. A judge must only follow the general rule of undertaking a "sensitive inquiry" into evidence surrounding the prosecutors' intent, and take into account all possible explanations, the court stated.

"This general requirement, however, did not clearly establish the rule on which the Court of Appeals' decision rests," the Supreme Court stated last year.

As for the 5th Circuit's assertion that a review of the written transcript can't provide much insight into the way a potential juror acted while being questioned, the high court said that does not matter.

"Federal court rejects Houston cop killer's appeal," Michael Graczyk's AP filing, also via the Chronicle.

A federal appeals court has rejected an appeal from the convicted killer of an off-duty Houston police officer arguing that two jurors at his capital murder trial in 1999 were improperly rejected by prosecutors because they were black.

The 5th U.S. Circuit Court of Appeals decision upholds a ruling from the Texas Court of Criminal Appeals in the case of 32-year-old Anthony Haynes, who is black. He was condemned to death for the 1998 shooting death of Houston Police Sgt. Kent Kincaid, who was white.

Acting on an appeal from the Texas attorney general's office, the U.S. Supreme Court had ordered the 5th Circuit to reconsider its 2009 decision that Haynes get a new trial or be released from death row. The Supreme Court had in 1986 found it unconstitutional to dismiss a juror solely because of race, but the justices said the 5th Circuit panel misinterpreted its rulings when it decided Haynes deserved a new trial.

In its ruling Friday, the New Orleans-based court said that while circumstantial indications of intentional racial discrimination raised by Haynes' lawyers had "some persuasive value," it found the decision by prosecutors to use peremptory strikes when selecting a jury "was not based on purposeful racial discrimination."

The Fifth Circuit ruling in Haynes v. Thaler is in Adobe .pdf format.

Related posts are in the race index.  More on Batson v. Kentucky, the 1986 Supreme Court ruling, is via Oyez.

Let's Avoid a Travesty

That's the title of an editorial in today's Houston Chronicle.  The subhead is, "Court must act swiftly before Texas executes a mentally retarded individual."

In 2002, the U.S. Supreme Court ruled it unconstitutional to execute a person with mental retardation. But on June 21 of this year, a mentally retarded Texas inmate is due to be executed. If put to death, Milton Mathis would have one of the lowest — if not the lowest - undisputed IQ scores of any Texas inmate sentenced to capital punishment since that ruling took effect.

In 1999, Mathis scored 62 on a standardized IQ test administered by the state correctional system - eight to 13 points below the threshold for mental retardation. Recent thorough examinations have supported that finding. But because of an unfortunate convergence of Texas procedure and federal judicial error, coupled with a state court that gave short shrift to his mental retardation claims, Mathis is close to losing his life. (A federal judge denied a stay of execution, not realizing that would preclude litigation in state district court. By the time she realized her error, the judge lacked jurisdiction to revise the ruling.)

Last week, attorneys for Mathis filed a brief asking the Fifth Circuit Court of Appeals to allow a review of the federal merits of his claim of mental retardation, and to stay execution to allow considerations to proceed deliberately. They also delivered a clemency petition to the office of Gov. Rick Perry.

Sentenced to die in 1999 for multiple-victim murders in Fort Bend County, Mathis - like all execution-eligible prisoners - was entitled to "a meaningful state appeals process and a meaningful federal appeals process," said Andrea Keilen, executive director of the Texas Defender Service. It seems he got neither. He did go through a state process, which was hardly meaningful, and the federal process is in limbo, pending the outcome of last week's filing.

The only expert to testify in the state proceeding, an experienced forensic psychologist, administered five different tests to Mathis, including the Wechsler Adult Intelligence Scale-Third Edition (WAIS III) - considered the gold standard of intelligence tests. She also interviewed him for a full day and reviewed affidavits and previous tests. On the WAIS III test he scored 64 - a little higher than the state had assessed in 1999. Her conclusion was that Mathis had mental retardation.

But the judge signed off on the proposed findings submitted by the prosecution, that Mathis was not mentally retarded, even though the state offered no testimony, nor did it test Mathis for mental retardation. It based its findings in part on a childhood IQ test score of 79 - a fact that experts say is not inconsistent with adult mental retardation. The state called the WAIS III test - the scientific standard - "too subjective" and cited "racial bias" that stereotypes African-Americans as having low IQs. It also cited Mathis' ability to have sex, to lie, to baby-sit and to steal dogs as evidence he was not mentally retarded.

(Earlier this year, the Texas State Board of Examiners of Psychologists banned a Fort Worth doctor from testing inmates because he routinely used those same scoring practices to inflate IQ scores and make defendants death penalty-eligible.)

And:

One wonders where is the justice in our justice system, when a state ignores the Supreme Court's ruling in its haste to execute a mentally retarded person. We urge the Fifth Circuit Court of Appeals to act promptly and allow federal consideration of the merits of Mathis' claim.

Earlier coverage of the George Denkowski sanction by the Psychologists Board begins at the link. 

Related posts are in the mental retardation index. 

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.

New Member of Fifth Circuit

Last night the U.S. Senate confirmed James Graves as a member of the U.S. Court of Appeals for the Fifth Circuit.

The Jackson Clarion-Ledger reports, "Graves confirmed to 5th Circuit; Miss. justice appointed to serve on federal bench."  It's written by Jerry Mitchell.

The U.S. Senate voted Monday to confirm Mississippi Supreme Court Presiding Justice James Graves to the 5th U.S. Circuit Court of Appeals.

"This is an incredible honor," said Graves. "I am humbled by the support which I have received, and I look forward to serving our nation in this important position."Gov. Haley Barbour is expected to appoint a replacement to serve the remaining two years of Graves' term, which expires in January 2013.

And:

In December, Graves' nomination stalled, but President Obama resubmitted his name in January.

Graves was the first appellate nominee to come before the full Senate this year, but if the administration gets its way, he won't be the last.

"The Senate confirmed Judge Graves because he is well qualified and noncontroversial and the two home state senators strongly supported the jurist," said Carl Tobias, a law professor at the University of Richmond.

He said this may signal a shift in how nominations are handled in the Senate.

There are 100 federal judicial vacancies with the confirmation of Graves and another federal judge on Monday, said Senate Judiciary Chairman Patrick Leahy, D-Vt.

Also:

Matt Steffey, professor at Mississippi College School of Law, said Graves brings "long overdue diversity" to the mostly white 5th Circuit, which now handles cases from Texas, Louisiana and Mississippi.

"Justice Graves is undoubtedly a great choice," Steffey said. "He's a first-rate intellect and has exactly the kind of experience and judicial temperament that will serve him well on the 5th Circuit, where he'll see a great breadth of civil and criminal cases."

During a confirmation hearing, U.S. Sen. Jeff Sessions, R-Ala., questioned Graves joining another justice's 2008 dissent, which called the death penalty cruel and unusual.

Graves responded that he considered the dissent merely a plea for dialogue on the effectiveness of the death penalty.

He reassured Sessions he would follow federal law and the U.S. Constitution and later provided a list of 22 cases in which he voted to affirm a death sentence.

Graves previously served as a circuit judge in Hinds County.

The BLT's David Ingram posted, "Senate Set to Vote on Nominee for 5th Circuit."

James Graves Jr. is expected to make history today when he becomes the first African American from Mississippi to be confirmed for the U.S. Court of Appeals for the 5th Circuit.

The Senate is scheduled to vote at about 5:30 p.m. on Graves’ nomination for the court. Graves, a justice on the Mississippi Supreme Court, has bipartisan support, including from his state’s two Republican senators, and is likely to be confirmed.

Graves, pictured above, has been on his state’s highest court since 2001. He previously served a decade as a state trial judge after working as a lawyer in private practice and in state government.

During his confirmation hearing, Sen. Jeff Sessions (R-Ala.) questioned Graves’ decision to join another justice’s 2008 dissent calling the death penalty cruel and unusual. Graves said he considered the dissent merely a plea for dialogue on the effectiveness of the death penalty, and Graves later provided a list of 22 cases in which he voted to affirm a death sentence. The issue is especially important for the 5th Circuit because it hears appeals from Texas’ large death row.

Related posts are in the Fifth Circuit index.

How Siegler Unmade Case

That's the title of Harvey Rice's report in today's Houston Chronicle.  It's subtitled, "She and a colleague independently concluded that Anthony Graves was no killer."

Veteran prosecutor Kelly Siegler dreaded her meeting with the family of a grandmother and five children savagely slain nearly two decades ago. The news she was bringing them would not be welcome.

"I went by myself to tell them that things weren't going according to plan, that (the original prosecutor) had done some things, that it wasn't looking good," Siegler said, recalling her Oct. 15 meeting at a gathering of the Davis family in Houston. "I drove out there, and I tried to figure out ahead of time how to explain, knowing that for 18 years they thought this man had killed their mother and their babies."

As they pored over evidence and interviewed more than 50 witnesses in the case of Anthony Graves, incarcerated for 18 years before his exoneration and release two months ago, Siegler and investigator Otto Hanak found themselves in unfamiliar territory.

Siegler, who had tried many capital murder cases as a Harris County assistant district attorney, and Hanak, a state trooper and Texas Ranger for 28 years, were deeply embedded in the criminal justice establishment. But each new development in their investigation pointed to the conclusion that they reached independently: Graves was innocent, the victim of a prosecutor who had manufactured evidence, misled jurors and elicited false testimony.

"In all these years I've been in this business, I never thought I would be party to saving someone who was on death row," Hanak said.

Washington-Burleson County District Attorney Bill Parham had hired Siegler in February as a special prosecutor to retry Graves after a federal appeals court overturned his capital murder conviction. The appeals court found that the original prosecutor, former District Attorney Charles Sebesta, had withheld two statements from the defense and had elicited false testimony.

Earlier coverage of the Graves' exoneration begins with today's post, "Life After Death."  More on Siegler's investigation in Pamela Coloff's "Innocence Found," from Texas Monthly.

More on the Bruce Webster Case

Scott Goldstein reports, "High court denies appeal of mentally retarded man who helped rape, kill Arlington teen," for today's Dallas Morning News.

To execute Bruce Carneil Webster for the 1994 kidnapping, rape and murder of an Arlington teen would be to violate the Supreme Court's ruling that capital punishment of the mentally retarded should be barred, he contends.

But on Monday, the same court that banned such executions in 2002 turned away Webster's appeal. The Supreme Court gave no reason for its rejection of the case despite new evidence that indicates three federal doctors thought Webster may be mentally retarded when he applied for disability benefits in 1993, a year before 16-year-old Lisa Rene was killed.

A federal appeals court judge previously acknowledged that the new evidence appears to show Webster is mentally retarded. The judge and his two colleagues on the 5th U.S. Circuit Court of Appeals said, however, that Webster's execution could not be halted because he exhausted his appeals to the point that new evidence cannot be considered unless it is likely to prove his innocence.

And:

Such technicalities often come into play in cases like this, said Steve Hall of the StandDown Texas Project, which advocates a moratorium on the death penalty.

"Unfortunately, the situation when many death penalty cases and issues go to the Supreme Court is it's not a simple question that's being asked," Hall said. "It is often a highly technical, very convoluted question of procedure in law ... so the fact that you've got a situation that appears to be straightforward with a straightforward answer isn't always the case."

To Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., the Webster case could be a missed opportunity for the Supreme Court.

"I think the feeling has grown that the Supreme Court in 2002 decided this mental retardation issue but then has abandoned it, has left it to the states and even the federal government to put up barriers or to make it difficult to prove by setting case standards or burdens," Dieter said. "The Supreme Court hasn't revisited it to sharpen this ruling to make sure it works the way it's intended."

Earlier coverage begins with this post from yesterday.

The Case of Bruce Webster

The Dallas Morning News has posted, "High court denies appeal of mentally retarded man who helped rape, kill Arlington teen."

The U.S. Supreme Court has turned away the appeal of an Arkansas man who helped kidnap, rape and bury an Arlington teen alive in 1993, although a federal judge said evidence shows that he is mentally retarded.

The high court banned the death penalty for the mentally retarded eight years ago. In their ruling today, the justices offered no comment in rejecting the appeal of Bruce Carneil Webster.

Webster, 37, was sentenced to death more than 14 years ago and has since tried to persuade federal judges that he is mentally retarded.

A panel of the 5th U.S. Circuit Court of Appeals said in an April ruling that Webster had exhausted his appeals to the point that it can't consider new evidence unless it is likely to prove he was innocent. And because everyone agrees he's guilty, he still faces death.

"We today have no choice but to condone just such an unconstitutional punishment," 5th Circuit Judge Jacques Wiener Jr. wrote as part of the panel's April 28 ruling denying Webster's request for a hearing on the new evidence.

Steven Wells, Webster’s attorney, said he was disappointed that the Supreme Court opted not to hear the case. But he said that doesn't mean the fight is over.

“The government in their briefs suggested that there were some alternative avenues for relief and I expect that we’ll be pursuing one or more of those,” Wells said.

Among the possibilites, he said, is an appeal through the federal courts in Indiana, where Webster is currently being held.

“It is not over and we will not give up until … we’re allowed to have a court review of this new evidence of mental retardation on its merits, which no court has done yet,” Wells said.

Evidence recently provided by the Social Security Administration shows three federal doctors determined Webster was mentally retarded when he applied for disability benefits in 1993, a year before 16-year-old Lisa Rene was kidnapped and killed.

One potential avenue to correct the sentence would be clemency. This is a federal death penalty case, so any request for clemency -- a commutation of the death sentence to a life sentence -- would be directed to the President of the United States.

Clemency has been utilized in two Texas capital cases in which there was a determination that the individual had mental retardation.  In March 2004, Governor Rick Perry commuted the death sentence of Robert Smith.  Experts had determined that Smith had mental retardation and was thus barred from execution under the U.S. Supreme Court's 2002 ruling in Atkins v. Virginia.  A court could have set aside Smith's death sentence, but the Harris County District Attorney's office asked that Smith's sentence be commuted.  In 2007, the same circumstances led Governor Perry to commute the death sentence of Doil Edward Lane, after it was determined that Lane had mental retardation.

Earlier coverage of the Bruce Webster case begins at the link.  Related posts are in the mental retardation index.

Longest Serving Texas Death Row Inmate Dies in Dallas

Today's Dallas Morning News reports, "Death-row inmate dies in Dallas awaiting new hearing." It's by Richard Abshire; reporter Jennifer Emily also contributed.

Ronald Curtis Chambers, who held the record for the longest stay on Texas' death row at 35 years, died Friday in Dallas.

Chambers, 55, was in the Dallas County jail to prepare for a new sentencing hearing when guards found him on the floor of his cell. He was taken to Parkland Memorial Hospital, where he died, said sheriff's spokeswoman Kim Leach.

Jurors convicted Chambers of capital murder in the slaying of a college student and sentenced him to death in 1975, 1985 and 1992. Those convictions were all overturned on appeal.

"There was never any material doubt about Chambers' guilt," said James Volberding of Tyler, who worked on his appeals from 1996 to 2008. "The only question was whether or not he should be executed."

Volberding said Chambers' case illustrates flaws in the state's death penalty system. He said court and prosecution errors caused the long delay, which he argues amounted to cruel and unusual punishment.

"We need more experienced defense attorneys, prosecutors and judges," Volberding said.

And:

The Dallas County medical examiner's office has yet to determine Chambers' cause of death, and toxicology test results are pending. Leach said Chambers came to the jail with "a series of health complications."

In a 2007 reversal of Chambers' conviction, the 5th U.S. Circuit Court of Appeals in New Orleans ruled that jurors should have had the option of a life sentence because of mitigating circumstances.

The AP report is, "Longest-serving prisoner on Texas death row dies," by Danny Robbins, via the Houston Chronicle.

Chambers had been in the Dallas County jail since May 2009 preparing for a sentencing trial scheduled for September 2011. The U.S. Fifth Circuit Court of Appeals ordered the new trial on the grounds that jurors hadn't received mitigating information when they imposed the death penalty in 1992.

According to the appellate court, jurors weren't properly told of Chambers' impoverished upbringing in a West Dallas housing project, his exposure to violence and drugs and his lack of role models.

Chambers' attorney, Richard Burr of Houston, said he had approached the Dallas County District Attorney's office with a deal in which Chambers would plead guilty to multiple life sentences. The plea would have meant Chambers never would be eligible for parole, Burr said.

"He was willing to give up any chance of parole to have the family of Mr. McMahan feel like he was appropriately punished," Burr said, adding Chambers was "deeply remorseful."

Dallas County District Attorney's office spokeswoman Jamille Bradfield said the office was "actively preparing to retry Mr. Chambers on punishment at the time of his death."

The 1992 trial marked the third time Chambers' death sentence had been overturned on grounds unrelated to his guilt. The first was because Chambers wasn't warned information from a psychiatric interview by a state expert could be used against him. The second was because jury selection had been racially tainted against a black defendant.

Chambers arrived on death row Jan. 8, 1976, three days before his 21st birthday. His death means 60-year-old Raymond Riles, who arrived a month later, is now Texas' longest-serving death row inmate.

Earlier coverage is here, here, and here.

The next post will highlight two recent examinations of incarceration and health issues.

Anthony Graves Exoneration - Additional Coverage

This morning's Houston Chronicle has expanded coverage in, "Prisoner ordered free from Texas' death row," by Brian Rogers.

After 18 years of incarceration and countless protestations of innocence, Anthony Graves finally got a nod of approval from the one person who mattered Wednesday and at last returned home — free from charges that he participated in the butchery of a family in Somerville he did not know and free of the possibility that he would have to answer for them with his life.

The district attorney for Washington and Burleson counties, Bill Parham, gave Graves his release. The prosecutor filed a motion to dismiss charges that had sent Graves to Texas' death row for most of his adult life. Graves returned to his mother's home in Brenham no longer the "cold-blooded killer," so characterized by the prosecutor who first tried him, but as another exonerated inmate who even in the joy of redemption will face the daunting prospect of reassembling the pieces of a shattered life.

"He's an innocent man," Parham said, noting that his office investigated the case for five months. "There is nothing that connects Anthony Graves to this crime. I did what I did because that's the right thing to do."

An attorney for Graves, Jimmy Phillips Jr., said his client was released from Burleson County Jail, where he had been awaiting a retrial, at about 5:30 p.m.

Graves immediately went to see his mother in Brenham and reportedly spent the night near Austin. "The first place he wanted to go is to go hug his mama," Phillips said. "He is a free man, and he's home."

Graves called his mother to tell her he was coming home. Doris Curry left the house to pick up her youngest son, and by the time she returned home, Graves was already there, surrounded by family and friends.

"I hugged him and I hugged him and I cried and we both cried and we hugged and we cried," Curry said. "He said: 'Mama, it's over. Mama, 18 years we've fought this fight a long time. It's over. Justice has been done for me.' "

And:

Graves' appellate attorneys, Jay Burnett and Roy Greenwood, knew it was far less. They soon were convinced their client had no knowledge of or participation in the crime, just as he had claimed since the moment of his arrest.

Over the years, there was increasing evidence raised to doubt the validity of the conviction. Students in a University of St. Thomas journalism class worked with The Innocence Project at the University of Houston to review the Graves case in detail.

Nicole Casarez, the journalism professor who taught the class, and one of her students interviewed Carter's brother, whose affidavit along with other evidence they gathered helped persuade the 5th Circuit Court of Appeals to order a hearing, which eventually led to the new trial.

"I think the dismissal motion filed this morning says it best: There is no credible evidence to inculpate this defendant," Casarez said Wednesday night. "I’m just thrilled that it has finally come to this. I think it was a lot of people working very hard, perhaps even divine intervention, so that it all worked out today."

The 5th U.S. Circuit Court of Appeals overturned Graves’ conviction in 2006. A three-judge panel said he deserved a new trial after ruling that prosecutors elicited false statements from two witnesses and withheld two statements that could have changed the minds of jurors.

Graves eventually was returned to county jail with a bond set at $1 million, and Parham began to reassemble the case and review the evidence. He hired former Harris County assistant district attorney Kelly Siegler as a special prosecutor. Siegler soon saw that making a case against Graves was all but impossible.

Jordan Smith posts, "Anthony Graves Freed," at the Austin Chronicle.

And finally, on Wednesday, after nearly two decades behind bars, Graves was released from jail and all charges against him in connection with the Somerville murders were dropped. Importantly, prosecutors declared Graves actually innocent of the crime – a declaration that should help him collect some compensation for all the years of wrongful incarceration.

Finally.

The state's case against Anthony Graves was tenuous at best. For starters, there was no evidence to suggest he had anything to do with the crime – and there was ample evidence that he wasn't anywhere near the Somerville home the night the family was murdered. But the state ignored every single sign that their case was crap – even after the Fifth Circuit told them it was. Instead, prosecutors decided to retry Graves – intimating at one point that they were willing to use now discredited junk science in order to railroad the man.

Interestingly, although the case was fraught with problems, it never received the kind of media attention it deserved. We've written about it a number of times in the Chronicle, but it wasn't until last month, when Texas Monthly writer Pamela Colloff's story on the case was published that the entire tale was laid out in one place.

It's hard to imagine that the Colloff story didn't have some impact on the decision to finally free Graves. Regardless of the reasons behind the release, it was a move that was long, long overdue.

The list of stories on the case from our archives is here.

Earlier coverage begins with the preceding post from last night.  Pamela Colloff's October 2010 Texas Monthly profile is "Innocence Lost."

The Eighth Amendment and the Fifth Circuit

"Sotomayor dissents from cert denial in Louisana prisoner rights fight," is the title of Marcia Coyle's post at the National Law Journal Supreme Court Insider.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit took just four sentences to reject a Louisiana prisoner's claim of harsh treatment violating the Eighth Amendment. Justice Sonia Sotomayor on Monday took four pages to reject the panel decision and to open a small window into her views on pleading and the Eighth Amendment.

Sotomayor was the sole dissenter from a denial of certiorari in Pitre v. Cain. When Anthony Pitre stopped taking his HIV medication to protest his transfer to a prison facility, he claimed that officials at that prison punished him by subjecting him to hard labor in 100-degree heat. He was rushed to an emergency room twice because the heat exacerbated his medical condition, but, he alleged, prison officials denied his repeated requests for lighter duty.

And:

The 5th Circuit erred in requiring Pitre to produce evidence to support his claim before a responsive pleading was filed, wrote Sotomayor. She cited for support Bell Atlantic v. Twombly, one of two recent Supreme Court decisions significantly altering the pleading standards in civil cases. That error would have been enough to reverse the lower courts, she added, but "more fundamentally" those courts misunderstood the nature of Pitre's Eighth Amendment claim.

The correct question under the Eighth Amendment, said Sotomayor, is to ask whether the officials involved acted with "deliberate indifference" to the inmates' health or safety. "Pitre's complaint alleges that respondents subjected him to labor that they knew posed `a substantial risk of serious harm' to his health notwithstanding his pleas for a more appropriate assignment, and he even attaches a letter from a prison official implying as much. This is more than sufficient to state a claim of deliberate indifference."

She added, "I cannot comprehend how a court could deem such allegations 'frivolous.' "

Related posts in the Fifth Circuit and incarceration indexes.

Justice Quizzed on Death Penalty

That's the title of an article in today's Jackson Clarion Ledger of Mississippi, covering a U.S. Senate hearing.  It's written by Katherine Reynolds Lewis.  LINK

Mississippi Justice James Graves Jr. clarified his position on the death penalty Wednesday during a Senate hearing on his nomination for a federal judgeship.

Responding to a question from Sen. Jeff Sessions, R-Ala., Graves explained that he joined a dissenting opinion in a capital murder case for reasons related only to claims by the defendant, Anthony Doss, that his attorneys had been ineffective and that he was mentally retarded.

"I take responsibility for joining that opinion, but I have not now nor have I ever subscribed to any point of view that the death penalty was unconstitutional," Graves told members of the Senate Judiciary Committee. "The United States Supreme Court has determined that the death penalty does not constitute cruel and unusual punishment. I would follow the law as handed down by the United States Supreme Court."

Graves, 56, is a nominee for the 5th U.S. Circuit Court of Appeals in New Orleans, which hears appeals from case in Mississippi, Louisiana and Texas.

He pointed to his nine years as a Mississippi justice, during which he voted to affirm convictions and the death penalty in at least a dozen capital punishment cases.

Graves is the only black justice on the court, which he joined in 2001. Before that, he was a Hinds County Circuit judge for 10 years.

Related posts are in the Fifth Circuit and judiciary indexes.

Dallas Morning News on the Anthony Graves Case

"Murder conviction chock full of holes," is the title of an editorial in today's Dallas Morning News.

For anyone with an interest in prosecutorial misconduct and capital punishment, the October issue of Texas Monthly contains required reading – a chilling account alleging deceit and abuse in pursuit of a murder conviction. The article, available today, should make even ardent supporters of the death penalty shudder to consider how an egregiously flimsy and unproven case nearly ended the life of Anthony Graves before a federal appeals court intervened and ended his 18-year residence on death row.

Even more troubling is that Graves, 45, still sits in jail awaiting a new trial in a 1992 murder case in which six people, including a teenager and four children, were shot, bludgeoned and stabbed to death and their house set afire in Sommerville, near Bryan. Robert Carter, absentee father of one of the victims, emerged as a key suspect after he appeared at their funeral with bandages covering burns on his face. Various investigative blunders led to Graves' identification as a second suspect, though he had no association with the victims and no motive. No evidence linked him to the slayings, while substantial evidence and motives pointed to Carter's guilt.

And:

This newspaper has examined numerous questionable cases over the years, and evidence of prosecutorial malfeasance, among other important factors, convinces us that this state's use of the death penalty is too error-prone, and the result too permanent, to be justifiable.

Anthony Graves defied the odds and had an ill-gotten conviction thrown out, but his ongoing ordeal reminds us how extremely fallible our justice system can be.

Coverage of the must-read TM article is here.

Innocence Lost

That's the title of Pamela Colloff's 14,000 word examination of the case of Anthony Graves, noted yesterday. 

It's subtitled, "Since August 23, 1992, Anthony Graves has been behind bars for the gruesome murder of a family in Somerville. There was no clear motive, no physical evidence connecting him to the crime, and the only witness against him recanted, declaring again and again before his death, in 2000, that Graves didn’t do it. If he didn’t, the truth will come out. Won’t it?" 

Here's a small excerpt from this must-read:

Graves, who had moved back to Brenham from Austin that spring after getting laid off from an assembly line job at Dell, was picked up before noon at his mother’s apartment and brought to the Brenham police station in handcuffs. In the station’s booking room, a surveillance camera captured the half hour that passed as the 26-year-old—who was never told why he was being detained—waited, bewildered. He repeatedly asked an officer who busied himself with paperwork what he was being held for, but he was informed that he would have to wait until a magistrate arrived to read him the charges. Graves turned his attention to another officer, who he hoped would be more forthcoming, but the man feigned ignorance. “You don’t know neither?” Graves said, sighing. “I wish somebody would tell me what’s going on.” When the justice of the peace finally appeared, Graves jumped to his feet, eager for information.

“You’re Anthony Charles Graves?” asked the justice of the peace, glancing up from the warrant that she held before her. She was flanked by two police officers.

“Yes, ma’am,” he said.

“Anthony, this is going to be your warning of rights,” she said. Her delivery was matter-of-fact: “You’re charged with the offense of capital murder.”

“Who?” he said, dumbfounded. He stared back at her blankly.

“An affidavit charging you for this offense has been filed in court,” she continued. As she read him his Miranda rights, he watched her in disbelief. “At this time, no bond has been set,” she said. “Do you understand what I’ve told you, Anthony?”

Graves held up his hands in protest. “Capital murder?” he said, incredulous. “Me? Wh-wh-who murdered? I mean—”

A man wearing a white Western hat interrupted him. “You’ll have a chance to talk to the officers who are actually working the case,” he said.

“This is a big mistake,” Graves said, his voice rising. “Capital murder?” Dubious, he turned to the police officer who had brought him down to the station. “This is a joke,” he said, breaking into a grin, as if he were suddenly on to the elaborate prank that he seemed certain was being played on him. “Somebody’s messing with me, right?” The officer, who did not smile back, ordered him to have a seat.

Graves studied the copy of the arrest warrant that the judge had handed to him, trying to make sense of it. He repeated the words “capital murder” eighteen times, enunciating each syllable as if doing so would help him better grasp their meaning. “This is a big mistake,” he repeated. “This has got to be straightened out today.” Finally, before he was led down the hall to talk to the Rangers, he slapped the side of his head and cried out, “Am I dreaming?”

And:

On September 6, 2006, Graves walked off of death row. But there was no celebration beyond the floodlights and the coils of concertina wire, no crush of television reporters shouting questions, no tearful embrace with his mother, whom he had been allowed to touch just once during his fourteen years of incarceration. Instead, Graves walked out of his six-by-ten-foot concrete cell and into the arms of Burleson County sheriff’s deputies, who transported him back to the county jail in Caldwell, where he would await retrial. The Fifth Circuit’s ruling had not exonerated him, and he still faced the original criminal charges that had been filed against him in 1992. In the eyes of Burleson County, he remained a murderer, and a child killer at that. Judge Towslee’s successor—his daughter, Judge Reva Towslee-Corbett—set his bail at $1 million.

The article notes that his new trial is currently scheduled for February 2011.

Earlier coverage begins here.

Texas Monthly to Spotlight Anthony Graves' Case

The October issue should be available online tomorrow.

"Texas Monthly to feature Graves case," is the post today at the Brenham Banner.

The murder conviction of Anthony Graves is being featured in the October issue of Texas Monthly magazine.

The 20-page article, called “Innocence Lost,” details the arrest and conviction of Graves, a Brenham native, for the brutal murders of six Somerville residents in 1992.

Graves was found guilty of murder by a jury in Brazoria County in 1994 and was sentenced to death.

The 14,000-word story was written by Pamela Colloff, who spent months researching the case and talking to people involved, including Graves, who remains in the Burleson County jail awaiting a new trial.

“It was definitely the most complicated story I have ever written in 15 years of writing crime stories,” Colloff said.

And:

The article says: “Since August 23, 1992, Anthony Graves has been behind bars for the gruesome murder of a family in Somerville. There was no clear motive, no physical evidence connecting him to the crime, and the only witness against him recanted, declaring again and again before his death, in 2000, that Graves didn’t do it.

“If he didn’t, the truth will come out, won’t it?’

Robert Carter, who was also convicted in the murders and was put to death by lethal injection May 31, 2000, originally implicated Graves but later recanted, including a statement in the execution chamber that “it was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court.”

San Antonio Express-News columnist Cary Clack writes, "A matter of life and death in Texas."

Texas is a state known not only for its high volume of death-row inmates but for questions about the guilt of some of those condemned.

The most well-known of these inmates is Cameron Todd Willingham, who was executed in 2004 for the arson deaths of his three daughters in Corsicana in 1991. Considerable evidence suggests that the fire was accidental and Willingham innocent. In July, the Texas Forensic Science Commission said in a preliminary report that the arson investigators used flawed science. On Friday, the commission will meet in Dallas to address the case.

Earlier this year, the U.S. Supreme Court stayed the execution of Henry Skinner for the 1993 murder of three people in Pampa until crucial DNA testing can be conducted.

There are reasons to believe that Willingham and Skinner may not have committed the crimes they were convicted of, but there's also evidence that lends credence to their convictions. In the most controversial of death-row cases, reasonable people can look at the evidence and come to different conclusions about guilt or innocence.

Then there's the case of Anthony Graves. In 1994, Graves was convicted and sentenced to die for six horrific murders in the Central Texas town of Somerville. The victims were Bobbie Davis, her teenage daughter and four grandchildren, ages 9, 6, 5 and 4.

The only thing that incriminated Graves - the only thing - was the word of the man who was eventually executed for the murders and who, until the final moments of his life, insisted that he'd lied about Graves' involvement.

In the October issue of Texas Monthly, which will be on newsstands Thursday, Pamela Colloff has written a masterfully reported and exhaustively detailed 14,000 word story about the Graves case.

I've read dozens of accounts of death-row inmates who claim to have been falsely convicted and may have intriguing evidence to support their claims. After reading Colloff's story - the magazine's second longest in 30 years - Graves' case is the only one in which I'm left 100 percent certain of the innocence of the convicted.

There was no physical evidence connecting Graves to the crime. He didn't know the victims, unlike Robert Carter, the man who was executed for the crimes and who was the father of the youngest child, yet who initially claimed that he was only in the car while Graves stabbed, shot and bludgeoned the victims. At least three people can attest to where Graves was while the murders were being committed.

The night before Carter testified against Graves, he was taking sole responsibility for the crimes, but he still incriminated him in court the next day. For years, in letters, conversations and sworn testimony, Carter insisted that Graves was innocent. While lying on the gurney as he was about to be executed in 2000, his last words, after apologizing to the victims' family, was, "It was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court."

Earlier coverage of Anthony Graves begins with this post.

The Linda Carty Case

British barrister Hugh Southey writes, "Linda Carty case displays weakness in Texas system," at the Dallas Morning News Death Penalty blog.  Here's the beginning of the post:

Linda Carty's case has been generating increasing media coverage in the United Kingdom. For example, the Times of London has recently published an editorial calling on the United Kingdom government to do all that it can to prevent Linda being executed.

One of the features of that coverage has been a concern about the safety of Linda's conviction. That is not surprising. The 5th Circuit Court of Appeal and the State of Texas has accepted that Linda's trial counsel performed unreasonably.

The approach of the appellate courts to the issues raised by Linda's case explains why her conviction and sentence stand despite the concerns about the safety of her conviction. There are a number of procedural rules that apply in Texas death penalty cases that mean that a person may be prevented from raising strong arguments. In this case, a number of issues have not been given substantive consideration as a consequence of the application of procedural rules. For example, some of the material said to demonstrate that Linda's trial lawyer was ineffective was not given substantive consideration because the appellate courts essentially said that it was produced late.

Earlier coverage of her case begins here.

More on the Case of Bruce Webster

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

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

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

He should never see the outside of a prison.

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

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

And:

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

Earlier coverage is here.

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

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

The Case Of Bruce Webster

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

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

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

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

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

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

Experts say the case is headed for a constitutional showdown.

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

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

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

And:

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

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

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

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

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

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

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

And:

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

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

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

The 5th Circuit ruling is here.

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

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

Fifth Circuit Overturns Tyrone Williams' Sentence

The Fifth Circuit ruling in USA v. Williams is in Adobe .pdf format.

"Trucker will get new sentence in smuggling case," is the title of Mike Tolson's report in the Houston Chronicle.

A truck driver whose actions led to the deaths of 19 illegal immigrants in South Texas in 2003 will return to federal court for a new sentence after a federal appeals court tossed out his life sentence Thursday.

The 5th U.S. Circuit Court of Appeals overturned the life-without-parole sentence given to Tyrone Williams by a Houston jury following his capital transporting conviction in January 2007. A three-judge panel ruled that the government's case against Williams failed to establish that he had committed an "act of violence" as required by federal law and sent it back to U.S. District Judge Lee Rosenthal to determine a new sentence.

"We hold that an 'act of violence' ... must involve the use of physical force," the appeals court ruled. "Williams' conduct during the smuggling trip, despicable as it was, fell short of the statutory minimum to subject Williams to the possibility of a death sentence. Because the evidence was insufficient as a matter of law … the threshold intent question should not have been submitted to the jury, and sentencing should have been done by the district court."

The appeals court left untouched Williams' sentences of 34 years and 20 years that were handed down on related charges. The court also did not reverse the capital transporting conviction for which he received the life sentence or find merit in other appeals issues.

His attorney, Seth Kretzer, said he does not know what the effect of the 5th Circuit decision will be other than to lower the penalty to something below life without parole.

"Williams' conduct did not fall within the scope of the Federal Death Penalty Act," Kretzer said. "The death penalty should have never applied. I would assume the judge would now order a new (pre-sentence report). What that resentencing will look like, I don't know."

The appeals court said Williams' reckless disregard for the safety of 74 immigrants trapped in a trailer he was pulling through South Texas did not rise to the level of conduct necessary to become a death-eligible crime. Such conduct, the court explained, must involve an overt expression of violence. Negligence, no matter how extreme, would not meet the requirement.

The AP report, "Life sentences overturned in smuggling deaths case," is by Juan Lozano, via Google News.

The 5th U.S. Circuit Court of Appeals overturned the life-without-parole sentence given to Tyrone Williams by a Houston jury following his capital transporting conviction in January 2007. A three-judge panel ruled that the government's case against Williams failed to establish that he had committed an "act of violence" as required by federal law and sent it back to U.S. District Judge Lee Rosenthal to determine a new sentence.

"We hold that an 'act of violence' ... must involve the use of physical force," the appeals court ruled. "Williams' conduct during the smuggling trip, despicable as it was, fell short of the statutory minimum to subject Williams to the possibility of a death sentence. Because the evidence was insufficient as a matter of law … the threshold intent question should not have been submitted to the jury, and sentencing should have been done by the district court."

And:

In total, Williams was convicted on 58 counts of conspiracy, harboring and transporting illegal immigrants. Jurors settled on life sentences for 19 counts of transporting illegal immigrants. Prosecutors dismissed 19 harboring counts that Williams had been convicted of by jurors. On the remaining counts, U.S. District Judge Lee Rosenthal gave Williams sentences ranging from 20 years to nearly 34 years.

Earlier coverage of the case begins with this post, now inaccurately titled.

A Long-Running Louisiana Case

James Ridgeway and Jean Casella write, "What's Next for Albert Woodfox of the Angola 3?" for Mother Jones.

Albert Woodfox has spent nearly all of the last 38 years in solitary confinement at the Louisiana State Penitientiary at Angola. His case has brought protests from Amnesty International and Human Rights Watch, who argue that Woodfox’s decades in lockdown constitute torture, and from a growing band of supporters, who believe that he was denied a fair trial. For more than ten years, he has been fighting for his release in the courts. But yesterday, a ruling by a federal appeals court ensured that for the forseeable future, Albert Woodfox will remain right where he has been for the last three decades: in a 6 x 9 cell in the heart of America’s largest and most notorious prison.

It’s been nearly two years since a federal district court judge in Baton Rouge overturned Woodfox’s conviction for the 1972 murder of a guard at Louisiana’s Angola prison. Judge James Brady’s 2008 ruling, which ordered the state to retry Woodfox or release him, brought new hope to the 63-year-old Woodfox, who has been in Angola–originally for armed robbery–since he was 24. A member of the group known as the Angola 3, Woodfox has always contended that he was effectively framed for the guard’s murder–and then thrown into permament lockdown–because of his involvement with the Black Panther Party, which was organizing against conditions in what was then known as the "bloodiest prison in the South."

Without drawing any conclusions about Woodfox’s guilt or innocence, Judge Brady of the Federal District Court, Middle District of Louisiana, concluded that Woodfox had not received due process at his 1998 trial (which was intself a replacement for a faulty 1973 trial).

And:

In addition, the decision in Woodfox’s case shows the crippling effects on prisoners’ rights of the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA) which was passed under Bill Clinton in the wake of the Oklahoma City bombings. That legislation has become the bane of anti-death penalty lawyers and activists, and of thousands of other prisoners seeking to challenge their convictions–a pursuit which AEDPA now renders nearly impossible.

As the Fifth Circuit noted in its ruling, "The AEDPA requires that federal courts "defer to a state court’s adjudication of a claim" unless the state court decision ran "contrary to…clearly established Federal law, as determined by the Supreme Court," or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." And as the judges pointed out, "An unreasonable application of federal law is different from an incorrect or erroneous application of the law."

In other words, the state courts could be wrong, they just couldn't be so far out as to be undeniably "unreasonable." And in the end, the Fifth Circuit judges agreed with the State’s argument that "the district court failed to apply the AEDPA's heightened deferential standard of review to Woodfox's ineffective assistance claims." For Woodfox, this means that his time in prison stretches before him with no foreseeable end in sight. His lawyers have promised to return to his case with new evidence, but that could take years, and the outcome might still be the same. In the meantime, Woodfox and fellow Angola 3 members Herman Wallace and Robert King have mounted a constitutional challenge to their solitary confinement, which may come to trial before the end of this year. That case, too, will eventually go before the Fifth Circuit–and even a win would mean only a release from permanent lockdown, not from Angola.

Ridgeway is the prop of the excellent Solitary Watch website, and he's posted an update focused on the federal Anti-Terrorism and Effective Death Penalty Act.

Fifth Circuit Orders Evidentiary Hearing in John Balentine Case

The AP filing by Michael Graczyk is, "Condemned killer wins hearing in triple slaying," via the Austin American-Statesman.

A Texas prisoner who came within a day of execution last year for a triple slaying in Amarillo has won a court hearing to determine if his trial lawyers' poor performance unfairly contributed to his death sentence.

Convicted killer John Balentine is entitled to an evidentiary hearing after his appeals lawyer argued trial attorneys failed to develop mitigating evidence to show a jury Balentine's childhood of poverty, domestic violence and abuse, the 5th U.S. Circuit Court of Appeals ruled.

Balentine, 41, was condemned for the 1998 slayings of Mark Caylor Jr., 17, and 15-year-olds Kai Brooke Geyer and Steven Watson. Caylor was the brother of Balentine's former girlfriend, and prosecutors said the slayings capped a feud between Caylor and Balentine.

And:

Last September, the 5th Circuit halted Balentine's punishment in a one-paragraph order a day before he was scheduled for lethal injection. The court's latest ruling Friday continues the reprieve and orders a hearing to decide if there were "serious concerns that constitutionally ineffective lawyering occurred" because of the trial lawyer's failure to investigate evidence at the punishment phase of his 1999 trial in Amarillo.

The appeals court also criticized Balentine's initial appeals attorney for making "a weak assertion" that argued the trial lawyer failed to present mitigating evidence.

Balentine's current lawyer, Lydia Brandt, who took her arguments to the 5th Circuit and won the reprieve last year, said Monday that the evidentiary hearing would be set before a federal judge.

In arguments as Balentine's execution date neared, Brandt said the claims about the lack of punishment phase evidence weren't raised earlier but had been blocked in the state courts because of a broken system.

"The state corrective process as a whole was ineffective," Brandt said.

The opinion in Balentine v. Thaler is available in Adobe .pdf format.

Mississippi Picks Up Pace on Executions

That's the title of an analysis written by Jack Elliott for AP, via the Gulfport Sun-Herald.  LINK

The three longest serving inmates on Mississippi's death row have been there a combined 88 years. Logic would suggest they'd be next in line for execution, but they're probably not.

Richard Jordan (33 years), William Wiley (28 years) and James Billiot (27 years) have appeals pending in the federal courts, and their cases could be tied up another year or two.

The recent executions of Paul Everette Woodward and Gerald James Holland have prompted Attorney General Jim Hood and Corrections Commissioner Christopher Epps to say as many as three more death sentences could be carried out this year.

Epps said his staff at the Parchman penitentiary can handle the job, particularly with the first back-to-back executions over two days in nearly 50 years.

And:

Mississippi has not executed more than two inmates in any year since 1961, when five were put to death, according to records at the Department of Corrections.

In Texas, 450 convicted murderers have been executed in the last 25 years. Mississippi has executed 43 since March 1955, including Holland and Woodward.

Marcie Walker of Wiggins - sister of 15-year-old Krystal King of Gulfport, who was killed by Holland - witnessed Holland's execution. She told reporters the state shouldn't let people sit on death row for years: "Mississippi should be like Texas and put in an express lane."

In 1997, Mississippi Gov. Kirk Fordice told a newly formed criminal justice study group that the state lets prisoners linger on death row too long.

"Texas executed two in one day again the other day. Arkansas has done the same thing," Fordice said. "Both of those states are continually working down their inventory on death row, and ours continues to grow."

Hood said the situation has improved since federal law was changed during the Bill Clinton administration to allow death penalty cases to be expedited if the state can show it has provided competent defense.

He said the Mississippi Supreme Court has taken steps to prod trial judges to act more quickly on post conviction claims in death row cases.

Earlier coverage begins with this post.  To date, Texas has carried out 458 executions since 1982

Getting Facts Straight in Texas Murder Case

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

Texas Death Row inmate Henry W. "Hank" Skinner, convicted in 1995 of a gruesome triple murder in Gray County, has spent years trying to get DNA tests on evidence collected after the 1993 killings.

Skinner insists that he didn't kill his girlfriend or her two adult sons at the home they shared and that the testing would prove it.

But the Gray County district attorney's office has maintained that Skinner could have had the testing before his trial and used the evidence then, and because he didn't it's too late. Texas and federal courts have ruled in the DA's favor.

The Texas Board of Pardons and Paroles unanimously recommended against clemency for Skinner, and Gov. Rick Perry refused to issue a 30-day reprieve.

But in March, after Skinner had eaten his "last meal" and was about an hour away from lethal injection, the U.S. Supreme Court granted a stay of execution so it could study his petition. And this week the justices agreed to grant full review of the issue his lawyers raised: whether prisoners can use a federal civil-rights law to request DNA testing after their convictions.

And:

The Supreme Court's decision, which probably won't come until 2011, could bring some consistency to current law. As his lawyers argued in their petition, prisoners in most of the country can raise a claim like Skinner's, while those in seven states, including Texas, cannot.

More important, a ruling that led to thorough DNA testing in the case could lead closer to the truth about who brutally bludgeoned Twila Busby and stabbed Elwin Caler and Randy Busby in their Pampa home on New Year's Eve 1993.

As Skinner's petition argues, "DNA testing not only serves the interests of the innocent but also provides much-needed closure to victims and their families by either confirming the conviction or, in the event of exoneration, positively identifying the actual perpetrator."

There must be finality to convictions, especially in murder cases. But getting the conviction right is essential.

Earlier coverage of the case begins with this post.

Adam Cohen on the Hank Skinner Case

Cohen writes, "In Death-Penalty Cases, Innocence Has to Matter," for Time magazine.  He's a lawyer, a former Time writer, and a former New York Times editorial board member.  Here are extended excerpts:

Hank Skinner, who is on death row in Texas, had a simple request. Before the state took his life, he wanted to test DNA evidence from the crime scene that could prove he was wrongly convicted. Texas prosecutors, whose love for the death penalty is legendary, refused.

Skinner then sued, claiming that federal civil rights laws gave him a constitutional right to do the testing. A federal appeals court ruled against him. (See TIME's death penalty covers.)

On Monday, the U.S. Supreme Court agreed to hear Skinner's case. That's good news. The Justices should use the case to expand the right to do DNA testing. But Skinner's case also gives the court a chance to confront a disturbing aspect of the nation's approach to the death penalty: the fact that the legal system does not always seem to care whether the people it executes are actually guilty.

And:

It's not hard to believe Skinner could have been wrongly convicted. With the rise of DNA evidence, we now know that people are falsely convicted of crimes, including capital crimes, all too often. According to the Death Penalty Information Center, 138 people have been released from death row since 1973 with evidence of innocence. (Read "The Death Penalty: Racist, Classist and Unfair.")

Skinner has tried for 10 years to get access to key pieces of biological evidence — including his girlfriend's rape kit and two knives that may have been used in the killings. After prosecutors turned him down, Skinner sued, arguing that the refusal violated due process and constituted cruel and unusual punishment.

The U.S. Court of Appeals for the Fifth Circuit, one of the most conservative courts in the country, rejected his claim in a brief decision. The judges focused on legal fine points without engaging the larger injustice of the situation — that Texas was seeking to execute a man while denying him access to evidence that could exonerate him.

Skinner's case never should have gotten this far. When someone facing the death penalty asks for relevant evidence for DNA testing, the state's answer should simply be yes. After all, the government's interest is not in seeing people put to death or in reflexively defending criminal convictions. It is in making sure that the guilty are punished and the innocent go free.

Prosecutors do not always see it that way. They defend all sorts of practices that call into question the reliability of the convictions they obtain. A while back, in an infamous case, Texas fought to execute an inmate even though his lawyer slept at his trial — repeatedly, and for long stretches of time. The Fifth Circuit ultimately ruled that the defendant was entitled to a new trial.

This callousness about death-penalty cases is not limited to states like Texas — or to prosecutors.

Supreme Court Justice Antonin Scalia set off a firestorm last summer when he wrote a dissent — joined by Justice Clarence Thomas — that the highest court in the land is not necessarily concerned with whether a person facing execution had actually committed the crime. The court "has never held," Justice Scalia wrote, "that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a ... court that he is 'actually innocent.'" Scalia was taking issue with the court's ruling that a lower court give Georgia death-row inmate Troy Davis a new hearing.

This idea that the Constitution allows innocent people to be put to death should be abhorrent to anyone who cares about justice. As Harvard Law School professor Alan Dershowitz pointed out, Justice Scalia seemed to be saying that if a man was convicted of murdering his wife and then showed up in court with the wife, who was still alive, seeking a new trial, it should not matter. As long as the man's conviction was procedurally proper, Justice Scalia apparently believes, he should still be executed.

Earlier coverage begins with this post.  More on Justice Scalia's dissent and Professor Dershowitz' response last year is here and here. The Supreme Court's 1993 ruling in Herrera v. Collins, from Oyez, deals with the question of innocence.

Brandi Grissom's two-part series in the Texas Tribune in January, noted here and here, brought the facts of the Skinner case to the attention of many people for the first time.

More on the Hank Skinner Cert Grant

Rob Owen, counsel of record for Hank Skinner, has issued a statement following this morning's decision by the Supreme Court to review the case:

"We are pleased that the Supreme Court has agreed to hear Mr. Skinner's appeal. That decision represents the necessary first step to our eventually obtaining the DNA testing that Mr. Skinner has long sought. We look forward to the opportunity to persuade the Court that if a State official arbitrarily denies a prisoner access to evidence for DNA testing, the prisoner should be allowed to challenge that decision in a federal civil rights lawsuit."

Earlier coverage begins here.  The Petition for Writ of Certiorari, which the Court granted today, is in Adobe .pdf format.  Owen is Co-Director of the Capital Punishment Center at the University of Texas School of Law.

Brandi Grissom's two-part series in the Texas Tribune, noted here and here, brought the facts of the case to the attention of many people for the first time.

Supreme Court to Review Hank Skinner Case

The initial AP report is, "Supreme Court to review case of Texas death row inmate who wants DNA testing," via the Los Angeles Times.  The Court will hear the case in its next term, which begins in October.

The Supreme Court has agreed to decide whether a Texas death row inmate should have access to evidence for DNA testing that he says could clear him of three murders.

The justices said Monday they will use the case of Hank Skinner to decide whether prison inmates may use a federal civil rights law to do DNA testing that was not performed prior to their conviction.

Federal appeals courts around the country have decided the issue differently. The high court previously blocked Skinner's execution while it considered his appeal.

And:

Prosecutors argued Skinner wasn't entitled to testing of evidence that wasn't analyzed before his 1995 trial. The 5th U.S. Circuit Court of Appeals in New Orleans is the latest court to agree with prosecutors and reject Skinner's appeal.

Skinner's attorneys want DNA testing on vaginal swabs taken from Busby at the time of her autopsy, fingernail clippings, a knife found on the porch of Busby's house and a second knife found in a plastic bag in the house, a towel with the second knife, a jacket next to Busby's body and any hairs found in her hands that were not destroyed in previous testing. Only the hairs were tested previously and those results were inconclusive, according to court documents.

Earlier coverage of Hank Skinner's case begins with this post.  Skinner is represented by Rob Owen, Co-Director of the Capital Punishment Center at the University of Texas School of Law.

5th Circuit Judge Notes "Kafkaesque" Result in Capital Case

That's the title of John Council's report in today's Texas Lawyer.  LINK

In a decision one judge referred to as "Kafkaesque," a 5th U.S. Circuit Court of Appeals panel found that new evidence of a prison inmate's alleged mental retardation is not enough to prevent his execution under the federal death penalty statute.

The Supreme Court outlawed the death sentence for the mentally retarded in 2002's Atkins v. Virginia , finding that such executions violate the Eighth Amendment's ban on cruel and unusual punishment.

The 5th Circuit's April 28 decision in In Re: Bruce Carneil Webster shows how strict the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) can be in limiting successive petitions for writs of habeas corpus by death row inmates who do not challenge their guilt but rather the application of the death penalty, according to two death-penalty experts. That law, which was designed to limit the circumstances in which federal courts can grant relief to death row inmates, can lead to troubling results for inmates who allege they have new evidence that they are mentally retarded, they say.

But a former U.S. attorney urges caution before assuming the new evidence would result in a finding of mental retardation.

And:

According to a concurring opinion in the April 28 decision in Webster , Webster only recently obtained records from the Social Security Administration — records his trial counsel had requested long before Webster's 1996 trial. Webster applied for benefits in 1993, a year before he was indicted for capital murder. To determine his eligibility for those benefits, three separate government physicians performed medical and psychological examinations on him. All three physicians separately concluded that Webster is mentally retarded. While an IQ score of 70 or below is generally considered to be the threshold of mental retardation, one of the government doctors found Webster's IQ score to be 69 or lower, another concluded that Webster's IQ score was 59, and a third simply concluded that Webster suffered from "mental retardation."

Nevertheless, the majority on the 5th Circuit panel found that Webster was not eligible for relief under §2255 even in light of newly discovered evidence. Section 2255 allows appellate courts to hear subsequent or successive habeas motions that contain: "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the movant guilty of the offense; or a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."

The majority took issue with Webster's argument in his motion that, while §2255 applies to newly discovered evidence that would lead to a defendant being found not "guilty of the offense," it should also encompass "a claim that the petitioner is 'innocent of the death penalty.' "

Related posts are in the mental retardation index; more on Atkins v. Virginia, via Oyez.

Texas Tribune Interviews David Oshinsky

Brandi Grissom of the Texas Tribune conducts the interview with the Pulitzer Prize-winning UT scholar.  Oshinsky's latest book is Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America.

It's titled, "David Oshinsky: The TT Interview."  It's a must-listen.

It's not the fact Texas has executed more people than any other state or even the recent DNA-provoked questions about whether innocent men here have been put to death that make the state's use of the ultimate punishment scandalous, says Pulitzer Prize-winning author and University of Texas at Austin history professor David Oshinsky. It's the fact that the condemned in Texas have so few resources to defend themselves against prosecutors who have become experts at sending criminals to their death.

Texas has executed more than 450 men and women accused of capital crimes since 1976 — but from the early 1960s until 1976, there were few executions here and throughout the nation. In his latest book, Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America, Oshinsky explores the case that nearly led to the demise of the death penalty in the United States and then to its eventual resurgence. He talked with the Tribune last week about his research and about what makes the death penalty in Texas so peculiar.

And:

The unusual thing about Texas' new death penalty law, Oshinsky said, was that it required juries to act as sort of fortune tellers and decide whether the defendant was likely to commit future crimes. That was how Texas got its own "Dr. Death" in psychiatrist Dr. James Grigson.

Aside from its frequent use of "Dr. Death," Oshinsky said, there were a number of factors that combined to keep Texas' death chamber the busiest in the nation. Elected judges are more likely to take the popular position in favor of using the death penalty to keep law and order, he said. And the 5th U.S. Circuit Court of Appeals in New Orleans, which oversees Texas, is among the most conservative and tough courts in the nation. Given those judicial conditions, it's highly unlikely, Oshinsky said, that death row inmates could have much success on appeal. Plus, Texas has a tradition steeped in slavery and religious conservatism that calls for death as rightful punishment for some crimes. The top factor in Texas that bolsters the execution numbers, he said, is the lack of a state public defender system to assign qualified lawyers to indigent suspects.

And there's one more reason: Kenneth McDuff.

Earlier coverage of the book is here.

The Wider Impact of Hank Skinner’s Case

That's the title of Dave Mann's post at the Texas Observer.  LINK  It's a must-read.

When the U.S. Supreme Court halted the execution of Hank Skinner in late March, much of the media coverage focused on the particulars of Skinner’s case: The near-execution of a possibly innocent man halted by a rare last-minute reprieve.

Skinner was eating his last meal—at least what was supposed to have been his last meal—not far from the death chamber in Huntsville on March 24 when the High Court granted him a stay. Most condemned men who come that close to the execution chamber in Texas don’t live to tell about it. But Skinner was the exception. He was convicted for allegedly killing his girlfriend and her two kids. He has maintained his innocence and has long sought access to untested DNA evidence that might prove it.

The court put the execution on hold while it ponders whether to hear Skinner’s case; if it refuses, he would soon face the death chamber again. Yet the Supreme Court’s decision to spare Skinner at least temporarily had little to do with his claims of innocence. In that sense, the Skinner case is no longer just about Hank Skinner.

The issue before the court is a legal process question, one that could have a much wider impact. If Skinner wins, the case could help many other inmates obtain DNA testing.

And:

The question before the court in the Skinner case is what legal process inmates should use when seeking DNA testing—a much wider issue missing from most of the media coverage of Skinner.

In Texas, inmates who want access to DNA evidence must file a writ of habeas corpus, seeking to test DNA as a path to overturning their conviction.

That all sounds good enough. But the problem is that there are quite a few restrictions on habeas petitions, according to legal scholars. For one, the statute of limitations is short. Second, you’re allowed to file only one habeas petition. So if you file once, and more DNA material surfaces later, you’re out of luck. And, third, federal courts are supposed to show deference to state courts in habeas petitions. That means, federal courts can only overturn state rulings when they’re clearly unreasonable. You could argue that the rulings by Texas’ Court of Criminal Appeals are frequently unreasonable, but it’s luck of the draw whether a federal judge will see it that way.

In other words, your chances of winning a habeas claim to access DNA evidence aren’t good in Texas. And so it’s been so far for Skinner.

“It’s a significant procedural impediment to require these cases to be brought via habeas,” says University of Texas law professor Jordan Steiker, who’s written extensively on constitutional law and the death penalty.

But in other areas of the country, inmates can seek access to DNA evidence through federal civil rights law. That’s a real advantage because a civil rights petition is much less restrictive than habeas. For one, you can file multiple civil rights claims. And, two, federal courts don’t have to defer to state courts when considering a defendant's civil rights.

Federal appeals courts are divided on the issue. Both the 4th Circuit and 5th Circuit Court of Appeals, which covers Texas, have ruled that requests for post-conviction DNA testing must be filed through habeas petitions. Other federal circuits have ruled it a civil rights issue. When circuit courts are divided, the Supreme Court often takes a case to settle the issue—and that's where Skinner comes in.

If Skinner wins—and the Supreme Court rules that he can use civil rights law to obtain DNA evidence—it would open the door for many other inmates to obtain post-conviction DNA testing.

Supreme Court justices will decide whether or not to take the case soon.

Earlier coverage of the Hank Skinner case begins with this post.  Dave Mann's enterprise journalism on faulty arson forensics in Texas begins here.

Additional News Coverage of the Hank Skinner Stay

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Earlier coverage begins with the preceding post.

Sam Millsap on the Skinner Case

Today's Houston Chronicle carries an OpEd, "DNA testing works, but not if we fail to utilize it," written by Sam Millsap, the former Bexar County District Attorney.  Here's an extended excerpt from this must-read:

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

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

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

Some taxpayers may grumble at spending the public's money on DNA tests for individuals on death row. That argument doesn't hold water in Skinner's case. In 2000, the investigative journalists at the Medill Innocence Project offered to pay for the DNA tests. Ten years later, that offer still stands. There may be other objections to testing the evidence, but they don't outweigh the potential horror of executing an innocent man.

It is cases like Skinner's that ended my lifelong support for the death penalty. Any system driven by the decisions of human beings will produce mistakes. This is true even when everyone — judges, prosecutors and defense attorneys — is acting in good faith and working as hard as he or she can to get it right.

Tim Cole is only a recent example of the frailties in our criminal justice system. Several years ago, this newspaper argued persuasively that Ruben Cantu, a defendant I prosecuted who was put to death in 1993, may well have been innocent. Twenty years after Cantu's trial, my star witness recanted his trial testimony. Many people consider his recantation credible because he had nothing to gain by reversing his position except a whole lot of trouble.

That case brought home to me, in a way that nothing else could have, that the system we trust to determine who may live and who must die simply doesn't work in all cases. Other investigative stories have revealed that Texans Carlos DeLuna, who was executed in 1989, and Cameron Todd Willingham, executed in 2004, were almost certainly innocent.

Since 1973, 139 people in 26 states have been released from death row based on evidence of their innocence. Eleven of them were in Texas. Many of these people were freed because of DNA evidence. But DNA testing works only if we use it.

Skinner's execution date is just a few days away, but key pieces of evidence have never been tested, including two knives, one of which might be the murder weapon; a man's windbreaker, which had blood, sweat and hair on it and was found next to the victim's body; the victim's fingernails, which may have DNA evidence under them; and samples from a rape kit.

Skinner has steadfastly maintained his innocence, but his trial counsel did not seek DNA testing. His attorney also failed fully to investigate the potential involvement of another suspect. That man, a relative of Skinner's girlfriend, had a violent criminal history and an incestuous relationship with the victim. He had been seen stalking her at a party on the night of the murder and left the party shortly after she did. His whereabouts for the rest of the night remain a mystery.

And:

Attorneys for Skinner have filed an appeal with the U.S. Supreme Court asking the court to stop Skinner's execution in order to decide whether prisoners can use the Civil Rights Act to compel post-conviction DNA testing. That's Skinner's last chance, and I hope the court intervenes. But frankly, I'd rather see Texas clean up its own house on this one. Before we send a man to his death, shouldn't we do everything in our power to be certain of his guilt?

Jordan Smith has written, "Death Row Case Evidence May Never Be Tested," for the Austin Chronicle.  The March 12 edition has already been web-posted.

Unless the U.S. Supreme Court intervenes, it is likely that 47-year-old death row inmate Hank Skinner will be executed on March 24 without key pieces of physical evidence in his case ever having been tested. "We continue to hope that the court will intervene to ensure that Mr. Skinner is not executed before the troubling doubts about his guilt can be resolved through scientific evidence," Skinner's attorney, Rob Owen – who is also director of the Capital Punishment Clinic at the University of Texas' law school – told the Associated Press earlier this month.

And:

Gray County District Attorney Lynn Switzer has objected to any testing of this evidence, saying that Skinner had a chance to do so before his 1995 trial but didn't take it – whether that evidence would reveal that she and her predecessors were wrong about Skinner's guilt – allowing a killer to remain on the loose for more than a decade – is apparently none of her concern.

It would seem that the Court of Criminal Appeals, which has so far denied Skinner's appeals to conduct the DNA testing that could either clear his name or definitively prove his guilt, is of the same opinion. In 2001 state lawmakers penned a post-conviction DNA testing law that would allow inmates to have biological evidence tested for cases in which there had previously been no access to testing, advancements in testing might produce more probative results, or, "through no fault of the convicted person," the evidence had not been previously tested, but "the interests of justice require DNA testing." While the third standard would seem to apply to Skinner's case, the courts so far have not agreed: Apparently it is Skinner's "fault" that his lawyer had not previously had the evidence tested. The ruling is troubling to Owens; for starters, it doesn't make sense that Skinner could have waived his right to testing years before the law even existed. But more disturbing, perhaps, is the court's apparent interpretation of the term "fault." In "most places where the law uses the concept of fault it implies ... a lack of diligence" or other culpable state, he said. The CCA's ruling here is a "jarring" redefinition of fault that suggests that if a lawyer advises his client not to conduct testing, for whatever reason, and the client agrees, that could be considered a complete waiver of the right to ever have the evidence tested. "It seems to me they're exalting technicalities over the substance" of the law.

Whether Skinner will ever get a chance to have that evidence tested remains entirely unclear – indeed, he has been seeking access to the evidence since 2000. In November 2009, Owen filed a federal civil suit against Switzer, seeking access to the evidence, arguing that Skinner's right to due process has been violated. The district court and U.S. 5th Circuit Court of Appeals have to date ruled that he is not entitled to that evidence under the federal statute. An appeal of that decision is currently pending before the high court. If the court accepts the case and rules in Skinner's favor, the case will go back to district court, where Skinner will have a chance to argue, once more, that he should be allowed access to the as-yet-untested evidence.

Earlier coverage of the Skinner case begins with this post.

A Legacy From Dallas' Past

"Federal appeals court orders new trial for black suspect," is the title of Steve McGonigle's report in today's Dallas Morning News.

Dallas County's long history of racial discrimination in jury selection added a chapter from a new era this week.

The 5th U.S. Circuit Court of Appeals has ordered a new trial for Cecil Keith Hayes, a black man from Mesquite who was convicted of armed robbery and sentenced to 70 years in prison by a nearly all-white Dallas jury in 2002.

A three-judge panel concluded that prosecutors illegally struck two qualified black prospective jurors during jury selection and then tried to disguise their intentions to seat an all-white jury.

Unlike previous court findings of jury discrimination in Dallas County, Tuesday's ruling focuses on a case decided almost two decades after a landmark Supreme Court decision that prohibited biased practices.

In the Hayes case, prosecutors initially struck all eight black prospective jurors. One was impaneled after the trial judge rejected the prosecutor's explanation that the woman had been sleeping in court and was "too grandmotherly."

The trial judge accepted explanations that another black juror appeared "hostile" during questioning and that a second one gave inconsistent answers about whether she would require the state to produce the firearm allegedly used in the crime.

The appeals court deemed those explanations not credible, and it criticized the trial judge, Thomas Thorpe, for accepting the prosecutor's statements.

"Hayes has shown that the state's reasons for striking ... were implausible or invalid, and therefore were pretexts for discrimination," stated the decision written by Judge Catharina Haynes, a former civil court judge in Dallas.

And:

The decision marked the second time in 13 months that the appeals court has overturned a case from Dallas County because of jury discrimination. Last January, the court reversed the 1979 death penalty conviction of Jonathan Bruce Reed.

Those rulings followed a 2005 Supreme Court decision that reversed a Dallas County conviction from 1986 because of overt racial discrimination by prosecutors.

Both cases were reversed for violating the Supreme Court's ban on jury discrimination expressed in a 1986 decision, Batson vs. Kentucky. A concurring opinion cited an investigation of jury selection by The News as evidence that discrimination continued to be a problem in the criminal justice system.

Related posts are in the race index; more on Batson v. Kentucky, via Oyez.

Max Soffar

His has been a long and twisted tale, with a career on Texas death row.  Soffar has always maintained his innocence.  He was originally convicted in 1981of killing three people during a bowling alley robbery.  His court appointed lawyer was the notorious Joe Cannon, known as the sleeping lawyer of Harris County courts.

In 2004, the U.S. Court of Appeals for the Fifth Circuit overturned the conviction, ruling Cannon had been ineffective.  Soffar was retried in 2006, and again convicted and sentenced to death.  His defense attorney was barred from presenting some evidence by the trial judge.

On Wednesday, the Texas Court of Criminal Appeals upheld the conviction and death sentence in the direct appeal of the trial.  The per curiam ruling is here, in Adobe .pdf format.

The matter has not attracted Texas media attention, but today's Tennessean reports, "Paul Reid's role in crime not an issue in Texas," by Kate Howard.

The conviction of a Texas man for a triple murder was upheld Wednesday despite questions about whether Nashville death row inmate Paul Reid was involved.

Max Soffar was convicted in 1981 for killing three people and wounding a fourth during a robbery at a bowling alley in Houston and given the death penalty.

An associate of Reid, who has been sentenced to seven death sentences for murders in Tennessee, wrote to Soffar's attorney in 2000 saying that Reid had confessed to him that he shot four people in a Houston bowling alley on U.S. Highway 290 before the pair went on a crime spree.

Soffar's conviction was overturned by a federal court, but he was re-tried and convicted again in 2006.

No evidence was introduced at that trial about the allegation that Reid had confessed, and his attorneys challenged that decision to the Texas Court of Appeals along with several other issues, including mental health issues and whether the confession was coerced.

The appeals court rejected all of Soffar's claims and upheld his sentence.

Reid was scheduled to be executed in 2006, but a federal judge blocked his execution and ordered a competency hearing.

The ACLU issued a news release, "Texas Appeals Court Rejects Appeal Of Innocent Man On Death Row For 28 Years.  Death Sentence Upheld Despite Overwelming Evidence Pointing To Innocence," Wednesday afternoon, following the issuance of the CCA ruling.  The release is available via Common Dreams.

Max Soffar, whose mental illness left him particularly vulnerable to giving a false confession, stands convicted and sentenced to death for allegedly killing four victims during an armed robbery in a Houston bowling alley in 1980. Soffar appealed on the grounds that the trial court in 2006 prevented him from proving his innocence to the jury.   

"Once again, this case demonstrates that serious error riddles the criminal justice system," said Brian Stull, staff attorney with the ACLU Capital Punishment Project. "When the state seeks a person's death as punishment, we must demand a process that produces accurate and reliable results. When an innocent man sits on death row for 28 years having never received a fair trial, when juries are not allowed to hear the evidence, and when appeals courts do not intervene to fix these problems, no one can trust the process." 

And:

In today's opinion, the court ruled that the false confession given by Soffar should stand, and that his constitutional rights were not violated when his 2006 trial court judge refused to allow him to show that the only correct details in his false confession were not the result of his involvement in the crime but instead had been obtained through widely disseminated media reports. The prosecution claimed, in an argument to the jury, that these details — although broadcast throughout Texas — could only have been known by the person responsible for the crime. Making an argument that not even the prosecutor made on appeal, the Texas Court of Criminal Appeals said in today's decision that even if the trial court judge erred by refusing to allow Soffar to utilize the media reports as part of his defense, the error was "harmless." 

False confessions are among the leading causes of wrongful convictions, and evidence shows that people like Soffar who are impulsive, have low intelligence, low self esteem and are prone to fantasy and disassociation are the most likely candidates for false confessions.
 
The appeals court today also rejected Soffar's argument that the trial judge erred by refusing to admit evidence that another man confessed to committing the murders, and that this man committed a series of highly similar robbery-murders in Tennessee. The man, Paul Reid, formerly of Houston, now awaits execution on Tennessee's death row. A photograph of Reid, taken in Houston nine days after the crime, strongly resembles the composite sketch the police prepared based on the description of the sole witness to the crime. 

Soffar's false confession also contradicts the account of the sole surviving witness and other reliable evidence.

Soffar will continue to push his innocence in another phase of post-conviction review.  In Texas, a death penalty case automatically receives a direct appeal to the Texas Court of Criminal Appeals.  The direct appeal is limited to issues raised through the trial transcript; was an objection properly ruled on, was something improper said, and other issues found in the words of the trial.  The other phase of post-conviction review inolves the filing of a habeas corpus petition, in which other issues are considered.

One of Soffar's steadfast supporters in Texas entertainer and sometimes politician Kinky Friedman.  Friedman has announced his intention to run for governor in the March 2010 Democratic primary.  He wrote, "Max Soffar: A Jew on death row," which appeared in the February 2, 2005 issue of the Jerusalem Post.  Here's an excerpt:

I've seen Cool Hand Luke and The Green Mile, but I'm not a prison reform activist. I'd never interviewed anyone on death row until the middle of January, when I picked up a telephone and looked through the clear plastic divider at the haunting reflection of my own humanity in the eyes of Max Soffar.

Max doesn't have a lot of time and neither do I, so I'll try to keep it brief and to the point.

"I'm not a murderer," he told me. "I want people to know that I'm not a murderer. That means more to me than anything. It means more to me than freedom."

On February 2, Max is scheduled to be re-arraigned in Houston before District Judge Mary Lou Keel for the murders of three youths at a Houston bowling alley in 1980. Although Max has been granted a new trial, his release from prison is far from a certainty. His defense team is concerned about critical evidence destroyed by the District Attorney's office and the difficulty of finding witnesses after 23 years, and his lawyers estimate the costs of defending him at a new trial at $250,000 or more.

I'm sure we'll be hearing more about Max Soffar in the future.

President Obama and the U.S. Courts of Appeal

The Associated Press is moving two related news articles this afternoon on federal judicial vacancies and appointments to the U.S. Court of Appeals.  Both come to us via Google News.

Larry Margasak writes, "INSIDE WASHINGTON: Obama moving slowly on judges."

Eight months into office, President Barack Obama is moving far more slowly than his predecessor to fill federal court vacancies, leaving liberals waiting for the judiciary to tilt to the left.

At stake are precedent-setting rulings on issues that divide liberals and conservatives: immigration, the death penalty, discrimination, campaign finance and abortion.

As of Oct. 1, Obama has submitted only eight nominees to fill 20 current appeals court vacancies. During his first full eight months in office, former President George W. Bush had nominations for filling 23 of 34 vacancies, according to figures compiled by the Alliance for Justice, a liberal court-watching group.

Obama has nominated only 10 people for 75 currently vacant district court judgeships. At this time in his first term, Bush had sent the Senate 32 district judge nominees for 81 then-vacant seats.

Bush, however, did not have to contend with a time-consuming Supreme Court nomination. While liberals would like Obama to pick up the pace, they're reluctant to criticize him after waiting through eight years of Bush's mostly conservative court picks.

"The White House clearly got energy diverted to the Sonia Sotomayor nomination," said Margery Baker, executive vice president at People For the American Way. "Now that it's over I would like to see them pick up the pace at White House."

The stakes are particularly evident on the Richmond-based 4th Circuit Court of Appeals, once a bastion of conservative judges, which is now equally divided between five Republicans and five Democrats — and has five vacant seats. Obama has made nominations to fill two of those vacancies; the Senate has yet to act on either of them.

And:

The Philadelphia-based 3rd Circuit covering Pennsylvania, New Jersey and Delaware also is in store for a makeover. The court currently is split with six judges nominated by presidents of each party. There are two vacancies, and Obama has made nominations for both.

Arthur Hellman, a professor of law at the University of Pittsburgh, said the 3rd Circuit is less likely to change dramatically because the ideological split has not been nearly as severe as the 4th Circuit.

"Even the Clinton appointees were a generally moderate group," Hellman said of the 3rd Circuit court. "They were less liberal than Clinton appointees in other circuits and Bush appointees were less conservative than Bush appointees to other circuits."

With future nominees, Obama also could gain a Democratic majority on the New York-based 2nd Circuit, which also covers Vermont and Connecticut; win parity on the 1st Circuit in Maine, New Hampshire, Massachusetts and Rhode Island; and come within one seat of reversing a GOP majority on the District of Columbia Circuit — the court that rules most on major challenges to government agency decisions.

The District of Columbia Circuit currently has three Democrats, six Republicans and two vacancies.

Another AP report, unsigned, focuses on the 4th Circuit, "Obama begins to overhaul key US appeals court."

President Barack Obama has begun reshaping the nation's most conservative federal appeals court, one that has handled many high-profile terrorism and detainee cases and generally supported the anti-terrorism initiatives of former President George W. Bush.

Five of the nation's 20 open circuit judgeships belong to the Richmond, Va.-based 4th U.S. Circuit Court of Appeals. The vacancies — fully a third of the court's 15 judgeships — make the 4th Circuit more ripe than any other federal appeals panel for a fundamental shift in ideology, and greatly increase the odds that the court will undo some of its recent rulings.

Obama started his makeover of the court with the nominations of U.S. District Judge Andre Davis of Maryland, whose nomination to the circuit bench by President Bill Clinton died in the Senate, and Virginia Supreme Court Justice Barbara Keenan. Should they win confirmation, Democratic appointees will outnumber Republicans 7-5 on the 4th Circuit, with three more vacancies.

Nationally, there are 75 U.S. District Court positions open and 20 vacancies on the federal appeals courts. Obama has made nominations for seven of those appeals court openings, including for two vacancies on the Philadelphia-based 3rd Circuit, also evenly split for the moment between Democratic and Republican appointees.

"Down the road, if indeed what we think will happen happens, it may end up being more than one or two votes in the more liberal vein," said Barbara A. Perry, a government professor at Sweet Briar College in Sweet Briar, Va., who has written six books about the U.S. Supreme Court.

Many detainee and terrorism cases come to the 4th, which handles federal appeals in Virginia, West Virginia, Maryland, North Carolina and South Carolina, because national security facilities are concentrated in northern Virginia and because federal prosecutors there have had success getting jury convictions in such trials.

And:

The court also has been tough in death-row cases and has backed abortion restrictions. The 4th has had the lowest capital punishment reversal rate of all the federal circuits and has upheld laws requiring parental consent for minors' abortions and banning a late-term abortion procedure.

But as more conservative jurists have departed, the court has become more ideologically balanced. The most recent loss was Judge Karen Williams, a 1992 appointee of President George H.W. Bush who stepped down in July after she was diagnosed with early onset Alzheimer's disease.

And:

Bush had to withdraw two nominations when it became clear a new Democratic majority in the Senate would not go along. He finally managed to fill one slot last year as Steve Agee, a former Republican legislator and Virginia Supreme Court justice, received bipartisan support and the blessing of Sen. Jim Webb, D-Va.

With Democrats in control of the Senate and its Judiciary Committee, filling the rest of the vacancies should be easier for Obama. That would be a relief for the 4th Circuit's sitting judges, who rely on help from visiting or semiretired judges to handle their caseload.

"As long as the Democrats hold the majority they have, it's just a matter of time," said Colby May, senior counsel for the conservative National Center for Law and Justice, "and 3 1/2 years is sufficient time."

Related posts are in the judiciary category index, including this post on the Bush judicial legacy.

More on Linda Carty

Clive Stafford Smith's OpEd, "The final act of Linda Carty's tragedy," is in the Guardian.  Stafford Smith is the director of Reprieve.

All of this leads up to last week's final tragedy. The fifth circuit court of appeals turned down the penultimate appeal of British grandmother Linda Carty, which means she has only the supreme court and Governor Rick Perry between her and an encounter with the executioner.

As to whether she should even have been convicted, the court found it a "close case", but the verdict was good enough for government work. An unfair trial is apparently OK, so long as it is not "fundamentally unfair." 

But the court had to indulge in greater contortions to justify Carty becoming the first black British woman to be executed in over a century. She is not only a black woman, she is a battered woman, herself the victim of rape. So what? The court refused even to consider it. Her court-appointed advocate is, quite clearly, the worst capital defence lawyer in the country: he has had more clients facing execution than the death row population of 25 of the states. But the court blamed Carty for his inaction, accepting without question his statement that she refused to talk to him until he "bribed her with a bar of chocolate". While this was not the only dubious assertion the lawyer made, it was perhaps the most flagrant: Carty is allergic to chocolate.

None of this caused the court to doubt the infallibility of the Texas death penalty. The court concluded that Carty should die.

Even so, in a sane world there would be no chance that Carty would be executed. The supreme court would reverse her case, or the governor would grant clemency. But Death Row USA leaves little room for hope. The supreme court hears only one capital case in 30. And few observers expect Texas to clean up its own mistakes. Far from being a heartless killer, Cameron Willingham was the victim of a terrible tragedy, yet Perry sanctioned his execution. It is farcical to suggest that Charles Hood had an impartial judge, yet he is slated to die. And if Texas doesn't manage to kill Carty the first time, it'll probably put her back in the holding cell and have another go seven days later.

The Fifth Circuit ruling is here, in Adobe .pdf format.

Kevin Quinn reports, "Death row inmate speaks after losing appeal," for Houston television station KTRK.  Video is available at the link.

Her current attorney says the Fifth U.S. Circuit Court of Appeals called this a close one, finding that her trial attorney acted unreasonably. But the court also concluded that even if her attorney had done everything she asked at trial, the evidence against her was overwhelming.

Inside the Mountain View unit in Gatesville, where all women sentenced to death in Texas are housed, we met Tuesday with Linda Carty.

"I want my name cleared. I know I didn't do it," said Carty.

She was convicted and sentenced to death for the 2001 abduction and murder of Joana Rodriguez. Prosecutors say Carty kidnapped Rodriguez and her infant son because Carty wanted the baby. Rodriguez was found dead in the trunk of a car Carty had rented. She had been suffocated with a plastic bag over her head.

"I had nothing to do. I could never do something like that," Carty said.

Carty at one time was a confidential informant for the Drug Enforcement Agency. She has maintained her innocence all along, saying she was framed by folks she met while working undercover.

She blames her conviction on her trial attorney who she claims failed to do his homework. She said he neglected to present witnesses at trial who would speak favorably of her and refused to spend more than 15 minutes with her prior to trial.

Just last week, a human rights group erected a cardboard cutout of Carty in a public square in London while playing an audio recording of her pleading for help from the British government. She was born on the Caribbean island of St. Kitts so she is considered a British national.

"There are very, very strong legal reasons why the case needs to be looked at again," said Paul Lynch, British Consul General in Houston.

Lynch says Carty deserves a new trial because the British Consulate was not notified of her capital murder charge prior to her conviction.

"Because we were not informed, Linda Carty was not given all the assistance she should have been given by her government. And therefore she did not get the representation that she should have had at her first trial," said Lynch.

The appeals court ruled Carty's request for help from the British government came too late. Carty's attorney says still that their quest to save her life is not over.

Earlier coverage begins here.

Linda Carty

The UK's Independent reports, "British citizen on Death Row in Texas launches 'last chance' appeal."  It's written by Tom Leonard.

Carty, 51, a grandmother from the Caribbean island of St Kitts, was sentenced to death for the murder in 2001 of a young mother whose baby she was allegedly trying to steal after what her British legal team describes as a "catastrophically flawed" trial.

However, they said judges have refused to hear new evidence that the conviction was unsafe and that Carty is innocent.

If her lawyers fail to to persuade judges in New Orleans's Fifth Circuit Court of Appeals, all that stands between Carty and death by lethal injection is the US Supreme Court, which only hears a small number of cases every year.

Carty has been represented by lawyers by the charity Reprieve since it emerged that she was born to Anguillan parents and so holds a British Overseas Territory passport.

And:

Her lawyers claim she was forced to rely on a court-appointed lawyer whose incompetence had already led to 20 clients end up on death row – more than any other US defence lawyer.

Among the charges levelled against him were that he failed to spot obvious inconsistencies in the prosecution case, did not meet his client until immediately before the trial and failed to interview important witnesses.

Clive Stafford Smith, Reprieve's director, said the US court system's refusal to hear most of their arguments "makes no sense".

He said: "Linda's legal representation at trial was appalling and she would not be on Death Row on Thursday if she had received an adequate defence."

"The rules that courts use to deny justice in capital cases are simply bizarre - only last week Justice Scalia reiterated that someone who is innocent can be executed so long as she had a 'fair' trial."

He said Carty was "dangerously close to the execution chamber" and that the British Government needed to everything in its power to save her life.

The Foreign Office confirmed it had made representations to the US authorities that it was opposed to the death penalty.

It has also offered consular assistance to Carty and her family.

Carty is one of 10 women on death row in Texas, which executes far more convicted criminals than any other state.

Earlier coverage of the case is here.

Why Is the UK Involved in a Texas Death Case?

That's the title of a guest entry at the Dallas Morning News Death Penalty blog.  It's written by Hugh Southey, a British Barrister.  LINK

The United Kingdom recently took the relatively unusual step of filing an Amicus brief in the 5th circuit in the case of Linda Carty, a United Kingdom national presently detained on death row in Texas. Ms Carty has also received support from a United Kingdom charity, Reprieve. Those interventions follow similar interventions by other foreign governments in cases concerning their nationals.

And:

International travel is now a core aspect of modern life. Every day thousands of foreign nationals enter Texas lawfully to engage in business or enjoy a holiday. Similar numbers of Texans travel overseas. That travel benefits us all. The Texan economy (as well as all other economies) would suffer without travel.

Travel is inevitably undermined if states fail to adopt minimum standards for the treatment of people within their jurisdiction. To give an obvious example, very few people wish to travel to Somalia because the absence of the rule of law leaves all people at risk of ill-treatment. Less obviously many United Kingdom nationals now have concerns about travel to Thailand following reports of arrests at Bangkok airport as a way of extorting bribes.

The concerns about minimum standards have caused states (including the United States) to sign up to the Vienna Convention on Consular Relations. Among other things, this enables states to visit their nationals who are detained overseas and make representations on their behalf. There are recent examples of cases where I have little doubt that the American authorities will have sought to intervene on behalf of their nationals. For example, the American authorities will have wished to intervene on behalf of John Yettaw, the American imprisoned for seeking to swim to Aung San Suu Kyi. However, it is not only high profile cases that matter. The cases of American nationals arrested for more routine matters are as important. They are entitled to fair trials and proper treatment.

And:

The reason why the death penalty is the particular focus of the interventions is that there are real issues about the compatibility of the death penalty with international law. International law may have reached the stage where the use of the death penalty is as unacceptable as torture. In addition, even if the death penalty is compatible the restrictions upon its use that are imposed as a matter of international law mean that in practice its use may well violate international law. Violations of international law have been found in American death penalty cases by both the International Court of Justice and the Inter-American Commission on Human Rights. That means that foreign governments are likely to have grounds for intervention in death penalty cases. They are likely to be able to argue that accepted standards have not been met.

Related posts can be found in the international law category index.

An Update on Anthony Graves

Today's Houston Chronicle carries Harvey Rice's report, "Ex-DA turns to court of public opinion."

The news item on KBTX (Channel 3) in Bryan-College Station was one indignity too many for former Burleson County District Attorney Charles Sebesta.

The television report about a death penalty case that has dogged Sebesta for nearly a decade prompted him to take an unusual step: paying $2,561 to defend himself in a 5,000-word double-page advertisement published recently in two Burleson County newspapers.

Sebesta, former district attorney for Burleson and Washington counties, has suffered criticism for his handling of a 1994 capital murder trial that ended in a death sentence for Anthony Graves of Brenham.

The criticism began in 2000 after co-defendant Robert Carter, whose testimony convicted Graves, said moments before his execution: “Anthony Graves had nothing to do with it. ... I lied on him in court.”

Five years later, journalism students at the University of St. Thomas in Houston, working for the University of Houston Innocence Network, issued a report saying the prosecution in the Graves case withheld evidence “in its desire to win at all costs.”

n 2006, the 5th U.S. Circuit Court of Appeals overturned Graves' conviction and ordered a new trial, ruling that Sebesta withheld statements from the defense and elicited false statements from witnesses.

Sebesta's public defense of the case comes as Graves' attorneys prepare to ask a Burleson County district judge on Friday to delay a retrial while they wait to hear whether the U.S. Supreme Court will consider an appeal arguing that Graves can't get a fair trial because so many witnesses have died or forgotten the facts.

Legal experts, meanwhile, have raised questions about Sebesta's advertisement and whether the former prosecutor is trying to influence the outcome of Graves' retrial.

And:

The troubling aspect of the ad for Robert Schuwerk, law professor at the University of Houston Law Center, is that it could influence Graves' retrial.

“I would be persuaded that what he was trying to do is to convince a jury that this guy was really guilty,” Schuwerk said.

The Burleson Banner-Press is widely read in Lee County, where the retrial will be conducted after being moved from neighboring Burleson County, where the crime was committed and Sebesta was district attorney, said Katherine Scardino, one of Graves' defense attorneys.

Geoffrey Corn, law professor at the South Texas College of Law, said Sebesta had every right to defend his reputation, but questioned his judgment in running an ad that could influence the prosecution in Graves' retrial.

Early coverage of the Graves case begins with this post.

Fifth Circuit Panel Reverses Earlier Decision, Allows Appeal

"Justices reverse decision barring death row appeal," is the title of Lise Olsen's report in today's Houston Chronicle.

The Fifth Circuit Court of Appeals has reversed itself in a surprising new opinion that revives an appeal by a Texas death row inmate that previously had been denied for being filed one day too late.

The unusual about-face does not give a new trial to Keith Thurmond, a Montgomery County man convicted in 2002 of killing his estranged wife and her lover during a child custody dispute, but it grants him the right to argue the case for his appeal in federal court.

Thurmond's case had received statewide publicity because of problems with the legal defense he received after conviction. His first court-appointed appellate attorney was inexperienced and filed a bare bones state appeal. His next court-appointed attorney filed his federal appeal late in 2006, blaming a broken after-hours filing machine. U.S. District Judge David Hittner rejected it as “time-barred.”

The Fifth Circuit initially upheld Hittner's decision.

In March, the court said Houston attorney Jerome Godinich should have known about the broken filing machine because he'd had trouble with it in an earlier federal death penalty appeal, also filed one day late. In the other case, the inmate was executed after his appeal was ruled to be “time-barred.”

On Friday, the Fifth Circuit announced it would withdraw its March opinion and issued a new one ordering a hearing for Thurmond. The new opinion blasts Texas state prosecutors for falsely claiming Godinich could have used electronic filing to meet his deadline. Electronic filing was not approved in the Southern District of Texas until months after Thurmond's appeal was due in 2006, court records show. The court also noted that the state's lawyers had previously apologized for making that same “mistake and misstatement” in federal district court, but repeated the false claims anyway.

And:

Godinich, who has been criticized for filing three federal death row appeals late, has previously said in a letter to the Chronicle that the system itself is broken. In another late case, a different federal judge waited so long to appoint Godinich that he was out of time before he'd begun to work on the appeal, records show.

The Fifth Circuit order is here.

Mississippi Death Penalty Under Scrutiny

That's the title of an AP report written by Jack Elliott, via today's Memphis Commercial Appeal.  The subtitle is, "Case before Court of Appeals challenges law's constitutionality."

Gerald James Holland's attack on the constitutionality of Mississippi's death penalty law appears to be flying under the radar.

The attorney general's office is confident that the 5th U.S. Circuit Court of Appeals will find Holland was legally re-sentenced to death under Mississippi law.

But Holland's lawyers believe the New Orleans appeals court will find fault with a decades-old law that allows a jury unfamiliar with the details of a crime -- as they claim occurred during Holland's re-sentencing -- to decide a death sentence.

In Mississippi, capital murder cases require two jury trials -- one to decide guilt or innocence, and another to determine a life sentence or death.

Several states, including Louisiana and Texas, which are part of the 5th Circuit, have similar systems.

The 5th Circuit heard arguments in Holland's case in May.

And:

The Mississippi Supreme Court in 1991 upheld Holland's conviction but threw out the death sentence on a technicality. Holland was re-sentenced to death in 1993 by a Harrison County jury. The Mississippi high court upheld the second death sentence in 1997.

Jim Craig, a Jackson attorney and blogger who has handled dozens of death penalty appeals, said Mississippi jurors in death penalty cases weigh aggravating factors against mitigating factors to choose between life without parole and the death penalty.

"When the state reintroduced details about the crime as aggravating facts in Gerald Holland's sentencing case, simple fairness demanded that Mr. Holland have the opportunity to rebut those facts," Craig said.

He said while a sentencing jury can't undo a conviction, "they could decide that the state's narrative of the crime wasn't totally true, and that would have affected their sentencing decision."

In court briefs, Hood argued the Mississippi Supreme Court has held that you could not attack the finding of guilt in the sentencing phase. Hood also noted in briefs that the federal courts have deferred to the states in setting death penalty policy.

Holland's lawyers say Holland was faced with a new jury unfamiliar with the case and unfamiliar with his defense. The lawyers said while prosecutors were allowed to bring the crime of rape to the jury's attention Holland was not allowed to rebut it.

"The constitutional issue in this case is whether petitioner (Holland) can be executed on a sentence of a jury before which he was not permitted to defend himself ... the petitioner's hands were tied as he attempted to defend his life," Holland's attorneys wrote in his appeal.

In a 2007 order that led to the May hearing, the 5th Circuit said it was that dual function that raises a constitutional question in Holland's case.

"The lack of rebuttal evidence makes it much more likely that a jury would find that the state met its burden with respect to that aggravating circumstance. We believe reasonable jurists would find the resolution of this argument debatable," the 5th Circuit said.

More on Sam Kent

"Pace Quickens for Impeaching Convicted Judge," is the AP report by Suzanne Gamboa, via Law.com.

Members of Congress are moving quickly to force a convicted federal judge from Texas out of office so they can avoid paying his annual salary while he serves time in prison.

A task force formed by the House Judiciary Committee scheduled a meeting for Tuesday morning to begin considering what articles of impeachment -- essentially charges -- they want to recommend against U.S. District Judge Samuel Kent.

Kent, the first sitting judge to face sex crime charges, is headed to federal prison in a week to serve a 33-month sentence for lying to prosecutors about sexually abusing two female employees. Both women told their stories to the task force last week, saying they were cornered and forced to engage in sexual acts against their will.

And:

Kent had hoped to retire on disability to continue collecting his $174,000 annual salary and benefits. But that request was rejected by the 5th U.S. Circuit Court of Appeals. He told President Barack Obama in a letter that he would resign in June 2010.

Members of the House have balked at that offer, rejecting the notion that Kent would be paid his federal salary for a year while he is behind bars.

Federal judges are appointed for life. Impeachment is the only way to remove them. In a letter to the task force, led by Rep. Adam Schiff, D-Calif., Kent said if he is forced out, he would be penniless.

Earlier coverage begins here.

Convicted Judge Kent Resigns ... Next Year; Impeachment Looms

You can read Judge Kent's letter to the President here, thanks to Texas Lawyer.

"Galveston's Judge Kent to quit next year," is Stewart Powell's article for the Houston Chronicle.

Prison- bound U.S. District Court Judge Samuel Kent told President Barack Obama on Tuesday he fully intends to keep his $174,000-a-year post for another year — a notice that further fueled the angst of members of Congress who vowed a fast-track impeachment

“I hereby resign from my position as United States District Judge for the Southern District of Texas effective June 1, 2010,” Kent wrote the president, putting the effective date in italics. Until that date — or his impeachment — he will continue to draw a salary from taxpayers.

Kent’s letter, however, only served to galvanize House action, with Rep. Lamar Smith of San Antonio, the ranking Republican on the House Judiciary Committee, saying: “Ensuring that a corrupt judge does not receive another penny of taxpayer dollars is one of the most important jobs for this Congress and a priority for the Judiciary Committee.”

Kent, convicted of obstruction of justice and set to begin a 33-month sentence in coming weeks, submitted the one-line letter on the eve of impeachment proceedings by the House Judiciary Committee. Those proceedings will still start today.

The White House had no immediate comment.

And:

Rep. Gene Green, D-Houston, said Congress will impeach Kent “well before the end of that year because he’s taking up a position on the bench and we need a judge sitting on that bench.”

Sen. John Cornyn, R-San Antonio, a former Texas attorney general and state Supreme Court judge, said the judge “does not deserve another paycheck from American taxpayers.”

Kent “betrayed the public trust, broke the law and trashed the oath that he swore to uphold,” said Cornyn.

Witnesses before the House Judiciary Committee hearing will include two federal court employees whom Kent has admitted to molesting — court case manager Cathy McBroom and legal secretary Donna Wilkerson.

John Council writes, "Retired U.S. District Judge Samuel B. Kent to Turn in Resignation Today," for Texas Lawyer.

Samuel B. Kent is set to report to federal prison on June 15, but even before the disgraced retired U.S. district judge begins to serve a 33-month sentence, the U.S. House will crank into high gear proceedings that could lead to Kent's impeachment.

The House Judiciary Committee Task Force on Impeachment has scheduled an evidentiary hearing on Kent's impeachment for June 3 in Washington, D.C. Kent as well as Cathy McBroom and Donna Wilkerson — the two former staff members he has admitted to sexually assaulting as part of pleading guilty to obstruction of justice — will testify, according to two Republican staff counsel for the committee. Arthur Hellman, a professor at the University of Pittsburgh School of Law who is an expert on judicial discipline, also is scheduled to testify about the impeachment process, the staff counsel say.

And:

The committee put the impeachment process into gear after Kent was sentenced for two reasons: The House normally waits for criminal proceedings to be concluded before moving forward on an impeachment, and the committee members want to ensure Kent is no longer receiving his judicial salary, the two staff counsel say. The only way to stop the pay is through impeachment or through Kent's voluntary resignation. Kent has so far refused to resign. In February, when Kent pleaded guilty to one count of obstruction of justice for making false statements to the Special Investigative Committee of the 5th Circuit, Kent said he would retire from the bench and he asked Jones to certify him as medically disabled, which would allow him to collect retirement.

After the evidentiary hearing, the task force will make recommendations to the Judiciary Committee and the Judiciary Committee will vote on articles of impeachment. If the articles of impeachment receive a favorable House floor vote, the impeachment will move to the Senate for a trial.

Earlier coverage begins here.

Fifth Circuit Urges Impeachment of Kent

Tony Mauro reports, "5th Circuit urges impeachment of federal judge, denies disability status," for National Law Journal.

In a one-two punch made public Wednesday on its Web site, the 5th U.S. Circuit Court of Appeals recommended that U.S. District Judge Samuel Kent be impeached and ordered that he not be given disability status.

Kent had pleaded guilty to obstruction of justice in connection with an investigation into charges that he sexually harassed court employees. He is scheduled to begin serving a 33-month prison sentence next month. Claiming alcoholism and mental illness, Kent sought disability status so he could continue drawing a salary while in prison.

But 5th Circuit Chief Judge Edith Jones, in a letter (pdf) Wednesday to Kent's lawyer, Dick DeGuerin, said no, asserting that "a claimant should not profit from his own wrongdoing by engaging in criminal misconduct and then collecting a federal retirement salary for the disability related to the prosecution." Jones did note that until he was indicted, Kent "continued to handle a high volume of cases expeditiously," and so did not appear to be disabled or impaired.

On the question of impeachment, the circuit's judicial council formally urged (pdf) the Judicial Conference, a policy-making panel of the appellate courts, to "take expeditious action" toward impeachment proceedings before Congress. The House of Representatives has already begun its investigation of Kent with an eye toward impeachment.

At his sentencing earlier this month, two women described nightmarish working conditions when Kent groped and molested them in his chambers. Kent pleaded guilty to obstruction of justice for lying about the incidents to federal investigators. The case was the first sex abuse case against a sitting federal judge.

Earlier coverage begins here.

Danielle Simpson and Competency

AP's Michael Graczyk reports, "Court to examine Texas killer who wants to die," via the Houston Chronicle.

A federal appeals court is sending the case of a condemned Texas inmate back to a lower court to see if the prisoner is mentally competent to decide he wants to die for the slaying of an 84-year-old East Texas woman nine years ago.

Danielle Simpson, 29, has told the courts he's tired of being locked up and if he can't be free he wants to die.

Simpson was condemned for the January 2000 slaying of Geraldine Davidson, a former Palestine school teacher and church organist.

Davidson was abducted from her home during a burglary, was bound and gagged, driven around in the trunk of her car and then beaten and dumped into the Neches River. She was wrapped in duct tape and had cinder blocks tied to her ankles.

A passing motorist spotted her body floating in the river.

The New Orleans-based 5th U.S. Circuit Court of Appeals, in a ruling Monday, sent Simpson's request to a federal district judge for a hearing to examine whether Simpson is competent to abandon his appeals and if his request is voluntary.

The appeals court judges said Simpson last month sent them a handwritten motion in which he said he was "tired of being in a institution that's unjust, degrading, and corrupted."

The court said he wrote: "Whereas on the other hand, I'm tired of struggling to survive in a system that's highly injustices. 'I'm ready to die'!! If I can't be free — 'Kill Me'.!!"

The "Kill Me" phrase was underlined twice.

Simpson was one of four Palestine residents convicted in the slaying.

His brother, Lionelle, 15 at the time, received a life prison term. His wife, Jennifer, then 17, pleaded guilty and accepted a 40-year sentence. Both were certified for trial as adults but were ineligible for the death penalty because of their age.

The fourth defendant, a cousin who was 13 at the time of the killing, was sent to the Texas Youth Commission, then was released under adult parole supervision after he turned 21 in 2007 to serve the remainder of a 13-year sentence.

In earlier appeals, Danielle Simpson raised claims he was mentally retarded and ineligible for the death penalty. A district court ruled he was not mentally retarded.

The Fifth Circuit's opinion is here.

More Federal Judges in Texas?

"Judicial Conference Wants New Judges, Including Seven in Texas," is By John Council's report in the latest issue of Texas Lawyer.

Last month, the Judicial Conference of the United States — the federal judiciary's policymaking body — recommended increasing the number of U.S. district judgeships across the nation, including a boost in Texas.

That proposal, which the Judicial Conference approved on March 17, now is headed to Congress for consideration. Of the Judicial Conference's request for 38 new permanent federal trial judges, seven of them are in Texas — one more than the 5th Circuit Judicial Council recommended. Of those, four are in the Western District, two are in the Southern District and one is in the Eastern District. Texas currently has 60 U.S. district judge positions.

It costs about $1 million to initially fund and staff a U.S. district court bench, says David Sellers, a spokesman for the Administrative Office of U.S. Courts.

But there's a historical hitch to the Judicial Conference's request: Congress hasn't passed an omnibus judgeship bill to increase the number of benches across the nation since 1990.

Kevin McLaughlin, spokesman for U.S. Sen. John Cornyn, R-Texas, says such a bill would go through the Senate Judiciary Committee, on which Cornyn sits. "I can say in the past he has been supportive" of omnibus judgeship bills, McLaughlin says. "But the legislation has not been introduced yet. And until it has, I don't think he's taken a position on it."

In recent years, Congress has approved new judgeships in states including Texas as part of separate initiatives. For example, in 2002 Congress approved two new judgeships in El Paso as part of a bill aimed at beefing up the federal law enforcement presence on the Texas-Mexico border.

However, 5th U.S. Circuit Court of Appeals Chief Judge Edith Jones, a member of the Judicial Conference, is optimistic that this could be the year Congress agrees to pass an omnibus judgeship bill.

"I just think that it's more likely to happen, because you have the president and both houses of the Congress of the same party," Jones says. "They are more willing to increase judgeships where the other party is not. But that's just pure speculation."

Every two years U.S. district courts go through a statistical evaluation to determine the need for new judgeships. The 5th Circuit Judicial Council, the court's administrative body, asks the Judicial Conference for new judgeships based on the stats, and the Judicial Conference then asks Congress. However, it is the 5th Circuit Judicial Council that decides in which Texas cities those new judges should sit.

Based on the 2009 statistical evaluation, in March the Judicial Conference asked Congress for four Western District of Texas judgeships — one more than the 5th Circuit Judicial Council had requested, Jones says. If Congress funds that extra bench it likely will be in the Austin division, says Jones, head of the 5th Circuit Judicial Council.

The majority of the proposed new judges will sit in courts along the Texas-Mexico border, where drug and immigrations cases continue to flood U.S. district court dockets.

Constitutional Rights Always Matter

That's the title of Linda Campbell's latest column in the Fort Worth Star-Telegram.  LINK 

Despite his given name, Khristian Oliver was not heartened to learn that jurors in Nacogdoches consulted their Bibles in the room where they decided to sentence him to death.

Several of them read Numbers 35:16-19, which says, "And if he smite him with an instrument of iron, so that he die, he is a murderer: the murderer shall surely be put to death."

It might be easy to say that Oliver deserved Death Row for shooting Joe Collins in the course of a 1998 home robbery then smashing his head with a rifle butt while he lay in his front yard.

Trouble is, what the Scripture-reading jurors did by bringing their Bibles into the deliberations violated the Constitution.

It’s not that the courts and the law don’t respect religion. Passing judgment as a community representative naturally involves both intellectual assessment and moral evaluation. Jurors aren’t expected to check their conscience at the door.

But juries are supposed to base their verdict solely on the evidence presented in court and the law as provided by the judge, without outside influence. That’s part of the Sixth Amendment’s "impartial jury" guarantee.

Jurors are told their obligation going in, and they take an oath to faithfully follow their instructions as part of their conscientious service.

In fact, the 5th U.S. Circuit Court of Appeals found that the jurors who sentenced Oliver had "crossed an important line" by referring to Bible passages that weren’t part of the law and evidence in the case.

"Most circuits have ruled that when a Bible itself enters the jury room, the jury has been exposed to an external influence," Judge Edward Prado wrote in an August ruling. "Here, we face facts that are even more egregious than in those previous cases."

The Bible, he wrote, "may have influenced the jurors" in a way that would "ensure a sentence of death instead of conducting a thorough inquiry into these factual areas."

It’s mystifying then that the appellate court upheld Oliver’s sentence, citing the trial judge’s conclusion that "a conscientious, dedicated and carrying[sic] jury" had reached its verdict "uninfluenced by any outside influence of any kind."

How could that be, when they were reading their Bibles in the jury room? How could the appeals court say they shouldn’t have been, but never mind, harmless error?

Oliver’s lawyers have asked the Supreme Court to set the lower courts right on Bibles in the jury room. And it’s time the justices did.

And:

At my church on Palm Sunday, we prayed that those empowered to impose the death penalty respect life, justice and human rights. Not all Bible-loving religions support capital punishment, you see.

Lawyers’ Late Filings Can Be Deadly for Inmates

That's the title of Houston Chronicle reporter Lise Olsen's latest report on capital punishment in Texas.  LINK

Three men on Texas’ death row — and six others already executed — lost their federal appeals because attorneys failed to meet life-or-death deadlines, essentially waiving the last constitutionally required review before a death sentence is carried out.

Johnny Johnson, executed in February for a Houston murder, was the most recent: His lawyers missed a federally mandated filing deadline by 24 hours.

One of his attorneys made the same mistake in the case of death row inmate Keith Steven Thurmond, a former Montgomery County mechanic now on death row awaiting execution, according to case records.

In both cases, the lawyer waited until after business hours on the last day an appeal could be filed and then blamed a malfunctioning filing machine for his tardiness, according to a 5th Circuit Court of Appeals opinion issued last week. The court chastised the attorney for using the same excuse twice.

The opinion pointed out that based on the problems in the previous capital case, the lawyer already knew the machine was broken and could have easily filed electronically by using his computer.

Most of the late filings came in death row cases overseen by federal judges in the Southern District of Texas. In an interview, U.S. District Judge Hayden Head, the Corpus Christi-based chief judge of the Southern District, said he was unaware of the problem and could not comment.

The Houston Chronicle reviewed records in nine appeals that were filed too late. In some cases, lawyers or judges appear to have miscalculated or misunderstood the dates of the deadlines, which generally fall one year after state appeals are concluded. In others, computer failures or human foibles are blamed, records show.

“Any decent judges would be deeply ashamed of the quality of legal representation in most capital cases in Texas,” said Stephen Bright, a leading specialist in capital case law and who directs the Southern Center for Human Rights in Atlanta. “The very least they could do about it would be to prohibit lawyers who miss the statute of limitations from taking another case and referring them to the Bar for disciplinary proceedings.”

And:

Jerome Godinich, the attorney in both Johnson and Thurmond’s cases, appears to be the only Texas attorney to have filed too late in more than one recent death row appeal, based on the nine cases reviewed. He also filed late in a third Texas death row case, records show.

In the third case, however, a Houston-based U.S. district judge took so long to appoint Godinich that the appellate deadline already had lapsed. Court records show Godinich requested more time but took 162 days to file the appeal. The judge then ruled that it, too, was too late to be considered, records show

Godinich did not respond to several telephone and e-mail requests for an interview. He has faced no fines or other public penalties from the Houston-based federal judges who both appointed and paid him to represent the three men.

And:

James Marcus, an expert in capital case law who teaches in the Capital Punishment Clinic at the University of Texas School of Law, said missing the deadline for a federal writ of habeas corpus — thereby waiving all federal review — is the equivalent of “sleeping through the trial.”

Federal courts, he noted, have overturned several recent Texas death cases for errors overlooked by state judges, including one involving allegations of discriminatory jury selection by Harris County prosecutors. Federal judges also awarded a new trial to another Montgomery County death row inmate this year based on new evidence presented about forensic errors in his case.

"Late court filings take away final appeals," is a UPI rewrite, via MarketWatch.

Lawyers' failure to file paperwork on time has taken away the final death penalty appeal for nine men in Texas, including six who were executed, records show.

The Houston Chronicle reported Sunday that in the most recent case the Texas Department of Criminal Justice executed Johnny Ray Johnson for the rape and murder of a Houston woman after Johnson's defense lawyers missed a federally mandated filing deadline by one day. One of his attorneys, Jerome Godinich, made the same mistake in the case of death row inmate Keith Steven Thurmond, the newspaper said.

Godinich, in both cases, waited until after business hours on the last day an appeal could be filed and then blamed a malfunctioning filing machine for being late.