"Stage is set for review of death penalty," is the title of Brian Roger's report in today's Houston Chronicle.
The state of Texas does not adequately safeguard against executing the innocent, national anti-death experts and defense lawyers are expected to argue next week in an effort to persuade a Houston judge to renew his declaration that the death penalty is unconstitutional.
The hearing, a rare judicial review of capital punishment in Texas, is expected to last two weeks and attract some of the biggest anti-death penalty gunslingers to town, including Barry Scheck of the Innocence Project. Scheck is expected to try to convince the judge that Texas executed two innocent men and has almost certainly executed others.
State District Judge Kevin Fine nine months ago declared the procedures surrounding the death penalty in Texas unconstitutional, then rescinded his ruling to gather more information.
The case before Fine involves John Edward Green, 25, who faces the death penalty in an alleged 2008 robbery and murder in southwest Houston.
Green's defense team appears to have found a sympathetic ear in Fine, who has said the state's procedures do not adequately protect a possibly innocent person from being executed. The hearing appears to be planned less to convince Fine, and more to create an extensive record destined for appellate review lasting months, if not years.
"We're not saying Texas can't have a death penalty," said defense attorney Casey Keirnan. "We're saying the system has flaws. Those flaws create an unacceptable risk that innocent people can, have been and will be executed in the future."
Andrea Keilen, executive director of Texas Defender Service, a nonprofit that represents death row inmates, said the hearing represents the first time a court will consider the constitutionality of the Texas death penalty in the context of analyzing whether there is a substantial risk of convicting the innocent.
She said the Texas death penalty is unreliable and unfair and allows innocent people to be executed.
"This sort of analysis is long overdue," she said.
And:
Death penalty supporters say exonerations prove that the system of appellate review work.
Opponents, however, say world-class lawyers and simple luck are the reasons behind exonerations.
They point to the case of Ernest Ray Willis, who was convicted of murder by arson in Pecos County in 1987 and sentenced to die. By chance, his case was taken up by a large law firm in New York that spent over a million dollars to investigate and ultimately exonerate him.
"Any fair reading of the cases vindicating death row inmates shows a common theme - most owe their freedom to Lady Luck," said researcher Michael Radelat, who is cited in court documents in Green's case.
Scheck, a New York lawyer and the co-director of the Innocence Project, is expected to elicit testimony regarding two men he says were wrongfully executed: Claude Jones and Cameron Todd Willingham.
Andrea Keilen, the director of Texas Defender Service, posts, "The six best arguments against the death penalty in Texas," at the Dallas Morning News Death Penalty blog. Here's an extended excerpt from this must-read:
Beginning Monday, December 6, at a hearing next week in a Harris County District Court, expert witnesses will testify about the numerous flaws that leave Texas' system riddled with errors, inherently unreliable, and unconstitutional as applied. Read the motion here .
Attorneys for John Green, who is charged with capital murder, will urge the court to rule the Texas death penalty statute unconstitutional because it creates an unacceptable risk that innocent people have been, and will be, wrongfully convicted and executed.
When innocent people are exonerated, it is often a matter of dumb luck . For example, the real killer confesses or pro bono law firms take an interest in the case. It is rarely because the system catches errors and corrects itself.
Both Ernest Ray Willis and Cameron Todd Willingham were convicted of murder by arson and sentenced to death on the basis of junk fire science. Mr. Willingham is dead and Mr. Willis is alive -- and free -- because a pro bono law firm took Mr. Willis' case.
At the hearing, witnesses will testify about the following factors, which taken together, create an unacceptable risk of wrongful conviction in capital cases:
First, Texas has no standards to ensure that eyewitness testimony is obtained in ways that protect against the risk of mistaken identification.
Texas does not follow the scientific research or best practices on eyewitness identification recommended by the U.S. Department of Justice , the International Association of Chiefs of Police, or the ABA. Nationwide, more than 75% of individuals exonerated by DNA evidence were convicted because of faulty eyewitness identifications .
Second, Texas allows the introduction of confessions that have been obtained without safeguards to protect against false confessions.
Texas law does not require recording interrogations . Twenty-five percent of the exonerations in the U.S. revealed through DNA testing involved a false confession .
Third, use of informant testimony is largely unregulated in Texas.
Although in 2009 Texas began to require corroborating evidence for jailhouse informant testimony, that standard is loosely defined. Further, Texas has not implemented other important safeguards involving greater transparency and pretrial reliability screenings which more fully protect against false testimony. In one study, nearly 50% of wrongful murder convictions involved perjury by a jailhouse snitch or another witness who stood to gain from false testimony. (Professor Gross study, p. 39)
Fourth, pervasive flaws have been identified in the analysis of presentation of forensic evidence that result in unreliable results.
In a study of DNA exonerations , the prosecution provided invalid forensic testimony in 60% of the cases, that is, testimony that misstated the data or was not supported by the data. (Garrett and Neufeld, p. 41) The National Academy of Sciences recently issued a broad critique of the nation's forensic system. The risk of wrongful conviction due to faulty forensic science at the is, standing alone, constitutionally intolerable.
Fifth, pretrial discovery procedures are inadequate to safeguard against the prosecution's suppression of evidence favorable to the accused.
A survey of published capital cases in Texas documented state misconduct in 41 capital convictions. (Texas Defender Service, p. 48)
Sixth, Texas prosecutors in Harris County and elsewhere have a shameful history of excluding African Americans from juries.
Although this practice has been illegal for more than a century, recent research shows that discrimination in jury selection increases the risk of wrongful convictions by reducing the thoroughness and accuracy of jury deliberations.
Texas routinely fails to provide competent counsel and adequate defense funding in state habeas corpus proceedings. Extensive research , , and a State Bar Task Force have all reached this conclusion. In almost 40% of state habeas cases, the petitions did not include any materials beyond the existing record, a clear indication of a lack of investigation.
The Atlantic carries the post, "Is the Death Penalty Unconstitutional?" It's by Caitlin Dickson.
The death penalty is on trial in Texas next week. A string of wrongful convictions has left some concerned that the state's harsh system may be unconstitutional. According to the Huffington Post, 139 people have been exonerated in the U.S. since 1976, twelve of whom were on death row in Texas. Meanwhile, 70 percent of those actually executed in Texas have been minorities.
The potentially faulty Texas system made headlines earlier this month when the state's Innocence Project used DNA tests to prove that a strand of hair used to convict Claude Jones, who was executed in 2000 for murder, did not actually belong to him. More recently, The Wire picked up on the discussion surrounding former Supreme Court Justice John Paul Stevens' assessment that the American death penalty in general is discriminatory and inconsistent.
At Mississippi's Jackson Clarion-Ledger, investigative reporter Jerry Mitchell posts, "Grisham’s latest novel plays out in real life."
John Grisham’s latest book centers on the execution of an innocent man in Texas and the death penalty in general.
A hearing starts Monday in Houston, Texas, dealing with some of the very issues Grisham raised in his novel, The Confession.
Attorneys for 24-year-old inmate John Green, who is on death row in Texas, plan to argue the death penalty law is unconstitutional because it creates an unacceptable risk that innocent people will be convicted and executed.
Green’s attorneys, John Keirnan and Robert Loper, point to is the case of Timothy Cole, who was sentenced to 25 years in prison for a rape he never committed. Cole died in 1999 in prison and was cleared posthumously through DNA. (Earlier this year, Texas Gov. Rick Perry gave a posthumous pardon to Cole.)
Since 1976, 139 people have been exonerated from death row nationwide, according to the Innocence Project. A dozen of those were in Texas.
Columnist James Causey writes, "Death penalty should be ruled unconstitutional," for the Milwaukee Sentinel.
Next week Monday, a hearing is scheduled in a Texas district court to decide whether the death penalty is unconstitutional in the state.
This is huge. It is, after all, Texas – the nation’s leader in executions – we’re talking about.
Look, I know a number of you who read my blog favor a death penalty in Wisconsin. I understand. It’s a typical reaction following a horrible crime. Several names come to mind when you think of someone deserving of execution: Jeffrey Dahmer, Jesse Anderson and any gangbanger who kills an innocent person.
But what if a case is not so clear cut? The person looks guilty, witnesses say he did it and the person even confesses to the murder BUT, it turns out that the person is innocent. Witnesses were wrong, the person was tricked or coerced into a confession and DNA proves that the person serving time on death row is really innocent.
In Texas, the death penalty came under fire in September when a DNA test conducted on a single hair undermined the evidence that convicted a Texas man of capital murder in the 1990s. Before DNA, how many innocent people do you believe were executed?
Earlier coverage of Judge Fine's scheduled hearing begins with the post, "Previews of the Harris County Hearing," from yesterday. Complete coverage of the Todd Willingham and Claude Jones cases at the links.
The basis for the hearing is contained in this brief filed by Mr. Green's attorneys.
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