The StandDown Texas Project

Texas Execution Scheduled for Tuesday

Texas is scheduled to carry out its first execution of 2013, Tuesday night in Huntsville.  It would be the 493rd post-Furman Texas execution since 1982, and the 254th execution conducted under the administration of Governor Rick Perry.  Texas has the nation's most active death chamber and accounts for more than 37% of the  executions in America's death penalty states.

"Woman set to die for 1997 Lancaster murder loses clemency bid," is the Dallas Morning News report.

The Texas Board of Pardons and Paroles has unanimously refused a clemency request from a Dallas County woman set to die next week for the slaying and robbery of a retired 71-year-old college psychology professor at her home.

Attorneys for Kimberly McCarthy had sought a 120-day reprieve from her scheduled Tuesday execution and that her sentence be commuted to life in prison.

The seven-member board Friday turned her down.

And:

McCarthy would be the fourth woman executed in Texas in modern times.

To date, there has been one execution in American death penalty states this year; a total of 1,321 post-Furman executions since 1977.

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

According to TDCJ, seven additional execution dates have been set for 2013. More will be added.

Coverage of the Willingham Family News Conference

The Petition for Posthumous Pardon and supporting documents are available from the Innocence Project.

"Executed Texan’s Family Seeks Pardon," is Ethan Bronner's report in today's New York Times.

Two decades after a Texas man was convicted of murdering his three young daughters by setting his own house on fire, and eight years after a campaign to prove his innocence failed to stop his execution, his family petitioned on Wednesday for a posthumous pardon.

The case of Cameron Todd Willingham of Corsicana, Tex., has drawn attention because it seems to offer evidence that an innocent man was executed based on flawed science. Spurred partly by this case, the Texas fire marshal recently agreed to re-examine questionable arson convictions.

The battle to clear Mr. Willingham’s name has symbolic value for those fighting to end the death penalty. Six years ago, Justice Antonin Scalia of the Supreme Court wrote that he was unaware of “a single case — not one — in which it is clear that a person was executed for a crime he did not commit.”

Mr. Willingham’s conviction was based heavily on testimony by the Texas state fire marshal, who asserted that the scene offered clear signs of arson. Recent research has raised substantial questions about his conclusions and led to a review of other arson convictions in Texas. That research is scheduled to be presented to a panel of fire experts by January, and advocates say it could lead to the reversal of several wrongful convictions.

“Todd’s last words were: ‘Please clear my name. I did not kill my children,’ ” said Stephen Saloom, policy director of the Innocence Project, which has led the work on this case, with the pro bono assistance of the New York law firm Schulte Roth & Zabel. The Innocence Project is affiliated with Cardozo Law School at Yeshiva University.

“All the evidence against him has been disproven,” Mr. Saloom said. “There have been nine reports issued about this case over the years. We are saying to the board: you couldn’t have known before, but now you have all this evidence before you.”

"A family asks: Was an innocent man executed for arson murders?" is by Molly Hennessy-Fiske for the Los Angeles Times.

Relatives of Cameron Todd Willingham, a Texas man executed eight years ago for the arson deaths of his three young daughters, are petitioning the state to hold a public hearing, issue a posthumous pardon and clear his name.

The pardon request comes as state officials are collaborating with the Lubbock-based Innocence Project of Texas on an unprecedented review of closed arson cases statewide, looking for scientific errors that may have contributed to wrongful  convictions. The inquiry, the first of its kind in the country, is expected to change the way fire investigations are conducted.

Willingham's defenders maintain that faulty fire investigations, or "junk science," led to his conviction and death.

Willingham was convicted in 1992 of setting a fire at his home in Corsicana, about 55 miles south of Dallas, that killed his 2-year-old daughter and 1-year-old twins on Dec. 23, 1991. The Texas Board of Pardons and Paroles refused him clemency, appeals courts declined to stay his execution, and Willingham, 36, was executed on Feb. 17, 2004.

But according to the family's petition for a pardon, "since his trial, scientific advances have shattered every assumption underlying the testimony of the two fire investigators who declared to the jury and the court that Willingham set the fire."

Willingham’s stepmother and two cousins appeared at a briefing in the state capital with their attorneys Wednesday to speak out on his behalf.

“I would like to be proud of the Willingham name again. I would like Todd’s name to be taken out of the infamous list in his hometown,” stepmother Eugenia Willingham of Ardmore, Okla., said.

Willingham’s cousin Judy Cavnar, 60, also of Ardmore, described her last conversation with Willingham, a phone call less than an hour before he was put to death.

“He said in a very firm voice, ‘I did not set that fire,’ ” Cavnar said, tearing up. “It was important to him that we clear his name and the name of his children.”

"Family seeks posthumous pardon for Texas convict," by Matt Smith at CNN.

The family of a Texas convict executed for the deaths of his three daughters in a 1991 fire launched a new effort to clear his name Wednesday by asking the state parole board for a posthumous pardon.

Cameron Todd Willingham was put to death in 2004 for setting the fire that killed the girls: Amber, Karmon and Kameron. But three expert reviews have concluded Willingham's conviction was based on evidence of arson that was outdated, and his family has insisted on his innocence.

"An error was made, and it is not too late to clear it up," the family's lawyers wrote in a petition filed with the state Board of Pardons and Paroles in Austin. Willingham and his family "deserve more," and "perhaps more importantly, the State of Texas deserves more."

The board denied clemency for Willingham before his execution, dismissing the first of three reviews that questioned the arson finding at the heart of Willingham's prosecution. Two subsequent studies have reached the same conclusion, finding that most of the signs investigators looked for as proof the fire was deliberately set had been rendered obsolete by a series of studies in the 1990s.

The last study was produced for the Texas Forensic Science Commission, which began looking into the Willingham case in 2008. A subsequent shakeup of the commission by Texas Gov. Rick Perry, who allowed Willingham's execution to go forward, led to accusations that the governor was trying to derail the investigation.

Perry has called Willingham a "monster" whose conviction withstood every appeal. Police and prosecutors in Corsicana, where the fire occurred, also stand by their case. Willingham professed his innocence in his final statement, but his ex-wife has said he confessed to killing the girls before the execution.

A jailhouse informant who testified in his trial has recanted his statement that Willingham admitted to setting the fire, and a now-retired judge who sat on the state court that rejected Willingham's appeal has written that the execution was "a miscarriage of justice" for which he was partly responsible, the family noted in its petition.

"Willingham's Family Seeks 'Posthumous Pardon'," by Maurice Chammah at the Texas Tribune.

As his 2004 execution date neared, his attorneys sent Gov. Rick Perry and the Board of Pardons and Paroles a report by Gerald Hurst, a fire expert, suggesting that the conviction was based on deeply flawed forensic methods. Evidence that had been used to prove arson at the trial, he explained, was simply evidence present in any fire scene.

In the years that followed, an article in The New Yorker and several documentaries brought national attention to the case.

In 2010, District Judge Charlie Baird held a hearing to determine whether there was sufficient evidence to hold a court of inquiry regarding a possible wrongful execution. A Texas appeals court barred him from releasing an opinion, accusing him of bias in the case.

In January that year, Attorney General Greg Abbott released an opinion stating that posthumous pardons can be granted. In March, Perry officially pardoned Timothy Cole, who had died while serving time in prison for a 1986 kidnapping and rape of which he was later cleared by DNA.  

Goldstein, who works with the Innocence Project, said the New York-based organization is looking at 26 cases of arson for possible wrongful convictions. The only man exonerated from Texas’ death row in an arson case, Ernest Willis, also spoke to reporters, having driven from his home in Mississippi. “I got lucky,” he said, highlighting parallels between his and Willingham’s convictions. “Let’s give his family some relief.”

The AP filing is, "Family of executed man seeks pardon in arson deaths," written by Chris Tomlinson.  It's via the Fort Worth Star-Telegram.

The state fire marshal's office stood by their findings in the case until 2011, when the Texas Forensics Commission ruled the methods used were profoundly scientifically flawed.

"I promised [Todd] we would not falter on our commitment to exonerate him, and by doing so, he and the rest of the family could find peaceful closure," said Judy Cavnar, Willingham's cousin. "I further believe Todd expected us to expose the outdated scientific methods used in processing the evidence, the same evidence that plagues so many cases and sent him to a premature grave."

The Texas Forensics Commission last year recommended a review of all arson convictions based on the same science used to convict Willingham. The recommendation came after the state attorney general limited the scope of its investigation into Willingham's case, prompting the panel to decline to issue a finding on any alleged negligence or misconduct by the State Fire Marshall's Office in the case.

The forensics commission previously determined the techniques used to convict Willingham were flawed, such as the belief that crackling of windows is an indication of arson. Scientists now know the crackling happens when firefighters spray cold water on them.

Gerry Goldstein, the attorney for the family, said the report submitted Wednesday to the Board of Pardons and Paroles uses the latest science to prove every indicator used by the fire marshal to prove arson in Willingham's case actually proves the fire was accidental. "This is not like a witness who forgot something, this is like DNA. This is science," Goldstein said.

Also speaking in support of the family Wednesday was Ernest Willis, who spent 17 years on Texas' death row for a similar arson conviction and spent time with Willingham in prison. Willis' attorneys convinced the district attorney in his case to help exonerate him after experts refuted the old arson evidence. The state released Willis one month after Willingham's execution.

"I got lucky, I got a big firm out of New York ... that spent 12 long years and spent $5 million on experts and that's what this is all about, money and politics," Willis said. "Gov. Perry needs to step forward and give this family some relief."

"Family seeks pardon for executed man convicted on faulty science," by Mike Ward in the Austin American-Statesman.

The request for clemency was announced Wednesday morning at a Capitol press conference attended by Ernest Willis, 67, who was freed from death row in 2004 on an arson conviction that was thrown out over the same discredited investigation techniques that got Willingham convicted. Willis was exonerated eight months after Willingham was executed.

“I wish Todd would have gotten the same consideration that I did. He would still be here,” said Willis, who served time on death row with Willingham and became his friend.

There was no immediate indication of when the state Board of Pardons and Paroles might decide on the Willingham request. The board had denied Willingham’s clemency request just before he was executed, without having access to a noted arson expert’s report that refuted the conclusions drawn from evidence in his case.

Harry Battson, a spokesman for the board, confirmed the application had been filed and will be voted upon after review. Despite a request from Willingham’s relatives for a public hearing on the issue, parole officials said current rules don’t allow for that.

Gov. Rick Perry, who would have to approve a pardon based on any favorable recommendation from the board, approved the state’s first posthumous pardon in March 2010 — of Timothy Cole, who spent more than 13 years in prison — and died there — for a 1985 Lubbock rape it was later proven he didn’t commit.

Perry’s press secretary, Catherine Frazier, said the governor hasn’t changed his position: that courts upheld Willingham’s arson-murder conviction and the death sentence. She noted that Perry cannot grant a pardon without a favorable recommendation from the parole board.

"Willingham's family asks for posthumous pardon," by Peggy Fikac and Allan Turner for the Hearst-owned Houston Chronicle and San Antonio Express-News.

"This isn't about money. ... This is about the future. The future of these people's reputation," Goldstein said Wednesday. "Everyone wants to leave this Earth with a reputation. Todd Willingham is entitled to that just as much as the rest of us."

Goldstein said there is "indisputable evidence" on Willingham's side and "every scientist who has looked at it has agreed that Todd Willingham was convicted on junk science."

Willingham's case came under public scrutiny in 2008 when the New York-based Innocence Project asked the Texas Forensic Science Commission to review the state and local arson investigations that helped send Willingham to death row.

"Cameron Todd Willingham's Family Seeks Posthumous Pardon For 'Wrongfully Executed' Texas Man," by Michael McLaughlin at Huffington Post.

The parole board is expected to take several months to review the pardon request, a spokesman told HuffPost. The seven member panel will then recommend that the governor either approve or reject the petition.

In 2011, the board didn't support approval of any of the 28 capital cases it reviewed in which there was a request for pardon, commuted sentence or reprieve from the death penalty.

If granted, it would be only the second pardon in Texas history issued after a convict's death. In 2010, Gov. Rick Perry pardoned Timothy Cole, who died in prison after serving 14 years for a rape he did not commit.

"Petition requests Willingham posthumous pardon," by Janet Jacobs in the Corsicana Daily Sun.

Corsicana fire and police detectives who investigated the death of the three little girls have repeatedly defended their handling of the case — and the 1992 conviction. Willingham was executed in 2004, after a dozen years of appeals.

Filing the petition is just the beginning of the process, according to Harry Battson, spokesman for the Board of Pardons and Paroles.

“We received the application today,” Battson confirmed, adding that it won’t be an overnight decision. “Our clemency people tell us the average is months, not weeks. We’re looking at a period of time before it comes to a vote.”

Before that, the investigators, and the children’s mother will all be asked to file a statement on whether or not Willingham’s name should be cleared.

“They will have an opportunity and time period to input their thoughts on the application,” Battson explained. After all the statements are compiled, then the file will be submitted to each of the board members one at a time.

“They don’t actually vote at a meeting,” Battson said. “They sequentially review the file. Each member reviews it then casts a vote, then it goes to the next board member.”

If a majority of the seven board members vote in favor of granting the posthumous pardon then it will be sent to the governor’s office. The governor doesn’t have to grant the pardon, regardless of how the board votes.

“The board makes a recommendation to the governor,” Battson said.

Earlier coverage of Todd Willingham begins at the link.   All Willingham coverage is available through the Todd Willingham index.

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

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

Willingham Family to File Posthumous Pardon Request

"Family again tries to clear Willingham's name," is Allan Turner's post at the Houston Chronicle.

Despite repeated rebuffs by the state of Texas, relatives of Cameron Todd Willingham on Wednesday again will try to get officials to admit that the Corsicana man was wrongly executed eight years ago for the 1991 deaths of his three young children in a Christmas-season fire.

Eugenia Willingham, the convicted killer's stepmother, and two of his cousins are scheduled to join lawyers from the New York-based Innocence Project in Austin to announce they will ask the Texas Board of Pardons and Paroles to recommend a posthumous pardon.

Also to be present is Ernest Willis, a West Texas man who spent 17 years on death row for the 1986 suspected arson murders of two Iraan women. In December 2004, 10 months after Willingham's execution, Willis was freed when a Pecos County district attorney concluded the fire in his case likely had been accidental.

A draft of Willingham's pardons petition asserts that "since his trial, scientific advances have shattered every assumption underlying the testimony of the two fire investigators who declared to the jury and the court that Willingham had set the fire that killed his children. In fact, today, no credible arson expert would make such a declaration."

And:

Only once, in 2008, has the pardons board recommended that Gov. Rick Perry grant a posthumous pardon. That case involved Timothy Cole, a Texas Tech University student who died in prison 14 years after being convicted of rape. His case – the victim later admitted she had misidentified Cole as her attacker – was a catalyst for a state law providing compensation for exonerated prisoners.

The Innocence Project began championing Willingham's cause in 2008 when it asked the Texas Forensic Science Commission to review the quality of arson investigations leading to the former auto mechanic's conviction.

Three reviews of the investigations, one commissioned by the Innocence Project and another by the forensic science commission, found that Corsicana and state arson investigators had misread evidence at the fire scene. Willingham went to his death at the Texas death house protesting his innocence.

The Petition for Posthumous Pardon and supporting documents are available from the Innocence Project.

The Innocence Project has issued a news release, "Cameron Todd Willingham's Surviving Relatives Petition for Posthumous Pardon 20 Years After Conviction."  It's via Business Wire.  Here's the beginning:

Twenty years after Cameron Todd Willingham was wrongfully convicted of setting a fire that killed his three young daughters and eight years after his execution, his surviving relatives filed a petition with the Texas Board of Pardons and Paroles today seeking a posthumous pardon based on mounting evidence of his innocence.

"It was Todd's last wish that we help to clear his name. We owe that to Todd and to all the other people who might have been convicted based on the same faulty evidence," said Eugenia Willingham, Willingham's stepmother. Patricia Willingham Cox, Willingham's cousin added, "We weren't able to save Todd's life, but thanks to the help of many of the nation's renowned arson experts who reviewed the evidence in his case, we now know that Todd was wrongly convicted. It's time for the state to own up to its mistake and give Todd the justice he deserves."

Earlier coverage of Todd Willingham's case begins at the link.  All Willingham coverage is available through the Todd Willingham index.

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

David Grann's September 2009 New Yorker article is noted here.    Steve Mills and Maurice Possley first reported on the case in a 2004 Chicago Tribune series on junk science.  The December 9, 2004 report was titled,"Man executed on disproved forensics."

The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

Texas Execution Scheduled Thursday

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

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

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

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

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

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

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

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

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

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

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

TX BPP OK's Parole for Eroy Brown

Today's Austin American-Statesman reports, "Storied Texas prisoner approved for parole."  It's written by Mike Ward.  Here's an extended excerpt:

Eroy Brown, whose acquittal on murder charges involving the deaths of a prison warden and a farm manager in the 1980s shook Texas' corrections system to its roots, has been approved for parole after nearly three decades behind bars.

Officials confirmed Thursday that Brown, 61, who has served 27 years for robbing a Waco convenience store of $12 and some candy bars, will be sent to a supervised pre-release rehabilitation program in California.

No date for the release has been set.

In 1985, Brown was sentenced to 90 years as a habitual criminal; he had two previous felonies — a burglary and a robbery dating back to the 1970s.

In recent years, Brown has been serving his time in a South Carolina prison because a federal judge thought his safety could not be guaranteed in a Texas lockup.

"This has been a long time coming," said Bill Habern, a Huntsville attorney who represented Brown in both the murder and parole cases. "Twenty-seven years for a $12 robbery is a lot of time. ... This way, he'll be under supervision when he gets out.

"The board deserves credit. The right thing to do was to grant this parole, and they did that."

Had Brown been denied parole again, as he had seven times since he went to prison, he would have been released within five years anyway without any supervision under controversial early release policies enacted in the 1970s to ease prison crowding in Texas.

The vote for parole was 2-0, said Jason Clark, a spokesman for the Texas Department of Criminal Justice. Thomas Leeper, an attorney, and Pamela Freeman, a former prison guard, voted in the case, he said.

Once before, several years ago, Brown was approved for parole, but officials changed their vote, and he was never released.

And:

Habern credited a 2011 book by Houston journalist Michael Berryhill — "The Trials of Eroy Brown: The Case That Shook the Texas Prison System" — with raising awareness of the details of the case and Brown's long term of incarceration.

Earlier coverage of Eroy Brown's case begins at the link.

More on the Eroy Brown Parole Case

"Attorney seeks recusals in high-profile parole hearing," is Mike Ward's report in today's Austin American-Statesman.  Here's an extended excerpt:

An attorney for high-profile Texas convict Eroy Brown on Wednesday sought to have two state parole officials removed from deciding whether his client should be approved for a supervised release from prison.

Huntsville lawyer Bill Habern made his unusual request in a three-page letter to Rissie Owens, chairwoman of the Texas Board of Pardons and Paroles. Habern wrote that continuing animosity against Brown from the Texas prison system should disqualify any parole official who once worked for the system or who has a spouse who worked for the prison system.

Although such a request is rare — Habern said in his letter he has never made such a request in his 40 years of practice — parole panels in the past have been handpicked by the chair to handle high-profile cases after other members recused themselves.

Brown, who will soon turn 60, was acquitted in the April 1981 shooting death of a farm manager at a Huntsville prison, Billy Moore, and the drowning death of the warden, Wallace Pack, after a scuffle broke out over a pistol that Pack is said to have pulled on Brown. Prison officials said the deaths were murder, and prisons were later named for both Moore and Pack.

Brown, who said he acted in self-defense, was acquitted of murder charges after three trials, in which testimony about the officials' past conduct and convicts' accounts of the shooting and prison conditions helped corroborate Brown's account. The state's forensic evidence also was disputed, Habern said.

Brown was later sentenced to 90 years for robbing a Waco convenience store of $12 and candy bars, and is in a South Carolina federal prison. A federal judge ordered him to serve his time outside Texas because of concerns about his safety in state lockups.

Habern's letter was filed Wednesday afternoon. Parole officials could not be reached for comment.

The American-Statesman reported Wednesday that Brown is coming up for parole for the eighth time in 17 years. This time, Habern has argued that the parole board should approve Brown's release into a supervised re-entry program in Los Angeles that has a high success rate. Otherwise, Brown will be eligible to walk free without supervision within five years, thanks to credits he's received for good behavior.

Earlier coverage of Eroy Brown's case is at the link.

Eroy Brown

Mike Ward writes, "Brown case highlights reluctance to parole longtime offenders," for today's Austin American-Statesman.  Here's an extended excerpt from this must-read.

Eroy Brown, whose acquittal on murder charges involving the deaths of a prison warden and a farm manager in the 1980s shook the Lone Star corrections system to its roots, is coming up for parole again.

Brown is serving 90 years as a habitual criminal for robbing a Waco convenience store of $12 and some candy bars. The graying, almost 60-year-old is serving time in a South Carolina prison because a federal judge thought his safety could not be guaranteed in a Texas lockup. If he's granted parole, he would be sent to a pre-release program in California.

If he's denied parole, he would be released within five years without any supervision under controversial early release policies enacted in the 1970s to ease prison crowding in Texas.

"He got more publicity for (the acquittal) than Christ on the cross," said Houston attorney Bill Habern, who was Brown's lawyer on the murder charges. "The (prison) system still to this day doesn't believe he should have been acquitted. ... What is probably going to happen is called getting even."

Brown's case highlights a long-standing issue with Texas' parole system: a reluctance to parole longtime offenders with high-profile cases, even those who soon will be freed anyway, and those with serious and costly health problems.

Brown is earning liberal credits for good behavior on his sentence, which he would finish by 2017, according to current calculations. At that time, he would be released free and clear, with no supervision.

Brown is among just 4,208 of Texas' 156,000 convicts who are still accruing such credits under old laws, a number that dwindles each year as more are paroled or released.

Within the prison system, he is most noteworthy for what happened during a deadly struggle on April 4, 1981, alongside a drainage ditch called Turkey Creek in the farm fields at the Ellis Unit near Huntsville. When it was over, the farm manager, Billy Moore, lay dead from a gunshot from the warden's pistol and the warden, Wallace Pack, was drowned. Brown claimed self-defense, saying that Moore had been stealing tires from the prison and was afraid Brown was about to snitch on him.

And:

Habern said Brown would be better off on supervision after his release. Sister Teresa Groth said Tuesday that Brown has been accepted into the Partnership for Re-Entry Program, an initiative that caters mostly to "lifers" like Brown. Since it opened in 2002, the program, which is affiliated with the Roman Catholic Archdiocese of Los Angeles, has a 100 percent success rate for participants not going back to prison, Groth said.

"He'll be going into a program where he'll be supervised. He won't be coming back to Texas. He'll be in an area where he has relatives and some friends. What could be better than that?" Habern said.

"It seems like that would be much better than squeezing another three or four years out of him and then dumping him out on a street in South Carolina."

Ward's article notes - and I want to highlight - The Trials of Eroy Brown: The murder case that shook the Texas prison system written by Michael Berryhill.  It was published last year by UT Press and is available at the link.  Berryhill is chair of the journalism department at Texas Southern University in Houston.

In November, the Texas Observer published an excerpt from the book.  This is from Berryhill's introduction to the excerpt:

Last June, an administrator at the federal prison in Salters, South Carolina, must have been shocked when he opened the transfer file of a Texas inmate named Eroy Brown. For the past 26 years Brown has been serving a 90-year sentence in various federal prisons. He was sentenced for holding up a Waco convenience store in 1984. What was shocking was not the robbery, which netted Brown and two accomplices $12 and a couple of candy bars, but what happened three years before the robbery. In 1981, Eroy Brown drowned the warden of a Texas prison face down in a drainage ditch and shot and killed a prison farm manager in a struggle for control of the warden’s pistol. Federal prison officials immediately locked their new prisoner in solitary confinement as a dangerous murderer and a possible threat to prison officers.

It is unlikely that the Texas Board of Pardons and Paroles placed the full story of those killings in Brown’s file, for that would have included the fact that Brown was acquitted of those killings by reason of self-defense. The full story is that in 1982, 23 of 24 jurors declared Brown innocent of murder in the drowning of Warden Wallace Pack. In 1984, another jury acquitted him of murdering farm manager Billy Max Moore. And the fuller story is that Brown has been kept in federal custody for a state crime because in 1984 Texas agreed to a civil rights settlement that keeps him from ever serving time in the Texas prison system—it might be too dangerous for him.

Brown’s parole attorney, Bill Habern, one of the lawyers who helped defend Brown’s murder charge, wrote a letter to the federal warden explaining that Brown was not the dangerous murderer he might seem to be, but the victim of two aggressive Texas prison officials. Habern thought Brown deserved the chance to live in the general prison population and hold a job.

If Brown were reviewed for parole on the basis of the crimes for which he was convicted, he would likely be out by now. Brown has served 26 years for a $12 robbery.

Related posts are in the Texas Board of Pardons & Paroles index.

Perry Displays Varied Stance Toward Crime

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

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

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

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

And:

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

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

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

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

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

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

Reprieve Request Filed For Duane Buck; Perry Out of State

The letter requesting a 30-day reprieve for Duane Buck is available in Adobe .pdf.

The updated AP report is, "Inmate's lawyers ask Perry to halt Texas execution."  It by Will Weissert, via CBS News.

If courts continue to reject Buck's appeals, only Perry could delay the lethal injection by invoking his authority to issue a one-time 30-day reprieve for further review. Perry's actions are being closely watched, particularly by death penalty opponents, after he said during a presidential debate that he has never been troubled by any of the executions he's overseen as governor.

"Perry won't preside over scheduled Texas execution," is the Los Angeles Times post by Molly Hennessy-Fiske reporting in Houston.

Texas Gov. Rick Perry apparently will not be the one to preside over Thursday's scheduled execution of an African American man who was sentenced to die after jurors were told that blacks are more likely to pose a future danger to the public.

Duane Edward Buck, 48, was convicted of fatally shooting two people near Houston in 1995. His attorney says he is entitled to a new sentencing hearing based on the racially charged testimony, but unless a final appeal attempt is successful, Buck will become the 11th inmate executed in Texas this year,  the Houston Chronicle reports.

Buck's stepsister, Phyllis Taylor, who was wounded in the shooting, has reportedly forgiven him and wants his death sentence commuted to life in prison. She met with staffers from Perry's office last week, according to Buck's attorney.

"We still are hopeful the governor will grant a 30-day reprieve to allow state officials time to work together to ensure that Mr. Buck receives a sentencing hearing untainted by issues of race,” said Kate Black, Buck's Houston-based attorney, in an interview with The Times. She is representing the inmate pro bono through the nonprofit Texas Defenders Service.

During last week's GOP presidential debate, Perry responded to a question about Texas'  234 executions during his tenure as governor by saying that he "never struggled" with the issue because "the state of Texas has a very thoughtful, very clear process in place."

But Perry will not be presiding over Buck's execution, according to Lucy Nashed, a Perry spokeswoman.

Perry is out of state, so the responsibility falls to Lt. Gov. David Dewhurst, a Republican campaigning for the seat being vacated by longtime Republican Sen. Kay Bailey Hutchison, Nashed told The Times.

Dewhurst has presided over previous executions in the governor's absence, according to spokesman Mike Walz. Dewhurst declined to comment about the Buck case late Wednesday, Walz said.

The LA Times also has, "Texas Gov. Rick Perry Is Asked To Halt Execution," by David G. Savage.

Texas Gov. Rick Perry is being asked to stop Thursday's scheduled execution of an African American murderer who was sentenced to die after jurors were told that blacks are more likely to pose a future danger to the public.

Duane Edward Buck faces execution for shooting two people near Houston in 1995 while under the influence of drugs, but his attorneys say the racially charged testimony calls for a new sentencing hearing.

"No one should be executed based on a process tainted by considerations of race," Kate Black, a lawyer for Buck, said Tuesday. "The decision as to whether Mr. Buck's execution will go forward now lies squarely with Gov. Perry, who has the power to issue a 30-day reprieve."

Journalist Renee Feltz, who spent years in Texas, writes, "Will the Next Man Rick Perry Executes Die Because He's Black?"  It's at the Nation.

Harris County prosecutor Linda Geffin was working late last week when she took a break and saw a Facebook post from a Texas death row attorney whose client, Duane Buck, faced imminent execution. Geffin had been part of the team that helped send Buck to death row; it was the only capital case she'd ever worked on, and as she recalls, it “left a big impression on me.” More than a decade had passed since the case, so she decided to re-read the court transcripts, including a hundred or so pages of testimony from state psychologist Walter Quijano. Then she came across this passage:

    Q. You have determined that the sex factor, that a male is more violent than a female because that's just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?

    A. Yes.

Geffin thought, “that's pretty clearly inappropriate, not to mention morally and ethically wrong." Indeed, Buck's attorney was trying to save his life based on his unequal treatment on the basis of race. On September 9, Geffin wrote a letter [1] to Governor Rick Perry and the Texas Board of Pardons and Paroles calling for Buck’s execution to be halted. "No individual should be executed without being afforded a fair trial, untainted by considerations of race," she wrote.

On Tuesday, September 13, the Board of Pardons and Paroles rejected Buck's appeals for clemency. He is now scheduled to die on Thursday, September 15 unless Perry grants him a 30-day reprieve. It will be the 236th execution overseen by Perry during his tenure as governor.

There is also fresh commentary on the case. "Race-Based Execution: Rick Perry on the Spot," is by Jenee Desmond-Harris at the Root.

Perry, who is seeking the Republican presidential nomination, was asked during a GOP debate last week about Texas' 234 executions during his nearly 11 years as governor. He said he "never struggled" with the issue because "the state of Texas has a very thoughtful, very clear process in place." It's hard to imagine how he could possibly have to struggle to see that the process he admires so much has gone outrageously wrong in this case.

"Man To Die Thursday Partially Due To Race," by Deborah Mathis at Black America Web.

Unless Justice swoops down from the heavens like a Texas tornado, the Lone Star state is going to kill again tomorrow.

Unless Gov. Rick Perry can put his presidential travels on hold long enough to sign a sheet of paper that will stay the executioner's hand, this will be Duane Buck's last day on Earth.

Duane Buck was convicted in the 1995 murders of his former girlfriend, Debra Gardner, and her friend, Kenneth Ray Butler, in Houston. Buck also shot his sister that morning, but she survived. His lawyers said he was out of his mind on drugs when he pulled the trigger.

Apparently, Buck's conviction is the only bottom line that matters to the Texans that hold his fate in their hands. How he landed on death row doesn't matter to them.

But it matters to the U.S. Constitution, which Perry and his Tea Party pals claim to love first and foremost. If there is one tie that binds the eclectic devotees of the Tea Party, it is their worship of the Constitution.

In Buck's case, as in others, one has to wonder whether Perry has ever read it or if he understands it because the Constitution has something to sobering to say about how Buck was sentenced to death. The Fourteenth Amendment guarantees equal protection and due process - rights that Buck clearly did not enjoy in that Harris County, Texas courtroom years ago.

In Texas, jurors may consider a defendant's potential for "future dangerousness," an assessment that, in itself, seems constitutionally iffy, since it is based on speculation and punishes people for what a group of strangers think - not know - will happen.

"Duane Buck, Rick Perry and the politics of death," by Alexander Cockburn is at First Post.

What mostly has people marveling is Quijano's career stint in the 1990s as an "expert witness". Buck's was the only case where he was called by the defence. Expert witnessing is a trade – often a very profitable one - in which by far the most desirable characteristic is predictability. A truly expert witness for the defence would have regarded it as his first duty to reassure the jury of Buck's lamb-like character, utterly inconsistent with possibly lethal recidivism.

"Expert" covers many a bizarre resume. One famous expert witness unearthed a few years back by the Chicago Tribune had made it her costly speciality to identify nose and lip prints – a forensic skill which apparently lacked any reliable foundation.

Juries like a well-spoken expert witness, flourishing forensic data. The popularity of shows like CSI has enhanced the reputation of forensic "experts", even though much forensic testimony, up to and including finger-prints, is disfigured by mishandled evidence, mendacity and incompetence.

Earlier coverage of the Duane Buck case begins at the link.

Andrew Cohen on the Buck Case - and What It Means

The noted legal analyst posts, "Coming Thursday: Another Texas Execution Under Perry," at the Atlantic.  As usual, it's a must-read.  Here's an excerpt from the beginning:

The federal trial judge in a case issues her vital ruling before the capital defendant's lawyers have completed their argument. A local prosecutor who helped convict the death row inmate now pleads with the state parole board to give the guy a new sentencing trial. Defense attorneys say that lawyers for the Attorney General's office are lying to the court. And the governor who can help stop this parade of horribles, Gov. Rick Perry, earns public cheers for his chillingly remorseless stand on capital punishment.

Welcome to Texas, to its death penalty regime, and to the excruciating case of Duane Edward Buck.

Buck is scheduled to be executed Thursday in Huntsville for a double murder he committed in Houston in 1995. No one contests his guilt. Instead, his lawyers say that Texas owes him a new sentencing trial because his first one was unlawfully tainted by race. An expert witness at his trial in 1997 impermissibly told jurors that Buck would be more dangerous in the future because he is black. As I chronicled last week, the six other men in Texas whose trials were similarly tainted all got new sentencing hearings after then-Attorney General John Cornyn conceded the state's error in 2000. Buck, however, has not.

Texas now is opposed to Buck's request. It is squeezing him because it can and because it is politically expedient to do so. The state claims that Buck did not timely raise the issue on appeal in federal court. Even though each of the other men were subsequently re-sentenced to death -- and even though that would be a likely outcome in Buck's case -- Texas says the time for Buck's judicial relief has come and gone. Even though the state helped each of the other men vindicate their constitutional rights, it will not do so in Buck's case. At a time when other states are moving away from capital punishment, this is how far to the right Texas has come on the death penalty since 2000.

On Tuesday afternoon, the Texas Board of Pardons and Paroles denied Buck's clemency request. Here is the extent of the Board's findings and conclusions: "After a full and careful review of the application and any other information filed with the application, a majority of the Board has decided not to recommend a 120-day Reprieve and Commutation of Death Sentence to Lesser Penalty." That's it. The complete document is two pages long -- the cover letter is three short paragraphs ending with the salutation, "Sincerely," by Clemency Director Maria Ramirez.

Earlier coverage of Duane Buck's case begins at the link.

BPP Rejects Clemency for Duane Buck

Duane Buck's attorney, Kate Black with Texas Defender Service, has issued a statement following the action by the Board of Pardons and Paroles:

“The Texas Board of Pardons and Paroles’ recommendation against granting clemency to Duane Buck fails to recognize what the highest legal officer in the State of Texas had acknowledged: No one should be executed based on a process tainted by considerations of race. A trial prosecutor and the surviving victim have asked state officials to halt the execution. The decision as to whether Mr. Buck’s execution will go forward now lies squarely with Governor Perry, who has the power to issue a thirty-day reprieve, and District Attorney Lykos, who has the power to ask for a withdrawal of the execution date. We urge Governor Perry to grant a temporary reprieve to allow all parties involved to work together to ensure that Mr. Buck receives a new and fair sentencing hearing untainted by race-based testimony.”

The Board's notification that it rejected a clemency recommendation is available in Adobe .pdf format.

Allan Turner posts, "Panel refuses to commute Houston killer's execution," at the Houston Chronicle.

Houston auto mechanic Duane Buck moved a step closer to execution today as the Texas Board of Pardons and Paroles rejected his bid to commute his death sentence to life without parole.

And:

Buck's lawyers had asked the pardons board to recommend commutation or the granting of a 120-day reprieve to Gov. Rick Perry, who would have made the final decision in the case.

Earlier coverage of Duane Buck's case begins with the preceding post. 

You can read prosecutor Linda Geffin's letter to the Board of Pardons and Paroles. 

The clemency petition for Duane Edward Buck is available via Sribd.  Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

More on the Duane Buck Case

There is additional coverage today on prosecutor Linda Geffin's call for a halt to Duane Buck's execution, in a letter to the Board of Pardons and Paroles.

Allan Turner writes, "Houston killer should be spared, prosecutor says," for the Houston Chronicle.

With killer Duane Buck just days away from execution, a prosecutor who helped send the Houston auto mechanic to death row has joined clergymen, lawyers and one of Buck's shooting victims in demanding that his life be spared.

Linda Geffin, now chief of the Harris County Attorney's special prosecutions unit, was one of two assistant district attorneys who successfully argued against Buck in his 1997 trial. Buck, 48, was convicted for the July 1995 murders of his former girlfriend, Debra Gardner, and her friend, Kenneth Butler. Buck is to be put to death Thursday.

In a letter to the Texas Board of Pardons and Paroles, which is considering a petition to recommend to Gov. Rick Perry that Buck's death sentence be commuted to life in prison, Geffin said she "felt compelled to step forward."

Geffin cited a 2000 press release from then-Texas Attorney General John Cornyn stating Buck's case was among six that may have been tainted by punishment-phase testimony from psychologist Walter Quijano. Federal appeals courts ordered new punishment hearings for five of them because the expert witness made inappropriate assertions about race.

All ultimately were again sentenced to death and one has been executed.

At the time, Buck's case was still in state court and was never granted a new hearing.

"Mr. Buck committed a terrible crime and he must be punished," Geffin wrote in the Friday letter. "But the attorney general was right when he said that it is 'inappropriate to allow race to be considered as a factor in our criminal justice system.'"

"Duane Buck Prosecutor Urges Clemency," is the title of Brandi Grissom's Texas Tribune post.

"When a defendant’s race is introduced as a factor in guilt or sentencing – even inadvertently – the integrity of the case is compromised," said Mark MacDougall, a pro bono lawyer at Akin Gump, who often works with indigent defendants in death penalty cases. "The only remedy is a new trial. This is never more critical than in a capital murder case."

As his execution date approaches, Buck's lawyers are calling on the Texas Board of Pardons and Paroles and Gov. Rick Perry to grant clemency and allow a new trial to determine his sentence. Last week, one of Buck's surviving victims urged clemency on his behalf.

Today, Linda Geffin, who served as second chair during the initial Buck prosecution, wrote a letter calling on Perry and the parole board to halt the execution and allow for a new trial untainted by racial questions.

"It is regrettable that any race-based considerations were placed before Mr. Buck's jury," she wrote. "No individual should be executed without being afforded a fair trial, untainted by considerations of race."

Earlier coverage of Duane Buck's race-tinted sentence begins with yesterday's post.

Buck Prosecutor Calls for Execution Halt

The prosecutor's letter to the Board of Pardons and Paroles is available in Adobe .pdf format.

Texas Defender Service has issued a news release, "Prosecutor in Case Where Government Relied on Race Testimony at Trial Urges Texas Officials to Stop Duane Buck's Execution."

Houston, Texas, September 12, 2011 - Today, a former Harris County Assistant District Attorney who prosecuted Duane Buck is urging state officials to halt Mr. Buck's execution next week because "[n]o individual should be executed without being afforded a fair trial, untainted by considerations of race." Linda Geffin, who served as second-chair prosecutor in the State of Texas vs. Duane Buck in 1997, sent a letter this morning to Governor Rick Perry, the Texas Board of Pardons and Paroles, Attorney General Greg Abbott, and Harris County District Attorney Patricia Lykos, urging them to intervene and stop Mr. Buck?s September 15 execution.

In her letter, Ms. Geffin says she "felt compelled to step forward" after reading about the clemency petition and a motion in federal court recognizing that former Attorney General John Cornyn had previously acknowledged the "improper injection of race in the sentencing hearing in Mr. Buck's case."

On May 5, 1997, Mr. Buck was convicted of capital murder in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler. A third person, Phyllis Taylor, was also shot, but survived her wound. Ms. Taylor has forgiven Mr. Buck and does not want him executed.

During Mr. Buck's trial, psychologist Walter Quijano testified, based on several factors, that he did not believe Mr. Buck would be dangerous in the future. On cross-examination, the prosecutor elicited improper testimony from Dr. Quijano that the fact that Mr. Buck was African-American increased the likelihood of his being dangerous in the future. The State urged the jury in its closing argument to rely on Dr. Quijano's testimony. The jury did so, found that Mr. Buck would be a future danger, and he was sentenced to death.

After Mr. Buck's trial, but while his case was pending on appeal, on June 9, 2000, in a highly-unusual move, then-Attorney General John Cornyn issued a press release calling for the retrial of six individuals who had been sentenced to death based on improper introduction of, and reliance on, race as a factor in sentencing. The Attorney General identified Mr. Buck's case as one of those six cases, stated that Texas would not contest federal appeals in those six cases, and that if the attorneys for the six identified defendants raised claims challenging the government's reliance on race at sentencing, the Attorney General would not object.

Then-Attorney General Cornyn first confessed error based on the government's reliance on Dr. Quijano's testimony in the case of Victor Saldaño. The Attorney General stated: "As I explained in a filing before the United States Supreme Court...it is inappropriate to allow race to be considered as a factor in our criminal justice system....[T]he United States Supreme Court agreed. The people of Texas want and deserve a system that affords the same fairness to everyone."

Despite this concession, the improper racial testimony in Mr. Buck's case has not been redressed.  Mr. Buck is the only one of the six death row inmates identified by the Attorney General who was not granted an opportunity to have a colorblind sentencing.

The clemency petition, which was filed on August 31, asks the Texas Board of Pardons and Paroles and Governor Perry to intervene.  In it, attorneys for Mr. Buck state: "Five out of the six cases in which Attorney General John Cornyn conceded error resulted in new sentencing hearings. Mr. Buck has not received the same corrective process. The State of Texas cannot and should not tolerate an execution on the basis of an individual?s race, particularly where this State?s highest legal officer has acknowledged the error, not only in similarly situated cases, but in this case."

Ms. Geffin?s letter concludes: "I now join Phyllis Taylor, the surviving victim, in asking for the intervention of the Board of Pardons and Paroles, Governor Rick Perry, Attorney General Greg Abbott and Harris County District Attorney Patricia Lykos. All of these parties should be motivated, as I am, to do everything within their power to ensure that our justice system is not tainted by unconstitutional considerations of race."
- - - - -
 
The clemency petition and an interview with surviving victim Phyllis Taylor can both be viewed.at: 

Steven Kreytak posts, "Harris County prosecutor asks for halt to execution," for the Austin American-Statesman.

A prosecutor who worked to secure the death sentence against a Harris County killer scheduled to be executed on Thursday is asking officials to stop the execution.

Linda Geffin, who was the second chair prosecutor in the 1997 prosecution of Duane Buck and is now a supervisor in the Harris County Attorney’s office, has joined Buck’s lawyers in declaring that his sentencing hearing was unfair because of racially tinged testimony.

Buck was one of seven state death row inmates who then-Texas Attorney General John Cornyn in 2000 said received unfair sentencing trials because of the testimony of psychologist Walter Quijano. Quijano regularly told juries that defendants were more likely to commit future criminal acts because they were black or Hispanic, testimony he based on the fact that blacks and Hispanics are overrepresented in the Texas prison system when compared with the state’s general population.

Six defendants identified by Cornyn as having their trials tainted by Quijano’s testimony have since received new sentencing trials. Each was once again sentenced to death. Buck, who killed two people, including his ex girlfriend, in 1995, has not received a new sentencing hearing.

Buck’s lawyers with the Texas Defender Service have filed a clemency petition with the Texas Board of Pardons and Paroles and have asked Gov. Rick Perry, current Attorney General Greg Abbott and Harris County District Attorney Pat Lykos to intervene and stop the execution. They have also asked a federal judge to intervene.

"Former prosecutor in Duane Buck case asks state to halt execution," is the title of Sommer Ingram's Dallas Morning News post.

A former prosecutor in death-row inmate Duane Buck's case is urging state officials to stop the execution scheduled for Thursday.

Linda Geffin, former Harris County District Attorney who served as second-chair prosecutor in Buck's case, this morning sent a letter to state officials saying that Buck's execution cannot go forward because of the racially-tainted testimony that was a part of his trial.

"No individual should be executed without being afforded a fair trial, untainted by considerations of race," Geffin wrote in the letter addressed to Gov. Rick Perry , the Texas Board of Pardons and Paroles, Attorney General Greg Abbott and current Harris County District Attorney Patricia Lykos.

Buck fatally shot two people and injured another in 1995. During his trial in 1997, psychologist Walter Quijano told jurors that Buck was more likely to be violent in the future because he was black. His case was one of seven that former Texas Attorney General John Cornyn wanted reviewed because of the state's unconstitutional reliance on race.

New punishment hearings were ordered for all six other cases, but Buck's slipped through the cracks in what his attorneys call another mishandling of the death penalty in Texas. They argue that Buck can't be put to death when being black is part of what secured his sentence.

Earlier coverage of Duane Buck's case begins with the preceding post.

More Commentary on the Duane Buck Case

Houston Chronicle columnist Patti Kilday Hart writes, "Where's justice in the execution process?"

Yet testimony about the "future dangerousness" of death penalty defendants still keeps the gears of Texas' execution machine turning. This week, Houstonian Duane Buck is scheduled for execution, partly based on testimony by Conroe psychologist Dr. Walter Quijano.

Ironically, Quijano was called to the witness stand by defense attorneys for Buck. Though he was found guilty of a deadly shooting rampage, his attorneys hoped to prove the tragedy, in which Buck's estranged girlfriend and another man were killed, was an act of rage not likely to be repeated.

But under cross-examination, Quijano acknowledged to prosecutors that certain factors are associated with violent crime. For instance, the prosecutor asked, "The race factor, black, increases the future dangerousness for various complicated reasons; is that correct?"

"Yes," Quijano replied.

The jury concluded that Buck, a black man, would continue to be violent, and sentenced him to death.

And:

Last week, Buck's appellate attorneys filed a motion for clemency with the Texas Board of Pardons and Paroles, which could recommend that Gov. Rick Perry commute Buck's sentence to life without parole.

The case exposes structural flaws in our death penalty law. Testimony involving "junk science" regarding arson has been allowed, as demonstrated in the Cameron Todd Willingham case. There is mounting evidence that eyewitness testimony is unreliable.

Today's Chronicle also carries an OpEd by Thurgood Marshall School of Law prof Lupe Salinas, a former criminal district court judge in Harris County who assessed three death sentences. It's titled, "Race factors taint death case."

Our state could be on the verge of gaining the dubious distinction of executing a person based on the color of his skin. On Thursday, Texas is poised to execute Duane Buck unless the courts or state officials, including Gov. Rick Perry, intervene.

"The race factor, black … increases the future dangerousness for various complicated reasons." That is what a psychologist told a jury of 12 Texans at the capital murder trial of Buck. Such blatant racial prejudice may read like a relic of the past - but Buck faces execution in a matter of days, despite the racism that infected his case.

And:

Lawyers for Buck have asked Gov. Perry, the Harris County District Attorney's Office and the Office of the Attorney General of Texas to intervene.

All of these parties should act to ensure that an execution in Texas is not tainted by racism. It is important to guarantee that capital punishment is not applied in a discriminatory manner.

Attorney General Cornyn said it best: "The people of Texas want and deserve a system that affords the same fairness to everyone." Let us hope that our state officials and the courts act with these sentiments in mind and halt Duane Buck's execution.

Earlier coverage of Duane Buck's case begins at the link.

Halt Execution Where Race Tainted Judgment

That's the title of an editorial in today's Houston Chronicle. regarding the Duane Buck case.

The case poses a test of leadership for Texas governor and Republican presidential candidate Rick Perry. Will he do the right thing and stop the execution, either through clemency or a reprieve, or will he take the politically expedient course and let a judicial miscarriage roll forward?

Buck's guilt in the shooting deaths of his ex-girlfriend and her boyfriend is not in doubt. In Texas, however, homicides resulting from crimes of passion often result in life or lengthy sentences rather than the death penalty. A key issue in such death sentence cases is the likelihood of the defendant committing future violent acts, and it is on that point that Buck's sentence is irrevocably flawed.

Buck was one of six Lone Star capital murder defendants sent to death row using testimony from former Texas jail system chief psychologist Walter Quijano that blacks and Hispanics were more likely to become repeat offenders. In Buck's case, Quijano had initially testified that he would likely not pose a future danger to society. But under aggressive cross-examination by the prosecutor, he agreed that being African-American enhanced the possibility of future violence.

After the Texas Court of Criminal Appeals ruled that there was no fundamental error in admitting race-based testimony, John Cornyn, the Texas attorney general at the time and now a U.S. senator, filed a brief with the U.S. Supreme Court on behalf of defendant Victor Hugo Saldano. Cornyn argued, "It is inappropriate to allow race to be considered as a factor in our criminal justice system." The high court agreed, and the convict and four of the other defendants received new punishment hearings. In a legal oversight, Buck did not.

And:

As Cornyn said back in 2000, "The people of Texas want and deserve a system that affords the same fairness to everyone. "

We hope Gov. Perry shares those sentiments.

Earlier coverage of Duane Buck's case begins with the preceding post.

News Coverage of Duane Buck News Conference

Today's Dallas Morning News carries, "Lawyers fight racially based Texas death sentence."  It's written by Sommer Ingram.

Attorneys for a Texas man who was sentenced to death after a state witness relied on race in his testimony are fighting to get his sentence changed, or at least get him a new hearing.

When Duane Edward Buck was on trial for capital murder in 1997, a psychologist told jurors that because Buck was black, he was more likely to be violent in the future.

His case was one of seven that former state Attorney General John Cornyn wanted reviewed because of the state’s unconstitutional reliance on race.

New punishment hearings were ordered for the other cases, which were at the federal appellate stage. But because Buck’s case was still in state court, it slipped through the cracks.

He was never given a retrial and is scheduled to die Sept. 15 for the murders of Debra Gardner and Kenneth Butler.

He also shot Phyllis Taylor, who survived and is now asking for Buck’s life to be spared.

Attorneys for Buck call his case another in a series of chronic mishandlings of the death penalty in Texas, the nation’s busiest death penalty state.

“This case is an affront to justice,” Kate Black, a lawyer for Buck, said at a Capitol news conference Wednesday. “This is just another shocking example of the fundamental flaws in the Texas death penalty. Racism played an intolerable role in a life-or-death decision.”

And:

Anthony Graves, a Texas exoneree who spent 18 years behind bars for murders he didn’t commit, is speaking out in Buck’s favor.

“I am the perfect example of our flawed system in Texas,” Graves said. “This is a case of basic racial profiling, and I’m asking everyone who can to jump up and scream that this is enough.”

"Lawyers, Victim Seek Clemency for Death Row Inmate," is the title of Lara Lapin's Texas Tribune report.

Phyllis Taylor survived the 1995 shooting spree that ended with two others dead and Duane Buck on death row. Buck is scheduled to be executed on Sept. 15. Today, Taylor urged the Texas Board of Pardons and Paroles, Gov. Rick Perry, Attorney General Greg Abbott and Harris County District Attorney Patricia Lykos to halt the execution.

“This execution would only add to my pain, and it wouldn’t give me closure," said Taylor, who survived a shot in the chest. "I would ask that Duane Buck’s life be spared. I feel that he deserves a fair trial.”

Buck was convicted in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler. During his 1997 trial, psychologist Walter Quijano testified that because Buck was black, he was more likely to be a violent threat in the future. Quijano gave similar testimony in six other death row cases.

In 2000, then-Attorney General John Cornyn admitted that all of the cases, including Buck’s, were tainted by constitutional error because the government relied on race as a consideration for the death sentence.

Cornyn said it was “inappropriate to allow race to be considered as a factor in our criminal justice system,” and promised to “continue to do everything [he could] to assure Texans of [the Office of the Attorney General’s] commitment to an equitable criminal system,” according to court documents.

And:

Buck’s lawyers asked Perry, Abbott, Lykos and the board to commute his sentence or grant a 120-day reprieve to allow time for the parties to work together.

Abbott’s office did not immediately provide comment. The Harris County district attorney’s office has said it would not intervene.

In the next post, the Houston Chronicle calls for justice in the case.  Earlier coverage of Duane Buck's case begins at the link. 

The clemency petition for Duane Edward Buck is available via Sribd.  Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

Duane Buck Seeks Relief in Federal Court

Texas News Service reports, "New Filings in "Racially Biased" TX Execution Case."  It's written by PeterMalof.

Attorneys for a Texas man scheduled for execution in eight days are asking a federal judge to order a new sentencing trial, contending that Duane Buck's 1997 sentencing was unconstitutional.

Buck's was one of seven death-penalty cases that then-Attorney General John Cornyn wanted reviewed for what he called an "egregious error": An expert witness told juries that certain races were more likely to be dangerous in the future. While the other six eventually received new trials, Buck, who is African-American, "slipped through the procedural cracks," according to Andrea Keilen, executive director of the Texas Defender Service.

"The bottom line is that his trial was tainted by this racist evidence. So we're asking that he have a fair opportunity, in front of a jury that's not biased by this sort of thing, to argue for his life."

She says the Buck case highlights how the death penalty is sometimes applied unfairly, even after the question of guilt or innocence has been settled.

"Days from death house, killer seeks clemency," by Allan Turner in the Houston Chronicle.

In the summer of 2000, then-Texas Attorney General John Cornyn made an astounding admission: A psychiatrist's testimony in six capital murder cases - including that of Houston defendant Duane Edward Buck - wrongly had introduced race as a factor for consideration in the trials' punishment phases.

New punishment hearings were ordered for five of the men whose cases were on appeal in federal courts. But Buck, scheduled to be executed Sept. 15 for the July 1995 murders of his ex-girlfriend Debra Gardner and her friend Kenneth Butler, never got a new punishment hearing in what his lawyers contend was an oversight.

Now, Buck's Texas Defender Service Lawyers are asking the state Board of Pardons and Paroles to recommend that Gov. Rick Perry spare his life.

"The state of Texas cannot and should not tolerate an execution on the basis of an individual's race, particularly where this state's highest legal officer has acknowledged the error, not only in similarly situated cases, but in this case," the clemency petition, by lawyers David Dow and Katherine Black, argues.

Alternately, the petition asks for a 120-day reprieve to pursue a new sentencing hearing. Although the other five killers received new hearings, all again were sentenced to death. One has been executed.

The problem in Buck's case arose when Dr. Walter Quijano, a defense psychiatrist, testified that the killer would not likely pose a future danger to society if imprisoned. "Future danger" is a key question jurors must consider before assessing a death sentence.

On cross-examination, however, the doctor agreed to a prosecutor's assertion that being African-American enhanced chances for future violence. That comment became a key factor in the state's push for execution.

Today's federal court filing is available via Sribd.

Earlier coverage of Duane Buck's case begins at the link. 

The clemency petition for Duane Edward Buck is available via Sribd.  Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

Bob Ray Sanders on the Buck Case

Fort Worth Star-Telegram columnist Bob Ray Sanders writes, "Not a place for considering a person's race."

There is no question that Duane Edward Buck killed two people and wounded a third victim in a 1995 shooting in Houston.

But there are two nagging questions concerning Buck's case that we must ask:

1) Should he have received the death penalty for his crimes?

2) Would he have been sentenced to death had his race not become a major factor in the trial's punishment phase?

Buck, 48, is scheduled to be executed Sept. 15 in the Texas death chamber in Huntsville.

His is a unique case, one in which former Texas Attorney General John Cornyn (now a U.S. senator) supported a retrial on punishment because of the unfair testimony of a psychologist.

And:

Buck's lawyers also are asking that the Harris County district attorney's office and Texas Attorney General Greg Abbott intervene to have Buck's execution date withdrawn.

"This case represents an obvious injustice that must be remedied by prosecutors, the courts or by Governor Perry and the Board of Pardons and Paroles," said attorney Kate Black. "If Mr. Buck is executed, not only will Texas have violated the Constitution, it will have violated its citizens' basic moral values by permitting an execution to be carried out that is based on an individual's race."

Surely the state will not let this execution proceed.

Earlier coverage of the Duane Buck case begins at the link.  The clemency petition for Duane Edward Buck is available via Sribd.  Two archived news releases issued by then-Attorney General John Cornyn on June 9, 2009 reference the case.

Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

News Coverage of the Duane Buck Clemency Petition

Today's Austin American-Statesman reports, "Petition: Condemned man's sentence racially tinged."  It's written by Steven Kreytak.

In 2000, then-Texas Attorney General John Cornyn said seven death row inmates had been unfairly sentenced to death because improper racial testimony had been presented at their trials.

"It is inappropriate to allow race to be considered as a factor in our criminal justice system," Cornyn, now a U.S. senator, said at the time.

Six of those inmates later got new sentencing hearings. But a seventh — Duane Edward Buck, convicted of a 1995 Harris County double murder — did not. Buck, 48, is scheduled to die Sept. 15.

On Wednesday, Buck's lawyers petitioned the Texas Board of Pardons and Paroles and Gov. Rick Perry to stop the execution.

Buck's lawyers with the Texas Defender Service have also asked current Attorney General Greg Abbott and Harris County District Attorney Pat Lykos to agree to cancel the execution date, said Andrea Keilan, director of the service.

"It's very rare to see an attorney general concede error in a capital case, much less a series of capital cases," Keilan said. "It shouldn't be controversial, and yet no one has stepped forward" to give Buck a new sentencing trial.

The seven cases identified by Cornyn were all tainted by testimony by psychologist Walter Quijano, who regularly told juries that defendants were more likely to commit future criminal acts because they were black or Hispanic. He based his testimony on the fact that blacks and Hispanics are overrepresented in the Texas prison system when compared with the state's general population.

His testimony was intended to inform the key decision by juries in assessing the death penalty in Texas: whether the defendant would be a likely future threat to society.

"Lawyers Seek Reprieve for Inmate Based on Race Testimony," by Brandi Grissom for the Texas Tribune.

When Duane Edward Buck was on trial for capital murder in Houston in 1997, Dr. Walter Quijano told jurors that the fact he was black meant Buck was more likely to be violent in the future.

The same psychologist gave similar testimony in six other death row cases. In each, the defendants were given new trials to determine their sentences.

Buck, though, has not received a retrial and is scheduled to die Sept. 15 for the 1995 shooting deaths of Debra Gardner and Kenneth Butler. Today, Buck's lawyers asked Gov. Rick Perry and the Texas Board of Pardons and Paroles to stop the scheduled execution to allow a new trial without racial references.

“If Mr. Buck is executed, not only will Texas have violated the constitution, it will have violated its citizens’ basic moral values by permitting an execution to be carried out that is based on an individual’s race,” Kate Black, a lawyer for Buck, said in a statement.

In 2000, then-Attorney General John Cornyn admitted the state had erred in seven death row cases — including Buck's — in which prosecutors elicited testimony from Quijano indicating that their racial or ethnic background made them more inclined to commit more violent crimes.

And:

Cornyn’s office did not immediately respond to a request for comment on the Buck case.

Buck’s lawyers said that he has not received a new trial because of procedural stumbling blocks, and they asked Perry and the board to commute his sentence or grant a 120-day reprieve. “The State of Texas cannot and should not tolerate an execution on the basis of an individual’s race, particularly where this State’s highest legal officer has acknowledged the error, not only in similarly situated cases, but in thiscase,” they wrote in the petition filed today.

Earlier coverage of Duane Buck's case begins at the link.

The clemency petition for Duane Edward Buck is available via Sribd.  Two archived news releases issued by then-Attorney General John Cornyn on June 9, 2009 reference the case.

Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

Duane Buck & Tainted Future Dangerousness Testimony

Once again, expert witness testimony about future dangerousness provided during the sentencing phase of a Texas capital murder trial is at issue.

Texas Defender Service has issued a news release, "Texas Set to Execute Man Despite Improper Racist Evidence, Presented by Prosecution at Trial.  Attorneys urge prosecutors, courts, and Governor Perry to halt execution in case in which prior Attorney General John Cornyn admitted error."

Today, attorneys for Duane Edward Buck filed a clemency petition with the Texas Board of Pardons and Paroles urging the Board and Governor Perry to intervene and halt the execution of Mr. Buck, scheduled for September 15, 2011.

On May 5, 1997, Mr. Buck was convicted of capital murder in Harris County for the July 1995 shooting deaths of Debra Gardner and Kenneth Butler. A third person, Phyllis Taylor, was also shot, but survived her wound. Ms. Taylor has forgiven Mr. Buck and does not wish to see him executed.

During Mr. Buck’s trial, psychologist Walter Quijano was called by the defense and testified, based on several factors, that he did not believe Mr. Buck would be dangerous in the future.  On cross-examination, the prosecutor elicited improper testimony from Dr. Quijano that the fact that Mr. Buck was African-American increased the likelihood of his being dangerous in the future.  The State urged the jury in its closing argument to rely on Dr. Quijano’s testimony.  The jury did so, found that Mr. Buck would be a future danger, and he was sentenced to death.

After Mr. Buck’s trial, but while his case was pending on appeal, on June 10, 2000, in a highly-unusual move, then-Attorney General John Cornyn issued a press release calling for the retrial of six individuals who had been sentenced to death based on improper introduction of, and reliance on, race as a factor in sentencing.  Mr. Cornyn identified Mr. Buck’s case as one of those six cases. Then-Attorney General (now Senator) Cornyn stated that Texas would not contest federal appeals in those six cases and that if the attorneys for the six identified defendants amended their appeals to include objections to Dr. Quijano’s testimony, the Attorney General would not object.

Then-Attorney General Cornyn first confessed error based on the testimony of Dr. Quijano in the case of Victor Saldaño. Attorney General Cornyn stated: “As I explained in a filing before the United States Supreme Court...it is inappropriate to allow race to be considered as a factor in our criminal justice system....[T]he United States Supreme Court agreed. The people of Texas want and deserve a system that affords the same fairness to everyone.”

The six cases in which the Attorney General conceded error were those of Gustavo Garcia, Eugene Broxton, John Alba, Michael Gonzales, Carl Blue, and Duane Buck.  In the other five cases, courts granted new sentencing trials to the inmates to allow them fair trials untainted by consideration of race.

Despite this concession, Mr. Buck’s case has slipped through the cracks.  For complicated reasons related to the intricate litigation process in post-conviction proceedings, the issue related to the improper racial testimony and arguments in Mr. Buck’s case has not been redressed.  Mr. Buck is the only one of the six death row inmates identified by the Attorney General who was not granted an opportunity to have a colorblind sentencing.  Mr. Buck now faces execution on September 15, 2011.

The clemency petition filed today asks the Texas Board of Pardons and Paroles and Governor Perry to intervene.  In it, attorneys for Mr. Buck state: “Five out of the six cases in which Attorney General John Cornyn conceded error resulted in new sentencing hearings.  Mr. Buck has not received the same corrective process. The State of Texas cannot and should not tolerate an execution on the basis of an individual’s race, particularly where this State’s highest legal officer has acknowledged the error, not only in similarly situated cases, but in this case.”

Lawyers for Mr. Buck are also asking the Harris County District Attorney’s Office and the Attorney General of Texas to intervene and withdraw Mr. Buck’s execution date.  “This case represents an obvious injustice that must be remedied by prosecutors, the courts or by Governor Perry and the Board of Pardons and Paroles,” said Kate Black, counsel for Mr. Buck. “If Mr. Buck is executed, not only will Texas have violated the constitution, it will have violated its citizens’ basic moral values by permitting an execution to be carried out that is based on an individual’s race.”

The clemency petition for Duane Edward Buck is available via Sribd.  Two archived news releases issued by then-Attorney General John Cornyn on June 9, 2009 reference the case.

Those who would like to urge clemency can sign on to a statement at Change.org.

Related posts are in the future dangerousness index.

Sandra Babcock on the Leal Case

"Texas Execution Could Risk Americans' Safety Abroad," is the title of her post at Huffington Post.  Babcock is an attorney for Humberto Leal and and a clinical professor at Northwestern University Law School.  Here's the beginning:

This week, prominent bipartisan groups, including former U.S. diplomats, retired military leaders, former judges and prosecutors, and organizations representing Americans abroad called on the Texas Governor and Board of Pardons and Paroles to grant a stay of execution to Humberto Leal Garcia, a Mexican national on death row who is scheduled to be executed on July 7. These are not the usual suspects who call for clemency in a death penalty case; in fact, many of them undoubtedly support capital punishment. What unites this diverse group is their concern that if Mr. Leal is executed in violation of a binding judgment of the International Court of Justice, other nations will be emboldened to violate the consular rights of U.S. citizens arrested in foreign countries.

Article 36 of the Vienna Convention on Consular Relations, a treaty ratified by 173 nations, establishes that whenever the authorities arrest a foreign national, they must advise her that she has the right to have her consulate notified of her detention. This applies to foreign nationals arrested in the United States as well as to Americans detained abroad. American foreign exchange students, missionaries and others who have been wrongly detained overseas often say that the assistance of the consulate is more important than the advice of a foreign lawyer. American consulates can help them contact family members, obtain evidence back home, and assist in obtaining competent legal representation.

But when Texas authorities arrested Humberto Leal García, a Mexican national with no prior criminal convictions, they tried, convicted, and sentenced him to death without ever informing him of his consular rights and without notifying the Mexican consulate of his plight. On March 31, 2004, the International Court of Justice held that the United States had breached its obligations under Article 36 of the Vienna Convention in the case of Mr. Leal and 50 other Mexican nationals on death row. The ICJ held that, as a remedy for the violations of Article 36, the United States must provide judicial "review and reconsideration" of Mr. Leal's conviction and sentence to determine whether, and how, he was prejudiced by the violation of his consular rights.

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

Additional Coverage of the Leal Clemency Petition

Today's San Antonio Express-News reports, "Texas asked to hold off executing killer of S.A. teen."  It's written by Michelle Mondo.

A petition filed Tuesday to stay the execution of Humberto Leal Jr., a Mexican national convicted here for the rape and murder of a San Antonio teenager, cites the international implications of the case and was accompanied by letters of support from high-ranking U.S. government leaders, including judges and retired military leaders.

The request for a reprieve or commutation of Leal's scheduled July 7 execution was the latest round in a legal battle stemming from a 2004 ruling at the International Court of Justice in The Hague that said neither Leal nor 50 other Mexican citizens on death row nationwide had been told they could contact Mexican consulate representatives when they were arrested.

The remedy for that breach of their rights, the world court determined, was to grant new hearings to the condemned to determine if consular access would have affected the outcome of their capital murder trials.

“It's not just about one person,” said Sandra Babcock, his attorney. “If (Leal's) execution goes forward the effects are going to reverberate far beyond the borders of Texas and far beyond the United States.”

Babcock, a law professor at Northwestern University, said U.S. citizens need the same right when traveling abroad. If U.S. authorities don't abide by the treaty that established it, those Americans — including members of the military, tourists, missionaries and business people — will be at risk, say support letters sent with the petition.

That problem has attracted bipartisan attention at the highest levels of government. Then-President George W. Bush, an ardent supporter of the death penalty, in 2005 tried to force states to hold hearings on consular access in each case.

And:

He has lost previous appeals citing incompetent attorneys. Babcock said his attorneys failed to counter forensic claims and didn't offer mitigating evidence that included an abusive background.

Her petition includes an allegation never mentioned in earlier appeals, that he was raped as a boy by Father Federico Fernandez at St. Clare Catholic Church in San Antonio. Fernandez was indicted in 1988 in the abuse of two boys, but the case was dismissed and a lawsuit was settled out of court.

Leal had never disclosed the abuse to anyone, Babcock said. Pat Rodgers, spokesman for the Archdiocese of San Antonio, said the allegation would be investigated.

The Texas Board of Pardons and Paroles will review the petition and make a recommendation to Gov. Rick Perry.

Tony Mauro posts, "Coalition Seeks Clemency for Mexican Man on Texas Death Row," at the BLT and Law.com.

With the backing of former judges, prosecutors and diplomats from across the country, lawyers are asking Texas Gov. Rick Perry and other state officials to delay the scheduled July 7 execution of Humberto Leal Garcia.  The case echoes the dispute involved in the 2008 Supreme Court decision in Medellin v. Texas, and also implicates pending action in Congress.

Leal is a Mexican national arrested in 1994 on suspicion of murder who was never told that he had a right under an international treaty to contact the Mexican consulate for legal assistance. It was not until he was on death row that a fellow inmate gave him the address of the Mexican consulate.

Without the legal assistance he might have gotten through the Mexican government, Leal received "disgracefully inadequate legal representation," acccording to the clemency petition, and was convicted on "junk science" evidence that has since been discredited. At his sentencing hearing, Leal's lawyers failed to present any mitigating evidence including his mental disabilities, brain damage and sexual abuse as a child. "He never stood a chance," said Northwestern University School of Law professor Sandra Babcock, Leal's current attorney and author of the petition sent to the Texas Board of Pardons and Paroles Tuesday.

But the broader issue in Leal's case -- his rights under the Vienna Convention on Consular Relations -- is what attracted the nationwide coalition of supporters. If Leal is executed without any examination of the unfairness of his failure to be notified of his consular rights, they argue, then foreign governments may retaliate and not honor the consular rights of U.S. citizens arrested in other countries.

Because foreign nationals may be unfamiliar with the U.S. legal system or unable to secure adequate representation, receiving the help of a consulate "can mean the difference between conviction and acquittal, or between life and death," said the group of former judges and prosecutors in a letter to Perry and the pardons board. "It is appropriate to ensure that our country complies with the laws to which it has obligated itself, and to ensure that those laws apply to our own citizens as well." Among those signing this statement were former FBI director and district court judge William Sessions, former federal appeals judges Shirley Hufstedler, John Gibbons and Nathaniel Jones, and former Texas attorney general and governor Mark White.

And:

A bill is expected to be introduced soon in the Senate -- with the backing of the State Department and Justice Department -- that would provide for court hearings to review the cases of foreign nationals whose consular rights were violated.

Babcock said the congressional response has momentum, after years of delay caused by related and unrelated reasons. "Here we are, the most powerful country in the world, and we can't figure out how to comply with the law." She also said the Leal case poses a starker example of the importance of the consular rights treaty than the Medellin case did, because having competent counsel through the Mexican government clearly would have made a difference for Leal. "This would not have been a capital case. It was a defensible case," she said, because of the flawed evidence introduced at trial and the failure of counsel to assert mitigating factors at sentencing.

More broadly, she said the consular issue, once it is explained, gains wide support because of the possible repercussions for U.S. citizens if the U.S. does not honor the treaty.

"Protests mount to block mexican’s execution in Texas," is the title of Tom Ramstack's AHN post.

An international dispute is arising from the planned execution July 7 of a Mexican citizen whose government questions whether proper procedures were followed in sentencing the convicted murderer.

Mexico’s ambassador delivered a request this week to Texas Gov. Rick Perry asking him to delay the execution until a review is completed of the sentencing procedures.

The Mexican government does not deny “the horrific nature of the crime” committed by Humberto Leal Garcia, the letter from Ambassador Arturo Sarukhan says.

However, the Mexicans want to ensure Leal was given legal representation required by a ruling of the International Court of Justice.

Leal, 38, was sentenced to death for the May 21, 1994 rape and murder of 16-year-old Adra Sauceda in San Antonio, Texas. He is one of 51 Mexicans on death row in United States.

In a 2004 ruling, the International Court of Justice determined that the United States was not granting death penalty convicts from Mexico their right to legal assistance by their own country.

The international court said the United States was violating the 1963 Vienna Convention on Consular Relations.

Leal’s attorneys argue he would not have been sentenced to death if he was given an opportunity for support and legal advice from his own country.

ThompsonReuters daily Summary Judgements contains, "Clemency sought for Texas death row inmate."

Humberto Leal Garcia, a Mexican national convicted of murder in 1994, is scheduled to die on July 7. But a group of former judges, prosecutors and diplomats from across the United States have written to Gov. Rick Perry asking him to the delay the execution. Leal wasn't told until he was already on death row that he had the right, under the Vienna Convention on Consular Relations, to seek legal help from the Mexican consulate. The clemency petition from the judges, prosecutors and diplomats argues that without the help of his government, Leal got "disgracefully inadequate legal representation." And their fear, Legal Times reported, is that if Leal is executed other countries may retaliate by depriving American citizens arrested abroad of their right to seek consular help.

The Lincoln Tribune of Lincolnton, NC, has "Mexicans blast execution of criminal alien murderer in Texas."

Ealier coverage of Leal's case for clemency begins at the link.  The clemency petition, case background, and other information is at Humberto Leal.  Readers who wish to sign a petition can do so at the link.

Humberto Leal Clemency Petition Filed

Humberto Leal's clemency petition is available in Adobe .pdf format.

"Bipartisan Agreement: TX Execution Threatens Safety of Americans Abroad," is the title of Peter Malof's report for Texas News Service.

The planned execution of a Mexican man next month in Texas is sparking bipartisan appeals to Governor Rick Perry. The 1994 prosecution of Humberto Leal Garcia violated international law, according to an array of retired military leaders, judges, and diplomats, who say Leal was deprived of assistance from his government until after his conviction.

His attorney, Sandra Babcock, is filing a reprieve petition today. She believes the issue is bigger than justice for one man. When the U.S. violates its treaties, she says, it encourages other countries to do the same, putting hundreds of thousands of Americans at risk of languishing helplessly in foreign jails.

"U.S. service members, missionaries, teachers, businessmen. Really there are so many different people - in addition to those of us who just like to vacation abroad - who really depend on this lifeline of consular assistance."

The U.S. Supreme Court has ruled that foreigners are, in fact, protected by the Vienna Convention on Consular Relations, signed by 173 countries, but that Congress needs to amend domestic law to match provisions of the treaty.

Such legislation is expected to be introduced soon. The question is, will Leal be put to death before statutes require review of his conviction?

Babcock, who is a professor of law at Northwestern University in Chicago, says if the execution proceeds as scheduled on July 7, it would send a message that the U.S. picks and chooses which international commitments to honor.

"And if we do that, then what incentive does any country have to enter into a treaty with us about nuclear arms, business negotiations, cooperation in the fight against global terror?"

Consular assistance, Babcock says, is crucial for understanding one's rights under the laws of foreign countries. Leal, who has learning disabilities, was arrested when he was 21 for the rape and murder of a 16-year-old in San Antonio. He maintains his innocence.

Babcock says he was convicted using "junk science" and had shoddy representation.

Attorneys for Leal have issued a news release, "Former U.S. Diplomats, Retired Military Leaders, Judges, Prosecutors, & Americans Abroad Urge TX Governor to Grant Clemency to Humberto Leal."

Attorneys for Humberto Leal Garcia today filed a clemency petition with the Texas Board of Pardons and Paroles and Governor Rick Perry, requesting a stay of his July 7 execution date.  The petition states that Mr. Leal would not have been convicted and sentenced to death if the United States had complied with treaty obligations to notify the Mexican consulate after his 1994 arrest for capital murder.

Congress is poised to introduce legislation to remedy the violation of Mr. Leal’s rights under the Vienna Convention on Consular Relations, which allows individuals facing prosecution in a foreign country to have early and ongoing contact with their consular representatives. 

Prominent bipartisan groups, including former U.S. diplomats, retired military leaders, former judges and prosecutors, and organizations representing Americans abroad, have come forward to urge the Texas Governor and Board of Pardons and Paroles to grant a stay of execution to allow time for Congress to remedy the violations in Mr. Leal’s case.  In their letters, these diverse groups express concern that if Mr. Leal is executed despite the Vienna Convention violations, other nations will be emboldened to violate the consular rights of U.S. citizens arrested in foreign countries.

“For Texas to proceed with [Leal’s] execution prior to full compliance with these treaty obligations would endanger the interests of American citizens and the United States around the world,” states John B. Bellinger, III, former Legal Advisor for the Department of State during the second term of the Bush Administration, in a letter signed by a group of former ambassadors and State Department officials that was delivered to Governor Perry today.

“Improving U.S. enforcement of its consular notification and access legal obligations will help protect American citizens detained abroad, including U.S. military personnel and their families stationed overseas,” write retired military leaders supporting clemency for Mr. Leal, including Brigadier General James P. Cullen, Colonel Lawrence B. Wilkerson, and Rear Admiral Don Guter. “We urge you to support those who are serving our country overseas by granting a reprieve in this case while Congress acts to meet our international responsibilities.”

In 2004, the International Court of Justice (ICJ) held that Mr. Leal must have a hearing to determine if he was harmed by the United States’ violation of the Vienna Convention.  The U.S. Supreme Court unanimously agreed that the United States is obligated to comply with the ICJ decision, but that Congress must act to implement the Court’s decision.  Both the Bush and Obama administrations have sought to enforce the decision, and in the wake of the Supreme Court’s decision the Government has supported federal legislation to provide hearings for Mr. Leal and other Mexican nationals denied their consular rights.

“If Mr. Leal had been provided consular assistance, he would not have been convicted, let alone sentenced to death.  With consular access, Mr. Leal would have had competent lawyers and expert assistance that would have transformed the quality of his defense,” said Sandra L. Babcock, Clinical Professor of Law at Northwestern University School of Law and attorney for Mr. Leal.

Mexican consulates have a history of monitoring capital trial proceedings and securing competent lawyers for their citizens facing the death penalty in the U.S.  If the government of Mexico had been informed of Mr. Leal’s arrest, he would have been provided with highly qualified and experienced legal counsel, as well as funding for necessary experts and investigators.   

The court-appointed lawyers Mr. Leal received were inexperienced and ineffective.  One of them was suspended from the practice of law twice for failing to adequately represent clients and publicly reprimanded on two other occasions.  

The state’s case relied on antiquated and flawed DNA testing. Modern DNA testing may show that Mr. Leal is innocent of the crime.  Yet, the state is refusing to allow the testing to proceed.  A case is pending in federal court to compel Texas to release evidence so that it may be subjected to new DNA testing.      

In addition, the state relied on “bite mark” evidence that is now universally recognized as inconclusive junk science.  A recent scientific study revealed a 63% false positive rate when attempting to use bite mark evidence to establish identity.  Indeed, several men have recently been exonerated after so-called “bite mark experts” linked them to the crime.  Mr. Leal’s lawyers failed to challenge both the bite mark and faulty DNA evidence.

Moreover, Mr. Leal’s lawyers failed to present powerful mitigating evidence at the sentencing phase of trial.  As a result, the jury that sentenced Mr. Leal to death did so without the opportunity to hear about his struggle to overcome learning disabilities and brain damage.  Nor did they learn that between the ages of ten and eleven, Humberto was subjected to terrifying acts of sexual abuse by his parish priest, abuse that caused severe and lasting psychological damage. 
 
This and other significant mitigating evidence came to light only after the Mexican consulate got involved in his case.

Earlier coverage of Humberto Leal's case begins at the link

Tim Adams Case at Supreme Court

Today's Houston Chronicle reports, "Child-killer's lawyers turn to high court."  It's written by Allan Turner.  Here are extended excerpts:

With their client just a day away from execution, lawyers for Houston child killer Timothy Wayne Adams said Monday they would turn to the U.S. Supreme Court in a last-effort to save the former security guard's life.

Monday's pledge to take the 42-year-old death row inmate's case to the high court came after state-level efforts to stop today's execution failed.

On Friday, the Texas Board of Pardons and Paroles unanimously rejected a request that Adams' sentence be commuted to life in prison.

The Texas Court of Criminal Appeals also dismissed an appeal that argued, in part, that Adams would not be a future danger because he likely would not father another child behind bars.

To assess a death sentence, Texas jurors must agree unanimously that a killer represents a "continuing threat to society" and that no mitigating circumstances justify life imprisonment. Less than a unanimous vote on those so-called "special issues" results in an automatic life sentence.

And:

Texas Defender Service lawyer Katherine Black said a petition asking the Supreme Court to review the case would be filed today. Some, if not all, of the issues raised in the most recent state-level appeal will be included, she said.

In the unsuccessful appeal to the Texas Court of Criminal Appeals, David Dow, a Texas Defender Service lawyer and University of Houston law professor, argued that a 2007 ruling in a Beaumont baby killing should be applied retroactively to Adams' case.

In the Beaumont case, Kenisha Berry was convicted of murdering her newborn son and sentenced to death.

The Texas Court of Criminal Appeals found that evidence showed Berry had proved dangerous only to her children whom she wished to conceal from a favorite mate. The low likelihood of her becoming a parent while in prison made it "unlikely" she would constitute a future danger, the court found in agreeing to commute her sentence to life in prison.

Dow argued that Adams' violence was limited to his son, and that his prison record — the killer arrived on death row in April 2003 — has been exemplary.

"For the same reasons that the finding of future dangerousness was overturned in Berry, this court should overrule the finding of future dangerousness in Mr. Adams' case," Dow said.

Dow also argued in the petition that the trial judge's instructions to the jury in the punishment phase were misleading, and that at least one juror would have supported sparing Adams' life.

A transcript of Judge Jeannine Barr's punishment phase charge to the jury indicates she told jurors a unanimous verdict on the two special issues was necessary to sentence Adams to death.

She also told jurors at least 10 jurors had to concur to find that the killer was not a continuing threat or that mitigating circumstances justifying life in prison existed.
Juror unaware of issue?

South Texas College of Law professor Ken Williams said Texas law requires at least 10 juror votes to opt for assessing a life sentence. But all it takes is one vote favoring life to essentially create a hung jury. A hung jury in a capital case's punishment phase automatically results in a life sentence.

Dow said juror Rebecca Hayes was unaware that her dissent on the death vote could have saved Adams' life.

"Houston man who killed son set to die Tuesday," is the AP report filed by Juan Lozano.  It's via the Austin American-Statesman.

Timothy Wayne Adams is scheduled for execution Tuesday for the death of his son, Timothy Jr., who was shot twice at close range by his father after a police standoff at his family's apartment.

His attorneys planned a final appeal to the U.S. Supreme Court. Last week, the Texas Court of Criminal Appeals dismissed a request to review his case.

More on the case at the Timothy Wayne Adams website.  Earlier coverage of his case begins at the link.

If Adams is executed, it would be the second in Texas this year, the 466th Texas execution since 1982.

Houston's KPFT-FM will host Execution Watch on the web and it's HD radio broadcast signal beginning at 6:00 p.m. (CDT), tonight.  Recent exoneree Anthony Graves is scheduled to be a guest on the program.

 

Sign the Petition Calling for Clemency for Tim Adams

You can sign the Change.org petition, from this link, or by clicking on the Take Action box in the right column.

Texas is poised to execute Timothy Adams on February 22, 2011, in spite of staunch opposition to his death sentence from the victim’s family, three jurors from Mr. Adams’ trial, and his fellow church members. Mr. Adams is a devoutly religious military veteran who has taken full responsibility for what he did. He poses no danger to society and has the love and support of his family, who has already endured the tragic death of a loved one and should not be forced to endure another.

Ask the Texas Parole Board to recommend and Governor Rick Perry to grant clemency to Timothy Adams.

You can send a letter to the Texas Board of Pardons and Paroles at:

Rissie Owens, Presiding Officer
Texas Board of Pardons and Paroles
P. O. Box 13401
Austin, Texas 78711-3401

You can e-mail Governor Rick Perry or send him a tweet, as well.

News Coverage of Adams News Conference

There is more coverage today on yesterday afternoon news conference by faith leaders calling for a commutation of Tim Adams' death sentence.

The Texas Tribune report is, "Religious Leaders Advocate for Ex-Veteran's Clemency."  It's written by Aziza Musa.

Timothy Adams begged his father for forgiveness in his first call from death row in 2003. 

Without hesitation, Columbus Adams said yes. He forgave Timothy Adams for fatally shooting his 19-month-old son — Columbus Adams' grandson — in the chest. Today, a week before his son is scheduled to die for the crime, Columbus Adams and a host of religious leaders asked the state to forgive Timothy Adams, too. Timothy Adams was a hard-working Christian and an Army veteran, he said, who never committed a crime before the day he lost control during an argument with his wife and killed their son.

Columbus Adams, the Texas Defender Service and more than 90 religious leaders from across Texas urged Gov. Rick Perry and the Texas Board of Pardons and Paroles to commute Timothy Adams' death sentence to life in prison. Three jurors from Timothy Adams' trial also signed a clemency petition submitted to the board last week.

"The truth is that Timothy snapped and did something wrong, but the crime is an aberration in his life," said Kate Black, Texas Defender Service staff attorney.

And:

Religious leaders spoke of Timothy Adams' deep faith and his character, and  they said that if jurors at his trial had known that, they wouldn't have handed down the death penalty.

"At the end of our lives, which of us wants to 'get what we deserve' for the single worst act of our lives, with complete disregard for all the good things we may also have done?" asked Sister Elizabeth Riebschlaeger with the Sisters of Charity of the Incarnate Word.

"Clergy urge clemency for Timothy Adams," is the AP filing, via the Houston Chronicle.

More than 90 leading clergy members have signed a letter to Gov. Rick Perry and the Texas parole board, appealing for clemency for Timothy Wayne Adams.

The clergy members represent eight Christian denominations and the Unitarian Universalist church. Adams is set to die Tuesday for fatally shooting his 19-month-old son during an argument with his estranged wife at their apartment in Houston.

The signatories to the letter include Archbishop Joseph Fiorenza of the Galveston-Houston Catholic archdiocese, Bishop Emeritus Raymundo Pena of the Brownsville Catholic diocese and Bishop Michael Rinehart of the Evangelical Lutheran Church of America.

The letter asks Perry to commute Adams' death sentence to life imprisonment.

"Family of Texas man set to die pleads for his life," is the Reuters report by Corrie MacLaggan.

"This is a constant pain, day in and day out, that we're about to lose another member of our family," Adams' father, Columbus Adams, told a press conference at the Texas Capitol.

Columbus Adams was joined by several clergy members who are part of a group of more than 90 Christian leaders who wrote a letter to Gov. Rick Perry and the Texas Board of Pardons and Paroles asking that Timothy Adams' death sentence be commuted to life in prison without parole.

Perry spokeswoman Katherine Cesinger said that "the governor fully considers each case before making his final decision."

Adams' supporters said that his actions on that 2002 day were out of character and that he is not a danger to anyone. Adams' wife testified that her husband followed her and once told her that he hoped to catch her with another man so that he could kill them "right then and there." according to the attorney general's account of the case.

The Rev. Lawrence Scott of New Pleasant Grove Missionary Baptist Church in Houston, the Adams family's church, said at the press conference that it's time to break the chain of "murder for murder."

"He's a good man," Scott said of Adams. "What he did was horrible, but to take his life is not going to do anything for the situation. His mother can't sleep. His father can't sleep."

Jordan Smith writes, "Clemency Sought for Veteran," for the Austin Chronicle.

Jurors Rebecca Hayes, Ngoc Duong, and Kathryn Starling each say they were not provided key information about Adams during the sentencing hearing that would have made a difference in the outcome. Moreover, Hayes and Duong told Adams' attorneys that they were leaning toward a life sentence but gave in to extreme pressure from other jurors who had decided Adams was coldhearted. It is now clear to both jurors that Adams' defense attorneys were ill-prepared for the hearing and failed to present compelling personal information about Adams – including that he came from a close-knit family, was a hard worker, and was very religious. "After the trial, I learned additional information that confirmed my conviction that Adams should not have been sentenced to death," Hayes said in a statement included in the clemency petition. "To this day, I do not believe that Timothy Adams deserves to die for his crime."

Austin's Belo-owned KVUE-TV reports, "Houston family pleads with Texas Governor's office for clemency."  It's by Shelton Green.  There is video at the link.

The day after the State of Texas executed the first of five people scheduled to die on death row this year, a family pleaded with staff members with the Governor’s office to save the life of the second death row inmate waiting in the wings. 

Timothy Wayne Adams, 36, of Houston is scheduled to be executed Tuesday, February 22, 2011.

 

In 2002, Timothy Adams shot his 19-month old son Timothy Jr. twice in the chest, killing him during a heated custody battle. Adams was threatening to take his own life at the time of the tragedy.

 

“He's been remorseful from day one. He knows that he did something terrible and when he called home he asked me, 'Momma, can you forgive me?'  And I said, 'Yes son, you're my son and I love you,'” said Wilma Adams, Timothy’s mother, who travelled to Austin Wednesday with her husband, several jurors from Adams’ trial and a minister representing 90 Houston preachers, all of whom say they believe that Adams deserves a life sentence and not death.

 

One juror says she would have opted for a life sentence for Adams had she known more about his religious upbringing.

 

“He is a young man who has good moral foundations and he is worthy of redemption and reconciliation and we feel like there ought to be discernment about people like this who face the death penalty," said Bishop Joe Williams of Houston, who supports clemency for Adams.

And:

An attorney for Tim Adams says the Texas Board of Pardons and Parole is scheduled to make a decision about Adams’ fate on Friday.

Belo also owns Dallas' WFAA-TV, Houston's KHOU-TV, and San Antonio's KENS-TV.

Earlier coverage begins with the post, "Will the Governor Heed a Victim's Family's Plea for Mercy?"

The clemency petition, filed with the Texas Board of Pardons and Paroles, is in Adobe .pdf format.  There is more on the case at the Timothy Wayne Adams website.

You can sign a petition urging clemency at the website.  You can send a letter to the Texas Board of Pardons and Paroles at:

Rissie Owens, Presiding Officer
Texas Board of Pardons and Paroles
P. O. Box 13401
Austin, Texas 78711-3401

You can e-mail Governor Rick Perry or send him a tweet, as well.

More Calls for Clemency in Tim Adams' Case

"Grandparents plead for clemency for grandson's killer -- their son," is the video report on Houston's KHOU-TV.  It's reported by Kevin Reece.

The parents of a convicted murderer are pleading with the governor and the Texas Board of Pardons and Paroles to stop their son’s planned execution this month. Columbus and Wilma Adams say they don’t want to be victims again.

Timothy Wayne Adams is scheduled for execution on February 22, nearly nine years to the day since he shot and killed his 19-month-old son Timothy Jr. In a custody dispute with his wife, Adams became despondent and suicidal at his southwest Houston apartment.

At his trial in 2002, prosecutors said he had held his son at arm’s length and shot him in the chest, then shot him a second time on the ground.

"He was not in his right mind," said his mom, Wilma Adams, of the military veteran who had no previous criminal record. "I don't know what happened that day but he was not in his right mind. He just snapped. He just lost it."

Adams pleaded guilty and a Houston jury deliberated for two days before returning with a punishment of death by lethal injection. He is on death row at the Polunsky Unit in Livingston.

"This is pain that the family has suffered day in and day out," said his father, Columbus Adams.

This week, attorneys for Adams filed a clemency petition asking the Board of Pardons and Paroles to vote to spare Adams’ life and commute his sentence to life in prison without parole. The petition includes the testimony of Adams’ parents, who say they were first victimized by the death of their grandson and can’t face losing their son as well.

"We are victims, too. This is our grandson," said Wilma Adams.

And:

"I can't imagine to lose him completely," said Columbus Adams, who says he and his wife try to visit their son in prison at least once a week. "I don’t know what it would do to the family. We ask the board of pardon and paroles to please hear our cry."

The board is expected to consider the clemency petition late next week.

Earlier coverage begins with the post, "Family, Friends Urge Killer Be Spared."

The clemency petition, filed with the Texas Board of Pardons and Paroles, is in Adobe .pdf format.  There is more on the case at the Timothy Wayne Adams website.

You can sign a petition urging clemency at the website.  You can send a letter to the Texas Board of Pardons and Paroles at:

Rissie Owens, Presiding Officer
Texas Board of Pardons and Paroles
P. O. Box 13401
Austin, Texas 78711-3401

You can e-mail Governor Rick Perry or send him a tweet, as well.

Tim Adams' Case for Clemency

"Clemency Papers Filed in Timothy Adams Case," is the title of Deb Courson's post at the Texas News Service, this morning.

Attorneys for Texas death-row inmate Timothy Adams are set to file clemency papers in the case today.

Adams is scheduled to be executed on Feb. 22 for the shooting death of his 19-month-old son during a domestic dispute. The case triggered strong emotions because of the young age of the victim, and it is complicated by the fact that the family of the murderer is also among the family of the victim. Adams' relatives claim their voices were not heard in the sentencing decision.

Timothy's brother, Chadrick Adams, is a teacher in Houston who says they don't want to lose another family member because of the tragedy.

"It is in our deepest hopes and prayers that the Texas Board of Pardons and Parole, and Gov. Rick Perry, will hear us now. Timothy committed a horrible act, but our grief will only be worsened if he is executed."

The family wants to see Timothy serve life in prison with no chance of parole - a sentencing option that was not available during the trial. Surviving maternal family members said during the trial that they would live in fear if Timothy were to be released.

The clemency filing details Adams' Army career and the fact that he had no previous criminal record. The filing also includes sworn statements from three jurors who say they were not provided a complete picture of Adams' character and background. They want the sentence changed to life in prison without parole.

The clemency petition, filed with the Texas Board of Pardons and Paroles, is in Adobe .pdf format.

"Victims, Jurors Urge Clemency for Tim Adams," is the news release issued by Tim Adams' attorneys.  Here's the full text:

(Austin, Texas) Attorneys for Tim Adams filed a clemency petition today urging the Texas Board of Pardons and Paroles to vote to spare Mr. Adams’ life and to ask Governor Rick Perry to commute his death sentence to life in prison without parole. Mr. Adams is an army veteran with no criminal history, not even an arrest, until he snapped and killed his son while planning his suicide in 2002. His execution is scheduled for February 22.

“Our family lost one child. We can’t bear to lose another. After my grandson’s death, we lived through pain worse than anyone could imagine. Nothing good will come from executing my son Tim and causing us more anguish,” said Columbus Adams, Mr. Adams’ father and a 30 year veteran of the Houston Fire Department. “We pray that God will fill Governor Perry’s heart with compassion. If not for Tim, then at least for our family.” 

Three jurors from Mr. Adams’ trial, Rebecca Hayes, Ngoc Duong, and Kathryn Starling, have come forward to request a commutation of Mr. Adams’ death sentence to one of life. They believe they were not presented at trial with a complete picture of Mr. Adams’ character and religious background.

Mr. Adams is loved and supported by members of his church, work supervisors, fellow soldiers from the military, and many others.  For example:

• Mr. Adams was raised in a Christian home and was active member of New Pleasant Grove Missionary Baptist Church in Houston. His Sunday school teacher, Verlene Edmond, remembers Mr. Adams as “quiet” and “polite” as a teenager and supports a commutation of Mr. Adams’ sentence.

• When Mr. Adams graduated from high school, he enlisted in the army and served his country.  Mr. Adams’ friend Roger West, now a Sergeant First Class in the United States Army and Purple Heart recipient, said that he wishes he could have “a whole platoon of guys like Tim.” Mr. Adams was honorably discharged in 1989.   

• Mr. Adams was always a hard worker who wanted to support his young family. He worked as a security guard at Greenway Plaza in Houston. He was such a good worker that he was quickly promoted to supervisor of all security shifts. Tim’s supervisor, Diane Garcia, received “many, many positive comments and feedback on Tim’s performance.”  

• Mr. Adams was a role model to his younger siblings. Chadrick Adams, Mr. Adams’ brother, said his older brother taught him his work ethic and inspired him to earn a scholarship to and graduate from college. Chadrick Adams is a teacher in Houston.

From the beginning, Mr. Adams accepted responsibility for what he did. He pleaded guilty in open court and before the jury, even though he was not offered anything in return for his plea.   

Mr. Adams has spent his time on death row reflecting on what he did, seeking forgiveness from his family, friends and God, and deepening his faith in Jesus Christ. He has been a model prisoner without a single disciplinary write-up on his record – not even for a minor infraction – during his eight years in prison. 

Mr. Adams is not a danger to anyone and never will be. If the Governor commutes his death sentence, he will spend the rest of his life in prison.

There is more on the case at the Timothy Wayne Adams website.

Dying on the State's Dime

That's the title of Emily Ramshaw's report in the Texas Tribune on medical care, and costs, in Texas prisons.  LINK  In this time of projected state revenue shortfalls, it's required reading.  Here's the opening:

A gaunt old man, thick with whiskers and stricken with dementia, writhes under the covers of his bed. Down the hall, doctors monitor elderly diabetics with recently amputated limbs, medicate terminal cancer patients shuffling by with walkers and tether shivering dialysis patients to blood-cleaning machines.

Despite the pacing guards, the handcuffs and the bars on the windows, the geriatric and medical wing at the Estelle Unit in Huntsville looks more like a nursing home than a maximum-security prison.

Prison doctors routinely offer up the oldest and sickest of these inmates for medical parole, a way to get those who are too incapacitated to be a public threat and have just months to live out of medical beds that Texas’ quickly aging prison population needs. They’ve recommended parole for 4,000 such inmates within the last decade. But the state parole board, which makes the final decision on “medically recommended intensive supervision,” has only agreed in a quarter of these cases, leaving the others to die in prison — and on the state’s dime. 

Texas’ “geriatric” inmates, classified as those 55 and older, make up just 7.3 percent of Texas’ 160,000-offender prison population. But they account for nearly a third of the system’s hospital costs and make three times as many visits to prison medical departments as younger inmates. Elderly inmates have average annual hospitalization costs of $4,700, compared to $765 for inmates under 55. In total, providing inmate medical care costs the state correctional health care system — already facing hundreds of employee layoffs amid a budget shortfall — nearly half a billion dollars a year.

And:

While the total prison population in Texas isn’t growing, it’s quickly aging. The ranks of geriatric inmates are rising by about 6 percent every year, frightening the budget writers who have to figure out how to pay for them. Health care costs are rising too: The average daily medical bill for Texas inmates grows about 4 percent every year — which is low, compared to some states.

The sickest inmates can each cost the state up to $1 million a year in health care costs. If these same inmates were living in nursing homes or hospice facilities, the federal government — through Medicaid — would pay two-thirds of the cost and save Texas taxpayers up to $50 million a year, according to state projections.

Texas is certainly not alone in looking at these costs.  The Silicon Valley Mercury News carries an AP report, "Calif. Senate OKs bill to release sickest inmates," written by Don Thompson.

California's sickest inmates would be released on medical parole to shave millions of dollars from the spiraling prison budget under a bill approved Wednesday by the state Senate.

The measure would let the parole board send severely disabled inmates to outside facilities without posting guards around the clock.

The move also would result in federal insurance programs paying more of the cost of the inmates' care.

State Sen. Mark Leno, D-San Francisco, said his bill could save California $200 million annually.

It was sought by a federal court-appointed receiver who controls prison medical care after lawmakers and Gov. Arnold Schwarzenegger proposed cutting $811 million in inmate health care costs.

Prison spending now consumes 11 percent of the state's general fund, more than California's two public four-year university systems.

Leno's SB1399 passed 21-13 and now goes to the Assembly.

Leno, said many of those who would qualify would be comatose, paralyzed or permanently disabled. His bill excludes those facing the death penalty or life without parole. If a parolee's health improves, the person could be returned to prison.

Demographics at TDCJ

Melody McDonald writes, "Texas Department of Criminal Justice report reveals characteristics of state's prison population," for the Fort Worth Star-Telegram.

More than 41,000 criminals were released from Texas prisons in the 2009 fiscal year, including 805 who served time for homicide, according to a report by the Texas Department of Criminal Justice.

The report, a portion of which was released by the Legislative Budget Board this month, revealed that 8,699 inmates were discharged from prison after completing their sentence, while the rest were released on parole or community supervision.

Angel Ilarraza, re-entry program coordinator for Tarrant County, said a large number of ex-convicts will have trouble finding a job, housing or transportation after being released from custody. Many will reoffend, he said.

"We put as many people as we want in prison, but the reality is, upwards of 95 percent are coming back," he said. "...And they come back no better when they went in. People don't perceive this as their problem, but we are trying to demonstrate that, as a county community, it is all of our problems."

In addition to the number of prisoners released, the TDCJ report also outlines a number of other statics, including how many people went into prison after receiving the death penalty and the ages of the oldest offenders.

Here's a snapshot of Texas' prison population as of Aug. 31, the most recent comprehensive report available, by the numbers:

143,122: males in TDCJ facilities, including prisons, state jails and substance-abuse treatment facilities.

11,954: females in TDCJ facilities

16,178: inmates serving time for homicide

The current edition of the web-posted article has transposed several numbers, I've used the correct numbers contained in the report.  Related posts are in the TDCJ index.

More Editorials Call for DNA Testing in Hank Skinner Case

Today's Austin American-Statesman carries the editorial, "Death row inmate entitled to delay for DNA tests."

If all goes as planned by the state of Texas, tomorrow will be the final sunrise Henry W. Skinner ever sees. Skinner, 47, is scheduled to be executed at 6 p.m. Wednesday for a brutal triple-murder committed in Pampa on New Year's Eve 1993.

We believe that even the most ardent supporters of capital punishment, confronted with the facts below, will join Skinner in asking Gov. Rick Perry for a 30-day reprieve.

In fact, the most ardent supporters of capital punishment — those most invested in making sure Texas does not execute an innocent person — are the ones who should be leading the call for the delay.

There are seven untested items that contain DNA that could be dispositive of Skinner's claim that he was falsely convicted.

The state has blocked that testing, noting that Skinner passed on a chance to have the testing done prior to his 1995 trial. That decision was made by Skinner's trial lawyer, who, noting that other DNA tests on items found at the crime scene damaged his case, didn't want further testing.

Now, Skinner — represented by the Capital Punishment Center at the University of Texas School of Law — wants Gov. Rick Perry to use his authority to delay the execution for 30 days and order the DNA testing. The Texas Board of Pardons and Paroles, in a 7-0 vote, on Monday recommended against a commutation or reprieve.

Can there be anybody who does not see the reprieve request as a harmless one that should be granted, especially because there is Texas precedent for it?

And:

Perry is very familiar with the importance of DNA testing. He recently, as a result of DNA evidence, pardoned Tim Cole, who spent 13 years in prison for a rape the tests showed he did not commit. Sadly, as Perry noted, the pardon — the first posthumous one granted in Texas — came nine years after Cole died in prison.

Last Friday, Perry went to Fort Worth to present the pardon to Cole's family.

"Hold up Skinner execution for DNA tests," is the title of an editorial in today's Dallas Morning News.

Key evidence in the 1993 murder case has never undergone DNA analysis. Skinner may be guilty of a bloody triple slaying in Pampa, but every sliver of doubt must be eliminated before the state exercises its life-or-death authority.

We trust that Gov. Rick Perry agrees with that, and we urge him to use the power of his office to postpone tomorrow's planned execution as insurance against miscarriage of justice. The Texas Board of Pardons and Paroles decided against Skinner on Monday, which means a temporary reprieve by the governor may be the last chance to buy time to carry out critical forensic tests. State courts and the prosecution have thwarted proper DNA analysis, but Perry ought to send the message that Texas settles for nothing less than absolute certainty.

Earlier coverage begins with the preceding post.

BPP Rejects Skinner Reprieve Request

Yesterday afternoon, the Board of Pardons and Paroles rejected a 60-day reprieve for Hank Skinner to allow time for DNA testing.  Thatnks to the Texas Tribune, you can read the Board's letter in Adobe .pdf format.

Brandi Grissom posts, "Pardons Board Rejects Skinner Request," at the Texas Tribune.

The seven-member Texas Board of Pardons and Paroles today unanimously rejected death-row inmate Hank Skinner's request for a reprieve from his execution, which is scheduled for Wednesday.

And:

With the board's decision today, Skinner's last hopes for testing on that evidence before he dies are Gov. Rick Perry and the U.S. Supreme Court. Skinner's attorneys have asked Perry to grant a one-time, 30-day reprieve to allow the testing. Perry has granted such a reprieve only twice before, and spokeswoman Allison Castle said today he had not made a decision yet about Skinner. The attorneys have also asked the Supreme Court to issue a stay and order testing on the DNA.

An Arizona-based lab has offered to do the testing for free and within 30 days.

Today's Houston Chronicle reports, "Board declines reprieve for man convicted in Panhandle slayings," written by Allan Turner.

Skinner's lawyers are awaiting U.S. Supreme Court action on petitions for a stay and for a writ of certiorari related to DNA testing of previously unexamined items found at the crime scene.

And:

“We are disheartened that the Texas Board of Pardons and Paroles has turned a deaf ear to Mr. Skinner's plea for a stay of execution to allow for DNA testing of key evidence that could prove his innocence,” said Skinner's lead attorney, Robert Owen of the University of Texas Capital Punishment Center. “It is now more urgent than ever for Gov. Rick Perry not to allow Wednesday's execution to proceed until are the facts are in.”

Michael Graczyk filed the AP report, "Convicted Texas killer of 3 loses clemency bid," via the Chronicle.

The Texas Board of Pardons and Paroles unanimously rejected Monday a clemency request for convicted killer Hank Skinner, who faces execution later this week for a triple slaying more than 16 years ago in the Texas Panhandle.

The vote was 7-0, said Maria Ramirez, the board's clemency director.

Skinner, 47, had asked the panel for both clemency and a reprieve to block his lethal injection, set for Wednesday evening in Huntsville. His attorneys argued he needed extra time for DNA tests that they said could absolve him of the New Year's Eve 1993 slayings of his girlfriend and her two adult sons at their Pampa home.

Earlier coverage begins with this post.

The Latest in the Hank Skinner Case

"The Secret Pardon," is the title of Brandi Grissom's latest Texas Tribune post on the Hank Skinner case. It's another must-read from this Trib reporter.

Every couple of minutes, attorney Rob Owen glances nervously at the calendar in his office. Barring the intervention of the U.S. Supreme Court, a reprieve from the secretive Texas Board of Pardons and Paroles is the last hope for his client, Hank Skinner, to avoid the poison-filled syringe that awaits him on Wednesday.

The seven-member board makes life-or-death decisions, recommending to the governor whether an execution should be delayed, called off or carried out. Yet it’s one of the least transparent agencies in state government, making it all but impossible for Owen, or any other member of the public, to decipher how or why it makes decisions. The board doesn't have to hold public meetings on clemency cases like Skinner's. It's not required to give any reasons for its recommendations. Most times, the seven members simply fax in their votes. Without a majority vote, clemency is denied. What’s more, there are no guidelines in statute or in the board’s rules that outline a basis for decision-making. And nearly all the documents the board uses to make its decisions are kept secret under state law — even after an inmate is executed. “To the extent we assume that the clemency review process is a meaningful safeguard for cases like Hank’s, where there might be doubt about guilt … our trust is misplaced,” says Owen, co-director of the University of Texas at Austin School of Law's Capital Punishment Clinic.

Criminal justice advocates and some lawmakers have called for reform of the Texas clemency process for years, calling the current system opaque and arbitrary. Especially in the wake of high-profile cases like that of Cameron Todd Willingham, who was executed in 2004 despite serious concern about his guilt in an arson that killed his daughters; and of Tim Cole, who was exonerated of a rape conviction after he died of an asthma attack in prison, proponents of reform say the time for change is now — before Texas puts an innocent person to death. Even Gov. Rick Perry has supported past efforts to require the board to meet in public in capital clemency cases. Rissie Owens, chairwoman of the Board of Pardons and Paroles, and a member of the Huntsville school board, declined an interview for this story and did not answer written questions about calls for reform. She sent an e-mailed response outlining the board's current rules.

And:

“This whole thing is about fairness,” says Houston criminal defense attorney Patrick McCann. “Clemency cannot be so random. … Otherwise, it has no meaning.” McCann started pushing for clemency reform after representing Robert Lee Thompson, one of the few death row inmates for whom the board did recommend clemency. Thompson was sentenced to death for his role in the 1996 shooting death of a Houston convenience store clerk. But he did not pull the trigger on the gun that killed the clerk; Thompson’s accomplice, who was sentenced to life in prison, made the fatal shot. The board recommended that Thompson’s sentence be commuted to life, but Perry rejected that decision. Thompson was executed on Nov. 19, 2009.

Though he had a positive experience with the board, McCann says, he is still at a loss to tell anyone else how or why they made a recommendation in his case. “Unfortunately, there’s not a record of any discussion,” McCann says. “Nor is there a formal recommendation with the reasoning behind it.” His experience prompted McCann to push for reform of the clemency process. The board, he says, should be required to meet in public, and the Legislature should issue guidelines for clemency decisions.  

Texas Appleseed, a social justice organization, and the Texas Innocence Network, a group that investigates inmates’ claims of actual innocence, published a study of the state’s clemency process in 2005. The study found that, in comparison to 37 other states that had the death penalty at the time, Texas had “unnecessary obstacles in the paths of those who seek pardon and commutation” that essentially closed the door on clemency to most applicants. Texas is the only death penalty state that does not require the board to meet for clemency decisions, according to the report. Instead, the board’s practice is to send materials to board members across the state who make full-time salaries ranging from about $95,000 to $115,000 for chairwoman Owens. They review the information and then fax in their votes, a process the Fifth Circuit Court of Appeals upheld in 1999 in a lawsuit in which a death-row inmate unsuccessfully sued the state, claiming the clemency process was unconstitutional. Like McCann, the study authors concluded that, to make the process fair, Texas should require the board to conduct open meetings and there should be some criteria for decision-making.

And:

Steve Hall, director of the Stand Down Texas Project, a group that is seeking a moratorium on the death penalty, says the reforms that advocates and lawmakers are calling for could be made by the board without legislative action. “Thus far, the board has been resistant to doing that,” he says. Because the members are dispersed throughout the state and because thousands of parole cases create an enormous workload for the board, he says, they haven’t been keen to draw additional attention to hot-button death penalty cases like Skinner’s.

Hall says he’s not optimistic that change will come to the clemency process unless a scandal rocks the board. The issue, he says, is just too low a priority for legislators who meet every other year to decide how to run a state with 24 million residents and a $180 billion budget. Until there’s a change, for Skinner and others interested in trying to predict how or why the Texas Board of Pardons and Paroles recommends some inmates get clemency and others get the needle, Hall says their best bet  “is probably a Ouija board.”

Earlier coverage of the Skinner case begins with this post.

Texas Attorney General Rules in Favor of Poshumous Pardon Authority

Texas Attorney General Greg Abbot today issued Opinion GA-0754 regarding the authority of a Texas governor to issue a posthumous pardon.  It's also available in Adobe .pdf format.

Here's the summary:

The Texas Constitution does not expressly address or limit the Governor's authority to grant a posthumous pardon. While a prior attorney general opinion concluded he could not grant a posthumous pardon due to the recipient's inability to accept it, modern United States Supreme Court decisions reject the common-law acceptance requirement that formed the basis of that opinion and the underlying Texas authorities. Given this shift in Supreme Court precedent and the Legislature's apparent recognition of this shift, we believe a Texas court would likely conclude that the Governor may grant a posthumous pardon under current Texas law, so long as all other constitutional requirements are met.

While they are persuasive authority, attorney general opinions are not binding; however, to the extent that the Governor was previously advised in an attorney general opinion that Texas law prohibited him from issuing a posthumous pardon, it was reasonable for him to rely on such advice.

Only those able to prove a concrete injury that can be redressed by the courts will have standing to challenge the Governor's decision to grant a pardon. Texas courts generally refuse to review the Governor's exercise of the pardon power so long as he operates within the constitutional restraints of that power.

We believe a court would likely conclude that the Board of Pardons and Paroles is authorized to recommend that the Governor grant a posthumous pardon.

Elise Hu has posted, "AG Says Posthumous Pardons Possible," at the Texas Tribune.

A posthumous pardon is possible after all, according to an opinion from Attorney General Greg Abbott's office. This clears the way for the possible post-death pardon of Tim Cole, who was exonerated of a sexual assault conviction in a Travis County court last year, but had died in prison many years prior.

The summary of the AG opinion is below, but the even quicker summary is this: A previous AG opinion said posthumous pardons could not be granted because the person wasn't alive to accept it. But more recent SCOTUS decisions have shifted, so the AG opinion concludes the governor can grant a posthumous pardon.

Hu add:

Governor Rick Perry did not pardon Cole last session, citing a lack of authority from lawmakers to pardon a man after his death.

"The constitutional amendment that would give a governor the ability to give a posthumous pardon was one of those [bills that died at the end of session]," said Perry, in August of last year.

The Cole family believed that the governor had legal options to grant a pardon.

State Senator Rodney Ellis requested the Attorney General's ruling, following the posthumous exoneration of Tim Cole last year.  Cole died of an asthma attack in 1999, while in prison.  More on the Cole exoneration here and here.

Too-Secretive Process

That's the title of an editorial in today's Houston Chronicle regarding Texas' executive clemency process.  LINK

Houston criminal defense attorney Patrick McCann made a persuasive argument for opening up Texas' too-secretive pardons and paroles process in Sunday's Outlook section (“Texans deserve public, open clemency process,” Outlook, Nov. 29, Page B8).

We agree with McCann's contention that this important part of the criminal justice process should be far more transparent; regrettably, it could scarcely be more closed. That ought to be a matter of concern, not just for the accused and convicted, but for all who come in contact with the system.

McCann's client, Robert Lee Thompson, was executed recently after Gov. Rick Perry declined to accept a recommendation by the state Board of Pardons and Paroles that Thompson's sentence be commuted to life in prison.

The board vote to change Thompson's sentence was made after successful entreaties by McCann and his partner, Rodney Brown. Thompson had been given a capital sentence despite the fact that he did not fire the weapon in the murder of a store clerk; McCann and Brown had persuaded the board to change the death sentence.

As McCann noted in his Outlook piece, the pardons and paroles board's decision was made entirely in secret — behind closed doors and without public input. No witnesses. No depositions. No affidavits. And no explanations as to why Perry ultimately declined to approve the recommendations of the board which, ironically, is made up of his own appointees.

This system, shrouded in mystery, could not be more certain to feed public suspicion if it had been specifically designed to do so. And Perry's silence about his decision to allow Thompson's execution to proceed has only heightened suspicions that the governor's decision had less to do with the facts in Thompson's case than with appealing to staunchly conservative voters in the March 2010 Republican gubernatorial primary, in which Perry faces a strong challenge from Sen. Kay Bailey Hutchison.

The secrecy is made that much more troubling by the lengthening history of false convictions based on faulty evidence that has bedeviled Texas criminal justice these past few years.

And:

The secretive system is on display once more this week, leading up to the scheduled Thursday execution of Bobby Wayne Woods for the 1998 kidnapping, rape and murder of 11-year-old Sarah Patterson. Attorneys for Woods have asked the Board of Pardons and Paroles for a stay of execution or clemency.

A 2002 U.S. Supreme Court ruling prohibits the execution of persons who are mentally retarded. Over the years, testing of Woods has shown that he has an IQ hovering around 70, the cutoff for mental retardation. His attorneys also contend Woods did not receive adequate representation at the appeals court level.

The crime committed against Sarah Patterson was heinous; of that there is no dispute. But the circumstances, including Woods' borderline test scores, questionable legal representation and the suicide of a cousin who he claims committed the crime, argue for careful review before a capital sentence is carried out.

Indeed, cases such as this one make perhaps the most compelling argument for opening up the whole process. Texas can and should do better.

McCann's OpEd, "Texans deserve public, open clemency process," is noted in this post.

As related before, more on the law of parties -- treatment of non-trigger-person accomplices -- is in the law of parties index. Our coverage of the 2007 Foster commutation is here. Two commentaries are:

• Kenneth Foster and Clemency
• The Law of Parties and Kenneth Foster

Another commentary on Texas clemency is:

• Eric Nenno and Texas Clemency

In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.  The Appendix contains comparative state information.

The current issue of the ABA Criminal Justice magazine contains the article, "Gubernatorial Clemency Powers: Justice or Mercy?" by Kathleen “Cookie” Ridolfi and Seth Gordon, noted here.

An Update on Bobby Woods

Chuck Lindell has updated his post from earlier today, noted here.

UPDATE: The Board of Pardons and Paroles has denied Woods’ clemency request, lawyer Maurie Levin said.

Also this afternoon, Levin filed an appeal with the U.S. Supreme Court laying out many of the arguments (detailed below) made in the clemency petition.

Earlier coverage begins with this post.

More Commentary Following Robert Thompson's Execution

"Another life gone because of bad law," is the Fort Worth Star-Telegram editorial.  It appeared in the Friday edition.

On Nov. 19, Robert Lee Thompson, 34, became the 23rd person to be executed in Texas this year.

He should still be alive.

Not because he was a good man, because he wasn’t — or least he was not 13 years ago when the 21-year-old Thompson and his buddy, Sammy Butler, were involved in the armed robbery of a Houston store in which clerk Mansoor Bhai Rahim Mohammed was killed.

Evidence showed that Butler shot Mohammed to death, and for this act a Harris County jury sentenced him to life in prison.

Another jury sentenced Thompson to death.

Thompson was guilty of a crime that day. He shot a different store clerk, who survived the incident.

But now this criminal has fallen prey to a flawed, often-misinterpreted law and the callous decision of a governor focused on political ambition rather than justice.

The Thompson case speaks to the capriciousness of how capital punishment is applied in Texas: an actual killer gets to live while his accomplice dies for the same crime. It also brings into clear focus once again the bad piece of state legislation known as the "law of parties."

And:

On a 5-2 vote on Nov. 18, the Texas Board of Pardons and Paroles made a rare recommendation that the governor commute Thompson’s sentence to life in prison. Gov. Rick Perry, who is not obligated to follow the board’s recommendation, denied the request the afternoon of Nov. 19 and Thompson was executed 45 minutes later.

"After reviewing all of the facts in the case of Robert Lee Thompson, who had a murderous history and participated in the killing of Mansoor Bhai Rahim Mohammed, I have decided to uphold the jury’s capital murder conviction and capital punishment for this heinous crime," the governor said in a statement. "There is no reason to set aside the capital murder conviction handed down by a Texas jury and upheld by numerous state and federal courts."

Wrong, governor. There was a reason. You simply were blind to it.

The governor, who is engaged in a tough re-election campaign against U.S. Sen. Kay Bailey Hutchison, perhaps could not see past next March’s Republican primary.

In 2007, Perry did follow the recommendation from the Board of Pardons and Paroles in commuting the death sentence of Kenneth Foster six hours before Foster was to have been executed. Foster also had been convicted under the "law of parties" statute, but the governor did not cite that as his reason for the commutation. Instead, he noted his concern that Foster and his co-defendant had been tried together.

Texas is one of only five states with a law of parties statute. It is the only state that applies that law in death penalty cases.

The Star-Telegram Editorial Board is on record calling for the Texas Legislature to address this awful and misapplied law. Bad people should be held accountable for their crimes, but execution based on the law of parties is not right.

A half dozen people have died under this law. That’s six too many.

Patrick McCann, Thompson's attorney, wrote the OpEd, "Texans deserve public, open clemency process," for the Sunday Houston Chronicle.

I represent the indigent condemned. This means that I try to keep those men and women on death row from being executed. It is not all I do as a criminal defense lawyer, but it is what I started doing fresh out of law school 15 years ago, and it is a still a large part of what I deal with every day. I started doing this work out of a combination of the intellectual arrogance of a young man and a curiosity as to how this system worked. I have satisfied the second, and the first has been, as my father once told me it would be, beaten out of me pretty thoroughly. I have stayed in this work because I cannot find a morally acceptable way to walk away from something that needs doing.

My colleague, Rodney Brown and I, recently persuaded the Board of Pardons and Paroles to recommend sparing the life of our client, Robert Lee Thompson. We were grateful for that vote, and for the consideration of the men and women who serve on the board. We were both deeply saddened when Gov. Rick Perry declined to follow the advice of his own appointees and did not exercise his powers of mercy. That is how it goes in this line of work. I wish brighter and better people than me were doing it most days, but I wanted the reader to know this information before they decide whether to continue on.

I am not starting a debate on the death penalty, as people's opinions are their own on this topic. I am simply here to discuss whether it is time we as a state looked hard at the way we decide who is or is not worthy of mercy, and thus, how our clemency and pardon process works. I cannot think of a better time to do this than around Thanksgiving, and as we approach the celebration of the life and death of history's most well known wrongfully convicted man. One of that gentle man's last acts was to forgive a condemned thief, if I recall correctly. We could probably do well to relearn this lesson.

And:

Our current procedures for requesting either a pardon in a noncapital case or a commutation of sentence in either a capital or noncapital case do not require an actual hearing. They do not require a public meeting, open to those who wish to attend. They do not require any explanation to the public for whatever reasons a person's request to have such relief was denied. They require no record, no witnesses, no affidavits, no depositions, nor even a short explanation of the board's reasoning, or the governor's in those rare cases where the two views diverge on a particular case. There is no rational standard for deciding when to grant commutation in non-capital cases, as no one seems to know or to have laid out when too much time is enough. To any outsider, the process seems shrouded in mystery, or at the very least difficult to understand.

This is a shame, because having dealt with the people whom the governor appointed to the Board of Pardons and Paroles, I have found them to be dedicated and hard-working men and women who take their jobs quite seriously. They deserve a more open procedure, one that would inspire confidence in the people of the state, who could see their system hard at work, and who could review the notes or witness statements of an open, public process. This is not what we have now, and it is a shame. It is a shame because given the number of individuals who have been publicly exonerated by the Innocence Project, and given the impact of the Texas habitual offender laws, it would seem sensible to have some process to correct or mitigate the impact of bad laws, mistakes in trials or the actions of corrupt police or other public officials. As it stands now, we do not, at least not in reality. The Houston Chronicle and other news agencies have detailed at some length the lack of clemency here in Texas, and the truth is that there are literally thousands of individuals who are in prison for nonviolent crimes, often for lengthy terms that do not comport with any actual public threat. They deserve the real chance for commutation. Likewise, there are individuals who finished their terms of sentence for minor crimes years ago and went on to lead enormously productive lives as law-abiding citizens. They merit the opportunity for an actual pardon. Finally, there are the wrongfully convicted, who deserve some accessible and open process to clear their names. As has been sadly shown these last few years, that process does not yet truly exist. Courts are reluctant to admit mistakes, nearly as much as police, prosecutors and defense attorneys.

All Texas citizens deserve to have an open, public clemency process, with actual mandated hearings, by which deserving individuals, without the intrusion of politics, can present recorded evidence of rehabilitation, reform, mitigating evidence and even actual innocence, in order to have a means of ensuring that the original results in their cases were the just ones. Whether that comes from a change in the rules the board uses, or an actual constitutional amendment to make that system a reality, it needs doing. The Supreme Court has always believed, perhaps a bit hopefully, that the clemency process could correct the all too human possibility of errors in the system. It is time we made that hope the truth here, and gave Texans a system that could be a model for others across the country. Shakespeare once wrote, in his play The Merchant of Venice, that “mercy is mightiest in the mighty.” It is time we proved that.

Earlier coverage begins is here and here.  More on the law of parties -- treatment of non-trigger-person accomplices -- is in the law of parties index. Our coverage of the 2007 Foster commutation is here. Two commentaries are:

• Kenneth Foster and Clemency
• The Law of Parties and Kenneth Foster

Another commentary on Texas clemency is:

• Eric Nenno and Texas Clemency

In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.

The Case of Bobby Woods

The Texas Observer has streaming video of Bobby Woods to complement Renee Feltz' report, "Possibly Retarded Prisoner Faces Execution."

When Texas reopens its execution chamber after a Thanksgiving break, the first man set to die may be mentally retarded. A 2002 Supreme Court ruling bans the execution of mentally retarded prisoners. But after years of being represented by a discredited attorney who ruined any chance for an appeal based on his disabilities, the fate of Bobby Wayne Woods rests with the state Board of Pardons and Paroles which can recommend clemency or a reprieve to Gov. Perry. "It's a long shot at best," Woods' attorney Maurie Levin says of the clemency request, "but I think it's very important to do."

Test scores during his childhood and incarceration show Bobby Woods has an IQ that hovers at or below 70 — the cut-off point for mental retardation. He reads at a second grade level and writes childlike letters — many of which are photocopied and presented as evidence in his clemency request. Levin asked the board to grant a 60-day reprieve so that she can produce a videotape of Woods "to adequately present a full picture of his limitations." She has sued Texas prison officials over their refusal to allow her to record such a video herself. The Texas Observer captured Woods on tape last week during an on-camera interview, and now you can watch the video that Levin wants the clemency board to see.

Woods was sentenced to die in 1998 for kidnapping, raping and murdering 11-year-old Sarah Patterson. He disputes his guilt, saying his cousin is responsible for cutting Patterson's throat. But the cousin committed suicide the week following Woods' arrest. Levin acknowledges "the facts of this crime are very difficult," but she notes the ban on executing the mentally retarded applies no matter how heinous the offense. Levin and students with the Capital Punishment Center at the University of Texas Law School began working on Woods' case just before he was scheduled to be executed in October 2008. Their efforts followed years of cringe-worthy legal representation by Richard Alley, one of just two attorneys the Texas Court of Criminal Appeals has removed from its list of lawyers qualified to represent death row prisoners in their appeals. He visited Woods only once during the nearly 10 years he represented him.

"For the state of Texas to appoint a lawyer who they then removed from the list — who was being taken to task in a federal court at the very same time he's being appointed to represent Bobby in his federal proceedings, and then for Bobby — a mentally retarded man — to suffer the consequences of that appointment is atrocious. It infuriates me," Levin says.

Alley had a habit of recycling direct appeal claims in his state capital habeas cases. While he raised 28 issues in Woods' state habeas appeals, just two were actually new and neither was backed by useful evidence. In contrast, Levin and her students were able to contact family members who described how Woods was a slow child who suffered from learning disabilities and was called "retard" by his classmates, and "always needed to live with someone who could take care of him" when he was older. Their investigations revealed that while Woods had held a steady job as a short-order cook at Waffle House, he had to have the orders read aloud to him.

Alley did file an appeal claiming Woods was mentally retarded, but it was poorly put together and the court rejected it.

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

The poor performance of some lawyers in state habeas proceedings for Texas death row inmates has been well documented in recent years, sparking State Bar action, legislation, and new rules by the Texas Court of Criminal Appeals.  Chuck Lindell  wrote the Austin American-Statesman's 2006 series noted  here.  Maro Robbins' earlier coverage of habeas issues in the San Antonio Express-News is here and here.

The Texas Defender Service report, Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts, highlighted problems with the performance of attorneys appointed in the state habeas phase of post-conviction review of death sentences.  It's avaialble at the TDS website.  It was published in 2002.

Crime and Punsihment: 1 Dies, 1 Lives

That the title of an Austin American-Statesman editorial.  It appeared in the Saturday edition.  LINK

Two criminals, both with guns fired at the scene. Two shooting victims. One dies, one does not.

Two trials, both for capital murder because of a state law that makes all participants in a crime that includes a slaying potentially just as guilty as the triggerman.

For whatever reason, one jury sentences the man who killed someone to life in prison. For whatever reason, another jury sentences the man who didn't kill anyone to death by injection.

The latter case winds its way through the courts and to the governor's desk. The courts uphold the conviction and sentence. But, en route to the governor's desk, a panel of gubernatorial appointees recommends commutation from death to life in prison for the man who did not kill anybody.

No, says the governor, the jury and the criminal justice system have spoken and must be respected.

For whatever reason, that's the system we have in Texas today. It again has produced inconsistent results that should give pause to even the most ardent of death penalty supporters.

Thursday evening, about 30 minutes before Robert Lee Thompson was scheduled to die, Gov. Rick Perry announced he was rejecting the Board of Pardons and Paroles recommendation to commute the sentence.

And:

But the Thompson and Turner cases offer a chilling reminder that the death sentence is meted out inconsistently in Texas. Evidence in the trials showed that both men were evil. But Thompson was executed for a slaying committed by an accomplice who prosecutors failed to show intended to commit murder.

Once again: Thompson — though not for lack of effort — did not kill anybody. Under state law, he was equally culpable for any slayings that took place at the crime scene. There was a slaying, but jurors returned a life sentence for the man who committed it because they were not convinced he intended to kill somebody.

Taken individually, it's possible to justify the outcome of the two cases. Perhaps Thompson deserved to die. Perhaps Butler deserved to spend life in prison.

But lined up side-by-side, it's hard to see the cases as anything other than another example of inconsistency in the Texas death penalty.

Earlier coverage begins with this post.  Related articles are in the law of parties category index.

Texas Execution

Following Rick Perry's rejection of clemency for Robert Thompson, recommended by the Board of Pardons and Paroles, Texas conducted its 23nd execution of 2009, last night in Huntsville.  It was the 446th Texas execution since 1982.  Texas has far and away the most active death chamber in America, accounting for more than 37% of the nation's post-Furman executions. 

To date, there have been 48 executions in the nation this year; 1,184 since 1977.

According to TDCJ, one more execution is scheduled in Texas during 2009, on December 3rd.  Five execution dates have already been set in Texas for  2010.

As noted in the preceding post, Governor Perry's statement is here.

"Perry rejects clemency in death penalty case," is the title of Mike Ward's report in today's Austin American-Statesman.

Thompson did not fire at the slaying victim, though he participated in the robbery and shot another clerk four times, according to official reports. The second clerk lived.

Perry's decision came after the state Board of Pardons and Paroles had voted 5-2 on Wednesday to recommend that Perry commute Thompson's death sentence to life in prison, a rare move for the panel.

It was the second time in two years that the parole board had made such a recommendation in a case involving Texas' controversial "law of parties," which allows accomplices in capital crimes to face the death penalty even if they did not actually kill. Perry commuted the other sentence.

More than a half dozen other Texas inmates have been executed under the law of parties in recent years, despite last-minute requests for clemency.

Thompson was sentenced to death for being an accomplice when Mohammed, 29, was shot. Thompson's partner in crime and the triggerman, Sammy Butler, was sentenced to life in prison.

Allan Turner writes, "Killer executed after Perry rejects panel's advice," for the Houston Chronicle.

Robert Lee Thompson, 34, didn't fire the shot that killed clerk Mansoor Rahim, also identified as Mansoor Rahim Mohammed, during a robbery of the Seven Evenings convenience store on Braeswood Boulevard. But a Harris County jury sentenced him to death under the state's “law of parties,” which holds accomplices as responsible for a murder as the person who does the killing. The triggerman, Sammy Butler, was sentenced to life in prison after prosecutors failed to prove he intended to kill Rahim.

In the punishment phase of Thompson's trial, prosecutors contended the men had been involved in at least eight other robberies, some of which resulted in the deaths of store employees.

Thompson's case marked the third time the Texas Board of Pardons and Paroles has recommended that a death sentence be commuted to life in prison during Perry's years as governor. He has voluntarily commuted only one death sentence during his tenure as governor.

The AP report by Michael Graczyk is"Man executed after Perry rejects parole board's clemency, via the Fort Worth Star-Telegram.

The parole board’s 5-2 vote came in response to a petition from Patrick McCann, Thompson’s attorney, who argued that Thompson’s case was similar to that of Kenneth Foster, who was also convicted and sentenced to die under the law of parties.

Foster was only the second inmate since Texas resumed carrying out executions in 1982 who won a recommendation from the parole board as his execution loomed. The first recommendation was for Kelsey Patterson, a mentally ill inmate, in 2004

Perry rejected the board’s recommendation, and Patterson was executed. But he commuted Foster’s sentence.

Perry’s explanation for commuting Foster’s sentence was that Foster and his co-defendant were tried together on capital murder charges for a slaying in San Antonio. In Thompson’s case, he and Butler were tried separately.

At least a half-dozen other Texas inmates have been executed under the law of parties.

Since 1982, the U.S. Supreme Court has barred the death penalty for co-conspirators who don’t kill. The justices made an exception in 1987, however, ruling that the Eighth Amendment didn’t prohibit the execution of someone who plays a major role in a felony that results in murder and whose mental state is one of reckless indifference.

At the Dallas Morning News Death Penalty blog, Michael Landauer posts, "A simple reform on law of parties."

If lawmakers are not willing to change the so-called law of parties in Texas, where an accomplice can be executed for a capital crime, then I have one simple proposal. Why not require by law that the triggerman be tried first?

In the case of Robert Lee Thompson, executed last night despite a rare recommendation of clemency from the parole board, it would have made the trial a bit fairer. As it is, Thompson was tried first. In his punishment phase, others testified about other crimes he had committed. Prosecutors argued that he had wanted to deliver a fatal shot to the clerk he inujured, but his gun was out of bullets.

Later, int he trial of the gunman who did fire a fatal bullet, prosecutors failed to secure a death penalty because jurors were not sure murder was the motive. Robbery seemed to be.

There's a lot of assuming going on in cases like this. But one jury found as a matter of fact that the accomplice knew that murder was going to be the result of the crime. Another jury didn't see it that way. Duel trials aren't fair, either.

Perry Rejects Commutation - UPDATED

Governor Rick Perry has rejected a recommendation to commute the death sentence of Robert Thompson.  Thompson is scheduled to be executed shortly after 6:00 pm, tonight.  The Texas Board of Pardons and Paroles voted yesterday, 5-2, to recommend a commutation to the governor.

Governor Perry's statement is here.

“After reviewing all of the facts in the case of Robert Lee Thompson, who had a murderous history and participated in the killing of Mansoor Bhai Rahim Mohammed, I have decided to uphold the jury’s capital murder conviction and capital punishment for this heinous crime. There is no reason to set aside the capital murder conviction handed down by a Texas jury and upheld by numerous state and federal courts.”

A Texas governor may accept the Board's recommendation and commute a death sentence, however, he/she is not obligated to do so. 

In 2004, the Board recommended that Perry commute the death sentence of Kelsey Patterson due to Patterson's severe mental illness.  Perry rejected that recommendation, and Patterson was executed.  Perry's only commutation of an inmate facing imminent execution was that of Kenneth Foster in 2007.

UPDATE - Michael Graczyk's inital AP report is here.

Gov. Rick Perry refused to spared a man facing execution Thursday evening for his role in a fatal robbery, rejecting a parole board recommendation that the death sentence of 34-year-old Robert Lee Thompson be commuted to life in prison.

Perry's decision came about 30 minutes before Thompson was set to be taken to the Texas death chamber for lethal injection. On Wednesday, the Texas Board of Pardons and Paroles made the rare recommendation for Thompson, who was not the triggerman in the fatal shooting of a Houston convenience store clerk 13 years ago.

Earlier coverage begins with this post.

More on the law of parties -- treatment of non-trigger-person accomplices -- is in the law of parties index. Our coverage of the 2007 Foster commutation is here. Two commentaries are:

• Kenneth Foster and Clemency
• The Law of Parties and Kenneth Foster

Another commentary on Texas clemency is:

• Eric Nenno and Texas Clemency

In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.

Still Waiting on Word From Governor Perry

Robert Thompson's execution date is just over an hour away.  Thompson, his attorneys, and reporters are waiting on Governor Rick Perry to accept or reject the Board of Pardons and Paroles that Thompson's death sentence be commuted to life in prison.

Earlier today, AP writer Michael Graczyk filed, "Texas governor to decide condemned killer's fate."

The fate of a man facing execution Thursday evening for his role in a fatal robbery was in the hands of Gov. Rick Perry after the state parole board recommended the death sentence be commuted to life in prison.

The Texas Board of Pardons and Paroles made the rare recommendation Wednesday for Robert Lee Thompson, 34, who was not the triggerman in the fatal shooting of a Houston convenience store clerk. The shooter, Sammy Butler, was convicted and received life in prison.

Perry was not required to follow the recommendation of the board, whose members he appoints.

"The governor has received the board's recommendation but has not made a decision," spokeswoman Allison Castle said Wednesday.

Thompson's lawyer, Patrick McCann, also had an appeal before the U.S. Supreme Court to stop the lethal injection, which would be the 23rd this year in Texas and second in as many nights.

The parole board's 5-2 vote came in response to a petition from McCann, who argued that the case was similar to that of Kenneth Foster, who was also convicted and sentenced to die under the law of parties. Under that law, offenders conspiring to commit one felony like robbery can all be held responsible for another ensuing crime, such as murder.

Perry commuted Foster's sentence to life two years ago. Foster became only the second inmate since Texas resumed carrying out executions in 1982 who won a recommendation from the parole board as his execution loomed.

Allan Turner has updated, "Parole board urges Perry to spare Houston killer," at the Houston Chronicle website.

Texas' Board of Pardons and Paroles on Wednesday recommended that Gov. Rick Perry spare the life of Houston killer Robert Lee Thompson, who is scheduled to be executed tonight in Huntsville.

A Perry spokeswoman did not indicate when the governor, who has voluntarily commuted only one death sentence in his tenure as chief executive, might rule in the case. As of this afternoon, the execution still was scheduled.

Thompson, 34, was sentenced to die in a law-of-parties case stemming from the December 1996 slaying of clerk Mansoor Rahim during a robbery at a Braeswood Boulevard convenience store. Thompson's lawyer, Pat McCann, argued that the fatal shot was fired by his client's accomplice, Sammy Butler. Under Texas' law of parties, both robbers were eligible for the death penalty. But Butler, the gunman, was sentenced to life in prison.

The pardon board's action marked the second time in two days that Houston killers received hope of escaping execution.

On Tuesday, U.S. District Judge Lee Rosenthal granted a 90-day stay to Gerald Eldridge, 45, who was sentenced to die for the 1993 murder of his former girlfriend, Cynthia Bogany, and her 9-year-old daughter, Chirrisa. Eldridge's lawyer argued that the killer might be seriously mentally ill and incompetent to be executed. Under Texas law, one must understand that he will be executed and why in order to legally be put to death.

After Wednesday's initial victory before the pardons board, McCann acknowledged that he was “too scared to be optimistic.” Still, he noted the only time Perry voluntarily commuted a death sentence also involved a law of parties case.

Earlier coverage is here.

Board of Pardons & Paroles Recommends Commutation in Law of Parties Case

Allan Turner writes, "Board: Commute death sentence in Houston case," for the Houston Chronicle.

The state pardons board today recommended that Houston killer Robert Thompson's scheduled Thursday execution be commuted to life in prison after his lawyer successfully argued that he was not the triggerman in a December 1996 convenience store robbery-murder.

Gov. Rick Perry, who has only once in his tenure as chief executive voluntarily commuted a death sentence, was expected to rule on the case tonight or tomorrow.

“I'm too scared to be optimistic,” said Thompson's attorney Pat McCann, “but Perry has been receptive to law of parties cases.”

Thompson was sentenced to death in a law of parties case stemming from the slaying of Mansoor Rahim in a Dec. 5, 1996, robbery of a Braeswood Boulevard convenience store. Thompson's partner in the crime, Sammy Butler, fired the fatal shot, but was sentenced only to life in prison.

Under the state's law of parties, all participants in a crime are held fully responsible and can be assessed the death penalty.

Perry's office did not immediately respond to queries about when the governor might decide the case, but McCann said the governor's legal counsel advised him a decision likely would come tonight or tomorrow.

Although Perry has commuted death sentences in accordance with U.S. Supreme Court decisions, only once, in the case of San Antonio killer Kenneth Foster, has the governor commuted of his own accord.

Foster was convicted of capital murder in a law of parties case although he was not the triggerman. His death sentence was commuted in August 2007.

McCann said executing Thompson would neither deter crime or provide retribution.

Governor Perry may accept the Board's recommendation and commute Thompson's death sentence, however, he is not obligated to do so.  He will announce a decision Thursday.

In 2004, the Board recommended that he commute the death sentence of Kelsey Patterson due to Patterson's severe mental illness.  Perry rejected that recommendation and Patterson was executed.  As noted by Allan Turner, Perry's only commutation of an inmate facing imminent execution was that of Kenneth Foster.

More on the law of parties -- treatment of non-trigger-person accomplices -- is in the law of parties index. Our coverage of the 2007 Foster commutation is here. Two commentaries are:

• Kenneth Foster and Clemency
• The Law of Parties and Kenneth Foster

Lise Olsen on Gov. Perry & Clemency

"Perry uses clemency sparingly on death row," is Lise Olsen's report in the Sunday edition of the Houston Chronicle.  It's a must-read.  Here are extended excerpts:

In nearly nine years as Texas governor, Rick Perry has never spared a life based on a claim of innocence and only once delayed an execution in such a case, according to a Chronicle review of public records, clemency statistics and information from the governor's office.

During that same period, officials in other death penalty states granted clemency for humanitarian reasons at least 200 times — 171 based on questions of innocence in Illinois alone.

Texas has executed 200 convicts under Perry's watch, but he has spared just one condemned man's life in a case in which he was not compelled to do so by the U.S. Supreme Court. In that case, the inmate Perry saved in 2007 was not a killer but the admitted driver of a getaway car, condemned alongside the triggerman in a joint trial under Texas' tough “law of parties.”

Clemency — the use of executive power to reduce, forgive or delay a sentence — is considered the last fail-safe in the death penalty review process nationwide.

Yet in Texas, it is almost never granted. In fact, at least 50 of the past 200 executions were carried out without any clemency board review at all, a Chronicle analysis of state execution and parole board statistics shows. Other death row inmates' final pleas for mercy were rejected for arriving after the board's deadline.

Most of the nation's 35 death penalty states grant clemency powers to the governor. In the other eight states, including Texas, the governor relies on recommendations from a parole board. Perry uses the State Board of Pardons and Paroles, whose members he appoints, to decide whether to commute death sentences or grant longer reprieves — though he can and has carried out an execution the board voted to halt.

On his own, the governor can issue last-minute reprieves of up to 30 days. Perry has done so only twice.

And:

In Texas, alone among the states that use parole boards for execution cases, the board never meets to review applications from the condemned. Instead, its members vote via fax. Efforts to reform the process have been unsuccessful.

“No matter where you stand on capital punishment, I think we can all agree that life and death decisions should be taken more seriously than sending a fax,” said Sen. Rodney Ellis, D-Houston, a longtime reform advocate and death penalty supporter who oversaw three executions as acting governor in 2000.

“Since 1999, I have been pushing legislation to make the Board of Pardons and Paroles' clemency process in death penalty cases more fair and open, to at least get on a conference call before they vote to take someone's life,” he said.

Paddy Burwell, a retired Exxon geophysicist who served on the parole board from 1999-2005, recalled several troubling death row reviews when he said he received subtle pressure from other members to vote against clemency.

“I don't think they care whether a person is guilty or not guilty,” Burwell said.

Perry had used his power to issue last-minute delays twice before Willingham's execution in 2004. But neither involved a claim of potential innocence. He granted a 30-day reprieve in 2002 to allow authorities to interview a condemned man about other crimes. He delayed another execution because of court closures caused by the Sept. 11 attacks.

Perry granted his first and only reprieve for a death row inmate claiming innocence in December 2004, 10 months after Willingham's execution. Acting on a board recommendation, Perry delayed for 120 days the execution of Frances Newton, a Houston woman convicted of the 1987 shooting of her husband and children, “to allow the courts the opportunity to order a retesting of gunpowder residue on the skirt the defendant wore at the time of the murders and of the gun used in the murders.”

And:

In 2005, Perry commuted the sentences of 28 death row inmates convicted of murders committed before turning 18. Those commutations were ordered by the U.S. Supreme Court decision. He did the same thing in the two other cases involving severely mentally disabled offenders affected by another high court decision.

Only rarely has the Texas parole board recommended commutation of a death sentence without a high court mandate. But it did so in May 2004.

Kelsey Patterson shot and killed two people in Palestine in 1992 and then returned home, laid down his gun, removed everything but his socks and began walking up and down the street. Though found competent, Patterson, a paranoid schizophrenic, ranted at trial about devices planted inside him. As his execution approached, Patterson failed to recognize his lawyers. The board voted to spare his life.

Perry sent him to his death.

In 2007, the board again recommended commutation in the case of Kenneth Foster, the admitted getaway driver in a San Antonio murder who had been convicted in the same trial as the shooter. Perry commuted Foster's sentence to life in prison on the day he was to have been executed.

More on Kenneth Foster's 2007 commutation is here. Unfortunatley for Francis Newton, evidence from her trial was not properly stored and items that could have been tested had been contaminated.  She went to her death proclaiming her innocence.

There's much more in the clemency category index, including:

• Clemency and Kenneth Foster
  
• A New Examination of Clemency
• The Role of Mercy

The Appendix of The Role of Mercy contains comparative state information.

Perry Keeps Willingham Memo a Secret

That's the title of another R.G. Ratcliffe report in today's Houston Chronicle.  LINK

Embroiled in a national controversy over whether he allowed the execution of an innocent man, Gov. Rick Perry adamantly has refused to release an advisory memo from his general counsel about granting a 30-day reprieve for Cameron Todd Willingham.

“That information has been privileged information back when Ann Richards was the governor and George Bush was the governor, and I suggest it will be privileged information after I am the governor,” Perry told reporters last week.

Perry's office has a demonstrated record of applying the attorney-client privilege to him.

When a national news organization in 2003 asked the state archives for the execution memoranda written for former Gov. George W. Bush, there was no objection from Perry's office to the public having the information. Because of Perry's silence, Attorney General Greg Abbott ordered the documents' release.

But when the Houston Chronicle and other news organizations sought similar memos written for Perry by his general counsel, the governor's office has fought it repeatedly and obtained rulings from Abbott that the information does not have to be made public.

It is part of a pattern, a shroud of secrecy that has descended on the governor's office since Perry took over as governor from Bush.

“Taxpayers are being shortchanged when it comes to the public record for this governor,” said Keith Elkins, executive director of the Freedom of Information Foundation of Texas. “That's not what transparency is all about.”

And:

Perry's office has sought rulings from Abbott's office 173 times against releasing records, and he twice sued Abbott when he didn't like a ruling that records should be made public. Both lawsuits later were dropped.

The most recent brush is over releasing copies of a clemency memo written for Perry prior to the 2004 execution of Willingham for the murder of his three daughters in a Corsicana house fire. Shortly before the execution, Perry's office received a forensics report that the fire could not be proved to be arson.

Peggy Fikac's Chronicle column today is, "Perry's fingerprints all over state."

So, this is what you get with a governor who's appointed everyone to everything after nearly nine years in office: You name it, Gov. Rick Perry has a hand in it.

You get landmarks, such as his appointment of Eva Guzman as the first Latina to serve on the Texas Supreme Court.

And you get landmines, such as his nationally controversial replacement of Forensic Science Commission appointees looking into whether arson evidence supported the execution of Cameron Todd Willingham in his children's deaths.

Perry appointees oversee and administer agencies on everything from transportation to prisons, public safety to health care for the poor, public schools to state universities to environmental regulation.

“He stands astride Texas state government,” said SMU political scientist Cal Jillson, noting that because of six-year staggered terms on appointed boards, such a clean sweep can only can happen with longevity.

How you see that depends on how you view Texas' longest-serving governor. Critics see a heavy-handed use of power; his camp says he wields his authority responsibly.

Since taking office in December 2000, the GOP governor has made 4,759 appointments, including reappointments and replacements. That's 1,500 more than George W. Bush, who left in his second term to become president. It's nearing twice as many as one-term Democratic Gov. Ann Richards.

Earlier coverage of Todd Willingham begins with the preceding post; a related post on Gov. Perry's secrecy, here.  One controversial Perry appointee to the Board of Pardons and Paroles, Shanda Perkins, was rejected by Texas Senators in this year's legislative session, as noted here.

Prison Release Is the First Surprise of Many

That's the title of Cindy Horswell's report in today's Houston Chronicle.  LINK

When Michael Eubanks was convicted of capital murder in 1978 and given a life sentence, his hair was as flaming red as his temper.

The 20-year-old from Houston got into prison fights daily. His first year he was even thrown into solitary confinement for organizing what officials called a mutiny.

After all, he never expected to make it out of prison alive. Nobody cared what happened to him. He didn't know his birth parents and had burned bridges with his adopted ones. He saw his chances for parole as “slim to none.”

Yet, after three decades in a 6-foot-by-9-foot cell, he felt he had mellowed like his strawberry-blond hair.

He's now 52. He earned a college degree behind bars and became a master leather craftsman.

Still, since becoming eligible for parole in 1997, Eubanks' application had been rejected five times. In Texas, parole for capital murder is next to impossible. Again he pensively waited this summer to learn his fate. He didn't feel anything like the person who made prison his home, never expecting to rejoin society.

And:

He had barely squeaked past with the necessary five of seven votes from the state's parole board. Harris County prosecutors sent a letter of protest based on the “sheer brutality of the crime.”

Family members of his murder victim could not be reached for comment, but the Houston mayor's crime victim advocate, Andy Khan, found Eubanks' release “surreal,” believing anyone committing such an insidious act should remain imprisoned until he dies. In the past 14 years, nearly 2,000 capital murderers serving life sentences have been eligible for parole in Texas, but only 3 percent made it, records show.

The granting of Eubanks' parole was his first surprise.

One of his Christian exit courses was taught by former district Attorney Carol Vance, who was not only the namesake of the Sugar Land unit but also a prosecutor who helped send Eubanks to prison.

“I recognized him the moment he walked in the room,” Eubanks said. “I once hated him with a passion, but now I admire him.”

Although Vance said he's been conned before, he said he would trust Eubanks as his next-door neighbor.

Upon his release, he moved to the Isaiah House, a halfway house in northeast Houston. He landed a job quickly, working as sales manager for an electric sign company.

However, the most amazing development has been finding his biological family.

DNA, the BPP, and 'Sex' Crimes

There are two news articles today involving the Board of Pardons and Paroles.  One involves a new law passed by Texas legislators in this year's legislative session; the second, a BPP practice under fire. The second story may give even more concern for application of the new law. 

Today's Wall Street Journal reports, "Links to Sex Crimes to Follow Texas Suspects," by Ann Zimmerman.  Here's an extended excerpt:

Desirée Wood gave up hope that the man who raped her 20 years ago in Dallas would ever be caught and sentenced for the crime. Now, she says, she has reason to believe her attacker might see some form of justice, after all.

On Tuesday, a law takes effect in Texas that lets prosecutors and parole boards for the first time see DNA evidence that links a suspect to an old sexual assault, even though the statute of limitations has expired on the case and the suspect was never tried. Previously, there would be no record linking the suspect to the old crime.

Supporters of the law, the first of its kind in the country, hope it means that suspects in those old cases will face more-vigorous prosecutions and sterner parole boards should they find themselves in trouble with the law again. Opponents say the law could rob suspects of due-process rights.

The change attempts to close a gap created by improved technology and an outdated law. Advances in genetic testing have enabled prosecutors to access even the smallest DNA samples to identify suspects in old criminal cases. But even though the Texas Legislature in 2001 removed the state's five-year statute of limitations on sexual-assault charges, the change doesn't apply to alleged assaults before 2001.

In Ms. Wood's case, the DNA evidence collected after her rape 20 years ago was processed by the Dallas Police Department in 2008 as part of its novel Sexual Assault Cold Case Program, which focuses on cases too old to prosecute.

The results of the DNA test were fed into a national crime database and matched the profile of a Louisiana man who has been in and out of prison for burglary and other small offenses. He has denied to police that he raped Ms. Wood, but under the new law, the DNA results will be attached to his criminal file maintained by the Texas Department of Public Safety.

"The next time he gets in trouble for petty things, the prosecutors will see this guy is a bigger threat," said Ms. Wood, who said she struggled for years after the attack with anger issues and nightmares.

The new Texas law was conceived and championed by a small group of rape survivors who had joined a Dallas Police Department support group launched as part of the city's cold-case project. Reopening old cases also can reopen emotional wounds, and though the women were grateful the police were trying to identify their attackers, for many that wasn't enough.

"The women wanted the men to be held accountable in some way," said Sgt. Patrick Welsh, who runs the department's sexual-assault unit and launched the cold-case program nine years ago.

The law has its critics. The American Civil Liberties Union is concerned that it could punish suspects without the benefit of due process. After objections from the ACLU, the proposed law was revised to allow only law-enforcement agencies to access DNA information linking someone to an old sexual assault. The law also allows suspects to petition for removal of the information from their files if they believe it has been wrongly included.

Mike Ward reports, "Court cases forcing change at Texas parole agency," in today's Austin American-Statesman.

U.S. District Judge Sam Sparks had heard enough. After several days of listening to attorneys for the State of Texas defend the state parole board's operations, he became exasperated by the testimony of a parole board lawyer.

"The lady is wrong. She is stating issues of the law that are wrong," he told the jury.

The rare display of judicial pique resulted in a mistrial after state lawyers objected that his remarks could have improperly influenced jurors. But Sparks had already made it clear that he had serious questions about whether parole board policies violate a prisoner's right to due process.

Sparks is not the first judge to make such findings. In three other cases in two years, Austin federal judges have questioned the legality of the state's policies for placing restrictions on parolees, particularly sex offenders, who face some of the strictest conditions on their parole. Across Texas, parole officials said, more than a dozen other lawsuits on the issue are pending.

The court cases have highlighted criticism of the parole board for not taking time to adequately review parole cases, for operating in secret, for not detecting errors in paperwork and for placing conditions on parolees that are not justified by the evidence. Although most of the cases so far have dealt with sex offenders, observers say that changing the rules for those cases could open the door to broader changes, including more openness.

Although most Texans probably find it hard to sympathize with red-tape travails of convicted felons, a growing chorus of former and current parole officials agree that systemic troubles that have nettled Texas' secretive system for decades seem to be coming to a head.

"This is all on a collision course," said Scott Medlock, director of the prisoner rights program for the Austin-based Texas Civil Rights Project. "Three federal judges and two appellate courts have told them the system has to change ... but the state's litigation strategy is that the (5th U.S. Circuit Court of Appeals) will bail them out. I don't think so."

For their part, state parole officials say the current process is constitutional.

"We have been advised by attorney after attorney after attorney that it is correct," said Rissie Owens, chairwoman of the Texas Board of Pardons and Paroles.

Even so, some officials on both sides concede that some change appears to be coming.

Related articles are in the TX Board of Pardons and Paroles category index.

Controversial BPP Nominee Rejected by Texas Senate

Mike Ward reports, "Shanda Perkins nomination busted," on the Austin American-Statesman Postcards blog.

In a rare public rebuke, the Texas Senate this afternoon just blocked the controversial nomination of unemployed Burleson banker Shanda Perkins to become a member of the state Board of Pardons and Paroles.

The Senate vote was 24-7 to send Perkins’ nomination back to the Nominations Committee, where it is expected to die.

“This person is not qualified,” said state Sen. John Whitmire, D-Houston, who moved to block the confirmation. “This is not a partisan issue. This is not a personal issue … This is a life-and-death position. It demands qualifications.”

Perkins’ nomination, which had been approved last week by the Nominations Committee, was had been set for Senate confirmation today along with dozens of other nominees — including three other nominees to the parole board, all of whom Whitmire said were highly qualified compared to Perkins.

Whitmire said Perkins has no college degree, while the others “have multiple degrees,” and she has no criminal justice experience, as the others do. Whitmire said while Perkins had done some volunteer work in prison ministries, “that is not enough” to qualify her for the $95,000-a-year, full-time job.

And:

Sen. John Carona, R-Dallas, joined with Whitmire to block the nomination. “The basis question is: Are there more qualified people out there?” Carona said.

The Senate agreed.

The four votes to confirm the nomination were Sens. Craig Estes, R-Wichita Falls; Troy Fraser, R-Horseshoe Bay; Mike Jackson, R-La Porte, chairman of the Nominations Committee, and Jane Nelson, R-Flower Mound.

Earlier coverage of the Perkins' nomination begins here.

A Texas Senate Hearing for Shanda Perkins

"Perry appointee criticized as unqualified," is Jim Vertuno's AP report, via the Houston Chronicle.

One of Gov. Rick Perry's nominees to the state Board of Pardons and Paroles is facing opposition from critics who say she has no criminal justice experience and is best known as a Republican campaigner and crusader against the sale of sex toys in Texas.

Shanda Perkins, a retired banker from Burleson, was appointed by Perry in February to serve on the board that has the power to grant or revoke parole, and recommend when the governor should grant clemency or a pardon.

If approved by the Senate, she would serve a term that expires in 2015.

Opponents, including the American Civil Liberties Union of Texas, say she is unqualified to serve on the board that sometimes makes life and death decisions.

Perkins' banking expertise includes marketing, business trusts and retirement accounts. She is also a past ambassador of the Burleson Chamber of Commerce and has been a youth pastor and Sunday school teacher.

Appearing before the Senate nominations committee on Wednesday, Perkins said she is qualified to serve on the parole board because she has often counseled youth and women who have been through drug and physical abuse and had family members in prison.

"I can bring empathy to the situation as well as uphold the law," Perkins said before her nomination was sent to the full Senate on a 4-1 vote. Sen. Eliot Shapleigh, D-El Paso, cast the only no vote.

The panel also approved the re-nomination of board member Juanita Gonzalez and chairwoman Rissie Owens and the nomination of new member Thomas Leeper.

The ACLU sent Perry's office a letter Wednesday saying Perkins' has "no relevant qualifications for the position and no identifiable experience in the area of corrections policy" and her nomination should be withdrawn.

Perkins' approval "will fail to promote fairness on the parole board or confidence in the criminal justice system," the letter said.

No one testified against Perkins' appointment in the hearing.

Shapleigh questioned Perkins about her role in a 2004 case in Burleson where police arrested a woman who was selling sex toys in apparent violation of a city ordinance and what was Texas law at the time.

Perkins said she had informed city officers about the city ordinance that prohibited the sale of sex toys as a business or near a school.

Perkins said she did not file a criminal complaint that led to the arrest, which she called "wrong" and "terrible." The state law banning the sale of sex toys was ultimately ruled unconstitutional by a federal appeals court in 2008.

In February, Perkins distributed fliers linking U.S. Sen. Kay Bailey Hutchison to President Barack Obama and abortion rights. Perry, who is running for re-election, is expected to face a tough battle with Hutchison in the Republican primary.

And:

Shapleigh also asked how she would vote if there was new evidence that could show a death row inmate may be mentally disabled, which would prevent them from being executed.

"I would vote against," execution, Perkins said.

Earlier coverage of the Perkins appointment is Lisa Falkenberg's Houston Chronicle column, "Perry Pandering to the Far Right."

Jose Briseno

Jose Briseno is scheduled to be executed by Texas on Tuesday, April 7.  A clemency petition has been filed on his behalf with the Texas Board of Pardons and Paroles.

Supporters of Mr. Briseno are urging people to learn about his case and sign an online petition calling upon the Board of Pardons and Paroles to recommend clemency to Governor Rick Perry.

Mr. Briseno's attorney, Richard Burr, has prepared this video about Jose Briseno and his case.

In a recent string of cases the Board has failed to consider an inmate's rehabilitation, and Jose Briseno's case involves this and other serious issues.  The Board has a responsibility to examine this case and take the time it needs to make an informed decision.

TCADP has more on this case, here.