The StandDown Texas Project

Dallas Morning News Editorial

"Getting it right on capital punishment," is the Morning News editorial published today.

State lawmakers meant business in the high-crime 1990s, getting tough on so-called writ abuse by convicted killers who could file multiple appeals in state courts and drag out a case for years.

The upshot was passage of the Habeas Corpus Reform Act in 1995, a political no-brainer. The catchphrase was “one bite at the apple” for death-row appeals. The promise was sure and swift justice.

So why is Texas still litigating capital cases from the 1990s?

For good cause, it turns out.

In a 1996 murder case out of San Antonio, Trevino vs. Thaler, the U.S. Supreme Court decided May 28 that the state’s 18-year-old, two-pronged system of automatic appeals for death-row inmates is still not adequate in assuring competent counsel.

The Supreme Court ruling in Trevino v. Thaler is available in Adobe .pdf format

Earlier coverage of the Trevino ruling begins at the link.

Court: Texas Inmate's Decades-Old Sentence Invalid

That's the title of an AP report by Michael Graczyk, via WBAY-TV.  It's also available through Huffington Post as, "Jerry Hartfield, Texas Inmate, Has Life Sentence For Murder Deemed Invalid By Court of Criminal Appeals."

The Texas Court of Criminal Appeals ruling in Hartfield v. Thaler is available in Adobe .pdf format.

Here's an extended excerpt from the AP report:

The life sentence given to a Texas man who has remained in prison for 33 years since being pulled off of death row isn't valid, Texas' highest criminal court said Wednesday, possibly paving the way for a new trial or the inmate's release.

The Texas Court of Criminal Appeals said once it overturned Jerry Hartfield's murder conviction in 1980 for the killing of a bus station worker four years earlier, there was no longer a death sentence for then-Gov. Mark White to commute.

The opinion was given in response to a rare formal request by the 5th U.S. Circuit Court of Appeals to confirm the validity of its ruling overturning Hartfield's conviction, in light of the governor's 1983 commutation. The New Orleans-based federal court made the request, which upheld a lower state court's ruling that the sentence was invalid.

"The status of the judgment of conviction is that (Hartfield) is under no conviction or sentence," Judge Lawrence Meyers wrote in a decision supported by the court's other eight judges. "Because there was no longer a death sentence to commute, the governor's order had no effect."

Hartfield, now 57, was convicted and sentenced to death for the 1976 robbery and killing of a Southeast Texas bus station employee. The criminal appeals court overturned his murder conviction, ruling that a potential juror improperly was dismissed after expressing reservations about the death penalty.

White commuted Hartfield's sentence in 1983 at the recommendation of the Texas Board of Pardons and Paroles, and he has remained in prison since then, unaware until a few years ago that his case was in legal limbo. Court documents in his case described him as an illiterate 5th-grade dropout with in IQ of 51, although Hartfield says he's learned to read and write while in prison.

In its failed appeal to the 5th Circuit, the state argued that Hartfield's life sentence should stand because he missed a one-year window in which to appeal aspects of his case.

Earlier coverage of Jerry Hartfield's case begins at the link.

DC Circuit Court of Appeals to Review Judge Jones Ethics Complaint

The New Orleans Times-Picayune reports, "5th Circuit judge complaint to be considered by Washington D.C. court," by Drew Broach.

A formal complaint against a judge of the 5th U.S. Circuit Court of Appeals in New Orleans was transferred Wednesday to the federal appeals court in Washington D.C. The one-sentence notice of the transfer, posted on the 5th Circuit's website, does not name the judge or describe the complaint, but it appeared eight days after a coalition of civil rights groups challenged 5th Circuit Judge Edith Jones' possibly racist remarks in a February speech at the University of Pennsylvania.

The 5th Circuit's chief judge, Carl Stewart of Shreveport, sought to transfer the complaint, according to a letter from Supreme Court Chief Justice John Roberts to the Judicial Council of the Court of Appeals for the District of Columbia Circuit. It had been Stewart's duty to determine whether the complaint merited investigation and, if so, to order an inquiry by the 5th Circuit's Judicial Council.

Instead, Stewart turned to Roberts, invoking a rule that allows transfers "in exceptional circumstances."

"Rare formal review ordered for federal judge," is the Houston Chronicle report by Lise Olsen.

Chief Justice John Roberts of the U.S. Supreme Court formally ordered on Wednesday that a rare public judicial misconduct complaint against 5th U.S. Circuit Court of Appeals Judge Edith Jones be reviewed by officials in a different circuit — one based in the nation's capital.

"I have selected the Judicial Council of the District of Columbia Circuit to accept the transfer and to exercise the powers of a judicial council with respect to the identified complaint and any pending or new complaints relating to the same subject matter," Roberts said in a letter addressed to the D.C. circuit's chief judge that was posted on the 5th Circuit's website.

It is only one of a handful of times in U.S. history that a federal circuit judge has been the subject of a public judicial misconduct complaint and a formal disciplinary review. Normally such matters are secret under federal law.

"This is a hopeful sign that (federal judges) are taking this seriously," says a lawyer who signed the complaint, James C. Harrington of the Texas Civil Rights Project.

The Austin Chronicle posts, "Complaint About Judge's Alleged Racist Comments Moved to D.C.," by Jordan Smith.

In a brief single-paragraph letter, Roberts wrote that he has selected the D.C. Circuit Court of Appeals to conduct the review of a complaint filed June 4 by a group of civil rights advocates and legal ethicists and alleging that Jones made biased and racist comments during a lecture she gave earlier this year at the University of Pennsylvania School of Law – including that blacks and Hispanics are more likely to commit violent crime and that Mexican Nationals would rather be on death row in the U.S. than in a Mexican prison. Mexico abolished the death penalty in 2005.

Roberts moved the complaint on a request from Fifth Circuit Chief Judge Carl Stewart – who was responding, in turn, to a request to remove the complaint to another circuit made in the original complaint, filed by the Austin NAACP, Texas Civil Rights Project, and LULAC, among others.

The D.C. court will now be tasked with investigating the complaint "and any pending or new complaints relating to the same subject matter," Roberts wrote.

"DC circuit reviewing federal judge's alleged racially discriminatory comments," is the AP filing by Frederic J. Frommer, via the Greenfield Daily Reporter.

The council can take several actions, ranging from a public reprimand to referring the case to the national Judicial Conference of the United States, if the council believes the conduct is grounds for impeachment.

Today's Fort Worth Star-Telegram publishes the editorial, "Judge’s comments raise questions about impartiality."

It’s a mythical ideal that judges are strictly impartial.

They may have preconceived notions about the law, along with well-informed viewpoints based on their experience. And they’re only human; they may form opinions about cases or develop impressions about society based on the perspective those cases provide.

But judges are entrusted with basing decisions on the facts before them and the applicable law, not their presumptions or conjectures. They’re supposed to put aside any biases that might interfere with them acting fairly.

And:

What’s still unresolved, though, are questions about how Texas determines which inmates are too mentally impaired for the death penalty — and how far judges can go in public comments before they undermine public confidence in the courts.

Earlier coverage of the ethics complaint filed against Judge Edith Jones begins at the link.

The ethics complaint filed against Judge Edith Jones is available in Adobe .pdf format.

Texas, Florida Execute

Texas and Florida both conducted executions Wednesday night.

It was Texas' seventh execution of 2013; the 499th post-Furman Texas execution since 1982, Texas is responsible for more than 37% of the nation's  post-Furman executions.

The Longview News-Journal posts the AP report, "Texas executes man who confessed to killing 5," on the execution of Elroy Chester.

The execution was carried out after the U.S. Supreme Court rejected a last-ditch appeal from Chester’s attorneys that focused on the conduct of a judge on the 5th U.S. Circuit Court of Appeals who ruled earlier in Chester’s case.

"Van Poyck executed for role in Palm Beach County officer's death," is the South Florida Sun-Sentinel report by Ben Wolford. It was Florida's third execution in 2013.  

William Van Poyck, whose botched jail break in 1987 left a prison guard dead, spent his last day with family, friends and a spiritual adviser.

An executioner injected poison and stopped his heart at 7:24 p.m. Wednesday at the Florida State Prison in Starke, satisfying his final words, “set me free,” and nullifying 26 years of legal maneuvering to save his life. The U.S. Supreme Court and Gov. Rick Scott rebuffed last-minute appeals for a stay and for clemency.

The Texas and Florida executions were the 14th and 15th of the year in American death penalty states.  To date there have been a total of 1,335 post-Furman executions since 1977.

Earlier coverage of the Texas and Florida cases, at the links.

New 5th Circuit Panel Denies Chester Stay

The new Fifth Circuit panel included Judges Davis, Clement, and Higginson.

IT IS ORDERED that petitioner Elroy Chester's motion for stay of execution is DENIED. His motion to recall mandate also is DENIED.

Pursuant to the court's opinion order of June 11, 2013, re-assigning the matter to us, cognizant of court authority under 5th Cir. R. 41.2, and having reviewed the record in this matter, all legal submissions, written and oral, as well as the court's earlier majority and dissenting opinions and their subsequent history, and in light of our court's earlier and later-reinforcing caselaw, we perceive no injustice, nor any incorrectness, in the affirmance of the district court's order denying habeas relief, and we correspondingly decline to exercise our discretion to recall mandate.

Earlier coverage of Elroy Chester's case begins at the link.

New 5th Circuit Panel Ordered to Consider Elroy Chester Stay - Updated

The three-judge panel that earlier rejected a stay for Elroy Chester has ordered a new panel to consider his request.  The order in Chester v. Thaler is available in Adobe .pdf format. 

The basis for the order is the recent ethics complaint filed against Judge Edith Jones, a member of the panel.  Another member of the panel is Chief Judge Carl E. Stewart, to whom the complaint was directed; he will decide what happens to the complaint next.  Judge Jones dissented.  Judge James L. Dennis, the third member of the panel, concurred and wrote seperately to express his opinion that the court should stay the execution in order to provide the new panel with sufficient time to examine the questions.

The Austin Chronicle posts, "Chief Judge: New Panel Will Be Assigned to Consider Death Row Appeal," by Jordan Smith.

To date, Chester's appeals on this point have been denied. Although experts, and even the Texas Court of Criminal Appeals, have agreed that Chester has a low IQ and some deficits in adaptive functioning – two points that clinicians use to determine intellectual disability – the courts (including the CCA) have nonetheless determined that he is not too disabled to be executed. The nature of his crimes and other non-scientific factors upon which the Texas courts have relied to make such determinations are not unreasonable, the Fifth Circuit ruled in 2012.

That ruling was penned by the court's then-Chief Judge Edith Jones about whom a serious complaint of misconduct was filed by a handful of civil rights groups, with the Fifth Circuit's current Chief Judge Carl Stewart. The complaint alleges that Jones made a number of racist and biased comments during a lecture on the death penalty she gave at the University of Pennsylvania School of Law in February. In addition to claiming that blacks and Hispanics are more violent than are whites, and that claims of racism and innocence made by death row inmates are mere "red herrings," Jones also opined that the Supreme Court decision that outlawed execution of the intellectually disabled does the disabled a disservice and represents a "slippery slope" in death penalty jurisprudence. Indeed, according to the complaint filed last week, Jones also referred to assertions of mental retardation made by death row inmates as "red herrings," and said that the "manner in which these defendants committed their crimes proved that they were not 'mentally retarded,'" reads the complaint.

During the lecture Jones allegedly singled out Chester's case (among a handful of others) for derision, even though his execution at that time had not yet been carried out, and his case may yet have come back to the Fifth Circuit, and to her, for review. According to an affidavit sworn by death penalty attorney Marc Bookman, who runs the Atlantic Center for Capital Representation, that was filed with the complaint, Jones made "special mention of Elroy Chester," during the February lecture. "She said that Chester claimed to be mentally retarded and had been slow in school but he still managed to go on a burglary spree," reads the affidavit. "In the context of talking about this case and others involving claims of mental retardation, Judge Jones commented that she believes it may do a disservice to the mentally retarded to exempt them from death sentencing."

"Appeals panel rethinks killer’s case after judge’s comments," is the AP filing, via the Austin American-Statesman.

Jones denied the motion Tuesday and dissented in a ruling by a three-judge panel that Chester’s case be reassigned to another three-judge panel of the appeals court. James Dennis, one of the judges on the previous panel that included Jones, said Chester’s scheduled execution should be postponed so the new panel has adequate time to consider the case.

“Chester’s execution, of course, will moot those issues, and any constitutional injury to his rights will be irreparable,” Dennis said in his concurring opinion.

The Houston Chronicle and San Antonio Express-News report, "5th circuit panel agrees to exclude Jones from death penalty appeal," by Lise Olsen.

Two judges on the U.S. 5th Circuit Court of Appeals agreed Tuesday to reassign review of the case of a man facing execution Wednesday to a new panel that would exclude Judge Edith Jones, who is the subject of a formal misconduct complaint.

One of the judges, James Dennis, also supported a stay in the pending execution of convicted killer Elroy Chester, which remains scheduled for 6 p.m.

The new three-judge panel is expected to decide whether to stay Chester's execution.

Earlier coverage of Elroy Chester's case begins at the link.

Texas Execution Scheduled for Wednesday

"Death Watch: Chester to die June 12," is by Jordan Smith for the Austin Chronicle.

In all, Elroy Chester is responsible for at least five murders – including the February 1998 murder of a well-regarded Port Arthur fireman, Willie Ryman III, whom Chester shot after Ryman surprised him during a home invasion; Chester had also raped two of Ryman's nieces. For that crime he was sentenced to die.

Indeed, there is no doubt that Chester is a brutal killer, who terrorized Port Arthur during a crime wave that lasted 11 months – in addition to Ryman, he shot and killed at least four other people. What remains in question, however, is whether Chester is mentally retarded. To date, the courts have declared that he is not, meaning he has been cleared to be executed, scheduled now for June 12. He would become the 499th Texas inmate executed since reinstatement of the death penalty in 1976.

5th Circuit Judge Edith Jones reportedly discussed Chester's case at her UPenn Law appearance, which has resulted in an ethics complaint being filed against her.  Chester's attorneys have filed a motion for a stay, citing her comments, in the New Orleans based federal appeals court.

Earlier coverage of the ethics complaint begins at the link.  Earlier coverage of Elroy Chester's case and Texas' mental retardation evaluation standards is also available.  Related posts are in the mental retardation category index.

Mental retardation is now generally referred to as a developmental or intellectual disability.  Because MR has a specific meaning with respect to capital cases, I continue to use the older term at this website. More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

If Elroy is executed, it would be Texas' seventh execution of 2013; the 499th post-Furman Texas execution since 1982,  To date, there have been 13 executions in American death penalty states this year; a total of 1,333 post-Furman executions since 1977.

Unless a stay is issued, Houston's KPFT-FM will host Execution Watch on the web and its HD radio broadcast signal beginning at 6:00 p.m. (CDT), tomorrow evening.

Euro News posts, "Support for death penalty stable in US as Texas approaches 500th execution," by Dr. Stefan Grobe.

Texas is moving closer to an unflattering jubilee: the 500th execution since the death penalty was reinstated in 1976 – barring any last-minute stays or reprieves. This Wednesday, June 12, Texas will execute its 499th person, and execution no. 500 is scheduled for June 26. Texas uses the death penalty more than any other state, and the competition does not even come close.

No. 2 on the execution list is Virginia, which has killed 110 people – and only five since 2010. Texas has executed more people than the next six states (Virginia, Oklahoma, Florida, Missouri, Alabama and Georgia) combined. It wasn’t always so. Texas executed fewer than 10 people a year until 1992, when executions spiked under then-Governor Ann Richards. They peaked under George W. Bush, who sent 37 people to the death chamber in 1997 and 40 in 2000.

According to TDCJ, eight additional Texas execution dates have been set for 2013.

Commentary on Judge Jones' Ethics Complaint

"Judge Edith Jones reportedly sees the death penalty as some kind of mercy," is New Orleans Times-Picayune columnist Jarvis DeBerry's take.

The death penalty. You've heard it called many things: Vengeance, barbarism, deterrence, justice. But even if you're a faithful, church-going Christian, you may never have heard the death penalty described as Edith Jones, a judge at the federal appeals court in New Orleans, is said to have described it in February. The death penalty, she reportedly said, is an accelerant toward salvation.

And:

Jones has long had a reputation for being rather stonyhearted toward death row inmates. In October 2000, she and another judge upheld the death penalty for Calvin Burdine, a Texas man whose lawyer had slept through much of Burdine's trial. But if she sees the death penalty as a blessing, maybe we should think of her as Burdine's spiritual advocate. She wouldn't have gotten an NAACP award for that ruling though, Burdine being white.

It's not that Jones refuted the testimony of the jurors and the clerk of court who agreed that Burdine's lawyer slept "a bunch" and for "long periods of time." But Burdine, according to a decision that got Jones' approval, had failed to show that his lawyer had napped during "a critical stage" of his trial.

If your life is on the line, you're probably inclined to think that every minute and every second of your trial is a critical stage. Appropriately, a majority of the 5th Circuit disagreed that the napping was no big deal and ordered a new trial for the defendant. Burdine struck a deal with prosecutors after that. In 2003 he pleaded guilty and got three life sentences. His lawyers said then that their client was happy that he was no longer facing execution.

Talking Points Memo posts, "Dem Rep Calls For Investigation Into Judge Accused Of Racial Bias," by Catherine Thompson.

Rep. Cedric Richmond (D-LA) called for an investigation into allegations that a federal judge made racially biased remarks in a speech at the University of Pennsylvania Law School on Wednesday, according to the New Orleans Times-Picayune.

And:

"The alleged statements, if true, demonstrate personal racial and religious bias as well as questionable legal analysis," Richmond wrote in the letter, as quoted by the Times-Picayune. "These biases are incredibly inappropriate for a sitting jurist at any level, let alone a former chief judge on one of the highest level Article III Courts of Appeal."

Additional blog commentary includes:

'Allegedly Racist Judge Has a History of Saying Awful Stuff," by Jesse Lava at Huffington Post.  He's the Campaign Director at Brave New Foundation.

National Review Bench Memos blog posts, "A Disturbing Story About Judge Edith Jones," by  Gerard V. Bradley.

Earlier coverage of the controversy begins at the link.

Continuing Coverage of Judge Jones' Ethics Complaint

The ethics complaint filed against 5th Circuit Judge Edith Jones is available in Adobe .pdf format.  Other documents filed with the complaint are also available from the Texas Tribune.

"Judge in hot water: Allegedly said minorities are prone to violence," is by Ben Brumfield and Marlei Martinez at CNN.

Civil rights groups filed a complaint this week against a federal judge in Houston after she allegedly said during a lecture that some minorities are prone to violence.

Judge Edith Jones, who serves on the 5th U.S. Circuit Court of Appeals and was a Bush-era Supreme Court frontrunner, allegedly made the comment while speaking on the death penalty to The Federalist Society at the University of Pennsylvania in February.

And:

Jones was on President George W. Bush's short list for the U.S. Supreme Court in 2005, though legal observers remarked at the time that her reputation has a staunch conservative -- firmly upholding the death penalty and vocally critical of the Roe v. Wade decision, among other issues -- hurt her odds.

"The decision for which Judge Jones is really best known is her opinion saying, 'While I'm a lower court judge, I will apply Roe v. Wade, but I think it was wrongly decided and should be overruled,'" Supreme Court expert Tom Goldstein told CNN. "That really typifies her role as a lower court judge but signals what she would do if she became a Supreme Court justice."

Bloomberg News posts, "Texas Judge Accused of Misconduct for Remarks on Race," by Sophia Pearson.

Edith Hollan Jones, a federal appeals judge in Texas, is the subject of a judicial misconduct complaint from a coalition of civil rights groups over comments she made about race and the death penalty.

During a February event at the University of Pennsylvania Law School in Philadelphia, Jones said black and Hispanic people are “predisposed to crime” and “prone to commit acts of violence,” according to the complaint filed in New Orleans by the League of United Latin American Citizens, the Texas Civil Rights Project and the Austin, Texas, chapter of the National Association for the Advancement of Colored People.

Jones, 64, also allegedly said death sentences provide a positive service to capital defendants, who are likely to “make peace with God” when facing imminent execution. She said that capital defendants who raise claims of “mental retardation” abuse the system and that claims of racism, arbitrariness or innocence are “red herrings” used by death-penalty opponents, according to a copy of the filing supplied by the groups.

And:

The complaint was filed with Chief Circuit Judge Carl Stewart, who must review it and decide whether it should be dismissed or referred to a special committee. Stewart may conduct a limited inquiry in determining what action should be taken under rules established by the Judicial Conduct and Disability Act.

John Council writes, "Complaint: Judge Edith Jones's Speech Showed 'Racial Bias'," for Texas Lawyer.

The complaint arises primarily from a lecture Jones gave on Feb. 20 entitled "Federal Death Penalty Review" at the University of Pennsylvania School of Law.

The complaint alleges Jones made the following points during her lecture:

• The U.S. system of justice provides a positive service to capital-case defendants by imposing a death sentence, because the defendants are likely to make peace with God only in the moment before imminent execution;
• Certain "racial groups like African Americans and Hispanics are predisposed to crime," and are "prone to commit acts of violence," and get involved in more violent and "heinous" crimes than people of other ethnicities;
• Claims of racism, innocence, arbitrariness and international standards are simply "red herrings" used by opponents of capital punishment; and
• Mexican nationals would prefer to be on death row in the United States rather than in prison in Mexico.

The complainants have been unable to locate a video or audio recording of Jones' lecture, says Chuck Herring, a partner in Austin's Herring & Irwin. Herring says he advised the Texas Civil Rights Project in drafting the complaint, in cooperation with other lawyers.

"Circuit Court Judge Edith Jones: How Can I Be Impartial When Everybody Knows Blahs And Browns Are Violent Thugs?" is the Wonkette post.

You guys, have we ever turned you on to Fifth Circuit Judge Edith Jones? We mean, have you ever really listened to her, man? She’s a trip. Such big hits like “Scream At Fellow Judges During Oral Arguments,”  the evocative “Supreme Court is the Source of Moral Decay,” the ear-worm “If You’re Not Actually Raped No Way is it Sexual Harassment,” and her biggest number to date: “It’s Cool if Your Attorney Sleeps Through Your Trial Because Fuck You.”  All of these really pale in comparison to her latest work, though, which we’re calling “Blacks and Hispanics, You So Criminal!”

"A Tale of Sound & Fury (But No Transcript): In Defense of Judge Edith Jones," is Tamara Tabo's Above the Law post.  

Full disclosure before I go further: I interned with and clerked for Judge Jones. I didn’t attend the event in Philadelphia, and I haven’t spoken with her about this situation, but I don’t claim to be a fully impartial observer. I could be the first among many to attest to her dignity, intellect, and impeccable ethical standards. I could even tell you how generous with her time and supportive she’s been of my law school, a historically (and still predominantly) black institution.

But I don’t need to do that.

I don’t need to offer a character reference in order to rebut the accusations made in this complaint. I don’t even need to contest many of the facts that the complaint alleges.

Earlier coverage of the ethics complaint begins at the link.

Additional Coverage of Judge Jones' Ethics Complaint

The ethics complaint filed against 5th Circuit Judge Edith Jones is available in Adobe .pdf format.  Other documents filed with the complaint are also available from the Texas Tribune.

"Complaint: Judge's Death Penalty Remarks Show Racial Bias," is Brandi Grissom's Texas Tribune report.

A federal appellate judge from Texas is facing a judicial misconduct complaint over comments she made regarding race and the death penalty during a speech. 

According to a complaint filed Tuesday by civil rights groups, ethicists and a legal aid organization, 5th U.S. Circuit Court of Appeals Judge Edith Jones allegedly said during a February event at the University of Pennsylvania Law School that “racial groups like African-Americans and Hispanics are predisposed to crime,” and that they get involved in more violent and “heinous” crimes than people of other ethnicities.

A staff member reached by phone at Jones' office said the judge would not make any comments about the complaint. No audio recording of the speech is available.  

Jones, a former chief judge of the New Orleans-based appeals court who practiced in Houston before her 1985 appointment to the federal bench, wrote the court's opinion last year that allowed the Texas sonogram law to stand. 

At the February event, she also reportedly said that Mexican nationals would rather be in a Texas prison than in a prison in their home country. The complaint also takes issue with comments the judge reportedly made criticizing the U.S. Supreme Court’s prohibition on executing the mentally retarded.

The New York Times coverage is, "Complaint Accuses U.S. Judge in Texas of Racial Bias," by Ethan Bronner.

One of the affidavits accompanying the complaint is from Marc Bookman, a veteran death penalty lawyer in Pennsylvania, who attended the lecture. He quoted Judge Jones as saying, “Sadly, some groups seem to commit more heinous crimes than others.” When asked to elaborate, Judge Jones “noted there was no arguing that ‘blacks’ and ‘Hispanics’ far outnumber ‘Anglos’ on death row and repeated that ‘sadly’ people from these racial groups do get involved in more violent crime,” the affidavit said.

Mr. Bookman said in a telephone interview that when the judge was questioned by angry students, “She defensively backed off what she had said or, at least, what the audience had interpreted it to mean.”

Another affidavit is from James M. McCormack, former chief disciplinary counsel for the Texas bar, who said that based on the complaint, “it is my opinion that Judge Jones violated the ethical standards applicable to federal judges under the Code of Conduct for United States judges.”

Judge Jones is alleged to have said that the defenses often offered in capital cases, including mental retardation and systemic racism, were “red herrings.” She also said, according to the witnesses, that Mexicans would prefer to be on death row in the United States rather than in prison in Mexico.

Charles W. Wolfram, one of the country’s experts in legal ethics who is retired from Cornell Law School, said Judge Jones’s alleged statements were a cause of great concern.

“If I were a parent of a black with borderline IQ accused in a capital case, would I be distressed in knowing that Judge Jones was sitting on my case?” he asked in a telephone interview. “Yes, I would. She seems to have made up her mind on these issues. She is slanted. That is the whole point of the impartiality requirement.”

"Federal judge accused of making racial comments," is the AP filing by Will Weissert.  It's via the Austin American-Statesman.

A coalition of civil rights organizations filed a judicial misconduct complaint Tuesday against a conservative federal judge for comments she allegedly made during a speech that are seen as discriminatory.

Judge Edith Jones of the 5th U.S. Circuit Court of Appeals based in New Orleans addressed the University of Pennsylvania law school on Feb. 20. Her comments were not recorded, but five students and one attorney who were in attendance signed affidavits on what was said.

Those were used to generate a 12-page complaint filed in New Orleans stating that Jones “has engaged in conduct that is prejudicial to the effective and expeditious administration of the business of the courts, undermines public confidence in the integrity and impartiality of the judiciary, and creates a strong appearance of impropriety.”

"Federal appeals judge is accused of racial bias for alleged comments on criminal propensities," by Debra Cassens Weiss for the ABA Journal.

Jones is also accused of saying that the death penalty had Biblical origins and it is beneficial to capital defendants. According to the complaint, "She stated that 'a killer is only likely to make peace with God and the victim’s family in that moment when the killer faces imminent execution, recognizing that he or she is about to face God’s judgment.' ”

The complaint also claims that Jones discussed pending cases and that, during a question and answer portion of the program, Jones lost her composure to such an extent that the host of the program abruptly ended the session.

The complaint also targets Jones for a well-publicized confrontation with a colleague during oral arguments in September 2011 in which she accused Judge James Dennis of monopolizing the questioning and told him to “shut up.”

"Complaint alleges federal judge is prejudiced, biased," by Guillermo Contreras for the San Antonio Express-News.

A judge who spent her formative years in San Antonio and was previously considered for a spot on the U.S. Supreme Court is facing a judicial-misconduct complaint over allegations that she made “astonishingly and flagrantly biased” statements against minority groups and people with mental disabilities.

A broad coalition of groups — including an agency funded by the Mexican government (the Mexican Capital Legal Assistance Program), various civil rights organizations, legal ethics experts, and law professors — filed the complaint against 5th U.S. Circuit Court of Appeals Judge Edith Jones, who in October relinquished her title as “chief judge” of that court. The New Orleans-based court is one of the most conservative in the country and handles appeals from Texas, Mississippi and Louisiana.

"Judicial complaint cites federal judge for racially charged comments," by John Simerman of the Baton Rouge Advocate.

Another attendee, identified only as “C.C.” in an affidavit, claimed Jones made the statement about black people and Hispanics being “pre-disposed” to crime, adding that “an awful lot of Hispanics are involved in drug trafficking, and that certain races happen to engage in violent crime more than others.”

“The reaction in the room when she made these remarks was one of shock, surprise and offense,” “C.C.” declared. “As a judge, she came off sounding distasteful and tactless.”

Earlier coverage of the ethics complaint is at the link.  As noted in yesterday's Austin Chronicle report, the complaint will be handled by Carl Stewart, Chief Judge of the U.S. Court of Appeals for the Fifth Circuit.

Ethics Complaint Filed Against 5th Circuit Judge Edith Jones

The Austin Chronicle posts, "Judge Edith Jones: Blacks and Hispanics More Violent," by Jordan Smith.  Here are excerpts from this must-read:

A complaint filed today by several civil rights groups, including one funded entirely by the government of Mexico, alleges that federal Judge Edith Jones has violated her duty to be impartial and damaged the public's confidence in the judiciary, in statements she made in a public lecture – including that blacks and Hispanics are more violent.

Indeed, Jones also said that a death sentence provides a public service by allowing an inmate to "make peace with God."

Jones, who sits on the 5th U.S. Circuit Court of Appeals – based in New Orleans, its jurisdiction includes Texas – made numerous offensive and biased comments during a February lecture at the University of Pennsylvania School of Law, according to the complaint filed pursuant to the federal Judicial Conduct and Disability Act. The complaint, filed by the Texas Civil Rights Project, Austin NAACP, the League of United Latin American Citizens (LULAC), and the Mexican Capital Legal Assistance Program (among others) alleges that during her talk – billed as "Federal Death Penalty Review with Judge Edith Jones (5th Cir.)" – Jones violated a number of canons of the code of conduct for federal judges.

The lecture was not recorded, but witnesses recalled a number of Jones' controversial statements. The views she expressed included not only that minorities are responsible for more violent crime than are whites, but also that claims by death row inmates that racism or arbitrariness infected their prosecutions, or that they are actually innocent or even mentally retarded, are merely "red herrings," according to those who attended the lecture. She told the law students and other attendees that she thought the U.S. Supreme Court's ruling outlawing the death penalty for the mentally retarded did intellectually disabled individuals a disservice, and that to create such an exemption from execution was a "slippery slope," reads the complaint.

And:

Complaints such as the one against Jones, signed also by a selection of nationally recognized legal ethicists, are filed with the chief judge of the court of appeals in the circuit where the judge at issue sits – in this case, the complaint goes to Carl Stewart, the current chief judge of the Fifth Circuit. Upon review of the complaint, Stewart is tasked with determining whether it should be dismissed, whether to take corrective action, or whether to appoint a special committee to investigate the allegations. In this case, the filers are asking that the complaint be referred to another circuit for consideration – which, if granted, would remove the matter from Stewart and the Fifth Circuit.

Related posts are in the Fifth Circuit category index.

In the Wake of Trevino

"Supreme Court orders review of 6 Texas death row cases," is the AP report written by Michael Graczyk.  The article is also available via the Austin American-Statesman.  It comes in the wake of last week's Supreme Court ruling in Trevino v. Thaler.

The U.S. Supreme Court on Monday sent the cases of six Texas death row inmates, including one of the infamous "Texas 7" gang of escapees, back to a lower court for reviews of whether attorneys in earlier stages of appeals let the men down.

The decisions are in line with last week's ruling in another Texas case where the justices, in a 5-4 vote, said a condemned prisoner had deficient legal help early because appeals lawyers didn't raise challenges that his trial lawyers were ineffective.

The high court returned the cases to the 5th U.S. Circuit Court of Appeals for review. None of the six has a pending execution date, although some had come close to being put to death in the past before their punishment was delayed by the courts.

And:

Last week's precedent-setting case for Monday's decisions involved convicted killer Carlos Trevino, 38, a San Antonio street gang member condemned for the 1996 gang rape and fatal stabbing of a 15-year-old Linda Salinas.

Trevino's attorneys argued his trial lawyers were deficient for not investigating evidence of a horrific childhood that could have swayed the Bexar County jury to give him life in prison rather. Then, lawyers in the initial stages of his appeal were equally deficient for not raising the claim that the trial lawyers were ineffective, Trevino's lawyers argued to the U.S. Supreme Court.

The high court disagreed with state attorneys who contended Texas law provided ways to accommodate the challenges and that the appeal was without merit.

The Supreme Court's Order is available in Adobe .pdf format.

Earlier coverage of Trevino begins at the link.

Exceptions to Harsh Rules

That's the title of an editorial published by the New York Times regarding yesterday's Supreme Court rulings in criminal cases, Trevino and Perkins.

On Tuesday, the Supreme Court handed down two important criminal procedure decisions, both allowing defendants to seek habeas corpus review of their convictions in federal court. The 5-to-4 majority, with Justice Anthony Kennedy joining the court’s four moderate liberals, reached the right result in each case. But, in a larger sense, the two decisions show how much the scope of habeas review has been curtailed by the Supreme Court in the last three decades, so that it now must work around earlier precedents to avoid doing injustice.

In a case from Texas, Trevino v. Thaler, the court ruled that a death-row inmate in Texas can make the claim of ineffective counsel for the first time in a federal habeas petition because the rules of Texas procedure made it virtually impossible for him to raise that issue during an appeal in state court.

And:

The Michigan and Texas cases show how heavily engaged the court has gotten in the regulation of criminal justice. Even when the court does the right thing, as it did in these two cases, it often appears to be finding exceptions to harsh rules that it created or upheld in earlier cases. In the Texas case, the court further tinkered with “the machinery of death,” to use Justice Harry Blackmun’s phrase, rather than doing what it should have done by now: shut down the machinery by abolishing the death penalty.

"Divided Court, in 2 Rulings, Makes It Easier to Challenge Criminal Convictions," is the Times news coverage of the two cases, written by Adam Liptak.

In a pair of 5-to-4 decisions that divided along ideological lines, the Supreme Court on Tuesday made it easier for inmates to challenge their convictions.

In McQuiggin v. Perkins, No. 12-126, the majority said that a one-year filing deadline for prisoners seeking federal review of their state court convictions under a 1996 law may be relaxed if they present compelling evidence of their innocence. The new “miscarriage of justice exception” to the deadline, Justice Ruth Bader Ginsburg wrote for the majority, “applies to a severely confined category” — cases in which no reasonable juror aware of the new evidence would have voted to convict the defendant.

The decision did not seem likely to help the prisoner whose case was under review, but the exception it announced drew a barbed dissent from Justice Antonin Scalia, who called the majority opinion “a series of transparent non sequiturs” and “a flagrant breach of the separation of powers.”

And:

In dissent, Justice Scalia wrote that “there is not a whit of precedential support” for the idea that the Supreme Court was entitled to alter the deadline set out in the 1996 law. Chief Justice John G. Roberts Jr. and Justice Clarence Thomas joined all of the dissent, and Justice Samuel A. Alito Jr. joined most of it.

Justice Ginsburg dismissed the dissent as “bluster.”

In the second decision issued Tuesday, in Trevino v. Thaler, No. 11-10189, the same five-justice majority extended a ruling last year that had allowed prisoners to challenge their state convictions in federal courts based on the argument that their trial lawyers had been ineffective, even though the prisoners had not raised the issue in earlier proceedings.

In the decision last year, in Martinez v. Ryan, a seven-justice majority considered Arizona’s criminal justice system, which required claims of ineffective assistance of counsel to be raised in a separate state post-conviction challenge, in which there is no right to a lawyer, and not in the direct appeal from the conviction, in which there is. The Supreme Court ruled that federal courts may hear challenges to Arizona convictions based on claims of ineffective assistance at trial if the prisoner had no lawyer in the separate proceeding or if that lawyer was also ineffective.

“By deliberately choosing to move trial-ineffectiveness claims outside the direct-appeal process, where counsel is constitutionally guaranteed, the state significantly diminishes prisoners’ ability to file such claims,” Justice Kennedy wrote for the majority in the Martinez decision.

The new case considered Texas’ system, which appears to encourage but not require that such claims be raised in a separate proceeding. Justice Breyer, writing for the majority, said that difference did not matter. “What the Arizona law prohibited by explicit terms,” he wrote, “Texas precludes as a matter of course.”

"Supremes Agree Texas Inmate Should Have Appeal Heard," is the Ausin Chronicle report by Jordan Smith.

A 5-4 majority of the U.S. Supreme Court on Tuesday ruled that Texas death row inmate Carlos Trevino may raise for the first time in his federal appeal a claim that his trial lawyer was ineffective in not investigating and presenting mitigating evidence at trial that may have spared his life.

The Court of Criminal Appeals and the federal district and appeals courts previously ruled that Trevino forfeited that claim by not raising it in his state habeas appeal; Trevino argues that the appellate lawyer was also ineffective for not discovering and raising the issue that his trial attorney's performance was deficient.

The ruling, penned by Justice Stephen Breyer, makes applicable to Texas a 2012 ruling in an unrelated case from Arizona. In that case, the court concluded that an inmate could revive in federal court a state-court defaulted claim of ineffective assistance of counsel if there was no meaningful way to previously raise the issue.

In arguing before the Supremes in February, the state argued that the ruling in that Arizona case – Martinez v. Ryan – was not applicable to Texas because, unlike in Arizona, defendants have an opportunity to first raise ineffective assistance claims on their first, record-based direct appeal.

But because of deadlines and other constraints inherent in the Texas legal scheme, there really becomes no ability to meaningfully raise on direct appeal a claim of ineffective assistance at trial, the court ruled.

"U.S. Supreme Court Expands Post-Conviction Appeals," is by Joy Diaz for KUT-FM News.

Jim Marcus with UT Law School’s Capital Punishment Clinic, says today’s 5 to 4 decision means people will now be able to appeal their convictions on the basis of poor representation even in federal court. Marcus filed a “friend of the court brief” in the case of Treviño v. Thaler.

“This is a capital case, the Treviño case,” Marcus said, “but this decision applies to all prisoners, not just death sentence prisoners.”

Even with today’s Supreme Court decision, Marcus says it’s extremely difficult to prove poor representation. Although sleeping attorneys are not very common, he said poor representation by omission is widespread.

Slate posts, "An Innocent Extension," by Emily Bazelon, focused on the Perkins case.

In 1996, Congress cracked down on defendants who repeatedly try to go to court to overturn their convictions. The Antiterrorism and Effective Death Penalty Act (AEDPA), signed by President Bill Clinton, created a thicket of new requirements for people in prison who file last-ditch appeals—called habeas corpus petitions. The idea was that once you’ve lost your first and only direct appeal, you should only get a single try at habeas corpus (the “great writ,” dating from the 14^th century, that allows a prisoner to sue his warden for release). And you were supposed to get moving quickly: The law generally imposed a new deadline of one year from the date on which you lost your direct appeal.

Congress made an exception, however: If you say you have new evidence, then you have one year from the day you could have discovered it through “the exercise of due diligence.” But what if you miss the deadline without any good excuse—and yet the new evidence could show that you are innocent? On Tuesday, the Supreme Court widened what it called the “gateway” to reviewing claims of actual innocence that are made long after the one-year deadline expires. It’s a 5-4 decision, split between liberals-plus-Kennedy and conservatives. The opinions, by Justice Ruth Bader Ginsburg and Justice Antonin Scalia, read like a pitched battle in a long-simmering war. At the end, Ginsburg succeeds in opening what she calls a “gateway” to court for innocence claims that blow by the one-year deadline. But it’s probably not wide enough for Floyd Perkins, the prisoner at the center of this case, to get his own habeas petition heard.

And:

For Scalia, the moral of the story is clear: Innocence doesn’t—and shouldn’t—always win. “This court has never held 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 habeas court that he is ‘actually’ innocent,” he wrote in 2009. Scalia lost that time, too. But in the end, the man he was writing about—Troy Davis—was executed for the murder of a Georgia police officer even though seven of the nine witnesses who testified against him at trial had recanted.

The Supreme Court ruling in Trevino v. Thaler is available in Adobe .pdf format; as is, McQuiggin v. Perkins.

Earlier coverage of Trevino and Perkins, at the links.

5th Circuit Rebuffed in Trevino v. Thaler

The Supreme Court ruling in Trevino v. Thaler is available in Adobe .pdf format.

First word of the ruling comes from SCOTUSblog:

Amy Howe: First is Trevino v. Thaler. Opinion by Breyer, but in his absence it is being announced by Kennedy. Fifth Circuit is vacated and remanded. Vote appears to be 5-4.
 
Holding: When as here a state's procedural framework by reason of its design and operation makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an ineffective assistance claim on direct appeal, the exception recognized in Martinez v. Ryan applies. (It is an exception to the procedural bar rule.)

The Chief dissents, joined by Alito; Scalia wrote a dissent, joined by Thomas.

At issue was whether the Supreme Court's 2012 ruling, Martinez v. Ryan - that prisoners who have compelling claims of ineffective assistance of trial counsel can have those claims heard even if an ineffective state habeas lawyer's failure to raise those claims would have otherwise barred them from being heard in federal court - applied in Texas.  The 5th Circuit had held that it did not because of Texas criminal law procedures.

Earlier coverage of Trevino begins at the link.

I'll update with additional news coverage as it's posted.

5th Circuit Overturns Tarrant County Capital Conviction

The U.S. Court of Appeals ruling in Gongora v. Thaler is available in Adobe .pdf format.

The Texas Tribune posts, "Court Reverses Death Row Inmate's 2003 Conviction."  It's by Maurice Chammah.

A man sentenced to death for the 2001 murder of another man in Fort Worth has had his case overturned by a federal appeals court.

The 5^th U.S. Circuit Court of Appeals agreed with attorneys for Nelson Gongora that prosecutors in his 2003 murder trial should not have suggested to the jury that Gongora's decision to not testify indicated his guilt.

In their decision Wednesday, the 5th Circuit judges wrote that repeated comments by the Tarrant County prosecutor about Gongora's lack of testimony violated his right to a fair trial. The 5th Amendment guarantees criminal defendants the right to not testify at trial and in 1965, the U.S. Supreme Court ruled that this meant a prosecutor could use a decision to not testify as evidence of guilt. The lead prosecutor in Gongora's case, J.D. Granger, did not return a call requesting comment.

Gongora remains on death row while the Tarrant County district attorney's office decides whether to try him again. "It's premature to determine how we're going to proceed," said Melody McDonald, the office's spokeswoman.

And:

The Court of Criminal Appeals, Texas’ highest criminal court, wrote in 2006 that the prosecutors’ comments were “inartful and often confusing,” but did not violate Gongora’s rights. A federal district judge said in 2007 the prosecutor should not have made the comments, but that they did not affect the jury’s decision.

On Wednesday, however, the 5^th Circuit, which reviews appeals from all Texas death penalty cases, wrote that the prosecutor’s comments were “repeated and direct violations” which were “both inexplicable and inexcusable.” In context, the court said, the comments might be read as the prosecutor’s attempt to correct his initial mistake, but over time they served to “reinforce the impression of Gongora’s guilt.”

"Courts Overturn Three Capital Murder Cases," is Jordan Smith's report in the Austin Chronicle.

In that case, a three-judge panel of the Fifth Circuit concluded that the conviction and death sentence handed to Nelson Gongora in 2003 should be vacated, and the case handed back to the district to retry or to dismiss. In its ruling, the court concluded that Tarrant County prosecutors made impermissible comments to the jury about Gongora's failure to take the stand in his own defense, a clear violation of his Fifth Amendment right not to be compelled as a witness. "We find that the extraordinarily extensive comments on Gongora's failure to testify resulted in actual prejudice," the panel ruled.

Gongora was among a handful of men indicted for the 2001 robbery and murder of Delfino Sierra. Gongora was indicted for capital murder in the case, though at trial prosecutors argued that he was either guilty of the robbery and shooting or that he was a participant in the robbery during which Sierra was shot by one of Gongora's cohorts. The result, it seems was confusing: "The jury heard sharply conflicting evidence regarding Gongora's role in the offense, including evidence that the shooter may have been someone other than...Gongora" or a co-defendant, Albert Orosco, reads the Feb. 27 opinion. One witness testified that she didn't see who did the shooting, while others pointed their fingers in several different directions, before ultimately ending up on Gongora – including a witness indicted for the crime but, after agreeing to testify against Gongora, given a plea for 20 years, and a promise that he would not be prosecuted for a second shooting, a fact about which the Fifth Circuit seemed none too amused.

Ultimately, though, prosecutors pointed out that only Gongora did not testify, implying that meant he was the guilty party. Over repeated objection by the defense, prosecutors continued to point out that he failed to take the witness stand. The trial judge declined to grant a mistrial and later rejected Gongora's direct appeal. Texas' Court of Criminal Appeals also ultimately rejected Gongora's argument that the constant comments violated his Fifth Amendment protections. The "complained-of comments appear to be the prosecutors attempt" to comment on the failure of some other witnesses to testify, the CCA concluded. The comments were "not so blatant" that they would have prejudiced the jury, the CCA ruled.

Not only was the CCA wrong, the Fifth Circuit has concluded, but to "conclude otherwise" that the comments did not violate the Fifth Amendment "empties all meaning of this cornerstone of rights upon which our criminal justice system rests," the panel ruled. "Its very centrality renders it a primer rule – etched in the minds of all players in a criminal case. Single episodic violations wil creep in, but repeated and direct violations are both inexplicable and inexcusable. Certainly not excusable by ignorance or inexperience." Not only was the evidence against Gongora fairly weak, the panel noted, but based on notes from the jury during their deliberations, it appears they focused on who and who had not testified – just as prosecutors had suggested they should.

Earlier coverage of Nelson Gongora's case begins at the link.  Related posts are in the prosecutorial misconduct index.

Andrew Cohen on the Case of Jerry Hartfield

"Held Without Retrial for 11,800 Days, Texas Inmate Still Waits for Justice," is Andrew Cohen's latest post at the Atlantic.  Here's the beginning of this must-read:

When American civilization finally crumbles, and future historians download the wreckage, it is conceivable that they will cite the case of Jerry Hartfield to explain to their curious audience how law and justice in our time could be so bluntly subverted by the very men and women whose job it was to administer it. Look how these public officials elevated form over substance, our descendants will say; look how hard they defended such manifest injustice. Look how long it took for the justice system to do justice, even after it became clear to the world that a man was imprisoned for decades without a viable judgment against him.

Hartfield is a black man from Kansas who was quickly convicted in 1977 of murdering a white woman in the Deep South. He is a man who once recorded an IQ of 51, which is far beneath the level at which courts recognize mental retardation in criminal defendants. He is the inmate who remains locked in a Texas prison 32 years -- 11,800 days -- after a state appeals court reversed his murder conviction and ordered that he be given a new trial, a new trial he has never received. He is the prisoner who has continued to sit in a cell while state and federal judges, and state attorneys, piddle over the technicalities of his case.

It has now been more than six years since Hartfield first began to try to unravel the series of errors and omissions which resulted in his wrongful imprisonment. And it could be years more before the courts finally grant him relief. It's hard to know which period is more infuriating: the 23 years during which Hartfield's rights were left unprotected by the justice system; the half-decade or so years since, when state officials, including judges, have refused to help him; or the years more of legal briefings and oral argument that the man will likely have to endure before he gets some relief.

Earlier coverage of Jerry Hartfield's case begins at the link.  More from Andrew Cohen at Atlantic.

Texas Inmate Languishes in Prison After Retrial Order

"Inmate whose conviction was overturned in 1980: ‘I’ve been waiting ever since’ for retrial," is the AP report, via the Washington Post.  It's written by Michael Graczyk.

Jerry Hartfield was still a young man when an uncle visited him in prison to tell him that his murder conviction had been overturned and he would get a new trial.

Not long afterward, he was moved off of death row.

“A sergeant told me to pack my stuff and I wouldn’t return. I’ve been waiting ever since for that new trial,” Hartfield, now 56, said during a recent interview at the prison near Gatesville where he’s serving life for the 1976 robbery and killing of a Bay City bus station worker. He says he’s innocent.

The Texas Court of Criminal Appeals overturned Hartfield’s murder conviction in 1980 because it found a potential juror improperly was dismissed for expressing reservations about the death penalty. The state tried twice but failed to get the court to re-examine that ruling, and on March 15, 1983 — 11 days after the court’s second rejection — then-Gov. Mark White commuted Hartfield’s sentence to life in prison.

At that point, with Hartfield off death row and back in the general prison population, the case became dormant.

“Nothing got filed. They had me thinking my case was on appeal for 27 years,” said Hartfield, who is described in court documents as an illiterate fifth-grade dropout with an IQ of 51, but who says he has since learned to read and has become a devout Christian.

A federal judge in Houston recently ruled that Hartfield’s conviction and sentence ceased to exist when the appeals court overturned them — meaning there was no sentence for White to commute. But Hartfield isn’t likely to go free or be retried soon because the state has challenged a 5th U.S. Circuit Court of Appeals’ decision favorable to Hartfield, arguing he missed a one-year window in which to appeal aspects of his case.

A 5th Circuit panel of the New Orleans court agreed with the district court in an October ruling, but last month it made a rare, formal request to the Texas appeals court asking it to confirm its decades-old decision to overturn Hartfield’s conviction.

Hartfield’s current attorney, Kenneth R. Hawk II, recently described the case as a “one-in-a-million” situation in which an inmate has been stuck in the prison system for more than three decades because no one seems to know what to do with him.

The ABA Journal posts, "Inmate Has Been in Prison Awaiting Court-Ordered Retrial Since 1980," by Debra Cassens Weiss.

The Texas Court of Criminal Appeals overturned Jerry Hartfield’s murder conviction in 1980. He is still in prison waiting for his retrial.

The state court twice refused state requests to reconsider the ruling, the last one in 1983, the Associated Press reports. Eleven days later, the governor commuted Hartfield’s sentence to life in prison, though technically there was no sentence to commute.

“Nothing got filed,” Hartfield told AP. “They had me thinking my case was on appeal for 27 years.”

And:

The Texas court had ruled in 1980 that the state had violated Hartfield’s constitutional rights by striking a juror for cause because of her reservations about the death penalty, the 5th Circuit opinion (PDF) said. The determination affected only the sentence, but state law at the time required a new trial, according to the 5th Circuit.

Though the 5th Circuit said Hartfield needed to present his claims to state court, it did find that his claim is not time-barred because he was not in custody pursuant to the judgment of a state court

An earlier AP report, "Jerry Hartfield, Texas Inmate, Waits 30 Years For Retrial," also written by Graczyk is via Huffington Post.

A Kansas man who remains in a Texas prison more than 30 years after his murder conviction was overturned has become the subject of a fight between the state, which insists he's being legally held, and a federal appeals court that says he's wrongly imprisoned.

Jerry Hartfield, whose conviction was overturned in 1983, maintains his constitutional right to a speedy trial has been violated after the state failed to retry him but also didn't set him free.

A federal appeals court has agreed with him, but he's unlikely to receive a new trial soon after the same court, in a spat with the state attorney general's office, sent his case back to the Texas Court of Criminal Appeals on Wednesday with a request that it define the status of its ruling overturning Hartfield's conviction. If the Texas appeals court accepts the federal appeals court's request, it could set off a new series of legal proceedings that ties up the attorney general's office and drags out the case.

And:

"Hartfield's position is as straightforward and subtle as a freight train," U.S. District Judge Lynn Hughes said.

The state had claimed that Hartfield was legally serving the life sentence ordered by White. It said he had had one year under federal rules to file an appeal on any aspect of his case, and that year started when the retrial was ordered in 1983.

Hughes disagreed, saying the clock on an appeal doesn't start until there's a conviction, and none exists in this case.

"The court's mandate was never recalled, its decision never overturned, the conviction never reinstated; yet Hartfield never received the `entirely new trial' ordered by the court," he wrote.

Changes Coming for the 5th Circuit?

"Obama could reshape 5th Circuit during 2nd term," is Michael Kunzelman's AP report, via the San Angelo Standard-Times.  Here are extended excerpts:

The 5th U.S. Circuit Court of Appeals is widely viewed as one of the nation's most conservative federal appellate courts, but President Barack Obama could get a chance to change that perception in his second term.

Ten of the 15 active judges serving on the New Orleans-based court were nominated by Republican presidents. But six of those GOP-nominated judges are eligible for senior status or will be in the next four years, a change that would allow the Democratic president to nominate their replacements.

The court, which reviews cases from Texas, Louisiana and Mississippi, also has two open seats that already can be filled.

Federal judges don't have a mandatory retirement age and aren't obligated to take senior status, a form of semi-retirement that allows them to continue hearing cases. While there's no telling how many seats may open up, even a handful of vacancies would give Obama an opportunity to reshape the court's ideological bent during his second term.

Russell Wheeler, a Brookings Institution visiting fellow who is an expert on judicial selections, said it's plausible that the Democratic-nominated judges among active 5th Circuit judges go from being a 2-to-1 minority to holding a slim majority before Obama leaves office.

"I wouldn't call that math. I'd call that informed speculation," he cautioned. "It really all depends on the degree to which (Obama) can find nominees that Republican senators find acceptable."

A senator from the state where a vacant seat is located can block a hearing on a nomination. Texas, Louisiana and Mississippi each have at least one Republican senator. And, practically speaking, Senate rules allow any senator to prevent a confirmation vote on a nominee.

And:

Two judges nominated by Obama already serve on the 5th Circuit. Of the remaining active judges, six were nominated by George W. Bush; four were tapped by Ronald Reagan; two were picked by Bill Clinton and one was nominated by Jimmy Carter. The court also has seven senior judges, five of whom were nominated by Republican presidents.

The 5th Circuit is one of 13 federal circuit courts. Obama has made a deeper imprint on the Richmond, Va.-based 4th U.S. Circuit Court of Appeals, long considered an equally conservative court. He nominated six of the 15 active judges on the 4th Circuit, swinging the court's majority in favor of Democratic nominees.

"It's a little early to tell, but there's a feeling (the 4th Circuit) is not as conservative as it was and has shifted away from that conservative reputation," University of Richmond law professor Carl Tobias said.

Related posts are in the Fifth Circuit and judiciary category indexes.

5th Circuit Affirms Mississippi Lethal Injection Procedure

The ruling in Thorson v. Epps is available in Adobe .pdf format.

"Inmate loses challenge to Miss. execution method," is the AP report by Jack Elliott Jr., via WJTV-TV.

A federal appeals panel has rejected a death row inmate's challenge to Mississippi's method of execution by lethal injection.

Roger Thorson had appealed to the 5th U.S. Circuit Court of Appeals after a Mississippi federal judge dismissed his lawsuit against Corrections Commissioner Christopher Epps.

On Wednesday, a 5th Circuit three-judge panel rejected Thorson's claim.

The panel says much of Thorson's complaints about the protocol were speculation.

The panel says the state has shown that its method of execution and the procedure for administration of the lethal injections alleviate cruelty and reduce harm in capital punishment.

Earlier coverage of Mississippi lethal injection issues begins at the link.

 

Supreme Court to Hear Texas Case

The Texas Tribune posts, "Supreme Court To Hear Texas Death Row Inmate's Case," by Maurice Chammah.

The U.S. Supreme Court agreed on Monday to hear the case of Texas death row inmate Carlos Trevino in a case that could determine whether a defendant in Texas has a right to “competent” attorney during habeas appeals — a challenge to a criminal conviction that considers whether the defendant's constitutional rights were violated during his trial.

In March, the nation’s highest court decided in Martinez v. Ryan that the failure of state habeas lawyers to argue that their client's trial counsel was ineffective should not keep the defendant from being able to make that argument later in the appeals process.

The question in the Trevino case is whether the court's decision in Martinez applies in Texas, said Trevino’s lawyer, Warren Alan Wolf. The U.S. 5^th Circuit Court of Appeals decided in November 2011 that since the laws governing habeas appeals in Texas are different from those in Arizona, the Martinez decision does not apply.

Lyle Denniston posts, "Court grants four cases, seeks government views," at SCOTUSblog.

Among the cases that the Court did grant, the case of Trevino v. Thaler (11-10189) is of major importance for criminal law.  The petition, by lawyers for a Texas death-row inmate, Carlos Trevino, argued that lower federal courts have denied prisoners like him the opportunity to test their convictions and death sentences in federal court on the theory that their defense lawyers were deficient during state court proceedings.  In the Supreme Court’s decision last March in Martinez v. Ryan, the Court made a significant exception to the long-standing rule that a state prisoner cannot pursue a challenge in federal habeas court if the inmate failed to bring up the challenge first in state court.

In the Martinez case, the Court said that inadequate performance by a defense lawyer in state court can be used as an excuse for failing to have raised that issue in state court, at least in situations when a state did not allow such a claim until after a conviction had become final and the inmate pursued post-conviction remedies in state court.  When state laws bar such a claim until the post-conviction stage, the Court ruled, the procedural bar to raising that issue in federal habeas is set aside and a habeas judge can consider the ineffectiveness claim.

Lower federal courts ruled, however, that Texas courts sometimes allow a state inmate to bring up an ineffective lawyer claim prior to a post-conviction stage, so the Martinez decision does not apply in Texas, including death-penalty cases there.

"Justices to See If Late Habeas Claim Is Justified," is Barbara Leonard's report for Courthouse News Service.

A death row inmate will get a new shot at habeas relief after the Supreme Court agreed Monday to take up his case in light of precedent that infuriated Justice Antonin Scalia earlier this year.

Carlos Trevino was convicted in 1997 of murdering 15-year-old Linda Salinas.

And:

After the trial court sentenced Trevino to death, the inmate unsuccessfully applied for habeas relief at the state level, then filed a petition in federal court, but stayed that proceeding to exhaust another option in state court. When that maneuver failed, Trevino stayed his federal habeas proceeding a second time to exhaust another claim in state court.

Since Texas failed for over two years to appoint Trevino a lawyer in connection to the new claim, the federal court lifted the stay and resumed proceedings.

A federal judge denied Trevino's eight claims for federal habeas corpus relief, but it granted the inmate a certificate of appealability (COA) on three of the issues.

Trevino had argued that the court should stay further proceedings until the Supreme Court resolved a pending question about whether ineffective assistance of state habeas counsel in failing to raise a meritorious claim of ineffective assistance of trial counsel established cause for a default in state habeas proceedings.

The 5th Circuit refused to stay Mr. Trevino's appeal for this purpose and would not grant COAs on the five claims that the lower court rejected in November 2011.

Four months later, the Supreme Court decided in Martinez v. Ryan that ineffective assistance of state habeas counsel, mirroring that which Trevino has described, could establish cause for the default of a claim of ineffective assistance of trial counsel.

Earlier coverage of the Martinez v. Ryan ruling begins at the link.  Related posts are in the Supreme Court index. 

Texas Execution Scheduled Thursday

Texas is set to carry out its 11th execution of 2012, tonight in Huntsville.  It would be the 488th post-Furman executions since 1982.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

"Pardons board rejects cop killer's request for clemency," is Allan Turner's report in the Houston Chronicle.

Harris County cop killer Anthony Haynes moved a step closer to execution on Tuesday when the Texas Board of Pardons and Paroles unanimously rejected his request that it recommend his death sentence be commuted to life in prison.

Haynes alternately had asked the board to recommend to Gov. Rick Perry that his execution be stayed for 90 days to allow for a review of his case. The board also rejected that request.

Haynes, 33, the son of a former Houston arson investigator, is to be put to death on Thursday for the fatal May 1998 shooting of off-duty Houston police Sgt. Kent Kincaid, 40.

The Austin Chronicle reports, "Two More in Line for Death Penalty," by Jordan Smith.

Jurors in Haynes' case deliberated for three days before sentencing the teen to death.

That sentence was overturned, however, after the 5th U.S. Circuit Court of Appeals agreed with Haynes' defense that an unusual jury-selection setup in Haynes' case had denied his right to equal protection under law. Indeed, two different judges presided over Haynes' jury selection; one heard prosecutors interview individual jurors, and a second heard the lawyers' arguments for striking from service the potential jurors. As it turned out, the state used its power to strike all but one of the black potential jurors, arguing that it was not their race that excluded them (which would be illegal), but their "demeanor." But Haynes' appeal attorney argued that the judge who allowed those strikes had not actually witnessed the jurors' questioning and thus could not actually have seen whether their demeanor would be a basis on which to have them struck. The U.S. Supreme Court ultimately disagreed with the 5th Circuit, ruling that there was no rule that would require a judge to "personally observe" the juror questioning when deciding whether a juror is lawfully struck from service.

To date, there have been 32 executions in American death penalty states this year; a total of 1,309 post-Furman executions since 1977.

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

According to TDCJ, eight additional executions have been scheduled by Texas district courts, including two set for 2013.  The next scheduled Texas execution in October 24.

5th Circuit Lifts Jonathan Green Stay

"Appeals court lifts Green's execution stay," is the AP report via the Montgomery County Courier.

A federal appeals court has lifted a reprieve for a convicted killer in Texas, reinstating his scheduled execution hours before it was to be carried out for the slaying of a 12-year-old girl more than decade ago.

The state attorney general's office had asked the 5th U.S. Circuit Court of Appeals to overturn the stay of execution given earlier this week to condemned prisoner Jonathan Green. The 44-year-old was convicted of the abduction, rape and strangling of Christina Neal in 2000.

He's set to die Wednesday evening in Huntsville.

The issue is now before the Supreme Court.

Earlier coverage of Jonathan Green's case begins at the link.  Related posts are in the competency and mental illness category indexes.

Texas has carried out 9 executions this year; a total of 486 post-Furman executions since 1982.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

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

According to TDCJ, seven additional executions have been scheduled by Texas district court.  Two executions have already been set for 2013.

Stay of Execution Over Flawed Competency Hearing

"Judge stays execution of young girl's killer," is Mike Tolson's Houston Chronicle report.

A federal district judge on Monday blocked the execution of Jonathan Green, two days before he was set to die for the 2000 murder of a 12-year-old Montgomery County girl.

U.S. District Judge Nancy Atlas ruled that a state mental competency hearing violated due process standards and that the judge who conducted it applied incorrect standards for determining competency for execution.

"The inadequacies of the state court's process and the resulting constitutional violations require this court to stay Green's execution," Atlas said in her 17-page order.

And:

Green's lawyers argued the hearing before Michalk was held so quickly after it was granted - two days later - that medical personnel from the Texas Department of Criminal Justice who had treated Green were not available to testify.

They asked for a delay so those workers could be brought to court. The judge denied the request, which Atlas found unreasonable.

"Considering the heavy reliance the state court's opinion places on its credibility determinations of the two experts and the notable absence of any reference to the TDCJ medical records in the state court findings, the state court's denial to Green of the opportunity to present the TDCJ witnesses casts serious doubt on the fundamental fairness of the competency proceeding," she wrote.

Atlas said her order deals only with the fairness of the process.

"Because the state court unreasonably applied Supreme Court precedent and failed to provide due process, a stay of execution is necessary," Atlas' order stated. "The court here is concerned only with the question whether Green is entitled to a stay of execution and not with the ultimate question of whether he is incompetent to be executed."

"Texas judge stays execution of man who raped, killed 12-year-old," is the Los Angeles Times report by Molly Hennessy-Fiske.

A federal judge in Houston on Monday stayed the execution of a Texas man and granted him a competency hearing days before he was to be put to death for the abduction, rape and strangulation of a 12-year-old girl.

Soon after the ruling, the Texas Attorney General’s Office filed a notice of appeal with the U.S. 5th Circuit Court of Appeals in New Orleans. A spokesman for the attorney general declined to comment.

And:

The judge noted that Green’s competency was still an open question that required a hearing — not because he failed to establish that he was incompetent, but because “he was prevented from doing so" through a lack of due process.

Green's Houston-based lawyer, James Rytting, praised the ruling as "a thorough decision."

"Houston judge stays Jonathan Green's execution," is the AP filing by Micahel Graczyk, via the Fort Worth Star-Telegram.

Texas Attorney General Greg Abbott's office filed notice Monday that it will appeal a federal judge's order halting an execution scheduled for Wednesday of a Montgomery County man condemned for the abduction, rape and strangling of a 12-year-old girl in 2000.

Attorneys for the state office rushed to file a one-paragraph notice with the 5th U.S. Circuit Court of Appeals in New Orleans hours after U.S. District Judge Nancy Atlas in Houston granted a stay to Jonathan Green, 44.

The full appeal will be filed today, the attorney general's office said. Green's lawyers would then have the opportunity to respond to the state's arguments.

Atlas' ruling came in an appeal from Green's attorneys challenging a state judge's decision two years ago that Green was mentally competent for execution for the slaying of Christina Neal.

And:

Atlas said her ruling was concerned "only with the question whether Green is entitled to a stay of execution and not with the ultimate question of whether he is incompetent to be executed."

"It is clear from the record that, at a minimum, the trial court prevented Green from presenting testimony by treating mental health professionals, relied on an order solicited from and drafted by the state to which Green had no opportunity to object, and applied at least one incorrect legal standard," Atlas ruled.

Judge Atlas' order in Green v. Thaler is available in Adobe .pdf format.

Earlier coverage of Jonathan Green's case begins at the link.  The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in the 1986 case, Ford v. Wainwright; more via Oyez.

Related posts are in the competency and mental illness category indexes.  Two cases involving competency to be executed are being heard in the Supreme Court this morning.

Texas Execution Scheduled Tuesday

Texas is scheduled to carry out its ninth execution of 2012, tonight in Huntsville.  It would be the state's 486th post-Furman execution since 1982.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

"Texas Death Row Inmate Seeks Fourth Stay of Execution," is Brandi Grissom's Texas Tribune post.

Death row inmate Cleve Foster, a former military recruiter, is hoping the courts will for the fourth time in a year stay his execution, which is scheduled for Tuesday evening.

After the U.S. 5th Circuit Court of Appeals denied his appeal, Foster’s lawyer, Maurie Levin, filed an appeal with the U.S. Supreme Court. She said on Monday that the justices had called for the record in the case, a step they don’t always take.

“They’re taking it seriously,” said Levin, who is also an adjunct professor and co-director of the Capital Punishment Clinic at the University of Texas at Austin.

"Texas inmate narrowly avoided execution 3 times, tries for fourth," is the Los Angeles Times report by Molly Hennessy-Fiske.

A Texas inmate whose appeals have three times spared him the death penalty is again scheduled for execution Tuesday.

Cleve Foster, 48, was sentenced to die for his part in the abduction and killing of a 30-year-old Sudanese woman near Fort Worth in 2002.

And:

Foster still had appeals pending Monday, alleging he had poor legal representation at his 2004 trial and early in the appeals process.

Michael Graczyk files, "Death row inmate to relive execution day for third time," for AP.  It's via the Dallas Morning News.

Appeals again were pending in the courts, focusing on what his lawyers argued was poor legal help both at his 2004 trial in Fort Worth and by attorneys early in the appeals process. Similar appeals resulted in the three previous reprieves the courts subsequently have lifted, but his lawyers argue his case should get another look because the legal landscape has changed in death penalty cases.

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.

To date, there have been 29 executions in American death penalty states this year; a total of 1,306 post-Furman executions since 1977.

According to TDCJ, seven additional executions have been scheduled by Texas district court.  Two executions have already been set for 2013.

Earlier coverage of Cleve Foster's case begins at the link.

Life Sentence for Long-Serving Harris County Death Row Inmate

Today's Houston Chronicle reports, "DA's office plans to not seek execution of man on death row since 1978."  It's by Allan Turner.

After three convictions and death sentences, all of which were at least partially overturned on appeal, the Harris County District Attorney's Office plans to drop efforts to execute Anthony Pierce, who has been on death row since 1978.

"I expect he will get a life sentence," Assistant District Attorney Lance Long said of a hearing set for Thursday in state District Judge Denise Collins' court.

That sentence would be applied under state laws in force at the time of Pierce's August 1977 murder of fried chicken restaurant manger Fred Johnson, 40, meaning that he could be eligible for parole consideration.

And:

Pierce, 53, who has spent more time on death row than all but two of its current residents, was convicted of capital murder and sentenced to death on three occasions, most recently in 1986.

Appeals courts tossed the first two convictions because of jury selection problems. Two years ago, a three-member panel of the U.S. Court of Appeals for the Fifth Circuit threw out the last trial's punishment phase because jurors were kept from hearing mitigating evidence as required by law.

A new punishment phase was set for Collins' court  on Sept. 10.

Pierce's attorney, Robert K. Loper, hailed the decision to drop efforts to execute his client, noting that the one-time Houston laborer consistently has proclaimed his innocence. Loper said seating a jury for a new punishment trial likely would have taken about three weeks, and prosecutors would have had to present evidence regarding the crime.

"Harris County DA's office won't seek new death sentence for killer on death row 34 years," is the AP report, via the Republic.

Prosecutors in Houston say they won't seek the death penalty again in the case of a man who first went to death row 34 years ago and whose sentence has been thrown out by an appeals court.

And:

Pierce was convicted and condemned three times and appeals courts found problems with all three trials. Pierce ranks third in seniority on Texas death row.

Related posts are in the mitigation index.

Problems with Texas' jury charge in death penalty cases were first ruled unconstitutional by the Supreme Court in the 1989 case, Penry v. Lynaugh.  That ruling was more fully applied following the 2007 case, Abdul-Kabir v. Quarterman; more on both cases via Oyez. Juries must be able to consider all mitigating evidence that might lead them to issue a life sentence rather than a death sentence.  Texas' 1975 death penalty law did not allow jurors to do that.

Supreme Court Refuses Marvin Wilson Stay of Execution

The U.S. Supreme Court has refused to stay tonight's execution of Marvin Wilson.

The breaking news AP report is, "US Supreme Court Allows Execution of Texas Inmate."

The U.S. Supreme Court cleared the way for the Tuesday evening execution of a Texas death row inmate whose lawyers say is ineligible for the death penalty because of his low IQ.

Marvin Wilson, 54, was sentenced to death for killing a police informant two decades ago. His attorneys pointed to a psychological test that pegged his IQ at 61, below the threshold of 70 that would suggest he's mentally impaired. But lower courts agreed with state attorneys who questioned the test's validity.

The Supreme Court denied his request for a stay of execution less than two hours before his scheduled 6 p.m. lethal injection.

Attorneys for the state argued Wilson's claim was based on a single 2004 test that may have been faulty and that his mental impairment claim wasn't supported by other tests and assessments of him over the years.

There has been media attention to the case throughout the day.  The Houston Chronicle has posted, "Steinbeck's son decries court opinion that invoked 'Lennie'," by Allan Turner.

Thomas Steinbeck, son of Nobel laureate John Steinbeck and a California-based novelist and journalist, sharply criticized the Texas Court of Criminal Appeals for its reference to the character Lennie Small in a ruling considering factors indicative of retardation.

And:

Thomas Steinbeck's wife, Gail Steinbeck, said the couple was alerted to the reference to the fictional character by an article appearing in the openly anti-death penalty The Guardian, an English newspaper.

She said she showed the article to the writer and "his ears turned red" in anger.

"I couldn't get this thing off my mind," she said. "I was sitting there and my skin kept crawling."

Gail Steinbeck said the court misinterpreted the Lennie Small character, saying, "What Steinbeck was saying in that story had nothing to do with execution. It was about friendship between two men..."

Steinbeck's statement is the second item in the linked post.

The Daily Beast posts, "Retarded—And Condemned To Die In Texas," by Matthew DeLuca.

The Daily Beast has annotated the report of the neuropsychologist, Donald Trahan, which is at the center of Wilson’s petition to the Supreme Court. Trahan wrote the report following his 8-hour assessment of Wilson in 2004. We spoke to both Trahan and Richard Dieter, the executive director of the Death Penalty Information Center.

You can view the annotated Trajan report at the link.

Earlier coverage of Marvin Wilson's case begins at the link.

Updated News Coverage of Marvin Wilson's Case

Today's Houston Chronicle reports, "Inmate's IQ becomes an issue in execution appeal."  It's by Heather Nolan of the Beaumont Enterprise.

Convicted killer Marvin Lee Wilson, set to die Tuesday for a crime committed 20 years ago, said he often was teased about being illiterate when he was growing up in Beaumont.

"People, when they see that you is stupid, dumb and ignorant, they rather make fun of it and laugh about it, make you the laugh of the town, rather than say man, (he) needs some help," Wilson said during a recent interview on death row. "I spent my life fighting trying to defend my honor rather than trying to learn."

His IQ is at the heart of one appeal to his execution, and his attorneys on Tuesday plan to ask a state appeals court to review DNA found at the scene of the crime, where 21-year-old Jerry Robert Williams, a Beaumont Police Department confidential informant, was kidnapped and killed.

In his appeal already before the U.S. Supreme Court, attorney Lee Kovarsky asked justices to overrule lower courts' opinions that Wilson is not mentally retarded and therefore eligible for the death penalty.

The updated AP report is, "Low IQ score focus of Texas death row appeal," by Michael Graczyk.

Death row inmate Marvin Wilson spent his school years in special education classes, got failing or near failing grades and several times received "social promotions" to the next grade level until he finally quit school in the 10th grade.

Wilson's lawyers have asked the U.S. Supreme Court to overrule state and lower federal courts that questioned the validity of a psychological test that pegged his IQ at 61, below the threshold of 70 that would suggest he's mentally impaired and thus, ineligible for capital punishment.

If Texas proceeds with Wilson's scheduled Tuesday execution in Huntsville, he "will own the grisly distinction" of becoming the lowest-IQ Texas prisoner put to death despite the Supreme Court ruling banning the execution of mentally impaired inmates, his lead attorney, University of Maryland law professor Lee Kovarsky, wrote in an the appeal.

"Texas set to execute mentally retarded man," is the UPI filing.

The Supreme Court, in 2002's Atkins vs. Virginia, banned the execution of the mentally retarded. But Texas uses its own process, called Briseno after a state court case, in which the "mildly retarded" can be executed.

In a petition to the Supreme Court, Wilson's lawyers argue using the Briseno process violates the high court ruling in Atkins.

Wilson's petition said a court-appointed neuropsychologist concluded the inmate was mentally retarded -- a conclusion that was never challenged.

"Mr. Wilson received a 61 on the Wechsler Adult Intelligence Scale, Third Edition ('WAIS-III'), recognized as the gold standard of intellectual assessment," his petition said. "The WAIS-III measures verbal and non-verbal (performance) components, yielding a full-scale IQ ('FSIQ') score. Mr. Wilson's FSIQ places him below the first percentile of human intelligence."

Additional news coverage includes:

"Texas Set To Execute Marvin Wilson Despite Diagnosis Of ‘Mental Retardation’," by Joseph Orovic for International Business Times.

"Texas set to execute mentally retarded man," by Brett Wilkins at Digital Journal.

"Marvin Wilson, death row inmate diagnosed as 'mentally retarded,' to be executed," at Global Post.

Earlier coverage of Marvin Wilson's case begins with the preceding post.

Stop This Execution

That's the title of today's Dallas Morning News editorial on the pending execution of Marvin Wilson.

A person whose intellectual disability is a matter of dispute is scheduled to be executed by the state of Texas today. The U.S. Supreme Court should grant a stay, in light of the state’s outrageously loose, nonscientific method of assessing a person’s intelligence.

Executing someone with an intellectual disability — traditionally called mental retardation — violates the Eighth Amendment’s ban on cruel and unusual punishment, the Supreme Court held in a landmark 2002 case, Atkins vs. Virginia.

Since then, death penalty states have devised tests to eliminate questions of a person’s intelligence level. In Texas, however, lawmakers have failed to draw the line between who is and isn’t execution-eligible, based on intellectual function.

That left the Texas Court of Criminal Appeals to its own devices, and it got in way over its head in fashioning legal principles governing who will live and who will die. In doing so, the court groped to define “that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty.”

The court invoked John Steinbeck’s classic novel Of Mice and Men as a guidepost, saying: “Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt.”

We mean no disrespect to the common sense of Texans, but few of us — judges included — have any business assessing a person’s intellectual abilities when his life is on the line. That should be left to trained experts, but Texas’ post-Atkins routine has no clear requirement on expert input or protocols.

And:

A year before Atkins was decided, the Legislature passed a bill adopting a new procedure on assessing intellectual deficiencies through court-appointed experts. That was a huge step in the right direction, but Gov. Rick Perry vetoed the measure.

Given the spotlight now on a mess that has been festering for a decade, we hope lawmakers get an updated version of that bill back through the Legislature. Texas shouldn’t allow the courts to chisel away at the important protections the Constitution provides.

Thomas Steinbeck, son of the late author John Steinbeck, has issued this statement:

"On behalf of the family of John Steinbeck, I am deeply troubled by today's scheduled execution of Marvin Wilson, a Texas man with an I.Q. of 61. Prior to reading about Mr. Wilson's case, I had no idea that the great state of Texas would use a fictional character that my father created to make a point about human loyalty and dedication, i.e, Lennie Small from Of Mice and Men, as a benchmark to identify whether defendants with intellectual disability should live or die. My father was a highly gifted writer who won the Nobel prize for his ability to create art about the depth of the human experience and condition. His work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous, and profoundly tragic. I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way."

- Thomas Steinbeck

Houston Chronicle columnist Lisa Falkenberg writes, "Texas view of executing mentally ill based on fiction."

At 54, Marvin Wilson can't use a telephone book. He reads and writes on a first- or second-grade level. Those who know the Southeast Texas man say he can't match socks, he doesn't understand what a bank account is for, he's been known to fasten his belt to the point of nearly cutting off his circulation. The day his son was born, one sister recalled, he reverted to the familiar habit of sucking his thumb.

His IQ, according to the most valid indicator of human intelligence, is 61, below the first percentile. This was one of many clinical tests and factors that led a neuropsychologist with decades of experience to diagnose Wilson with "mild mental retardation."

Nevertheless, at 6 p.m. Tuesday night, the state of Texas, in your name and mine, is scheduled to kill Marvin Wilson by lethal injection. The U.S. Supreme Court - citing the Eighth Amendment prohibition against cruel and unusual punishment - banned the execution of the mentally retarded a decade ago.

But like other federal mandates, Texas has found a way around this one, too.

The U.S. Supreme Court, in a 2002 decision in a case called Atkins, exempted all mentally ill offenders from execution, in part because those who struggle with impulse control, for example, are less culpable for their crimes. But also because mentally ill offenders may be especially vulnerable to wrongful convictions since they're less able to help attorneys build strong defenses.

Wilson is a textbook example.

And:

The 5th U.S. Circuit Court of Appeals has found the lower court's interpretation reasonable. The Texas Legislature has failed to address the issue after Gov. Rick Perry vetoed an earlier ban on such executions passed by lawmakers.

Wilson's last hope is for the U.S. Supreme Court to step in on Tuesday and grant a stay of execution so that the high court can consider his case along with another similar Texas case pending before it.

Once again we need the nation's highest court to save us from ourselves. To remind us of our humanity. To impose on us the cruel confines of decency.

"Dancing Around the Death Penalty," is Erika Christakis' post at Time.

Central casting couldn’t produce a better illustration of what’s wrong with the death penalty than Marvin Wilson, the 53-year-old Texan with an IQ of 61 who is (barring an unforeseen stay) scheduled for execution this evening. With the mental age of a 6-year-old, he reportedly had trouble mastering basic self-care skills like tying his shoes and counting change. His alleged role in the kidnapping and murder of police drug informant Jerry Williams was always unclear; no evidence or eyewitness reports directly linked him to the murder, and his alleged co-conspirator, Terry Lewis, escaped with a life sentence (with parole) when his wife testified that Wilson had confessed the crime to her.

Yet, the focus on extreme cases like Wilson’s — and whether he is legally and somehow “legitimately” executable despite his mental incapacity — prevents us from facing a larger truth that all state-sanctioned executions are a shameful relic of a bygone era along with the burning of witches and the use of child labor in mines.

And:

One of the hallmarks of a civilized society is the delegation of justice to a third party rather than to a vengeful mob with flaming torches. It’s true that support for the death penalty remains higher (around two-thirds of the population) than in 1966 (42%) when the death penalty was illegal. This puts us in the dubious company of rogue states like Yemen, Pakistan and Syria. But it’s also true that just because the majority wants it does not mean it is correct. We cheapen our government — and ultimately ourselves — by requiring the state to have a hand in what Supreme Court Justice Harry Blackmun once called the “machinery of death.”

Dallas Morning News editorial writer Rodger Jones posts, "Marvin Wilson boasts of chess prowess, hopes for stay on retardation claim," at the Opinon Blog.

"Killing the retarded no big deal in Texas," is Meteor Blades' Daily Kos post.

In the next post, I'll link the updated news coverage.

Earlier coverage of Marvin Wilson's case begins at the link. Related posts are in the mental retardation index. 

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.

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

Marvin Wilson's Execution Scheduled for Tuesday

The Nation posts, "Will Texas Execute a Man With an IQ of 61?"  It's by Liliana Segura.

If 54-year-old Marvin Wilson is put to death on Tuesday, it will not be because Texas denies that he is intellectually disabled, or as the legal literature puts it, “mentally retarded.” This much, the state recognizes. It just does not believe that Wilson is disabled enough to be executed in Texas—a flagrant violation of the 2002 Supreme Court ruling in Atkins v. Virginia, which held that “the mentally retarded should be categorically excluded from execution,” period.

Thus, barring a last-minute intervention, a man who has been diagnosed with an IQ of 61 and who sucked his thumb well into adulthood, now faces the prospect of being strapped to a gurney and injected with lethal chemicals until he is pronounced dead. “It doesn't usually get to this point when you have an Atkins claim this strong,” his lawyer, Lee Kovarsky, told me over the phone on Sunday. “This claim is really sort of the worst of the worst.”

Kovarsky grew up in Texas and has seen his share of death row injustices. Yet, clients like his are hardly exceptional. “If getting the death penalty is like getting struck by lightning,” he says, drawing on Justice Potter Stewart's famous quote about the arbitrariness of capital punishment, “then it seems to strike offenders with MR a lot. Because their disability prevents them from effectively disputing guilt or culpability, they end up on death row for some of the least aggravated first-degree murders that are tried to verdict."

Indeed, a list compiled by the Death Penalty Information Center shows forty-four such prisoners executed before Atkins, noting that some claiming intellectual disability have been killed since then. Others, like Johnny Paul Penry—a man with an IQ of 56 who did not know how many hours there were in a day, still believed in Santa Claus and came within days of execution in 2000—are now imprisoned for life. (The DPIC lists twelve more Texas prisoners whose sentences were reduced after Atkins.)

"Texas set to execute death row inmate diagnosed as 'mentally retarded'," by Ed Pilkington for the Guardian.

Barring a last minute intervention by the courts, Marvin Wilson, 54, will be put to death by lethal injection even though he has been subjected to scientifically-recognised tests that show him to be intellectually disabled – or "mentally retarded" as the US legal system still calls the condition.

In 2002, the US supreme court banned executions for all such prisoners under the Eighth Amendment of the constitution that prohibits excessive punishment. The 2002 ban, in Atkins v Virginia, is categorical: individuals with mental retardation cannot be put to death. The court allowed some discretion on the part of individual states to devise procedures for administering the injunction, but no right to ignore it.

Texas took that discretion to mean – wrongly in the view of many lawyers and mental health experts – that it could set its own definition of retardation.

Instead of a clinical or scientific approach, based on widely recognized tests set out by the American Association on Intellectual and Developmental Disabilities, Texas decided to go its own way.

It came up with a set of seven criteria, known as "Briseno factors" after the decision that announced them, to determine which prisoners with learning difficulties should live and which should die.

The determinants were posited around the character Lennie Small in Steinbeck's 1937 novel Of Mice and Men.

"Most Texas citizens," the argument ran, "might agree that Steinbeck's Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt" from execution. By implication anyone less impaired than Steinbeck's fictional migrant ranch worker should have no constitutional protection.

WestLaw Insider posts, "Texas to execute mentally retarded man; state claims man isn’t mentally retarded."  It's by Jeremy Byellin of Thomson Reuters.

In 2002, the Supreme Court decided Atkins v. Virginia, which categorically prohibited the imposition of the death penalty on any mentally retarded individual.

If Wilson is truly mentally retarded, how is the state of Texas able to carry out his execution?

Simply put, by changing the definition of “mentally retarded.”

Texas did this in 2004 with the criminal appellate ruling Ex parte Briseño.

The ruling held that the Supreme Court left “to the States the task of” determining who, in fact, was mentally retarded within the definition of which there is a “national consensus.”

The Briseño court then went on to the find that the consensus in Texas is that Lennie, the character from John Steinbeck’s Of Mice and Men would be considered mentally retarded.

However, medical definitions of mental retardation, such as those set by the American Association on Intellectual and Developmental Disabilities (AAIDD), are far too broad, since they include those individuals that could become “mentally-unimpaired citizens if given additional social services support.”

The Briseño opinion then goes on to list seven factors to determine whether an individual is, in fact, mentally retarded for the purposes of determining whether imposing the death penalty would be unconstitutional.

These Briseño factors do not take any medical or scientific evidence into account.

Instead, they are all based on external layperson observations, and the wording is such that the presiding judge has almost complete discretion in applying them.

Earlier coverage of Marvin Wilson's case begins at the link.  Related posts are in the mental retardation index.  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.

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

If Texas executes Marvin Wilson, it would be the state's seventh execution of 2012; Texas' 484th post-Furman execution since 1982.  Texas accounts for more than 37% of the nation's executions.

To date, there have been 24 executions in the nation this year; a total of 1,301 post-Furman executions since 1977.  According to TDCJ, seven additional executions have been scheduled for 2012 by state district courts.

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.

5th Circuit to Hear Mississippi Lethal Injection Challenge

"Court to hear lethal injection appeal," is Jack Elliott Jr.'s AP report, via Jackson Clarion-Ledger.

A federal appeals court has agreed to review a death row inmate's challenge to Mississippi's method of execution by lethal injection.

Roger Thorson has appealed to the 5th U.S. Circuit Court of Appeals after a Mississippi federal judge dismissed his lawsuit against Corrections Commissioner Christopher Epps.

The 5th Circuit has scheduled oral arguments for Sept. 7 before a three-judge panel in New Orleans.

Thorson's case marks the second time the 5th Circuit has considered a challenge to Mississippi's lethal injection protocol.

In 2008, the 5th Circuit ruled Mississippi's method of lethal injection "appears to be substantially similar" to a protocol affirmed by the U.S. Supreme Court. The challenge was brought by Leo Dale Bishop, who later was executed for his role in a 2000 slaying.

The language was significant because the U.S. Supreme Court ruled in April 2008 that Kentucky's method is acceptable, as are "substantially similar" protocols. That ruling came after two death row inmates in Kentucky challenged the procedure in a lawsuit that blocked executions around the country for months.

That defense is raised by the state of Mississippi in response to Thorson's suit. The state says all the issues raised by Thorson were settled with the U.S. Supreme Court and the 5th Circuit follow-up in the Bishop case.

And:

Thorson, in court documents, said there are significant differences between how executions are conducted in Mississippi and Kentucky.

Thorson contends that "much of lethal injection protocol in Mississippi is based on pattern and practice and not written regulations."

"Nothing in the pattern and practice upon which the state relies confirms that Mississippi's protocol is substantially similar to the protocol that passed constitutional muster," Thorson argues in court documents.

"Leaving the implementation of important medical safeguards to ensure the humane execution of capital defendants to the whim and vagaries of corrections personnel cannot and should not receive the approval of this court," Thorson argues.

Earlier coverage of Mississippi lethal injection issues begins at the link; additional coverage from Mississippi is also available.  Related posts are in the lethal injection index.

The Supreme Court's 2008 ruling Baze v. Rees, examining the three-drug lethal injection procedure in Kentucky, generally approved lethal injection executions.  Kentucky, however, has recently announced it intends to switch to a single-drug lethal injection; more at the link.

Mentally Retarded and on Death Row

That's the title of an editorial in today's New York Times on the Texas case of Marvin Wilson.

Marvin Wilson, with an I.Q. of 61, is scheduled to be put to death in Texas on Tuesday. His execution would directly contradict the Supreme Court’s 2002 ruling in Atkins v. Virginia that “the mentally retarded should be categorically excluded from execution” because of “their disabilities in areas of reasoning, judgment and control of their impulses.” The court should accept Mr. Wilson’s case for review and end Texas’s illegal defiance of its explicit holding that the death penalty for the mentally retarded is unconstitutional.

The court found a national consensus against executing the retarded. But it said states must apply professional standards in identifying people with retardation because “not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.”

The Texas Court of Criminal Appeals in a 2004 ruling perversely read that directive to mean that the state could devise its own restricted test for retardation. It bluntly rejected the Supreme Court’s “categorical rule making such offenders ineligible for the death penalty.” It defiantly refused to recognize “a ‘mental retardation’ bright-line exemption” even for those who “legitimately qualify” as mentally retarded for other purposes.

The Texas court’s ruling was the basis for its rejection of mental retardation claims in at least 10 death penalty cases.

The United States Court of Appeals for the Fifth Circuit has deepened this injustice. It has repeatedly denied habeas corpus appeals by death row inmates under the Antiterrorism and Effective Death Penalty Act, insisting that state court rejections of mental retardation claims were not “contrary to” or “an unreasonable application” of “clearly established federal law.”

And:

The court must stop this cruel and unconstitutional execution of a mentally retarded man.

"Advocates: Don't Execute Mentally Retarded Man," is Brandi Grissom's Texas Tribune post.

A state senator joined anti-death penalty advocates on Friday in calling on Texas to halt next week's execution of Marvin Wilson, whose lawyers argue he is mentally retarded.

“Unfortunately, Texas continues to circumvent the U.S. Supreme Court’s categorical ban on the execution of offenders with mental retardation by developing its own set of determining factors for who will be exempt from execution," state Sen. Rodney Ellis, D-Houston, said in a press release.

Wilson, who was convicted of shooting to death 21-year-old Jerry Robert Williams of Beaumont nearly 20 years ago, is set to die on Tuesday. His lawyers have appealed to the Supreme Court, arguing that the standard Texas courts use to determine mental retardation is unreasonable and asking the court to clarify how states should gauge mental competency for execution.

And:

In their petition to the Supreme Court, Wilson's lawyers argue that the Texas criteria "lack any scientific foundation" and unfairly exclude people who would otherwise legitimately be considered clinically mentally retarded. 

"It is consistent with an approach that has gotten more and more aggressive in violating the rule that states cannot execute people with mental retardation through a process of defining that category down," said Wilson’s attorney, Lee Kovarsky, an assistant professor of law at the University of Maryland.

Wilson's lawyers said he scored a 61 on the Wechsler Adult Intelligence Scale, placing him below the first percentile of human intelligence. Defense experts have diagnosed Wilson with mild retardation in comparison to others with the same diagnosis. And, the lawyers said, no state expert or evidence has contested Wilson's mental retardation claim. At the time of Wilson's original trial in 1992, Kovarsky said, lawyers did not present evidence of mental retardation because it would have been considered a factor that would have made him more dangerous and more likely to be sentenced to death.

"Marvin Wilson, Texas Man With 61 IQ, To Be Executed In Days," by John Rudolf at Huffington Post.

Marvin Wilson was always slow.

Growing up in extreme poverty in east Texas in the 1960s, he struggled with basic tasks, like tying his shoes, counting money, and mowing the lawn. He fared miserably in school, earning D's and F's in special education classes and failing the 7th grade. The other kids called him "dummy" and "retarded." He was socially promoted to the 10th grade, then dropped out for good.

As an adult, he did manual labor and had a son with a common-law wife. But he remained extraordinarily childlike, according to his younger sister, Kim Armstrong.

"I couldn't believe it when I saw him still sucking his thumb when his son was born," Armstrong said in a 2003 affidavit. "Marvin was in his twenties."

Yet Wilson, now 53, was not slow enough for the Texas and federal courts that authorized his death by lethal injection next week for a 1992 drug-related murder by ruling that he is not covered by a 2002 Supreme Court ruling prohibiting the execution of the mentally retarded.

Human rights groups, legal experts and a Texas state senator denounced the imminent execution as a clear flouting of the law, while Wilson's attorneys have filed a last-ditch appeal with the Supreme Court, and requested a stay of execution from the Texas Board of Pardons and Gov. Rick Perry.

In their bid to halt the execution, Wilson's allies point to a 2004 psychological exam that measured his IQ at just 61. In Texas, the benchmark for mental retardation is an IQ of about 70 or below. Other states use a threshold IQ of 75 or lower.

Earlier coverage of Marvin Wilson's case begins at the link.  Related posts are in the mental retardation index.

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.

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

Will Texas Execute a Psychotic Man?

That's the title of Andrew Cohen's latest Atlantic post.  It' subtitled, "One prison doctor after another has diagnosed Marcus Druery as severely mentally ill. Does the Constitution permit the death penalty anyway?"  Here's the beginning:

Some things are relatively simple about the case of Marcus Druery, a convicted murderer whom Texas officials plan to execute Wednesday evening at the state's death chamber in Huntsville. The details of the Halloween 2002 crime for which Druery was convicted are horrible, for example, and there is no pending legal claim that Druery is innocent or was wrongly convicted. This time, at least, no one seems to doubt that the police, the prosecutors, the witnesses, and the jurors all got the right man.

But there is one thing about the Druery case that is very complicated, indeed. No one seems to dispute that Druery now suffers from delusions and a psychotic disorder that doctors have consistently labeled as a form of schizophrenia. Nevertheless, despite these diagnoses, and despite United States Supreme Court precedent that precludes the execution of prisoners "who are unaware of the punishment they are about to suffer and why they are to suffer it," Texas still intends to execute Druery.

If the courts permit, that is. Late Friday, the Texas Court of Criminal Appeals stayed the Druery execution "pending further order." The unpublished ruling means that state appellate judges want to look more closely at defense claims that Druery has shown enough evidence of incompetency to preclude his execution. The central legal question here is: Can a state execute an "Undifferentiated Type" schizophrenic? Put another way, how mentally ill does someone need to be to be too mentally ill to be executed?

If the substance of the Druery appeal has to do with a single man's mental health, the process that led us here is illustrative of the deeply flawed nature of Texas' capital punishment system. We see in this case a judge more angry about delays than he is committed to accuracy. We see prosecutors with risible disdain toward defense counsel. And we see it all in a case in which the condemned man has been judged to be seriously mentally ill over and over again by the state's own doctors.

Earlier coverage of Marcus Druery's case begins at the link.

Related posts are in the competency and mental illness category indexes.  In April, I added the competency category index.  Earlier posts dealing with compentency are available under the Scott Panetti index.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in a 1986 case, Ford v. Wainwright; more via Oyez.

Coverage of Scott Panetti's case begins at the link.  More on the U.S. Supreme Court 2007 ruling in  Panetti v. Quarterman is via Oyez.

There are several notable posts on the question of competency to be excuted:

• The Criminally Mentally Ill
• Scholarship - Mental Illness & Competency to Be Executed

Yokamon Hearn & the Tattered Legacy of the Fifth Circuit Court of Appeals

Yokamon Hearn is scheduled to be executed by Texas on Wednesday, July 18, even though his trial and appeals lawyers never discovered – and no judge or jury ever considered – compelling life history evidence that would have explained why he came to be charged with capital murder and why he should have been sentenced to life in prison rather than death.

Even though the U.S. Supreme Court has found that cases such as Yokamon Hearn's should get evidentiary review, the Fifth Circuit once again is saying that U.S. Supreme Court precedent doesn't apply to Texas.

The Fifth Circuit has just denied Hearn's petition for review.  The Order is available in Adobe .pdf format.

As I've noted before, problems with Texas' jury charge in death penalty cases were first ruled unconstitutional by the Supreme Court in the 1989 case Penry v. Lynaugh, and subsequently, in Penry v. Johnson.  The Court held that juries must be able to consider all mitigating evidence that might lead them to issue a life sentence rather than a death sentence.  Texas' 1975 death penalty law did not allow jurors to do that.

For more than a decade, the Fifth Circuit allowed executions to continue in spite of the two Penry rulings.

Only after the Supreme Court intervened in the Abdul-Kabrir and Tennard cases did that dark chapter of Texas history close.  It is critically important that the Supreme Court intervene in this case to determine decisively whether its 2012 decision in Martinez v. Ryan applies to Texas.

In Martinez, the Court held that prisoners who have compelling claims of ineffective assistance of trial counsel, can have those claims heard even if an ineffective state habeas lawyer's failure to raise those claims would have otherwise barred them from being heard in federal court.

A three-judge panel of the Fifth Circuit, however, recently decided that Martinez does not apply to Texas, in the case of Ibarra v. Thaler, thereby preventing prisoners from the country's most active death penalty state from having access to Martinez's protections. This is the ruling that Yokamon Hearn is attempting to challenge.

The Failures of Yokamon Hearn's Trial

Hearn was sentenced to death for the 1998 murder and kidnapping of Frank Meziere in Dallas. Pleadings show that his trial counsel conducted virtually no investigation into Hearn's life history, an essential part of any capital case. The jury that sentenced Hearn to die did not know that:

• Mr. Hearn's parents were severely impaired and neglected him throughout childhood;
• His mother's alcoholism was so severe that she drank to the point of passing out during her pregnancy with Mr. Hearn;
• Mr. Hearn has been diagnosed with a disabling condition known as Fetal Alcohol Syndrome;
• His mother also suffered from serious mental health problems throughout Mr. Hearn's life;·
• His father suffered from cognitive deficits and had a history of incarceration for violent offenses.

As a result of his parents' utter inability to meet his needs, Hearn suffered from mental health problems as a child.  At the age of ten, his suicidal thoughts resulted in emergency care.  Testing shows that he suffers from brain damage. All of these facts were discovered in investigations long after Mr. Hearn’s trial and his state and federal habeas proceedings were concluded. The jury that sentenced him heard none of this evidence.

Yokamon Hearn's First Postconviction Proceedings

After he was sentenced to death, new lawyers were appointed to represent Hearn on his post-conviction appeals. At that point, his new lawyers should have discovered and brought Hearn's life history evidence to the courts' attention, but they did not. They failed to do any investigation or raise any claim about trial counsel’s ineffective assistance.  Again, a critical failure of an essential part of the habeas attorney's role in a capital case's post-conviction review.

As a result, Mr. Hearn now suffers from what the Atlantic columnist Andrew Cohen recently described as "ineffective assistance of counsel squared."   If you haven't read his must-read column, I hope you'll do so now.

In March of this year in Martinez v. Ryan, the Supreme Court recognized for the first time that the situation presented in cases like Hearn's requires that courts review the case in depth. The Supreme Court called this a matter of fundamental fairness.

What changed with Martinez is that the Supreme Court recognized that prosecutors could no longer use procedural rules to bar federal court inquiries into bad lawyering in capital cases.  Because of the Supreme Court's Martinez decision, Hearn is seeking federal court review of his ineffective assistance of trial counsel claim for the first time.

Unless the Supreme Court intervenes, Mr. Hearn will be executed with no review of his claim that trial counsel were ineffective.  His Petition for Writ of Certiorari is available in Adobe .pdf format.

Earlier coverage of Yokamon Hearn's case begins at the link.  It's also referenced in an article on fetal alcohol syndrome.

A Day in the Life of the Death Penalty: July 18, 2012

That's the title of Andrew Cohen's latest post at the Atlantic.  Here's the beginning of this must-read:

Next Wednesday, July 18, reckons to be another banner day in the history of capital punishment in America. Sometime between 6 p.m. and midnight, the state of Texas is scheduled to execute a convicted murderer named Yokamon Hearn, a man who has, since early childhood, shown clear and consistent evidence of brain damage. And at 7 p.m., the state of Georgia plans to execute a convicted murderer named Warren Hill, who years ago was deemed by a veteran state judge to be mentally retarded.

These executions will take place, absent extraordinary Supreme Court or gubernatorial intervention, because federal and state judges at lower levels of our nation's justice system have perversely interpreted recent United States Supreme Court decisions.  Whereas the Justices have tried in the past few years to give men like Hearn and Hill more access to meaningful appellate review, judicial obstructionists down below have refused to apply either the letter or the spirit of the new procedural rules. 

In Texas, the perpetually rogue Fifth Circuit, in an opinion dripping with disdain for the justices in Washington, has just refused to apply the precedent established in Martinez v. Ryan, a Supreme Court decision issued in March that sought to expand appellate rights for defendants like Hearn. In Georgia, meanwhile, the state supreme court has refused to designate Hill as mentally retarded, scoffing at the mandate of Atkins v. Virginia, the Supreme Court's ruling banning the execution of the mentally retarded.

Neither man claims to be innocent. Neither man would ever set foot outside of a state prison even if he were to prevail on his claims. In both instances, original fact-finders (the trial judge or jury) were deprived of material evidence that the Supreme Court has long expected of the "mitigating" phase of a capital case. In both cases, incomplete and therefore inaccurate judgments were rendered. Yet look at how hard all these jurists have fought, how much they have contorted controlling precedent, to block Hill and Hearn from fixing the record.

Earlier coverage of the cases of Yokamon Hearn and Warren Hill, at the links.  The Atlantic has much more from Andrew Cohen.

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.