The StandDown Texas Project

Helen Prejean Keeps Campaigning for Repeal

"Sister Helen Prejean's passion to end the death penalty is a challenge to others," is the New Orleans Times-Picayune profile written by Sheila Stroup. It's available in a slightly abbreviated version, "After 2 decades, nun's crusade continues," via AP and NECN.  Here's the beginning:

For two decades, Sister Helen Prejean has traveled around the country and the world, speaking out against capital punishment. She tells audiences about being a spiritual adviser to inmates on death row and talks about what it means to accompany a man to his death. She tells of meeting the families of the doomed men and the families of their victims. She talks about how the court system works, and how it doesn’t. She speaks of forgiveness.

She calls her passion to end the death penalty “a journey that’s still happening.”

During an interview many years ago, she took me back to the beginning of that journey, when her audiences were considerably smaller than they are now. “I had my smallest crowd right here in New Orleans, at the St. Christopher Home,” she said. “Three people showed up, and two of them nodded off.”

That was before her book “Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States,” was published in 1993, and before Susan Sarandon won an Oscar portraying her in the movie.

Since then, Sister Helen has given hundreds and hundreds of talks and filled countless auditoriums. She wrote a second book, “The Death of Innocents: An Eyewitness Account of Wrongful Executions,” which came out in 2004.

Related posts are in the activism and religion category indexes.

Albany Times Union Editorial Honors David Kaczynski

Today's Albany Times Union publishes the editorial,"To Mr. Kaczynski, in awe."  He's recently retired as the executive director of New Yorkers for Alternatives to the Death Penalty.

The fight against violence, and the quest for justice, is stronger for his effort. It must go on.

David Kaczynski is far too humble, and much too introspective, to ever be entirely comfortable in the public spotlight. That was true almost 20 years ago, in the brutal scrutiny that came with his courageous decision to turn in his brother, the Unabomber. And it was true, too, in his valedictory Monday night as the most accomplished death penalty opponent in New York.

The occasion was Mr. Kaczynski's retirement as director of the group New Yorkers for Alternatives to the Death Penalty — once known as New Yorkers Against the Death Penalty, before the state's capital punishment law was wiped off the books. But it was no time to declare victory, or to bask in the success of a powerful movement against the politics of vengeance.

And:

The need for restorative justice and more sensitivity toward crime victims is as great as ever.

One great triumph of a group that as recently as 2007 was in search of a new mission is its critically important role in the development of the very successful anti-gun program known as SNUG. Another is an effort, known as Limits of Loyalty, in which victims of violent crime and witnesses to violent crime are encouraged to embrace the larger cause of justice.

New York's death penalty statute was struck down by the state's Court of Appeals in 2004.  Lawmakers have declined to reauthorize capital punishment.

There is additional coverage of David Kaczynski on this site.

James Holmes Case Will Test New Judge's Patience

That's the title of an AP report filed by Dan Elliott, via the Boulder Daily Camera.

The new judge who was thrust into the death penalty case against theater shooting suspect James Holmes was relaxed and quick-witted during his first hours on the job -- qualities that could be severely tested as the high-stakes drama grinds on.

District Judge Carlos A. Samour Jr. took over in the middle of a hearing Monday, walking into the courtroom 30 minutes after his predecessor, William Sylvester, called a recess and left.

Sylvester took himself off the case, saying the prosecutors' decision to seek the death penalty meant that the months of hearings and the trial wouldn't leave enough time for his administrative duties as chief judge of a busy, four-county district. He appointed Samour to take over.

Earlier coverage of the Colorado case begins at the link.

An Update From Maryland

On NPR's Sunday edition of Weekend All Things Considered, Marot Adler reported, "Once On Death Row, He Now Fights To Defeat The Death Penalty."  There is audio at the link.

Maryland is about to become the 18th state to abolish the death penalty.

A bill has passed the state Senate and is expected to pass the House of Delegates easily with the governor's ardent support. The strongest advocate to end the death penalty in Maryland is Kirk Bloodsworth, who was convicted of murder in that state in 1985 and was the first person in the U.S. to be sentenced to death row then exonerated by DNA evidence.

When you meet Bloodsworth, he comes across as the kind of guy you might want to go for a beer with. He's large and amiable, and comes across as a regular guy — maybe a crab fisherman, something it turns out he loves to do.

When he speaks about his experiences, he's calm. "What do you do with your life after spending almost a decade in prison and two years on death row? What do you do with the trauma?" he asks without a trace of anger.

WBAL-AM reports, "Week 10: Gas Tax Hearing, Death Penalty Vote Ahead In House."  It's by Robert Lang.

The House Judiciary Committee approved the bill on Friday, just days after the bill received final approval in the Senate.

Like their counterparts in the Senate, opponents  in the House committee proposed amendments to allow the death penalty in certain cases, and like the Senate, those amendments were rejected.

The committee's report on the bill is expected to be read on the House floor tonight. 

Debate is expected to begin tomorrow, and a final vote could take place as early as Wednesday.

"Death penalty repeal may not be petitioned onto ballot," is the Annapolis Capital Gazette report written by Alex Jackson.

Del. Neil C. Parrott, chairman of petition website MDPetitions.com, said petitioning Gov. Martin O’Malley’s death penalty repeal to the 2014 general election ballot isn’t a foregone conclusion.

That’s even though some opponents of the repeal, including Senate President Thomas V. Mike Miller Jr., D-Calvert, have said they think a referendum vote likely.

But “there’s no talk about” such a petition drive at the grass-roots, Parrott said. “It’s probably not going to be petitioned.”

Parrott indicated he’s more interested in leading a petition drive against House Bill 493, the Referendum Integrity Act — a measure he believes could choke off future referendums if it passes.

The Washington County Republican led petition drives that placed on the 2012 ballot three measures passed by the General Assembly: legalizing same-sex marriage, in-state tuition for some illegal immigrants, and the state’s congressional redistricting plan.

All three challenges failed.

Earlier coverage of the Maryland repeal legislation begins at the link.

Profile of An Activist

"Woman crusades to save sister’s life, end the death penalty," is by Tracy Simmons for Religion News Service, available via the Washington Post.  It's also available via Huffington Post.

They stood in front of a shopping mall, shackled together, heads down, nameplates dangling around their necks, bearing the names of men and women who have died on America's death row.

Cal Brown.

Teresa Lewis.

Cameron Todd Willingham.

Behind them, stood Victoria Ann Thorpe, dark makeup painted on her cheeks and a sign painted to look like blood stains waving above her head: "Their blood is on our hands."

Somehow, despite Thorpe's gory exterior, she's approachable.

"Would you like information on the death penalty?" she asks shoppers as they exit the mall, unable to avert their eyes from the scene in front of them. She hands them a clipboard and one by one, they fill out postcards showing their support to abolish the death penalty in Washington. The cards will later be sent to state lawmakers. The group has also protested at Gonzaga University and so far has collected more than 200 signatures.

Thorpe, along with the Safe and Just Alternatives organization and The Inland Northwest Death Penalty Abolition Group, is seeking to pass a state law to replace the death penalty in Washington state with life without parole.

Related posts are in the profile category index.

Craig Watkins on the Rivas Execution

D Magazine posts the interview, "Dallas DA Craig Watkins on Witnessing His First Execution."  It's by Zac Crain, and it appears in the April issue.

D Magazine: You didn’t prosecute the Texas 7 case. Why did you feel the need to go to George Rivas’ execution?

Watkins: I will tell you why. I have to make a determination on whether or not a person will be eligible for the ultimate punishment. So the reason I went was because I have experienced all aspects of capital punishment, but I hadn’t experienced the end, and so I needed to experience that. So I can be very sensitive in the decision-making process when I make a determination if a person is eligible for the ultimate punishment. I needed to experience all aspects of it. That’s why I did it.

And:

D Magazine: What’s your ultimate goal regarding the death penalty?

Watkins: The broader issue is, look, I have walked 25 men out of prison for crimes they didn’t commit. We have gotten this case in Williamson County, where the DA withheld evidence, or it’s alleged that he withheld evidence. Because of that, a guy spent 25 years on death row. The Supreme Court of Texas has instituted a court of inquiry to look into the actions of this individual. At the time he was DA; now he is a judge. You have got the Todd Willingham case. We have had all of these folks who have been exonerated that were on death row throughout our nation.

And so my concern, basically, is, look, we are seeking the ultimate punishment against someone, and we need to have all the safeguards in place to make sure that we don’t wrongly execute someone. And I think with all the evidence that we have seen, I think anyone that does not come to the conclusion that a person has been executed in this country for a crime they didn’t commit is being irresponsible. So that’s my position. Like I said, I can argue from my moralistic standpoint all day, but that’s not where the argument should be had. It should be one of logistics. Are we making mistakes? Do we need to reevaluate the process to make sure we are not making mistakes?

Earlier coverage of Craig Watkins begins at the link.

Craig Watkins

Today's Dallas Morning News reports, "District Attorney Craig Watkins says his great-grandfather was executed."  It's by Jennifer Emily and Ed Timms.

Dallas County District Attorney Craig Watkins offered a hint Wednesday to his nearly lifelong opposition to the death penalty, an opinion that changed only two years ago during a close re-election campaign.

“People don’t know that my great-grandfather was executed by this state,” Watkins said.

Watkins is the first black man elected district attorney in Texas, a Democrat whose national reputation largely rides on his pursuit of justice for wrongly convicted inmates.

The startling pronouncement came during a celebratory news conference after the official exoneration of Richard Miles, who spent 15 years behind bars for a murder and attempted murder he didn’t commit.

Watkins left the news conference without further comment and declined to talk again, saying he would not be available until Friday. He offered no further details on his great-grandfather.

That man, Richard Johnson, was executed on Aug. 10, 1932. An Associated Press story from October 1931 published in The Dallas Morning News said that Johnson was sentenced to death after a jury deliberated for 40 minutes in the murder of a Fort Worth man, Ted Nodurft. The murder occurred just more than a month before the trial.

Before telling the media that his relative was executed, Watkins said that exonerations should be used to examine whether the state is “doing the right thing” by using capital punishment. He also said that his office will continue to pursue death cases because it is the law.

And:

Watkins, at various times since he took office in 2007, has publicly said that he was against the death penalty and then changed his mind and said he supported it.

“I came in with a certain philosophical view. I don’t have that anymore,” Watkins said in 2010 when he announced he’d support the death penalty. “From a religious standpoint, I think it’s an archaic way of doing justice. But in this job, I’ve seen people who cannot be rehabilitated.”

Watkins at the time said he still had concerns that prosecutors somewhere might send the wrong person to death row.

His office continues to seek death sentences.

Dallas County has exonerated 22 men on the basis of eyewitness testimony since 2001. Several others, including Miles, were cleared with other evidence.

The Morning News also has more on the Miles exoneration, "Judge formally exonerates Dallas man wrongly convicted," by Jennifer Emily.

Earlier coverage of Craig Watkins begins at the link.

A Profile of Christina Swarns

Today's Washington Post carries, "Defense lawyer fights racism in death row cases."  It's written by Lonnae O’Neal Parker.  Swarns is the LDF as the Director of the Criminal Justice Practice at the NAACP Legal Defense Fund, an organization that has been at the forefront of fighting capital punishment.  Here's the beginning:

There’s a steadfast cheeriness to Christina Swarns as she talks rapid fire about the contours of her day. There are the rigors of her end-to-end Manhattan commute, how rarely she dresses like a grown-up and the usual challenges of the professional working mom.

But that changes when the conversation turns to the role of race in the criminal justice system. Then the Howard University grad becomes all authority and passion. She cites case law, death-penalty statistics and the history of Southern lynchings.She talks without pause, punctuating her words with hand gestures, even as her favorite portobello sandwich goes untouched in front of her.

As director of the criminal justice unit at the NAACP Legal Defense Fund, Swarns, 43, is one of the most prominent capital-defense lawyers in the country — the rare black woman in a community whose public face is most often white and male. Over the course of her career, she’s gotten seven convicted murderers off death row; one was exonerated, three had their convictions overturned and three had their death sentences vacated. But it is her most recent victory that is by far the most high-profile.

In December prosecutors in Philadelphia declined to seek another death sentence against Mumia Abu-Jamal, a decision that took him off death row for the first time in 30 years and rewarded years of effort Swarns — and many others — had put into the case. In 1982, Abu-Jamal was convicted of killing a Philadelphia police officer and his decades-long court battles gained him a national and international following. There have been hip-hop tributes, “Free Mumia” T-shirts and a street named for him in France. When it was announced that he would no longer face the death penalty, famed writer Alice Walker wrote him a poem, activist and Princeton University professor Cornel West led a rally at the Philadelphia Constitution Center and the former South African archbishop Desmond Tutu called for his immediate release.

Abu-Jamal is Swarns’s biggest case, and she’s thrilled for the renewed attention it has received. But what she really wants is more scrutiny on an entire system she says is unfair and unjust.

And:

For Swarns and “everybody in the [capital-defense] community,” she says the connection between the death penalty and race is irrefutable. “The death penalty is a direct descendant of lynching,” she says. “The states with the highest number of lynchings also have the highest numbers of death-penalty executions.

Swarns will be one of the participant's at UT Law's program Lynching and the Death Penalty, March 23 & 24.  It's noted, here.  Coverage of Mumia Abu-Jamal's case is also available.

Michael Meltsner's classic book on LDF's involvement in death penalty cases in the 1960's and '70's, Cruel and Unusual: The Supreme Court and Capital Punishment, has recently been reissued by Quid Pro Books.  Coverage of Meltsner's book is also available.

The Office of Capital Writs at One Year

"Agency scrutinizes state's capital murder trials for legal fairness," is the title of Michael Graczyk's AP report.  It's via the Austin American-Statesman.  Here's an extended excerpt from the beginning:

Brad Levenson wasn't thrilled to watch the condemned prisoner die, but he believed it was his duty to his client and to the state-funded agency he leads, charged with defending people who have been sentenced to death.

It was the first execution he'd seen.

"No matter how many pictures you see and other attorneys describing it, it's just a surreal experience," Levenson said of the lethal injection this year of convicted killer Cary Kerr.

"I was haunted by that for weeks, thinking there was something we could have done," he said. "I don't want this to sound insensitive. I needed to see an execution to do the work I do. \u2026 I had to see the start and the finish."

After years of handling death penalty cases as a federal public defender in California, which has the nation's largest death row but rarely carries out the ultimate punishment, Levenson now heads the year-old Texas Office of Capital Writs, an independent state agency tasked with scrutinizing capital murder trials to ensure that they were legally proper.

The Texas Legislature created the office two years ago after repeated instances of shoddy legal work by appeals attorneys representing capital murder convicts. The agency now handles the state appellate process for nearly all new Texas death penalty cases.

"So far, I think we are seeing the system work as we intended and hoped," said Sen. Rodney Ellis, the Democrat from Houston who sponsored the measure that created the agency. "Considering the mistakes made in Texas to date, we should pay for this safety net and pray it's adequate enough to get the job done right."

More than a dozen states have similar operations, but Texas was the largest without a public office to address death penalty appeals. None of the other states with capital punishment executes people as frequently as Texas.

The primary method of getting a new trial following a criminal conviction is to file a habeas appeal, which argues that a major legal mistake was made during the first trial. In Texas, courts generally will hear only one habeas appeal, and attorneys should raise claims early, as the cases wind through the judicial system.

Andrea Marsh, executive director of the Texas Fair Defense Project, a group that works to improve legal help for poor Texans accused of crimes, said the role of habeas attorneys is crucial.

Earlier coverage of the OCW begins at the link. All coverage is in the Office of Capital Writs index.

An Update on Paul House

"Thriving at home after 13 years on death row with multiple sclerosis," is the title of a CNN report by Emanuella Grinberg.

Paul House left Tennessee's death row nearly four years ago a crippled man. Sure, he was free, but after 13 years of living with multiple sclerosis in prison, he was a gaunt shell of a man, unable to walk or barely talk, scared to go out in public for fear of being harassed.

Now, he’s a different person, says his mother, Joyce House. He has new teeth, and an affinity for Arby’s beef-and-cheddar sandwiches has helped him gain weight. Thanks to treatment and medication, he can communicate with others and play online poker. When it’s not too hot outside, he exercises on parallel bars in his mother's backyard so that one day, he can hopefully transition from a wheelchair to a walker.

Most importantly, he has overcome a fear of public scrutiny that had haunted him since his release in 2008, after a U.S. Supreme Court ruling that new DNA evidence could have led a jury to acquit him in the 1985 murder of Carolyn Muncey. House spent 22 years on death row before his release.

And:

His lawyer said he has filed a petition for executive clemency, which would provide for financial compensation. "He’ll never be able to walk, but he still strives to one day reach the walker,” Joyce House said.

"He says, 'whenever I get to where I can walk with the walker, we're going to see Mr. Kissinger,' the lawyer who set him free," she said.

Earlier coverage of Paul House begins at the link.

A Conversation With David Kaczynski

Josh Medsker, the propietor of Twenty-Four Hours, has posted a terrific interview with David Kaczynski of New Yorkers for Alternatives to the Death Penalty.  Here are two excerpts.  You'll want to follow the link to read the entire interview, and see more of Twenty-Four Hours.

Why did the NTADP change from "against the death penalty" to "alternatives to the death penalty"? What philosophical change went on?

When New York’s death penalty was ended by the Court of Appeals in 2007, NYADP had a choice: either continue in a watchdog role to prevent reinstatement of the death penalty, or use our groups’ relationships and ethical capital to work toward a reduction in violence and healing for victims of violence. We argued that the death penalty was ineffective in reducing crime, and that it tended to aggravate rather than alleviate the grief of murder victims’ family members. As NYer’s Against the DP, we had formed many collaborative relationships with members of law enforcement, victims families, mental health advocates, social justice advocates, and clergy. What if we expanded our mission to promote common-ground goals? We had this crazy idea that if we brought all these folks together, we could create a critical mass of influential, committed people dedicated addressing the problem of violence in a serious way. We figured our only obstacles would be apathy and ingrained thinking. It actually did feel like a relief to finally be For something instead of Against something. In this case, we think the best alternative to the death penalty is for violence not to occur in the first place.

And:

Going back to the Journeys question... What historically has caused Texas to have such a strong affinity (so to speak) for the death penalty? Do you think that if your group helped change peoples' minds in Texas that it would reverberate out towards the weaker states?

Well, I lived in Texas for eight years in the 1980’s and [my wife] Linda and I still have vacation property and plans to retire in West Texas. Yeah, there are cultural differences, but I think people are pretty much the same everywhere. No one wants a system that executes the innocent and Texas has a bad record in that regard. The rate of death sentencing has gone down about 50% in Texas in recent years. Prosecutors are now less eager to seek it and juries are far less willing to impose it. Religion may play a part in Texas, since Southern Baptists, I believe, have a statement that favors the death penalty, unlike most religious groups that have statements opposing it. I think the Journey of Hope has been extremely effective in Texas, because it invites people to think more deeply about what their faith means. Unfortunately, I suspect that the more the death penalty gets used, the harder it is to get rid of since there is a general reluctance to question the status quo. There’s a certain hard-headedness in some people that desires the death penalty no matter how counter-productive it is shown to be. I’ve met a few hard-headed Texans. But, as we know, Texas has no monopoly on that breed.

Again, thanks to Josh.

Learn more about the NYADP vison, After the Death Penalty: More Justice, Less Violence.

The Mitigator

That's the title of Jeffrey Toobin's latest Annals of Law article in the current issue of the New Yorker.  It's subtitled, "A new way of looking at the death penalty."  Here'e the abstract:

ABSTRACT: ANNALS OF LAW about Danalynn Recer of the Gulf Region Advocacy Center and the use of mitigation in death-penalty cases.

The death penalty is withering. The change has been especially striking in Houston, which has long reigned as the death-penalty capital of the nation. If Harris County, which includes Houston and its nearby suburbs, were a state, it would trail only the rest of Texas for the number of people executed. But last year prosecutors in Harris County sent only two people to death row. Explanations for the change vary. Crime is down everywhere, and fewer murders means fewer potential death-penalty cases. Widely publicized exonerations of convicted prisoners, based on DNA evidence, may have given some jurors second thoughts about imposing the death penalty.

Another explanation for the decline in death sentences has been the increasing use of mitigation, a strategy that aims to tell the defendant’s life story. In Texas, the most prominent mitigation strategist is a lawyer named Danalynn Recer, the executive director of the Gulf Region Advocacy Center. Based in Houston, GRACE has represented defendants in death-penalty cases since 2002.

When the Supreme Court allowed executions to resume, in 1976, after a four-year hiatus, the Justices mandated a two-phase structure for death-penalty trials that has become familiar in subsequent decades. The “guilt phase” would determine whether the prosecution established beyond a reasonable doubt that the defendant committed the charged capital offense. Following a conviction, the “penalty phase,” a separate mini-trial before the same jury, would consider whether the defendant should be sentenced to death. To make that determination, the Court sought to insure that jurors follow a rational process, rather than make a snap judgment about whether a defendant should live or die. This system, which became known as “guided discretion,” required jurors to weigh “aggravating factors” and “mitigating factors.”

Mitigating factors generally include a defendant’s mental illness, or the absence of a prior criminal record, but the Court also made sure that defendants could come up with their own mitigating factors to present to jurors. For a long time, defense lawyers didn’t know how to use this option to their advantage, and many largely ignored the penalty phase. In the nineteen-eighties, some death-penalty activists started taking a more systematic approach. The key figures in the change were not lawyers but anthropologists, ex-journalists, and even recent college graduates. The idea was to use the mitigation process to tell the life story of the defendant in a way that explained the conduct that brought him into court. The work was closer to biography than criminal investigation, and it led to the creation of a new position in the legal world: mitigation specialist. Tells about Recer’s work with Clive Stafford Smith and discusses the use of mitigation in the death-penalty cases of Scott Thibodeaux and Juan Quintero.

Related posts are in the mitigation and sentencing indexes.

Pat Lykos: Texas' Capital Punishment Avenger

That's the title of Ben Crair's profile at Daily Beast.

Change was the message of the 2008 election, but you wouldn't have expected it from Pat Lykos, Houston's chain-smoking, Cadillac-driving Republican district attorney. She was elected three years ago to the office once run by Johnny B. Holmes—the deadliest prosecutor in modern U.S. history. "I say without apology that if you murder someone here, the state of Texas is going to kill you," Holmes once said. His handlebar mustache showed he wasn't kidding.

Between 1979 and 2000, Holmes built Harris County, Texas, into the execution capital of the nation. Since the Supreme Court reinstated capital punishment in 1976, Harris County has sent more prisoners to the death chamber than any state in the country. Holmes was just as ruthless with lesser criminals, once seeking a life sentence for a substitute teacher who sold a joint to a student. "Harris County was the standard bearer of everything bad in criminal justice for a long time," says Jeff Blackburn of the Innocence Project of Texas.

And yet, with Lykos at the helm, the office has undergone an astonishing turnaround. The Harris County D.A.'s office won the Innocence Project of Texas' “Honesty and Integrity in Prosecution Award” last fall. Under Lykos, the county "is becoming the single most powerful example of how to change this system and make it work right," Blackburn says. Lykos isn't just sending fewer people to death row; she's using her prosecutorial power to set the innocent free.

"It's a triple tragedy," says Lykos, who has recommended three exonerations so far—the latest just last month. "You have someone who's wrongfully convicted; there's no justice for the victim or for society; and thirdly the actual predator is free to continue his or her deprivations."

The exonerations are the result of Lykos' post-conviction review unit, which is investigating hundreds of prisoners' innocence claims. The unit is the second of its kind in Texas after Dallas County, where District Attorney Craig Watkins has exonerated 10 prisoners since 2007. (Lykos has not matched Watkins' total in large part because the Houston Police Department Crime Lab was so bad; Dallas' independent crime lab preserved old evidence while the HPD often neglected or threw it away.) What distinguishes Lykos is her politics. While Watkins is a Democrat, Lykos is a self-described "Goldwater-Reagan Republican" who became Harris County's first female criminal court judge in 1980, when the rest of the bench was Democratic.

And:

Despite her surly streak—which persists to this day, according to former prosecutors—Lykos' work as a judge may have disposed her to take a more balanced approach to defendants' rights than had career prosecutors like Holmes: After all, she had to consider both sides of every trial. "She is actually willing to listen to people whose viewpoints differ from hers, and for people who have been doing this kind of work in Harris County for a long time, that is something that has been missing from that office," says defense lawyer David Dow, founder of the Texas Innocence Network.

Related posts are in the prosecution index.

A Profile of Craig Watkins

The Guardian carries, "Dallas chief prosecutor Craig Watkins fights injustice and racism."  It's written by Chris McGreal and datelined Dallas.

Chris Scott spent a dozen years pleading his innocence from one jail cell after another. Through a bizarre coincidence he even discovered who had committed the murder for which he was serving a life sentence in Texas. 

But the Dallas prosecutors who locked him away were not interested in Scott's appeals for justice. He was told the best he could hope for was parole when he was an old man. "There were no fingerprints, no murder weapon, no blood to convict me. There was just an eyewitness who the police set up to pick me out. I guess they didn't care about who they destroyed, they just wanted a conviction," said Scott, 40. "Then Craig Watkins came along. If it weren't for Watkins I'd still be in jail."

Watkins is the first black district attorney in Texas. He is also known as the "criminal-loving" prosecutor and the "hug-a-thug" DA because he has taken the extraordinary step of using his office as the chief prosecutor in Dallas county to get prisoners out of jail and to rein in a culture of harsh sentences.

He has won the release of 14 men serving long prison terms – one was freed after 27 years and another given a pardon after he died in prison – and is investigating hundreds more after concluding that Dallas was plagued by miscarriages of justice due to error, incompetence, racism and a culture among previous prosecutors of pursing conviction rates instead of justice.

And:

Almost as soon as he took office Watkins established the US's first convictions integrity unit to review long-term sentences, some of which were identified by the Innocence Project, a group that investigates miscarriages of justice. 

Watkins brought in an experienced defence lawyer, Mike Ware, to head the unit, which relies heavily on DNA testing that was resisted by earlier prosecutors. 

"There had been only nine DNA exonerations when Craig took office. That was over almost a seven-year period and if you look at the cases it's a miracle any of them happened," he said. "The attitude among prosecutors was that their job is to get a conviction and then to protect the conviction. What's the best that could happen if they have a DNA test? An innocent man being exonerated is not a good thing from the prosecutor's office point of view. That means they screwed up and convicted an innocent person. Why should they agree to a situation that may expose their screw up?"

The CIU changed that. Along with the exoneration of 14 men, scores more cases are under investigation and hundreds are listed for review. As a result, Dallas has exonerated more people in the past three years than any other county in the US.

Some go back to the era of legendary Dallas DA for 36 years, Henry Wade, who was one side of the pivotal supreme court case over abortion rights, Roe v Wade. He boasted of his high conviction rate before what were, in those days, largely white juries. Most of the suspect convictions are of black men.

As the CIU investigated old cases, Watkins saw a common theme. "We saw in all of the exonerations that the identification process that was used was flawed. In every case, the victim or the witness picked out the wrong person."

Earlier coverage of Watkins begins with this post.

A Murder's Legacy

"20 years after Winnetka murder, women remain inspired by sister's dying statement," is the title of John Keilman's Chicago Tribune report.  It's a must-read:

As Nancy Bishop Langert lay dying in the basement of her Winnetka home, mortally wounded by an intruder's bullets, she found the strength for an act that even now, 20 years after her murder, continues to inspire those who knew her best.

She crawled over to a metal shelf and tipped it over. Then, with her own blood, she traced symbols onto its surface.

The characters were not perfectly formed, and lawyers would later argue over what they meant. But to Nancy's family, the message was plain: It was a heart, followed by the letter "U".

"What she clearly was saying to us is that love is the most important thing in the world," said Jennifer Bishop Jenkins, 52, one of Nancy's two sisters.

Since then, the sisters say they have tried to live up to that idea. They have spent years battling against capital punishment and for gun control, causes they believe are in keeping with their sister's final message.

The life of an activist, though, is complicated. The sisters have tasted the fury of others who have lost loved ones to murder, and they've broken with former friends over one of their causes — ensuring that juvenile killers who receive life sentences never get parole, a measure being considered by the U.S. Supreme Court.

But even in the dark times, they say, their sister's spirit continues to push them forward.

And:

Finally, six months after the crime, police arrested David Biro, a senior at New Trier High School who had allegedly bragged to a friend about the murders. As reporters converged on the Winnetka police station, Bishop Jenkins recalled, one asked if she was upset that Biro's age — he was 16 at the time of the slayings — made him ineligible for the death penalty.

That question crystallized a cloud of emotion that had been swirling within her since the killings. For the first time, she was able to imagine her sister's final moments in the basement, tracing what Bishop Jenkins believed to be an unambiguous message of love.

"I realized that the thing to say (to the reporter) was the loving thing," Bishop Jenkins said. "I just shook my head and said, ‘Nancy would never want the memorial to her life to be the death of another human being.'"

And:

With the case concluded, Nancy's sisters took up transformed lives. Bishop Jenkins, whose activism had been limited to writing letters for Amnesty International, spoke about her anti-death-penalty beliefs at churches and schools. She soon joined organizations that crusaded for its end.

Jeanne Bishop, who left her career in corporate law to become a Cook County public defender, made similar alliances. The sisters also lent their time, energy and modest name recognition to groups pushing for stricter handgun laws.

Bishop Jenkins "was just relentless in a positive way about trying to make sure the same thing doesn't happen to other families," said Becca Knox of the Brady Campaign to Prevent Gun Violence, where Bishop Jenkins worked from 2005 to 2009. "She just was a force of nature, combined with an open heart."

Related posts are in the victims' issues index.  Thanks to Renny Cushing for circulating.

Watching Justice Stevens

On Saturday, Adam Liptak's report, "At 89, Stevens Contemplates Law, and How to Leave It," appeared in the New York Times.

“There are still pros and cons to be considered,” Justice John Paul Stevens said in his Supreme Court chambers on Friday afternoon, reflecting on his reluctance to leave a job he loves after almost 35 years. But his calculus seemed to be weighted toward departure, and he said his decision on the matter would come very soon.

“I do have to fish or cut bait, just for my own personal peace of mind and also in fairness to the process,” he said. “The president and the Senate need plenty of time to fill a vacancy.”

Hints about Justice Stevens’s possible departure started in September, when he confirmed that he had hired only a single law clerk, instead of the usual four, for the term that will start this fall. In occasional public statements since then, Justice Stevens, the leader of the court’s liberal wing, said he had not yet made up his mind. But the White House is bracing for a summertime confirmation battle, the second of the Obama presidency.

Justice Stevens, who will turn 90 this month, said he did not like to give interviews “because it saves an awful lot of time if you don’t.” But he was courtly and candid in reviewing the trajectory of his tenure on the court and in summing up what he had learned about the role of the judge in American life.

And:

In the area of capital punishment, though, he said his views had shifted.

“I certainly would not have expected during my first years on the court to have written an opinion like I did in Baze,” he said, referring to Baze v. Rees, the 2008 decision that rejected a challenge to lethal injections. Though Justice Stevens voted with the majority, he wrote that he had come to the conclusion that the death penalty violates the Eighth Amendment. He went on to say that his conclusion did not justify “a refusal to respect precedents that remain a part of our law.”

He explained Friday why he did not follow the approach of Justices William J. Brennan Jr. and Thurgood Marshall, who adopted a practice of dissenting in every death penalty case.

“I’m still a member of the court, and I still have to work,” Justice Stevens said. “I never really agreed with Justice Brennan and Justice Marshall that your own personal view on the issue should prevent you from participating. You’re still a member of the team, and the team has to confront the problem.”

But that did not mean Justice Stevens, who in 1976 voted to reinstate the death penalty, was satisfied with the court’s capital jurisprudence.

“There are a number of death cases that troubled me,” he said. The Baze opinion, he added, “was really my reaction to the developing jurisprudence, which I think moved in a direction that I didn’t expect and is not correct.”

Last month, Stevens was the subject of a New Yorker profile by Jeffrey Toobin, noted here.  Related posts are in the Supreme Court index.

After Stevens

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

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

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

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

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

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

Related posts are in the Supreme Court index.

Capital Litigation

Utah's Ogden Standard-Examiner profiles attorney Randy Richards in, "Ogden attorney fights against death penalty."  It's written by Tim Gurrister. 

Randy Richards describes his work as anti-homicide in bucking capital punishment.

"I see it as preventing the state from doing that which it condemns," he said.

"If murder's wrong, murder's wrong, even if it's a judge or jury doing it. By having the death penalty, we're letting our baser emotions rule our lives."

State-sanctioned execution, however sanitized as the will of the people, as still homicide, he said.

Richards is the only defense attorney in the state handling two death penalty defenses, said Mark Field, who keeps track of such things as the capital attorney for the state Administrative Office of the Courts.

Field follows the 19 death penalty cases currently heading for trial in Utah and serves as a legal resource for the judges assigned to capital cases.

Richards heads the court-appointed defense for Riqo Perea and Jacob Ethridge in two Ogden double-homicides.

It was three capital- possible cases until Glenn Howard Griffin's ended late in 2008 with a trial three years in the making in Brigham City.

Richards took the lead with Griffin's public defenders in early 2007. Griffin was convicted in November 2008 and sentenced to life without parole.

At the time, Richards was already lead counsel for Perea, who was arrested in August 2007.

He became peripherally involved with Ethridge's defense upon Ethridge's arrest in July 2008. Richards took the lead upon the conclusion of the Griffin case.

The defense filed about 50 motions in the Griffin case, a half-dozen unsuccessfully calling the death penalty unconstitutional.

Richards has begun the same process with Perea and Ethridge.

"I can see both sides of it, from the standpoint of the victims' families," he said.

"I understand the rage, or the desire for revenge. Maybe 'recognize' is a better term.

"But I also have a belief that we as a society, we need to take a higher road. Do we drop down to a lower common denominator when we decide that we, too, want to take life?

"Murder is a horrible crime. There's no excuse for it. But when it's legal for the government to do it, we step into the same shoes, doing that which we condemn. ... That, in a way, is hypocritical."

A Bradley Family Profile

Gary Scharrer writes the profile, "For Bradleys, it's all in the family – except for politics," for the San Antonio Express-News.

Hard-nosed Texas prosecutor John “Marty” Bradley supports the death penalty. His mother, Shirley Bradley, remains a fervent opponent of it.

Her oldest son, John “David” Bradley, is an outspoken Republican leader among the social conservatives on the State Board of Education. His mom proudly keeps his campaign bumper sticker on her car — along with a bumper sticker promoting Democratic Party icon Hillary Clinton.

Not surprisingly, Shirley Bradley enforces a firm rule when the family gathers for holidays and other occasions: No talking politics or religion.

“It's my rule. ... Those are just forbidden subjects,” the Houston family matriarch says. “We all have heard each other's opinions enough. It was nonproductive. I want to have happy times with them. I respect their opinions. I don't agree with them, but I taught them to have opinions.”

And her two older sons certainly have strong opinions. Both are named John, although the oldest goes by David. Count him among the State Board of Education leaders who helped weaken the teaching of evolution in public school classrooms, pushed phone-tics and back-to-basics reading skills and led an effort to ditch a “fuzzy math” textbook for third-graders.

John Bradley, 50, known as “Marty” among family and friends, is 11 months younger than David. He has a law-and-order reputation as the district attorney in GOP-strong Williamson County just north of Austin. His profile recently was raised when Gov. Rick Perry, in a controversial move, named him the new chairman of the Texas Forensic Science Commission — replacing a chairman who had led the panel's investigation of disputed arson evidence in an execution case.

And:

She recently attended John Bradley's hearing before the Texas Senate Criminal Justice Committee, where he faced some sharp questioning by senators concerned that Perry chose him so he would delay a probe into the arson science that led to the conviction and execution of Cameron Todd Willingham.

She sometimes clips newspaper articles and underscores her agreement with her sons — when she can. David Bradley said he knows they are on opposite sides when the note ends with a simple: “We love you.”

Their mother said she and her husband raised the boys to learn values, integrity and to always be honest, “because if you don't have honesty, you don't have much going for you,” she said. “We encouraged them to have an opinion, gather evidence and enough information to know what you are talking about. Don't just talk.”

Shirley Bradley is equally proud of her two younger sons: Tim Bradley, a commercial real estate broker in Wyoming, and Dan Bradley, a prosecutor-turned-defense lawyer in Houston.

Earlier coverage begins with the preceding post.

More on John Bradley

"Surprises under Williamson DA's image," is the title of Miguel Liscano's Austin American-Statesman report.  It appeared in the Sunday edition.

Through 22 years as a prosecutor, the past eight as Williamson County district attorney, Bradley has amassed convictions and accolades, developing a tough-on-crime reputation.

He also hasn't shied from controversy.

His recent appointment as chairman of the Texas Forensic Science Commission will probably bring more.

Gov. Rick Perry shook up the commission this fall and thrust Bradley into the national spotlight at a time when the panel is investigating a high-profile death penalty case.

Critics have charged that Perry's four new appointments to the board were aimed at delaying and thwarting the commission's investigation into whether faulty evidence was used to convict Cameron Todd Willingham of setting a fire that killed his three daughters. Since Willingham's execution in 2004, several studies have found major flaws in the arson investigation that led to Willingham's conviction.

Bradley, a sometimes polarizing public figure known for seeking maximum punishments for violent criminals, has already faced questions about whether he will approach the matter fairly.

On Tuesday, he'll have to answer to state lawmakers, when the Senate Criminal Justice Committee holds a hearing to question Bradley's plans for the commission.

Austin lawyer Keith Hampton, vice president of the Texas Criminal Defense Lawyers Association, said he wonders, knowing Bradley's background as a prosecutor, whether Perry had a role in mind for Bradley.

"My only concern with Bradley is not his thoroughness, but the color of the lens through which he views evidence," Hampton said. "Is the case for innocence for Willingham starting out as a neutral? Or is it weighted some way?"

Bradley, who like Perry is a Republican, insists that he will approach his work on the panel "without political favor."

"When you're dealing with controversial issues, you cannot expect to please everybody," he said. "But I will always try to at least convince all of those people that the process itself is fair."

As district attorney, the tall, slender Bradley seeks the limelight, running a solo public relations machine, crafting and e-mailing frequent news releases touting convictions and lengthy sentences. He works aggressively and wields considerable influence, sometimes pursuing criminal charges when law enforcement agencies balk.

And:

His office prosecutes about 2,000 cases a year, and about 50 receive a sentence of 20 years or more, he said.

There is no single study available comparing lengths of sentences for similar crimes or cases disposed to probation among counties, said Tony Fabelo, director of research for the Justice Center of the Council of State Governments.

Bradley's record shows that his tough-on-crime reputation is more nuanced than his news releases might suggest, balanced partly by his work to find alternatives to jail for those with mental disabilities and efforts to show discretion with young or first offenders.

"If your client has a terrible criminal history, they're not going to cut you slack," Hunt said. "That's only reasonable. If your client is young and doesn't have that kind of criminal history and appears to be someone who is redeemable, then the prosecutors and the judges up there will cut them some slack."

Bradley currently leads the Texas Department of Criminal Justice Advisory Committee on Offenders with Medical or Mental Impairments. Perry appointed him to the panel in 2004. The committee brings together state agencies to find ways to divert offenders with mental illness out of the criminal justice system. He sits on a similar Williamson County panel with the same goal.

During this year's legislative session, he also pushed for a bill that reduced the punishment for capital murder by a juvenile from life without parole to life with parole, after 40 years. It became law.

In the courtroom, defense attorney Bob Phillips said, Bradley's office is consistent.

"He's fair in that he's predictably severe," Phillips said.

The Dallas Morning News carried, "Texas forensic science agency's new chief calls for changes as arson inquiry continues," by Terrence Stutz in the Saturday edition.

The new chairman of the Texas Forensic Science Commission has called for several key changes at the agency, including new confidentiality requirements, to ensure that its future reviews of criminal cases are credible.

John Bradley, the district attorney in Williamson County and chairman of the commission, also promised that the panel will apply a "disciplined, scientific approach" to its continuing inquiry into a flawed arson investigation that led to the 2004 execution of Cameron Todd Willingham of Corsicana.

"Those with agendas separate from the advancement of forensic science have made exaggerated claims and drawn premature conclusions about the case," Bradley said in a commentary sent to newspapers this week.

The prosecutor also pointed out that the commission was created in 2005 "to determine only whether there was negligence or misconduct by an accredited laboratory" conducting forensic analyses of evidence in specific cases.

"The commission does not decide whether persons are guilty or innocent of criminal offenses," he said.

A spokeswoman for the commission said Bradley would not speak to a reporter to elaborate, pending his planned testimony next week to a state Senate committee.

Bradley said he will be seeking changes at the agency to improve its operations, including new written policies and procedures, investigative standards to guide its work and new requirements to keep information confidential until a final decision is rendered.

Implementing such changes could take months, and it's unclear how that would affect the commission's work in the Willingham case.

"Most state agencies with investigative and deliberate functions are protected by laws designed to keep such information confidential until a final decision is released," he said. "Unfortunately, the law creating the commission does not include those protections."

Bradley said he would seek advice from the Attorney General's Office on how the commission can have tighter control over its functions and protect against "interference and improper outside influences."

That suggestion drew a cool reception Friday from the Freedom of Information Foundation of Texas, which pointed out that the Legislature had a choice whether to make the information public or private when it passed the law setting up the agency.

"We prefer to think they wanted the public's business to be conducted in public," said Keith Elkins, executive director of the foundation.

"If Mr. Bradley wants to have the public's business conducted in secret, the appropriate thing would be to go to the Legislature to ask for a change rather than going around the legislative process and trying to get it changed by the attorney general," he said.

Bradley also said he will seek additional resources from the Legislature in the next session "so the commission can grow into a mature, well-respected entity." He noted that the agency now has one employee to handle its administrative, legal and public contract work.

"Case Open," by Emily Ramshaw and Matt Stiles is posted at the Texas Tribune.

If you want closure on questions of Cameron Todd Willingham's guilt or innocence, get comfortable. 

The new chair of the Texas Forensic Science Commission says the board doesn't yet have the rules, staff or resources to be investigating allegations of faulty science in criminal cases -- including the high profile arson-murder case that led to Willingham's execution.

Williamson County District Attorney John Bradley, who Gov. Rick Perry appointed chair two days before a now-canceled hearing on evidence in the Willingham case, says the commission will stick to its mission – analyzing forensic science mishaps – from here on out, as opposed to leaving the door open for a death penalty debate.

Though the commission will still investigate the Willingham evidence, which includes testimony from arson experts critical of the arson investigation methods, Bradley said his first priority is turning the commission into a professional investigating arm. Right now, he said, the body has no formal rules, a measly budget and a single staffer – hardly the resources to make investigative recommendations that carry weight.

"The commission is going to conclude the Willingham case and complete the report as it’s required to do. But it needs to be done in a way we can trust it," said Bradley, who will testify before the Senate Criminal Justice Committee on Tuesday. "…If [Perry] knew what I know, there were very good reasons for making changes" on the commission.

Critics of the Willingham execution – and of Perry’s decision to replace commission chair Sam Bassett and one other member just days before the anticipated hearing on it – are likely to see Bradley’s recommendations as a stall tactic.

The governor, who staunchly believes Willingham set the 1991 house fire that killed his three daughters, refused to halt the 2004 execution after an arson expert warned the investigation appeared flawed. The hearing that was derailed by Perry’s new appointments featured a prominent arson expert who found no evidence Willingham set the fire, and said arson techniques used to convict him were outdated. Perry has since replaced two more commission members.

One of the lawmakers who voted for the nine-member commission, established in 2005 but not funded until 2007, said this idea of it being a ruleless, unguided entity are false.

"The commission members can determine how to do their business, within reason, but the scope and purview of the commission is clearly set out in legislation we passed more than four years ago," said State Sen. Rodney Ellis, D-Houston, who chairs the board of directors of the New York-based Innocence Project, which brought the Willingham complaint to the commission. "Mr. Bradley’s priority should be carrying out the commission’s mandate, not finding ways to delay investigations that can help ensure quality forensic analysis in cases across the state."

The Willingham case is one of three the commission has considered, and is the farthest along.

Earlier coverage of Bradley and the Willingham investigation is here.  The Senate Criminal Justice Committee will hear from Bradley tomorrow at a hearing in the Texas State Capitol.

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

The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. David Grann's New Yorker article is noted here.  The Innocence Project's Todd Willingham resource page provides a concise overview of the Willingham case with links to all relevant documents.  Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

Governor Perry and Secrecy

"Perry stays secret on many things, including forensics files," is the title of Christy Hoppe's report in today's Dallas Morning News.

Gov. Rick Perry's refusal to release documents he reviewed in the hours before the Cameron Todd Willingham execution is the latest fight he's waged over records kept in his office.

Many believe he is the most secretive modern-day governor Texas has seen.

Perry has fought to keep his itinerary of upcoming meetings and appearances from public review. No e-mail he has written has been made public because he only uses a personal e-mail account, which he says is not used for state business. His executive staff keeps a schedule that destroys most of the e-mails it generates every seven days.

In the latest example, Perry has denied access to files he reviewed in July 2004 that convinced him that Willingham was justly convicted.

Recent governors have served four or five years, and the memos of their general counsel became public through archives. Perry has served for 10 years and is keeping his lawyer's memos over that decade closed.

"Those memos are provided by the governor's general counsel to the governor under attorney-client privilege," press secretary Allison Castle said.

She objected to any characterization of the governor as secretive, saying, "The governor continues to promote transparency at all levels of government."

And:

"From what we have seen, this governor seems to be much more inclined to make decisions and conduct business in the dark than in the light of day compared to previous governors," said Keith Elkins, executive director of the Freedom of Information Foundation of Texas, which fights for open government.

"I don't know why he feels it's absolutely necessary to keep from the public, for example, what his travel schedules are. Other governors did not have the need to do that," he said.

Elkins said that Perry's latest decision to withhold memos that helped form his opinion on an execution carried out five years ago is a telling example.

"Texas leads the nation in the number of executions. I think everyone would want to know that the decisions to execute someone are being based on the best information possible," he said.

"It is an irreversible decision, and to simply throw up the stone walls and say, 'I'm not releasing information on what I'm basing my decisions on,' I don't see how that's in the best interest of any taxpayer," Elkins said.

Perry's office records show that two hours before the execution he received a report from explosives and fire expert Gerald Hurst that pointedly questioned whether arson was involved in the fire that killed Willingham's three small children.

While his office has declined to release the files, Perry last month told The Dallas Morning News that the records showed "clear and compelling, overwhelming evidence that he was in fact the murderer of his children."

Castle said the facts of the case, along with a decade of court appeals, and the decision by the attorney general's office and the 5th U.S. Circuit Court of Appeals that the Hurst report was "simply an opinion" about the fire affected the governor's decision to allow the execution to go forward.

The Willingham case has drawn national interest and is becoming a political thorn for Perry. GOP rival Kay Bailey Hutchison's campaign on Monday accused him of trying "to cover up a critical investigation."

Earlier coverage begins here.

Craig Watkins, 'Rock Star' DA, at a Crossroads

That's the title of a lengthy profile of the Dallas County District Attorney, distributed this afternoon by Associated Press.  It's written by national AP writer Deborah Hastings.  LINK  It's via the Fort Worth Star-Telegram, which also has this one-page version.

Craig Watkins, the first black district attorney in the history of Texas, is having a midterm crisis.

At 41, he has his own cable TV series. His novel determination to free the wrongly convicted landed him on "60 Minutes." He is a national champion of turning the penal system on its head and a "rock star" to many constituents.

But this is Texas, and certain law-and-order traditions still stand. More inmates are executed here than anywhere else. Legislators are allowed to carry guns onto the floor of the statehouse. And prosecutors are better known for slamming cell doors than opening them.

As his re-election campaign rattles to life this fall, Watkins finds the national halo he's been standing under has become more of a local floodlight magnifying frailties and foibles. His trailblazing has become irksome to older politicians, who consider it arrogant to break the rules before playing by them.

Among them is John Wiley Price, the only black Dallas County commissioner, who says Watkins has "gotten to be a show horse instead of a work horse."

"I had a lot of high hopes for Craig," the outspoken fellow Democrat adds. "It appears he's gotten public policy confused with personality politics."

And a Republican has stepped forward for the 2010 election, when it was expected the party wouldn't field anyone because Watkins was considered unbeatable.

Like President Barack Obama, a man he idolizes, Watkins is learning a hard lesson: Making impassioned speeches and election history doesn't carry the day in the daily brawl of politics.

Especially when it comes to reforming a giant institution - whether it be health care or criminal justice.

To spend a day with the maverick prosecutor is to watch a dogged attorney with oddly opposing traits - he is not afraid to speak his mind, but can be easily wounded. He is smart and savvy, but sometimes surprisingly naive. He speaks of grand reforms to a behemoth criminal justice system, but chronicles slights small and large.

For the rest of his term, Watkins wants to focus on the hard task of rehabilitating, as well as punishing, those in prison.

His opponents accuse him of being soft on crime - "hug-a-thug" sums it up, Watkins jokes. But his office's conviction rate is more than 98 percent, higher than the figures of some tough-on-crime predecessors.

In his first trial, district attorney Watkins stood before jurors and said the accused, who'd murdered members of his family, deserved to be executed.

"That was difficult," he says. "Getting up in that courtroom and saying this man should die."

He'd long opposed the death penalty. Now he's not sure. "It's my job," he says, "whether I like it or not."

What brought him national fame was opening the Conviction Integrity Unit, which has reviewed more than 300 convictions where DNA evidence remained in custody.

His unit, working with the Texas Innocence Project, found 15 inmates who'd been wrongly convicted in a county that already had the highest number of exonerations in the nation.

Earlier coverage of Watkins includes posts here, here, and here.

A Profile of Rick Halperin

Today's SMU Daily Campus has, "SMU professor goes to extremes to fight for equality," by Nicole Jacobsen.

Today, 3,297 inmates are lined up on death row, according to the Death Penalty Information Center. The third largest group of 338 is stationed in Texas. In the U.S., more than 4,500 have fallen victim to this form of punishment since 1930, according to Crime Magazine.

A 20-year-old Czech medical student, Jan Palach, set himself on fire in protest of the communist rule trying to enter his country. One SMU professor, just entering adulthood at the time, was there to see it.

Most students would not think to visit an inmate on death row, witness a lethal injection execution or travel to third world countries and see first-hand the brutality and torture humans are inflicting on others. One SMU professor accompanied an inmate's pregnant sister to see her brother put to death.

One SMU professor goes to all lengths to ensure everyone is given the respect they deserve.

Meet Dr. Rick Halperin, a human rights educator at SMU.

And:

Since starting with Amnesty International USA in 1971, Halperin has been at the forefront of the organization, trying to abolish the death penalty around the world, while also fighting for women, gays and lesbians, political prisoners, journalists and other professionals under a constant form of assault by reigning governments, in hopes of raising awareness and helping these suffering groups. Before coming to SMU, Halperin was a professor at Auburn University, Ole Miss and Tulane - two state schools and two private institutions all rooted in the South.

"As a human rights educator, the South is the place to be," Halperin explained. "This is where the bulk of the violations occur in America. This is where people's hearts and minds are perhaps in greater need of education."

And:

Bringing an unparalleled history of experience and wealth of knowledge to students each year as part of his Human Rights Education Program in the university's Dedman College curriculum, Halperin spearheads the program on the Hilltop, making SMU just one of 14 universities in the country to host a human rights program.

Halperin is a founder of the Texas Coalition to Abolish the Death Penalty.

The Judgment of Sharon Keller

That's the title of Michael Hall's latest Texas Monthly must-read, in the August issue.  LINK  Here's the opening:

The most infamous phone call in recent Texas history came on the afternoon of September 25, 2007, when, at 4:45, Ed Marty, the general counsel of the Court of Criminal Appeals, dialed Sharon Keller, the court’s presiding judge. Both were in Austin; he was at the courthouse and she had gone home earlier to meet a repairman. One hundred and forty miles away, at the Walls Unit, in Huntsville, Michael Richard (pronounced “Ree-shard”) sat in a cell adjacent to the execution chamber. He was scheduled to die that evening for a murder he’d committed in 1986. The CCA, the state’s highest criminal court and the final arbiter in all death penalty cases, was waiting for his last appeal.

But Marty had a question for Keller. It seemed that Richard’s attorneys were having some computer problems that were preventing them from getting their motion for a stay filed before the clerk’s office closed, at 5. They wanted to know if they could deliver it after-hours—5:15, 5:30 at the latest. Keller, who has been on the CCA since 1994 and the presiding judge since 2000, listened to Marty’s question. Under her leadership the court has been one of the more conservative in the country, developing a reputation, especially on the left, for rubber-stamping death sentences. Her reply would cement this: “We close at five.”

Keller’s statement was relayed to Richard’s attorneys, who were unable to meet the deadline. Just over three hours later, Richard was put to death. And that might have been the end of the matter, just another execution in Texas, number 405 since the reinstatement of capital punishment in 1982. But September 25 was no ordinary day. That morning the U.S. Supreme Court had decided to examine the constitutionality of the three-drug cocktail used in lethal injections, essentially putting a moratorium on executions that would last for six and a half months. Because of that decision, CCA judges and staff had braced themselves for an appeal from Richard’s attorneys, one they had been told was coming. Three judges were even waiting at the courthouse for it. One of them, Cheryl Johnson, was the designated duty judge, who, according to the court’s execution-day procedures, was in charge of the CCA’s response. But she was not informed of the phone call that afternoon between Keller and Marty.

In fact, Johnson found out about the conversation from a newspaper account four days later. She was furious, and her fellow judges were shocked. It wasn’t long before outraged lawyers and judges were signing petitions demanding that Keller be disciplined by the Commission on Judicial Conduct, a state watchdog group that has the authority to reprimand judges and recommend their removal from the bench. “I have never seen such a unanimous response from the legal profession,” said lawyer Broadus Spivey, a former president of the State Bar of Texas. The Dallas Morning News called Keller’s decision “a breathtakingly petty act [that] evinced a relish for death that makes the blood of decent people run cold.” Texas Monthly announced, “It is time for Sharon Keller to go.” It seemed that Keller, who had been so gung ho for so long about so many executions, had been caught closing the door on a dying man’s last request.

The CJC typically finds itself probing allegations of relatively minor infractions, such as sexual harassment or obscene language by justices of the peace. But in June 2008, it began to question a dozen of the players in the Richard drama, including Keller. In February of this year the CJC announced formal proceedings against her, making Keller the highest-ranking judge ever to be investigated by the group. The main charge was that Keller’s “failure to follow the CCA’s execution-day procedures” violated the Texas constitution (which states that a judge must not exhibit “willful or persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary”) and the Code of Judicial Conduct (“a judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”).

Earlier coverage begins here.  As I've noted in the past, Michael Hall and I are not related.

Allan Butcher Retires as Magistrate; Will Continue Indigent Defense Research

"Respected magistrate hangs up his robes but will continue his research at UT-Arlington," is the title of Martha Deller's report in the Fort Worth Star-Telegram.

Allan Butcher was known as one of the top death-penalty attorneys in Texas — and an advocate for poor criminal defendants — when he became a magistrate quietly working away in the basement courtroom at the courthouse a decade ago.

His switch from writing appeals for Death Row inmates to simply approving pleas on routine legal matters may have bewildered others, but it made sense to Butcher, who said the job gave him time to continue his research and teaching.

"Most lawyers like the drama of the courtroom. I like the solitude of the library," Butcher said.

Butcher, however, hung up his robes Friday after changes in the schedule forced him to work five days a week, every week. That made it harder to continue his research, especially into the court’s indigent-defense system.

"When I took the job, we worked seven days on and had seven days off," Butcher said. "That gave me a large block of time every other week to devote to my research."

A five-member judicial committee has screened about 35 applicants for the magistrate’s job and picked six finalists, who were interviewed Friday. The county’s 19 criminal court judges will make the final selection this week.

By the time his successor takes the bench, Butcher plans to be back in his office at the University of Texas at Arlington, where he will continue researching the death penalty, indigency and judicial selection — issues that have become synonymous with his name.

And:

For the near future, Butcher will return to his research on indigent defense, which already has improved poor defendants’ access to attorneys throughout the state.

He’ll also continue trying to find ways to ensure that the death penalty is imposed in a fair and consistent way, although he no longer is sure that is possible.

"I’m not ready to retire," Butcher said.

Some of Butcher's scholarship is available here.

Congratulations to Bryan Stevenson

"Montgomery attorney wins Gruber Justice Prize," is Bob Johnson's AP report, via the Montgomery Advertiser.

Montgomery attorney Bryan Stevenson was named Wednesday a winner of the 2009 Gruber Justice Prize for his longtime work representing death row inmates, indigent defendants and juveniles.

The Peter and Patricia Gruber Foundation announced it was awarding the prize to Stevenson and to the European Roma Rights Center. The two winners will split the award's $500,000 cash prize.

Stevenson is founder of the Equal Justice Initiative in Montgomery and is mostly known for representing death row inmates, often during the final stages of their appeals.

Stevenson said the prize will go into the budget of the Equal Justice Initiative, which he said lost a source of funding when a major donor lost money in the investments of disgraced financier Bernard Madoff.

A release from the Gruber Foundation said Stevenson and his staff had been responsible "for reversals and reduced sentences in more than 75 death penalty cases."

U.S. District Judge Bernice Donald of Tennessee said in the release that Stevenson won the award for "securing access to justice for those most in need of protection from discrimination."

Stevenson, 49, founded the Equal Justice Initiative about 20 years ago.

"I am really delighted although I am always surprised by this kind of recognition," Stevenson said.

The Peter and Patricia Gruber Foundation's press release states:

With his staff, Stevenson has largely been responsible for reversals and reduced sentences in more than 75 death penalty cases. He has provided an effective training and consulting resource for counsel representing death row inmates and is spearheading litigation in 19 states to get a fair review of sentencing and parole-eligible re-sentencing. Stevenson has been consistently recognized by the National Law Journal as one of the 100 most influential lawyers in America.

Stevenson is set to argue a case in the Supreme Court's next term concerning the constitutionality of life without parole sentences for juvenile offenders.  The cert grant is noted here.

Miklos Honored

Freshman State Representative Robert Miklos chaired the House Criminal Jurisprudence Committee's Death Penalty Subcommittee this session.  The Mesquite News reports, "Miklos selected as Democratic Freshman of the Year."

This week Representative Robert Miklos was named the House Democratic Freshman of the Year by the House Democratic Caucus. Miklos received the award as part of the activities at the end of the 81st Legislative Session.

"It is nice to have all of your hard work recognized by your peers," Miklos said.

Rep. Miklos ushered numerous bills through the House including: HB 1770, a measure giving cities like Mesquite more economic development options; HB 1060, which updates technology for the Dallas County Sheriff's Department in forwarding arrest warrants; and SB 461, updating the law regarding fire fighter examinations.

Miklos teamed up with Senator John Carona to be the House sponsor for SB 11, the omnibus anti-street gang bill in the House. The bill calls for tougher penalties on gang members, expands a gang database for law enforcement officers, gives law enforcement the ability to seize property from those involved in organized crime, and creates gang free zones.

And:

Representative Miklos served on the Criminal Jurisprudence and Urban Affairs Committees. He was named Chairman of the Subcommittee on Capital Punishment, where he presided over hearings regarding the death penalty.

"With his knowledge and expertise, Rep. Miklos was an invaluable member of the Criminal Jurisprudence Committee. He handled his role as Chairman of the Subcommittee of Capitol Punishment with grace and professionalism," Representative Pete Gallego said.

On the Urban Affairs Committee, Miklos worked on issues pertaining to cities and municipal workers.

"I was proud to serve on the Criminal Jurisprudence and Urban Affairs Committees. I was flattered that Chairman Gallego gave me the opportunity to lead the Subcommittee on Capital Punishment," Miklos said. "Members of each committee worked well together, and I think we wrotedid important and lasting legislation for the State of Texas."

Terri Hodge

Gromer Jeffers writes, "Dallas lawmaker Terri Hodge could go out on a high note," in the Dallas Morning News.

Most lawmakers view the finish of a legislative session as a time for relaxation and recharging.

But for Dallas Democratic Rep. Terri Hodge, today's adjournment marks the end of her refuge from public corruption charges.

Her trial is expected to begin in Dallas some time this summer, separate from former City Council member Don Hill and the 14 others who were indicted in the wide-ranging City Hall corruption probe.

Though she's facing the possibility of a felony conviction that would send her to jail and forfeit the seat she loves, Hodge sees her upcoming legal fight as a chance at vindication rather than a path to prison.

"I have kept things in perspective," Hodge said. "I know what I've done, and I know what I haven't done. I understand that people have a job to do ... but I know that in the end, if there is justice, when I'm given the opportunity to be heard, I'll be fine."

Hodge's demeanor and looks support her words.

And:

And after a year when she had one-sided, verbal confrontations with former Dallas Mayor Ron Kirk and Sen. Royce West over what she felt was a conspiracy to keep her from becoming a delegate to the Democratic National Convention, Hodge has forged new relationships with lawmakers on both sides of the aisle, even those she used to treat with disdain.

Hodge said this session has been the most successful political run of her career.

"I've been at peace with everything," she said. "I know that in the end, the people who sent me here will be as equally as proud of what I've done as I am."

Rep. Roberto Alonzo, D-Dallas, agrees that Hodge has made political strides.

"She's benefited from the new speaker and different environment in the House," said Alonzo, co-chairman of the Dallas-area delegation. "She's been able to work it to her advantage."

And:

As a House member, she has focused on the disenfranchised and has been an advocate for reforming the criminal justice system. Her work to properly rehabilitate inmates has become one of her passions.

"It's probably a driving force for me," she said. "For me, the justice system has not worked. I want this system to be fair, regardless of your race, your creed, your color or your economic status."

Among the bills she has carried this year are legislation that would allow Dallas to relocate the 2,200-inmate Dawson State Jail to allow development along the banks of the Trinity River and a measure to allow corrections officials to restore good-conduct time to inmates.

Both bills are before the governor.

Hodge says her proudest accomplishment was her work on reforming the "law of parties" – even though the measure fell apart in the last moment in the Senate.

The bill stems from the 2007 commutation of a death sentence for Kenneth Foster, who drove the getaway car during a crime spree that resulted in a shooting death. He was 90 feet away from the murder in the car but received the death penalty.

When it appeared the bill could collapse because of concerns from Gov. Rick Perry, Hodge took a cup of tea and sat on a bench outside of the Capitol, where Perry's car was parked.

She waited an hour to confront him. They later set up a meeting and got on the same page.

"I stalked his vehicle in order to see him," she said.

I've known Terri Hodge since 1976, when she was beginning to be active in Dallas County politics. She learned politics from the ground up, volunteering in campaigns before becoming a precinct chair.  She was elected to the House of Representatives in 1996.  In committee meetings and on the House floor she's been fearless in speaking up for her mostly-East Dallas constituents.  She's also made it a practice to be an advocate for those in Texas jails, prisons, or on parole -- people who don't have much of a voice in the Capitol.

I hope her voice will be heard in the 82nd Texas Legislature when it convenes in January 2011.

Joe Shannon Named Tarrant County District Attorney

The Fort Worth Star-Telegram has this editorial on the new Tarrant County District Attorney.

"Joe Shannon was born restless," Mike Cochran wrote in Texas v. Davis, a recounting of the sensational murder trial of oilman Cullen Davis.

That could explain why Shannon has taken on so many different roles during his 45-year legal career.

A year after getting licensed, he won a seat in the Texas House and served seven years. He then joined the Tarrant County district attorney’s office in 1972 and became chief of the criminal trial division. He left the DA’s office and specialized in family law. He returned to prosecuting in 1999, working again for DA Tim Curry, a friend since boyhood.

Along the way, Shannon was president of the Tarrant County Bar Association and Tarrant County Family Law Bar Association. He’ll soon complete a term chairing the State Bar of Texas board of directors.

Gov. Rick Perry has chosen Shannon, head of the Tarrant County DA’s office economic crimes division, to succeed Curry, who died in April.

That will give Tarrant County a district attorney with a long history, broad experience, wide-ranging contacts around the state and deep political sense.

The others who applied for the job have solid credentials, particularly three former prosecutors with experience on the state district bench, where they’ve overseen the most serious felony cases, including capital trials.

This post notes the passing last month of long-time DA Tim Curry.

Also in the Star-Telegram, Alan Spangler writes, "New interim Tarrant DA says he may run for post in 2010."

Joe Shannon Jr., officially named interim Tarrant County district attorney by Gov. Rick Perry on Wednesday, said he is considering running for the post next year.

Shannon was picked to succeed lifelong friend Tim Curry, who died two weeks ago after fighting lung cancer. The appointment is subject to confirmation by the state Senate. Shannon joined the prosecutor’s office in 1972, when Curry was first elected. Shannon returned in 1999 for the last decade of Curry’s 36-year tenure.

The article also notes:

Should Shannon decide to run for the office next spring, he could face a dilemma, because Assistant District Attorney Bob Gill, a former state district judge, has indicated that he is interested in the post.

And:

Shannon was selected by Perry instead of Gill and several sitting judges who applied for the appointment, including state District Judges George Gallagher and Sharen Wilson and County Criminal Court Judge Phil Sorrells.

Kansas

"Death penalty bill up for committee vote," is Jeannine Koranda's post on the Wichita Eagle blog.

The Senate Judiciary Committee could vote on a bill abolishing executions in Kansas this morning.

The measure, Senate Bill 208, would eliminate the death penalty as an option for cases sentenced after July 1, 2009.

Sen. Carolyn McGinn, R-Sedgwick, conceived the bill as a way to save cash-strapped Kansas some money in a tight budget year.

Today's Kansas City Star has the editorial, "Ending the burdensome cost of the death penalty."

The death penalty law Kansas enacted in 1994 has not yet resulted in an execution. But it has been a money drain.

One study found the state spent 70 percent more to investigate and litigate cases that resulted in death sentences than it spent to try murder cases that didn’t involve a death sentence.

With the state combing its budget for savings, some astute lawmakers have lighted upon the high price of death sentences. The Senate Judiciary Committee is expected to vote today on whether to recommend that Kansas end executions. A “yes” vote would be good for the state.

The costs of capital punishment are more than monetary. Death penalty prosecutions and appeals exact a toll on families of crime victims and communities. A state loses some of its humanity with the taking of a human life.

The risks of irrevocable errors in justice and of inadequate legal counsel also weigh against death penalty laws. And research does not support the idea that death penalties act as a deterrent.

But lawmakers who want to end executions aren’t overstating the fiscal concerns. Several studies have found that a state spends $2 million more per inmate to issue a death sentence and carry out an execution rather than incarcerating that inmate for life.

In Kansas, 10 persons are on death row. The current bill wouldn’t affect them. But the state could halt the expense and emotional toll of future death penalty trials.

Also in today's Star, a profile of  Kansas Lt. Gov. Mark Parkinson, "Olathe's Parkinson poised to become next governor of Kansas."  It's written by Jim Sullinger.  For those wanting a better read of the likely next governor it's a must-read.  Here's one item related to the death penalty:

In the Senate, Parkinson voted for a bill that prohibited smoking in the Capitol and in hospitals and against a constitutional amendment allowing casino gambling. He was a key figure in efforts to restore a limited version of the death penalty and is credited with writing its main provisions.

Earlier coverage from Kansas begins here.

North Carolina Indigent Defense News

"NC death legal center gets new executive director," is the AP report via WRAL.

The nonprofit law firm that represents North Carolina death row inmates and helps capital defense lawyers has a new executive director.

The Durham-based Center for Death Penalty Litigation said Wednesday that Malcolm Ray "Tye" Hunter Jr. was named to the post Feb. 1. Hunter recently retired as executive director of the state Office of Indigent Defense Services. He held that post for eight years.

Hunter helped found the North Carolina Resource Center to handle capital litigation. The center was a project of the North Carolina Academy of Trial Lawyers and later became a state agency in the Office of the Appellate Defender. Hunter led the office from 1986 to 2001.

Hunter succeeds Thomas K. Maher, who left the death penalty center to become executive director of Indigent Defense Services.

Michael Graczyk

KDAF-TV has a brief profile of AP reporter Michael Graczyk, "Texas Reporter Witnesses Hundreds of Executions."

A Fort Worth killer is set to become the 424th inmate to be put to death in Texas. When he dies, Mike Graczyk will be there, just inches away.

   It is the job of the Associated Press reporter to cover capital punishment in Texas, and that translates into busy days on death row. Graczyk estimates that he has witnessed more than 300 executions in his 26 years covering lethal injection in the state.

     Graczyk may have witnessed more executions than anyone in the country because Texas sets the pace when it comes to lethal injection. "It's just part of my job. It just comes with the territory," says the reporter.

   Graczyk says many of the executions have stuck with him through the years, for various reasons. "I remember Gary Graham's execution with all the tension," he says. Graham's execution during President George Bush's first run for office brought out hordes of demonstrators.

And:

Gracyk has also seen three women executed, and those linger in his mind. But, he says, it's the personal nature of visiting the inmates for interviews on death row that he won't forget. "Many of times when I walk into the death house they will call me by name and ask how I'm doing and that just kind of sticks with you," he says.

Reporters from Associated Press and the Huntsville Item cover Texas executions.  TDCJ also allows other media witnesses on a rotating basis.

Craig Watkins, 2008 Texan of the Year

In another editorial, the Dallas Morning News named the Dallas County District Attorney its Texan of the Year.  LINK  Here's a brief excerpt from the editorial:

Here in the state that sanctions killing more often than any other, Craig Watkins is not just another cog in the machinery of death. The first-term Dallas County district attorney has quickly emerged as a transformational figure who has made a name not by securing convictions, but by clearing the way for them to be overturned.

Under his watch, the prison door has swung open again and again, as the wrongly convicted have walked out as free men. He is a prosecutor who has sought the death penalty because it is his professional responsibility but who is personally conflicted.

Mr. Watkins has trained a spotlight on the flaws in the system, and two years after becoming the state's first black district attorney, he is suddenly the new face of Texas jurisprudence.

For his efforts to reform an imperfect criminal justice system and for his willingness to stake out politically precarious territory somewhere between "hug a thug" and "convict at all costs," Mr. Watkins is the 2008 Dallas Morning News Texan of the Year.

Admittedly, this small-time defense lawyer-turned big-deal DA is a lucky guy. He swept into office on a wave of Republican malaise, arrived just as improved DNA technology was employed to overturn convictions, and found himself in one of the few places in the country where evidence was preserved for years after cases were closed.

"Life is all about timing," Mr. Watkins says. "I just happen to be a person with a progressive point of view who is garnering the rewards for this good timing."

More Recognition for Andrea Marsh

Andrea Marsh and the Texas Fair Defense Project have been recognized as Impact Players of 2008 by Texas Lawyer,in the latest issue.  LINK

Andrea Marsh: The Test Case

Andrea Marsh's first case was a doozy. Rothgery v. Gillespie County went all the way to the U.S. Supreme Court and established a "bright-line" rule that a criminal defendant's Sixth Amendment right to counsel attaches when he first appears before a judge.

The high court's June 8-1 ruling in Rothgery is important to indigent defendants who, like Marsh's client, Walter Rothgery, might otherwise have to wait months before a court appoints them an attorney.

"People's lives are really on hold when they're facing criminal charges," says Marsh, founder and executive director of the Texas Fair Defense Project. "It's difficult for them to keep jobs, to find jobs. . . . It's certainly difficult for them to plan for their family's future if they don't know what they're facing in terms of possible jail time or possible sentences."

Texas Fair Defense Project founder and executive director Andrea Marsh

The Supreme Court's majority opinion provides the following background on Rothgery : In 2002, law enforcement officers, relying on an erroneous record, arrested Rothgery in Fredericksburg as a felon with a firearm, although he had never been convicted of a felony. Rothgery requested an appointed attorney when he appeared before a magistrate, who informed Rothgery of the accusations against him, set his bail at $5,000 and committed him to jail from which he was released after posting a bond. Rothgery also made several more requests for the appointment of an attorney that went unheeded. In January 2003, a grand jury indicted Rothgery for unlawful possession of a firearm by a felon, resulting in his re-arrest and an increase in his bail to $15,000, which he could not pay. Rothgery remained in jail for three weeks before he received a court-appointed attorney, who obtained a reduction in the bail and provided paperwork that showed Rothgery had never been convicted of a felony, resulting in the dismissal of the charge.

Marsh says Rothgery sought her legal assistance in 2004 shortly before she left Texas Rural Legal Aid, now Texas RioGrande Legal Aid, to start the Fair Defense Project, now a nonprofit organization that works to assure fairness in the criminal justice system. While at TRLA, Marsh says she had identified an area in which many counties were not complying with the Texas Fair Defense Act of 2001: Delays were occurring in the appointment of attorneys for defendants who post bonds to gain their release from jail.

Finding the facts of Rothgery's case compelling, Marsh says, she sought help from William Christian, a shareholder in Graves Dougherty Hearon & Moody in Austin and a former assistant federal public defender for the Southern District of Texas in Corpus Christi. Christian and Danielle Spinelli, a partner in WilmerHale in Washington, D.C., who argued Rothgery at the Supreme Court, were among the attorneys who worked with Marsh on the case.

In 2004, Rothgery filed a 42 U.S.C. §1983 suit in the U.S. District Court for the Western District in Austin, seeking damages against Gillespie County for violating his Sixth Amendment right to counsel. Based on the argument that Rothgery did not have a constitutional right to counsel at that point in the process, U.S. District Judge Lee Yeakel granted the county's motion for summary judgment in 2006. The 5th U.S. Circuit Court of Appeals, in affirming Yeakel's decision in 2007, held that a defendant's Sixth Amendment right to counsel did not attach until prosecutors become involved in the case. Rothgery petitioned the Supreme Court for a writ of certiorari in September 2007.

The issue the Supreme Court addressed in Rothgery had been in controversy for a number of years in Texas. William H. Beardall Jr., executive director of the Equal Justice Center, a nonprofit employment justice and civil rights organization in Austin, says proponents of indigent defense reforms had disagreed with counties and prosecutors about when adversarial judicial proceedings begin during the 2001 debate over the Fair Defense Act. "We faced a political standoff over that issue," says Beardall, who helped draft the legislation.

Beardall says a compromise was necessary to win passage of the Fair Defense Act. Under the compromise, the Legislature included language in Texas Code of Criminal Procedure Article 1.051(j) that if an indigent defendant is released from jail prior to having an attorney appointed, the appointment of counsel "is not required until the defendant's first court appearance or when adversarial judicial proceedings are initiated, whichever comes first."

Beardall says he and others pushing for reforms in the indigent defense system knew they would need a test case to determine at what point adversarial judicial proceedings begin in a case. " Rothgery turned out to be the test case," he says.

Christian says the Supreme Court's opinion in Rothgery "makes clear an area of the law that wasn't clear." If counties continue to delay appointing attorneys for indigent defendants until the time of indictment, "they're in clear violation of the law," he says.

Beardall, who also is an adjunct professor at the University of Texas School of Law, says the decision in Rothgery impacts not only Texas but also other states where the timing of appointing counsel for indigents remained an unresolved issue. "One of the great things about the Rothgery decision is it provides an understandable, clear-cut, bright-line rule that assures people who are arrested and required to defend themselves against a criminal charge will get counsel appointed promptly if they can't afford to hire a lawyer," he says.

There has been uncertainty over that issue, Beardall says, since the U.S. Supreme Court held in 1963's Gideon v. Wainwright that state courts are required under the Sixth Amendment to provide counsel for criminal defendants who cannot afford to hire attorneys.

Marsh's representation of Rothgery in the civil rights suit continues. The U.S. Supreme Court remanded Rothgery to the 5th Circuit, which in August remanded the case to the U.S. District Court in Austin. In an Oct. 29 order, Yeakel scheduled trial in the case for sometime in May 2009.

With two lawyers on staff, Marsh says her organization works to improve the criminal-defense system in Texas, but it also has a small litigation docket, typically handling about two cases per year. " Rothgery has been the most high-profile," she says.

-- Mary Alice Robbins

Earlier this year, Marsh was recognized by Texas Lawyer as one one of the Extraordinary Women in Law in the state, as noted in this post.

Jim Mattox - Funeral Details Finalizing

I understand that funeral details are being completed this afternoon, and times may shift slightly to accommodate out-of-town attendees.  This is what had previously been reported:

The funeral is scheduled for 10:00 a.m. Tuesday, November 25 at the First Baptist Church in Austin. Burial will follow at the Texas State Cemetery.

The Cook-Walden Funeral Home at 6100 N. Lamar in Austin is handling arrangements.  They do not have a website, but I expect final arrangements will be in a paid obituary in tomorrow's Austin American-Statesman.

Here are some of the obituaries:

New York Times: Jim Mattox, Combative Texas Politician, Dies at 65
Austin American-Statesman: Self-styled 'people's lawyer' was hard-knuckle fighter in public office
Dallas Morning News : Jim Mattox, former Texas AG, lawmaker, 'people's lawyer' dies at 65
Fort Worth Star-Telegram: Former congressman, attorney general Jim Mattox dies at 65
Houston Chronicle: Mattox, self styled 'people's lawyer,' dies at 65

Throughout the last day and a half I've heard from colleagues who are scattered across the country.  It's been quite a memory tour looking back with some as far as 1972.  I'll have some more thoughts later.

Jim Mattox, 1943 - 2008

Gardner Selby has this report at the Austin American-Statesman website.

Jim Mattox, a fiery Democrat whose career brought him from Dallas to Austin to Washington and then back to Austin, has died in his sleep, a former spokesman, Kelly Fero, said today. The former Texas attorney general was 65.

Mattox, who lived in Dripping Springs west of Austin, was born in Dallas on Aug. 29, 1943, the first of three children of Norman and Mary Katheryn Harrison. His father was a union sheetmetal worker, and his mother was a waitress.

My deepest condolence to his wife Marta and their children, his sister Janice, and brother Jerry.

It was only this morning in looking through the Statesman that I saw an obituary of Joe Cipriano.  Following the 1982 election, when a ticket of Democrats swept the state elections - and Jim Mattox was elected Attorney General, Joe led a team of Coopers & Lybrand consultants who took a top-to-bottom look at the AG's office.  That was a great assistance -- along with the full cooperation of then-AG Mark White (who was moving into the governor's office) and his First Assistant AG, John Fainter -- in making for a smooth transition of the state's law firm.

I'm hearing from many former colleagues right now, and I'll return with some more thoughts later.

The Exonerator

That's the title of a profile of Dallas County District Attorney Craig Watkins from the Saturday Wall Street Journal.  It contains interactive features and graphics available at this LINK.  Scroll down for a WSJ interview with exoneree James Woodard.  Also in this post is a link to a Q and A with Watkins in the Sunday Fort Worth Star-Telegram.

Here's an excerpt from the WSJ profile.

Craig Watkins may be the only prosecutor in America who is making his name getting people out of prison.

As district attorney of Dallas County, Mr. Watkins is using DNA evidence to investigate more than 400 guilty verdicts notched up by his predecessors. His office's Conviction Integrity Unit, launched last year for this purpose, has so far cleared six men wrongly convicted of rape, murder or robbery.

In the past two decades, more than 200 convicts nationwide have been freed thanks in part to DNA testing. The tests involve taking biological material such as blood from the person convicted and comparing it to a sample left at the crime scene. These efforts are usually spearheaded by defense lawyers, not prosecutors.

Mr. Watkins, who became the first African American district attorney in Texas when he was elected in 2006, said in a recent interview that he has been accused of being "a criminal-loving DA, a hug-a-thug DA." But he says such criticism of him and his office misses the point: "We have the constitutional obligation to seek justice."

Each exoneration has pushed Mr. Watkins further into the spotlight. He has been interviewed by television crews from around the globe. The Democratic party in Texas considers him a rising star, though Mr. Watkins says he hasn't made any decisions about running for statewide office.

But the exonerations have also brought intense scrutiny of the 40-year-old Mr. Watkins, who spent most of his career as a small-time defense lawyer. Critics, including some fellow prosecutors, say he seems too eager to besmirch his predecessors' reputations for the sake of a little publicity. They note that politically, these cases are easy targets: None of them were tried by him.

And:

Mr. Watkins says his office is simply shining a light on a problem, and that progress requires being honest. "You have to gain the public's trust," he says.

He points to his overall record, which is similar to his predecessor's. According to court data, 61% of capital-murder cases his office has handled so far have resulted in convictions; the previous district attorney, Bill Hill, got convictions in 55% of capital-murder cases during a comparable period of time. Mr. Watkins has convicted 48% of murder cases and 34% of sexual-assault cases involving an adult, compared to 48% and 31%, respectively, for Mr. Hill.

One difference is that Mr. Watkins more often opts for alternative methods of punishment. For example, 40% of drug-possession cases have been given deferred adjudication during Mr. Watkins's tenure, compared with 29% for a comparable period under Mr. Hill's. Deferred adjudication typically lets first-time, non-violent offenders avoid jail time by completing probationary requirements such as drug-treatment programs.

"It's about, 'OK, We're going to punish you and the punishment is for a purpose, but at the end of the day because you made a youthful indiscretion, we don't want you to have this criminal history and be here for the rest of your life,' " says Mr. Watkins.

James Woodard speaks in, "Interview: Exonerated Dallas Man."  He spent 27 years in prison for a wrongful conviction.

WSJ: That day at the hearing, did Mr. Watkins congratulate you?

Mr. Woodard: Mr. Watkins made a public apology for the error the state had made and he shook my hand. And basically, from that point on, I was answering questions from reporters. That's about it, the condensed version, anyway. I try not to look back. I don't think it does too much good to go back and brood or muse about the things that happened. I just have to go forward.

"Dallas County district attorney reconciles opposition to the death penalty with the law," is from the Sunday Fort Worth Star-Telegram.  Her's an excerpt:

Why are you opposed to capital punishment?

I’m a human being, and as a human being, I will not kill anybody. I don’t want to use my position to take a life, even though you may go out and do a heinous crime. I may be even worse than you because I have the full weight of the government behind me. For me to use the full weight of the government to do the same thing that you did, is that justifiable?

We just agreed to seek the death penalty against a guy that raped a 3-year-old girl and strangled her and left her under a bed. When I see that, the human side of me says, "Yeah, that guy should be killed." But then the government is the supreme being, right? You’re in a supreme position. You’re higher than human existence and you should carry yourself as such.

Given your feelings, when your office seeks the death penalty, do you personally sign off on that?

Professionally that’s something I have to do . . . for the citizens I represent.  . . . It’s the law and I have to implement it. I can’t let my personal views get in the way of what the public wants.

Will your feelings about the death penalty ever affect the policy of your office?

I would like to think that I have the courage to stand up and say no [to capital punishment]. But I’m not at that point. I don’t know if I ever will be. It’s so early in my career as DA. I don’t have any seniority. I don’t have any credibility.  . . . That might be a fight that I should fight, but at this point it’s too early.

Earlier posts about Watkins include:

• Witness to the Prosecution
• 60 Minutes on Dallas County Exonerations
• Dallas County's Review of Integrity of Convictions
• Texas Monthly Talks to Craig Watkins
• A Reflection on the Newsweek Article
• For Dallas, New Prosecutor Means an End to the Old Ways

Extraordinary Women in Texas Law

Texas Lawyer has recognized 30 female lawyers in Texas for extraordinary accomplishment.  Two of those honored play leading roles in indigent criminal defense work in the state, Maruie Levin, Senior Staff Attorney at Texas Defender Service, and; Andrea Marsh, Executive Director of Texas Fair Defense Project.  The Texas Lawyer special supplement is here.

This is from Editor Collen Bridget McGushin's introduction:

Hortense Sparks Ward, Sarah T. Hughes, Barbara Jordan -- these and countless other storied women have pioneered the legal profession in the Lone Star State and mentored others in the ways of justice, ethics and advocacy. They also helped pave the way for the 30 women profiled in Extraordinary Women in Texas Law, a special magazine from Texas Lawyer.

With 22,783 women practicing law in the state, according to the State Bar of Texas, the Texas Lawyer editorial department knew this project wouldn't be easy. We started the six-month process by posting a nomination form on the Texas Lawyer Web site. We asked readers to nominate women licensed to practice law in Texas who have had an impact in the state on firms, government, nonprofits, academia and/or the corporate world within the past five years (judges were not eligible).

More on Levin is here:

A defense attorney who works on death-sentence cases, Maurie Levin says she loves and hates her work.

"You're railing against a system that's stacked against you every step of the way," Levin says. She fights for her clients and assists lawyers with their cases -- hundreds of them over her career. And it's usually a losing battle in Texas. "And then your client gets executed. It's not a lot of fun."

That's what had just happened when we talked with Levin. Carlton Turner was executed in July, following his conviction 10 years ago for capital murder in the deaths of his adoptive parents. Levin and others were filing motions until the end, and she talked with Turner on the phone shortly before he was put to death.

A higher point for Levin came early this year, when LaRoyce Smith was taken off of death row with a plea deal that gave him life in prison. His sentence -- but not the murder conviction -- had twice been overturned by the U.S. Supreme Court, in large part because the trial jury was not allowed to consider his IQ of 78. Levin represented Smith for many years and raised claims that were litigated before the high court. But she's quick to note that many lawyers chipped in on the defense side of that case.

Levin, a 1992 graduate of Northeastern University School of Law in Boston, has represented inmates sentenced to die since 1993. She is also an adjunct professor at the University of Texas School of Law, co-teaching the Capital Punishment Clinic with fellow defense lawyers Jim Marcus and Rod Owen. They have a dozen students working on whatever "is on our respective plates," she says.

More on Marsh is here:

Andrea Marsh fights to help the poor get good legal help.

Marsh started the Texas Fair Defense Project, which helps protect the rights of indigent defendants in Texas, at the offices of the Texas ACLU in 2004 and spun it off as a stand-alone nonprofit in September 2005.

As executive director of TFDP, Marsh presses for stronger implementation of the state's Fair Defense Act. Passed by the Texas Legislature in 2001, it requires counties to have written policies for indigent defense and to set standards for the appointment of criminal-defense lawyers.

She also helped develop performance guidelines for defense lawyers in capital cases as part of the State Bar of Texas' Committee for Legal Services to the Poor in Criminal Matters. She currently leads a subcommittee working on similar guidelines for noncapital cases.

Marsh successfully pushed for passage of a 2007 bill, H.B. 1178, in the Texas Legislature that aims to protect the rights of indigent defendants who appear in court without counsel. It went into effect in September 2007.

In a June 23 opinion stemming from the first case ever filed by Marsh at the TFDP, Rothgery v. Gillespie County, the U.S. Supreme Court ruled 8-1 in favor of her client Walter Rothgery. The high court ruled that a defendant's Sixth Amendment right to counsel attaches at his first appearance before a magistrate, whether or not the prosecutor is also on hand. As a result, indigent defendants released from custody in Texas can get court-appointed attorneys much sooner than in the past.

The El Paso Mayor

"Mayor Cook on guitar against Texas's death penalty," is the title of Brandi Grissom's profile of John Cook in today's El Paso Times.  Here's an excerpt from the beginning:

In a dark blue pin-striped suit, crisp white dress shirt, snug red tie and shiny brown dress shoes, El Paso Mayor John Cook sure didn't look like any folk singer.

But he slung one knee over the other, braced his guitar and belted out a couple songs Wednesday night in Austin just as he has in five other cities across the state, playing with a variety of musicians promoting abolition of the death penalty in Texas.

"I don't think we, the state, should have the right to take a person's life," Cook said in an interview before he took the outdoor stage at Scholz Garten in Austin.

The mayor has been on a mission this year with the Music for Life Tour. The tour, affiliated with the Texas Coalition to Abolish the Death Penalty, stopped in El Paso in April and organizers asked Cook if he'd join them for a concert at Club 101.

"I said, 'Sure, sounds like a blast,'" Cook said.

He had such a blast that, despite his political advisers' recommendations, he asked the organizers if he could join them on the rest of their stops.

Cook has taken his song stylings to concerts in Dallas, Arlington, Fort Worth and Waco, appearing with musicians such as Sara Hickman and The Austin Lounge Lizards. At Wednesday's show in Austin, humorist, author and former gubernatorial candidate Kinky Friedman joined the show.

"For me, it's a moral and religious conviction," Cook said of his opposition to the death penalty.

The chances, he said, are too great that an innocent person could be executed. And God, he said, gives humans the right to seek punishment, not vengeance.

Earlier coverage of Sara Hickman's year-long Music for Life tour is here.

The Reluctant Prosecutor

That's the title of a profile of Texas District Attorney Randy Reynolds in the latest Texas Monthly.  It's written by Nate Blakeslee.  LINK  Here's the introduction:

“There are some men in this world,” Harper Lee wrote in To Kill a Mockingbird, “who were born to do our unpleasant jobs for us.” And there are some who were not. Among this latter group is Randy Reynolds, who for the past dozen years has held the unpleasant job of district attorney for the hardscrabble 143rd Judicial District, which covers the rural West Texas counties of Ward, Reeves, and Loving. During Reynolds’s tenure, peace officers in the 143rd have brought hundreds of cases of drug trafficking, theft, assault, robbery, and sundry other felonies to the district attorney’s office for prosecution, and Reynolds, exercising his discretion as the people’s representative, has declined to prosecute the vast majority of them. He has done this, depending on whom you ask, because he is stupid, or lazy, or trying to save the county money, or simply afraid to get in front of a jury against a defense attorney he thinks might beat him. Some cases seem to disappear altogether, prompting Reeves County sheriff Arnulfo Gomez to direct his deputies to ask for a receipt when they drop off case files, like customers at a dry cleaners. The uglier the case, it seems, the less likely Reynolds is to put somebody in prison. In the past six years, 58 cases of indecency with a child or sexual assault of a child have been referred to his office. Reynolds has obtained a conviction in only one of them: the case of the former sheriff of Loving County, Richard Putnam, who pleaded guilty to molesting a teenager. Reynolds offered him probation.

Voice of Death Testifies for Life

That's the title of a profile of Larry Fitzgerald, the retired TDCJ spokesman who witnessed more than 200 executions in Texas.  The profile is by Steve Mills in today's Chicago Tribune.  LINK

For eight years and 219 executions, Larry Fitzgerald was the face of the nation's busiest execution chamber, a man who watched as men and women were put to death and then, often in the face of tough questions and controversy, explained what had happened.

Now he is on the other side. Retired from the Texas prison system, where he was chief spokesman based at the death chamber in Huntsville, Fitzgerald helps death penalty attorneys trying to keep their clients alive by testifying about life in the state prison system.

Fitzgerald's turnabout does not mean he is a capital punishment foe; indeed, he favors the death penalty in some cases. Yet his new role has prompted criticism from some, including a former warden who called him a traitor.

"My testimony isn't for or against the death penalty. It's to show the prison system works. No matter how bad this person is, the Texas prison system can handle him," Fitzgerald said.

And:

Fitzgerald appears during the highly charged punishment phase of a death penalty trial, after a defendant has been found guilty but before the jury has decided whether he should live or die. He describes inmate life, talks about education opportunities in prisons and, most of all, how secure they are.

"People," he  said, "just don't understand all of what goes on inside a prison."

Larry is a communications professional.  Prior to his work at TDCJ, he was director of communications at the State Bar of Texas.

 

The Honorable Charlie Baird

That's the title of Jordan Smith's lengthy profile of State District Judge Charlie Baird in the current issue of the Austin Chronicle.  LINK  He previously served on the Texas Court of Criminal Appeals and has been active member of the American Bar Association.

Friday mornings are always busy in Travis County's 299th District Court. Defendants and family members sit in the gallery, a handful of county prosecutors and court personnel sifts through stacks of case files making notes and consulting with colleagues, and a gaggle of defense attorneys crowds in front of the bench, waiting their turn to approach. Presiding is District Judge Charlie Baird, on the bench in coat and tie. He doesn't often wear his formal black robe – and he rarely dons it on Friday, when he plows through a lengthy docket. This is a felony court, and that means serious business: burglaries and robberies, family violence and sexual assaults, drug cases and murders. The Friday docket has a bit of everything – including probationers eligible for early release, state motions to revoke probation for others, defendants wanting out of jail on bond, and cases to be disposed of through plea bargain agreements. There are, inevitably, many of those; some 90% of all criminal cases end in a bargain – generally, a sentence negotiated between a prosecutor and defense counsel. Baird, who was elected to the bench in 2006, has approximately 900 active cases on his docket; without the plea bargain system in place, the work of the criminal justice system would grind to a halt.

In that aspect, Baird's court is typical of any felony criminal court. What makes the 299th different is Baird himself. Even amid the stack of pending cases, Baird is relaxed, his manner easy. Consider a typical case – a plea bargain for burglary or drug possession, for example. Baird reads over the case file before him, hears what offer the state will make to dispose of it – and then stops, peers over the top of his reading glasses, and fixes his gaze on the defendant. He addresses him by name.

"Tell me about your life," he says.

Death and the Chaplain

That's the title of a Q and A with Carroll Pickett, the retired TDCJ Chaplain featured in the documentary At the Death House Door.  The interview was conducted by Kiko Martinez.  LINK

The year after you retired, rules were changed at the prison to allow close friends and family of the victim to witness the execution. What were your thoughts on this new policy?

  Before they started legally, there were many times when I had the family of the inmate that was going to be executed in one place and the family of the victim in another place. We would have to sneak one family in one way and the other family another. I think if they’re looking for closure, they’re not going to get it. Watching somebody get killed isn’t pleasant.

His memoir, Within These Walls, is available under Books in the right-column.  Earlier coverage of the documentary is here.

Dallas Morning News Profiles

Diane Jennings has a series of articles that ran in the Sunday Dallas Morning News, beginning with an introducion, "Texas prosecutors bring different insights into death penalty debate."

Dallas County District Attorney Craig Watkins thinks the spark for the debate "is going to come from someone in a district attorney's seat."

For prosecutors, capital punishment is breathtakingly real. They are the men and women who parse mountains of evidence, interview shattered survivors, depose witnesses and decide what charges to file. They are the ones who ask 12 people to sentence someone to death.

Some prosecutors, such as David Weeks in Walker County, arrive at their position on the death penalty gradually. Mr. Weeks has come full circle, from a pacifist upbringing to being a vocal proponent of capital punishment.

Others change their minds only after leaving office. Sam Millsap, former district attorney in Bexar County, grew up as a "full-throated" supporter of the death penalty. He is now an outspoken opponent.

Their conclusions differ, but they agree on one thing: Texans need to talk about the death penalty.

It continues with "Walker County DA at ease with role in state 'death machine'."

David Weeks has sent eight men to death row.

His office sits a few blocks from the state's death chamber; his phone rings nonstop on execution days. Hordes of journalists descend periodically on the "death penalty capital."

"It's here in our back yard," says Mr. Weeks.

He says he's comfortable being part of the state's "death machine" because "it's the right thing to do."

Mr. Weeks, 57, has been Walker County district attorney for 17 years. He's also been an assistant DA in other counties and was a prosecutor in the prison system.

He thinks the death penalty is a deterrent and, "The ultimate punishment has to be there to make the rest of the system work. There are certain people that because [of] their crimes and who they are, can never be trusted."

The series concludes with, "Former Bexar County DA lost faith in capital punishment system."

Sam Millsap is embarrassed to admit he doesn't remember how many people his office sent to death row when he was district attorney here in the 1980s.

"Somebody who has been responsible for making those decisions, for directing those prosecutions, ought to be damned certain how many executions he's responsible for," he says, wincing.

He estimates it was eight, maybe nine.

Back then, he just didn't think much about the death penalty, Mr. Millsap says. "I was 35 years old. I knew everything. I was bulletproof."

Now 60, he thinks about the death penalty a lot – about wrongful convictions, flawed eyewitness testimony, DNA analysis.

"I am concerned that the system is absolutely incompetent to deal with these issues," he says.

Dallas County DA Craig Watkins remarks are contained in a Morning News article last week, noted in this post.

New Texas Solicitor General Named

James Ho has been named to replace Ted Cruz as Texas' top appeals lawyer.  Marcia Coyle reports, "," in the National Law Journal.

James C. Ho, of counsel in the Dallas office of Gibson, Dunn & Crutcher, will become the new Texas Solicitor General when current Solicitor General R. Ted Cruz returns to private practice later this spring.

As the state's chief appellate lawyer, Ho will oversee both criminal and civil litigation before state and federal appeals courts and will represent Texas before the U.S. Supreme Court. As a senior member of the executive staff, Ho will also serve as a top legal advisor to the Attorney General.

"As a former U.S. Supreme Court clerk and one of the nation's most promising lawyers, Jim Ho is uniquely qualified to serve as the new solicitor general," Attorney General Gregg Abbott said. "The State of Texas is fortunate that a lawyer with Jim Ho's experience and demonstrated legal talent is willing to leave private practice to continue his remarkable record of public service."

Like his predecessor, Cruz, Ho is a former U.S. Department of Justice attorney and Supreme Court clerk (clerk to Justice Clarence Thomas during the 2005 Term). Prior to his clerkship, Ho served as chief counsel to U.S. Senator John Cornyn, R-Texas.

As the top legal advisor to Cornyn, Ho helped craft the OPEN Government Act, the first major federal Freedom of Information Act reform package in over a decade. In 2006, Senators Cornyn and Kay Bailey Hutchison recognized Ho's considerable legal ability when they appointed him to their Federal Judicial Evaluation Committee, which helps the senators evaluate potential federal judicial and U.S. attorney nominees from Texas.

Before joining Cornyn's staff, Ho worked at the U.S. Department of Justice's Civil Rights Division, and later in the Office of Legal Counsel.

He graduated from the University of Chicago School of Law with high honors in 1999.

Last week, Coyle reported on the emergence of state solicitor general offices, as noted in this post.

A Profile of Ronnie Earle's Legacy

Ronnie Earle, who has served as Travis County's District Attorney for 30 years leaves office at the end of this year.  Rosemary Lehmberg, his top assistant recently won the Democratic primary run-off election and faces no opposition in the November general election.

The Austin Chronicle's Michael King and Jordan Smith look at Earle's tenure in, "District Eternity: Earle on Earle."

Travis County District Attorney Ronnie Earle, who in December announced his decision to retire at the end of 2008, likes to tell the story of a waitress who came up to his table some years ago and said, "That man over there wants to know if you're the district eternity of Austin." Earle, 66, will step down at the end of this year, to be replaced by Rosemary Lehmberg, the winner of this week's run-off election. That will complete 32 years in office since Earle's first election in 1976 – not quite eternity but a long enough prosecutorial career to suggest that Earle's local influence on law enforcement and the pursuit of justice will not soon disappear.

Certainly Lehmberg will reshape the office to her own perspective. But the man who is now routinely described as "the most powerful Democratic state officeholder" has built a considerable legacy in his three decades as district attorney, and the next occupant will need to be quite determined to clear a space under Earle's long shadow.

For the last few years, Earle has been best known, especially in deep-blue Democratic Austin, as the man who brought down Tom DeLay. Earle's prosecution of the former U.S. House majority leader and his confederates for campaign finance violations is still in progress – if the court actions last beyond this year, Earle says he will offer his pro bono assistance to his successor. But the most important effect of the DeLay indictments, primarily on charges of using illegal corporate donations to underwrite Texas legislative campaigns, was that it made it finally impossible for the scandal-plagued congressman to continue as a national Republican leader.

And:

Earle is aware of the criticisms, but he believes that he and his office have made significant, visible progress over the years. He undoubtedly has diminished the emphasis upon (and numbers of) death-penalty prosecutions originating in Austin in comparison with other Texas jurisdictions, seeking capital punishment only for those offenses his office – and its unique Capital Murder Review Committee, which advises Earle in such cases – considers the most heinous. More generally, when he is asked about the measurable success of his broader community justice programs, he points not to conviction numbers or similar courtroom statistics but to the relatively low local crime rate. "The proof in the pudding," he says, "is really the fact that Austin has one of the lowest crime rates in the country – probably the lowest per capita. In 1991 we had 49 murders; last year we had 20-some. And the year before, it was 23 or 24." (Recent FBI statistics posted by the city of Austin show Austin with a violent crime rate below the national average and a property crime rate above the national average.) For 2005 (the most recent figures available), Austin ranked as the third-safest large city, based on the per capita violent crime rate.

Profile of TDCJ General Counsel Melinda Bozarth

"In House at the Big House," is the title of a profile of Melinda Bozart, General Counsel of TDCJ.   It's written by Kristine Hughes.

Melinda Hoyle Bozarth didn't plan to become an attorney.

The Kansas native's undergraduate degree is in correctional administration; as a young adult she dreamed of working with prison inmates as either a probation officer or halfway-house counselor to help them leave their mistakes behind.

More than three decades later, though, she is general counsel for the Texas Department of Criminal Justice (TDCJ) in Austin — one of the two largest systems in the United States responsible for incarcerating offenders.

Yet she doesn't see any irony in the career path she has traveled.

"I would never say I'm on the other side now. That's not the way I see my role as GC," she says, noting that the mission of the correctional system is to "provide humane and constitutional care so inmates can succeed in changing their lives. We all have the interest of the offender at heart."

Current and former colleagues agree that, if anything, Bozarth's compassion, combined with her early education and wide-ranging experience — including work on the landmark Texas prison reform case Ruiz v. Estelle — makes her the best possible general counsel the TDCJ could have. They describe her as honest, intelligent, analytical, persuasive, diplomatic, and generous with her knowledge and time.

"She may ask you to work hard and make sure something is done well, but she'll always work harder than you," says Geralyn Engman, clinical manager of TDCJ's Rehabilitation and Re-entry Programs Division.

As general counsel and head of TDCJ's Office of General Counsel Division, Bozarth works closely with the Texas Board of Criminal Justice, which hires the agency's director and sets policy. She keeps the director and board informed about pending litigation, especially cases that could have policy consequences or large adverse verdicts. She advises staff, such as the correction system's wardens and department heads, on everyday legal matters. And she oversees the deputy general counsel, who supervises the litigation support department and the legal affairs department. The litigation support department works with the Texas Office of the Attorney General in the defense of suits filed against the agency and the legal affairs department handles contracts, business transactions and open records requests, and offers legal opinions on agency operations.

Bozarth says 700 to 800 offender cases, about 35 employment cases and a dozen tort cases — slip and falls, car accidents, and employee and offender on-the-job injuries — are pending against TDCJ at any one time. She characterizes those numbers as low considering the size of the agency.

TDCJ, with 38,000 employees, operates 100 prisons, state jails, treatment facilities and psychiatric hospitals housing 153,000 offenders. It also runs 66 parole offices supervising 77,000 parolees. The legal department consists of 41 employees, including 15 attorneys, various support staff and legal assistants, one investigator and one technical writer, who composes policies and procedures, summarizes legislation and its impact, and writes reports for the board. The department also has a program supervisor, who oversees the support staff, and a program administrator, who reviews correctional officers' use-of-force reports in light of inmates' potential suits.

Profile of an Executioner

Australia's Sydney Morning Herald has a profile of Jerry Givens, a former Virginia prison guard and executioner.  "Cruel and unusual punishment," is written by Jeff Sparrow.

He told no one about what he did: not his wife, not his friends, no one. "I had to change. You've got to be transformed to take a life, to become - I hate to say an animal - but a person that you are really not. You are tense. You go up and down. Is the execution going ahead? Will they get a temporary stay?

"It takes a while to come down afterwards. It might take two days. It might take three days. It might take months. And some time you go up and down after that anyway, and then when you got another one scheduled, you got to get ready to do that all over again.

"And then you try to live a normal life."

He tells of his family problems, the troubles he had at home, how his wife had to cope with the moods he could not explain, and how the executions kept coming.

Are there any in particular that he thinks about, I ask.

"Sometimes, they say things that will stay with you the rest of your life," he says, his voice flat. "We had a guy in a wheelchair. You got to pick him up, his legs dangling, put him in an electric chair. You got guys complaining about their veins; you can't find a vein, you're hurting him, he's going through pain. It locks in and stays with you, and any time you hear about executions, these things pop up."

Then there were the families of the condemned men. "This is your last visit with your mother, your sister, your child or whatever and then you have to sit there and you got to watch your son be killed. To bring closure to a family member by killing someone else, it's not ... " His voice fades away and he shakes his head again.

ABC World News profiled Givens on its December 17 broadcast in the report, "Interview With an Executioner."

Jerry Givens spent 17 years as a professional killer. From 1982 to 1999, he killed 62 people.

He was never punished. His work was paid for by the Commonwealth of Virginia.

As the state's chief executioner, Givens pushed the buttons that administered lethal doses of electricity to the condemned. He could even choose how many volts to administer. And he is the first to admit that it was largely guesswork.

"If he was a small guy, I didn't give that much. You try not to cook the body, you know. I hate to sound gross,'' he told ABC News in a rare interview.

Only a handful of executioners in America have ever spoken publicly about their experiences, and fewer, if any, have revealed the emotional toll the job can take on a person or the mind-set of the man behind the proverbial mask.

Givens told ABC News that his experiences in the death chamber have caused him to change course and oppose the death penalty.

And:

Givens said he trained with a Texas execution team that showed him how to administer the deadly cocktail of drugs used in lethal injection executions. Still, he has no formal medical training.

Corrections officials in the 36 states where the death penalty is legal have long faced the vexing challenge of having executions administered, or at the very least overseen, by trained medical professionals. But the Hippocratic oath ("first, do no harm") ethically prohibits medical professionals from participating in executions. The American Medical Association recommends that doctors not participate in executions.

In 2006, lawyers for the state of Missouri told a federal judge that they simply could not meet his demand that a certified anesthesiologist oversee state executions.

State attorneys reportedly told the judge that authorities in Missouri had sent certified letters to 298 qualified anesthesiologists who lived anywhere near the state's death chamber. They were turned down by every single one, according to a report in The New York Times.

Many states have abandoned guidelines requiring medical professionals to perform executions, because there are simply not enough doctors or nurses willing to perform the job. And in states like Virginia, as Givens told ABC News, training for such a consequential job is thin at best.

ABC News showed Givens the American Veterinary Medical Association's guidelines for the lethal injection of pets, which states that the drug used to euthanize an animal can be so potentially painful that "it is utmost importance that personnel performing this technique are trained and knowledgeable in anesthetic techniques, and are competent in assessing anesthetic depth appropriate for administration of potassium chloride intravenously."

Asked whether it concerned him that the nation seems to take more care in the execution of pets than it does in humans, Givens said, simply, "yeah."

"It's wild."

Profile of David Barron

AP has a profile of Kentucky Public Defender David Barron, "Public Defender Builds Lethal Injection Case."

One of the biggest capital punishment cases to come before the U.S. Supreme Court in a generation was put together largely by a young, fresh-out-of-law-school member of Kentucky's overworked and underpaid corps of public defenders.

David Barron, 29, filed an appeal on behalf of two Kentucky death row inmates, arguing that the three-drug cocktail used in lethal injections across the country can cause excruciating pain, and thus amounts to cruel and unusual punishment in violation of the Eighth Amendment to the Constitution.

After three years of long hours on Barron's part, the Supreme Court agreed to hear arguments in the case on Jan. 7.

"I can't believe I've got a case before the Supreme Court and I'm not even 30 years old," Barron said.

This is the first time in more than a century that the high court will address the legality of a method of execution. Thirty-six states use lethal injection, and executions across the U.S. have come to a halt in the meantime.

Barron, an assistant public defender, arrived in Kentucky in 2004, just over a year out of law school, to represent some of the worst of the worst — death row inmates. He was admitted to the Kentucky bar in July of that year, and filed his lethal-injection challenge the following September, employing a strategy he had tested out in other jurisdictions.

He was paired with John Palombi, a fellow public defender with at least a decade of experience.

And:

Public defenders work one of the lowest rungs of the legal profession, one that is often not very highly regarded by other lawyers. Many young lawyers right out of law school often get their start as public defenders, and often race from case to case with barely enough time to read the file, much less do the in-depth investigation attorneys in private practice can do.

Public defenders have traditionally received little funding, particularly in the South. Kentucky has one of the lowest-funded offices in the country.

The starting pay for most Kentucky's public defenders is about $38,000 a year.

Kentucky spends about $33.5 million in 2005 (the last year for which numbers were available) on a population of 4.1 million. That's about $8.14 per person for public defense — 23rd among the 30 state-run public defender offices nationally. Oregon leads the nation at $23.75 spent per person.

Off the Fence

That's the title of a profile of Carroll Pickett, the retired Presbyterian minister who was Chaplain at the Walls Unit in Huntsville, home of Texas's death chamber.  The must-read article is written by Michelle Garcia and is in the Amnesty International Winter 2007 magazine.  LINK

The great Texas sun is rising on a cool summer morning as the Rev. Carroll Pickett, a minister who once ushered condemned men into the execution chamber and watched them die, speaks of redemption. His Sunday school students, middle-aged and elderly couples from a gated community just north of Houston, contemplate the message of repentance given by the former prison chaplain of Texas’ most notorious penitentiary, a prison whose name is synonymous with hard time: Huntsville.

Pickett, a Presbyterian minister, wears a mint-green suit and a tie dotted with gold crosses. Tucked under his arm is a hand-tooled leather case containing a Bible, a gift from the inmates who once sought his counsel and lent their voices to his prison choirs. During the course of his career, this soft-spoken man with a good-ole-boy twang has witnessed prison officials pump poison into the veins of 95 men.

Pickett reads aloud the warning delivered by an angel in the final book of the Bible, Revelation: “I know your works, that you are neither cold nor hot . . . So, because you are lukewarm, and neither hot nor cold, I will vomit you out of my mouth.”

“In other words, get off the fence,” Pickett tells his class. “Every Christian has got to get off the fence.”

It took decades—nearly a lifetime— but Pickett made that jump himself. After his retirement in 1995, he spoke out against the death penalty. Since then, his unique insider’s perspective and “Texas gentleman” manner has made him a potent force within the movement to abolish the death penalty. Few men can claim to have witnessed the first execution by lethal injection in the world, as he did 25 years ago. Even fewer have sat in prayer, listened to the confessions and final requests of men on the last day of their lives, heard their final words and their last gasp.

And:

Pickett later brought his perspective to Texas legislators as they considered a moratorium on the death penalty. He mused how in life men as different as Carlos de Luna, most likely an innocent man, and an unrepentant Ignacio Cuevas shared little more than the absoluteness of their ending.

“All 95 met the same fate,” he said in testimony before Texas lawmakers in 2000. “The repentant died with the unrepentant, the mentally competent died with the mentally incompetent and the innocent died with the guilty.” It has been more than a decade since Pickett left the Walls. The message of repentance he once shared with the imprisoned and those condemned to die is now heard by the living and the free.

Pickett's memoir, Within These Walls, is available in the Books section in the right column