The StandDown Texas Project

Texas State Senator, Advocates to Push Legislative Fix for DNA Testing Hurdle

Today's Austin American-Statesman reports, "Senator vows to expand DNA testing in innocence claims."  It's by Chuck Lindell.  Here's an extended excerpt from the beginning:

Arguing that the state’s highest criminal court watered down a law designed to free innocent people from prison, a state senator vowed Wednesday to introduce, and pass, legislation allowing for expanded DNA testing of crime-scene evidence.

Sen. Rodney Ellis, D-Houston, said a February ruling by the Court of Criminal Appeals interpreted the 2011 law too narrowly, “making it difficult for folks to secure DNA testing that can prove their innocence and identify actual perpetrators.”

“This decision, respectfully, is out of touch with tremendous advances in science that we’ve made in regard to DNA testing,” he said.

In its February ruling, the appeals court unanimously denied DNA testing for death row inmate Larry Swearingen, ruling that his lawyers had not established that there was biological material on several items Swearingen wanted to test, including pantyhose used to strangle the victim, Conroe college student Melissa Trotter.

The ruling leaves inmates in a catch-22 — unable to get DNA testing unless they can prove the existence of biological material that cannot be revealed without testing, said Michael Morton, who was exonerated by DNA evidence in 2011 after 25 years in prison.

Time Warner Cable News Austin posts, "Advocates Fight to 'Fix' DNA Testing Laws," by LeAnn Wallace.  There is video at the link.

"The legislature has done a lot in recent years in regard to DNA testing to make sure the guilty are punished,” Democratic Sen. Rodney Ellis said. “And the innocent are free."

But Sen. Rodney Ellis says those efforts have seen a setback. A decision made by the Texas Criminal Court of Appeals earlier this year weakened the post-conviction DNA statute, denying death row inmate Larry Swearingen further DNA testing in his case.

"The legislature clearly understood this issue and why on earth would we execute a person without applying scientific DNA testing to determine whether that person was actually guilty,” Bryce Benjet with The Innocence Project said.

Earlier coverage of the February ruling by the Texas Court of Criminal Appeals begins at the link.  You can also jump to coverage of the 2013 Texas post-conviction forensics legislation (SB 344).

Related posts are in the DNA category index.  Also available, more on Michael Morton's exoneration and advocacy to prevent wrongful convictions.

The Death Penalty in Texas

The Sunday Houston Chronicle reports, "Is Texas' capital punishment swagger slowing?"  It's by Dane Schiller.

Texas forged an international reputation as it has executed far more inmates than any other state in the nation since 1982, when it resumed capital punishment with lethal injection. But this year, Texas just may lose its distinction as the state carrying out the most executions annually, sitting in a three-way tie with Missouri and Florida. Each state has executed seven people so far this year.

In Texas, a slew of changes in capital punishment that have been trotted out over the past decade or so and are taking hold. Those include requiring better legal representation for people facing the death penalty, giving jurors the option of sentencing defendants to life in prison without parole, and increasing the use of DNA and other scientific testing. And significant to the change is the realization by lawmakers and others that the system that condemns someone is not bulletproof.

The state executed an average of 29 people annually from 1997 to 2007, with 40 in 2000, according to statistics maintained by the Death Penalty Information Center. But it is now on track to have no more than 11 this year, according to the Texas Department of Criminal Justice, the fewest number in 23 years.

Earlier coverage from Texas begins at the link.

Texas Coalition Issues Annual Year-End Report

The Texas Coalition to Abolish the Death Penalty 2013 Year-End Report is available in Adobe .pdf format.  TCADP has also issued a news release announcing the report.

"Deadly Statistics," is Jordan Smith's report for the Austin Chronicle.

While Harris County retains its rank as the county that has sent the most defendants to Death Row since reinstatement in 1976, in recent years Dallas County has surged forward, earning it the top spot for new death penalty sentences since 2008, according to a report released this morning by the Texas Coalition to Abolish the Death Penalty.

Of the 55 inmates condemned to die since 2008, Dallas sent 20% (11 defendants) to Death Row during the last five years, according to the annual TCADP report. That distinction is unsettling, given that Dallas County also leads the state in the number of exonerations established through DNA evidence, with 24 men exonerated through mid-2012. "While most of Texas is moving away from the death penalty, Dallas County has emerged as a major outlier in its pursuit of the ultimate punishment, particularly for defendants of color," Kristin Houlé, TCADP executive director, said in a press release. "These troubling patterns directly counter Dallas' reputation as a leader in criminal justice reform."

Indeed, while the number of new death sentences handed out in Texas remained low in 2013 – just nine new sentences were delivered, the same as in 2012 (up by one over the eight delivered in 2010 and 2011) – geographically, the use of the death penalty remains isolated, and the imposition of the ultimate sentence on minority defendants remains high.

And:

TCADP will be hosting a Tweet Chat today (Tuesday, Dec. 17), from 3-4pm, at #2013TXDP, with yours truly – @chronic_jordan – serving as a moderator. We'll be ready to discuss the implications of Texas' use of the death penalty and eager to answer #deathpenalty related questions.

Related posts are in the report category index.  Earlier coverage from Texas begins at the link.

Texas Justice Goes Soft

That's the title of Hilary Hylton's report for Time magazine.  It's subtitled, "Once known for its harsh approach to criminal justice, the state is creating new avenues to reform--and exonerations."  Here's the beginning:

For six Texans jailed in the 1990s, this season of thanks and cheer has become beyond joyous. Nineteen years after being charged with the sexual assault of two young girls, three women, now approaching middle age, emerged from the San Antonio county jail the week before Thanksgiving and, in a cascade of tears and laughter, fell into the arms of their families.

Days later, 63-year-old Fran Keller was released from prison after 21 years. When her ex-husband, Dan, 72, walked out of an Austin jail Dec. 5, she was waiting with open arms — the first time they had embraced since being convicted of sexually abusing children at their Austin day care center as part of satanic rituals in 1992.

The women, along with another on parole, and the Kellers have been professing their innocence in separate cases for almost two decades. Thanks to the nation’s first law recognizing advances in forensic science, they are out of prison with a chance at exoneration.

The San Antonio Four — Elizabeth Ramirez, now 39, Kristie Mayhugh, 40, Cassandra Rivera, 38 and Anna Vasquez, also 38 — are the first Texans to be released under a habeas corpus statute that took effect on September 1, allowing prisoners to seek release and a new trial if so-called “junk science” played a pivotal role in their conviction. Its enactment marks a sea change in a Texas penal system with a long-standing reputation for harsh, frontier justice.

Earlier coverage of the new Texas law and its impact begins at the link.  Related posts are in the forensics category index.

As to the Keller case, Jordan Smith writes an excellent overview of the case in, "Freedom for the Kellers."

Rigoberto Avila and the Science of Forensics

"Science Goes to Court: Death row case sets new state law against prosecutorial resistance," is Jordan Smith's lengthy report in the current issue of the Austin Chronicle.

Rigoberto Avila was in the living room of the small two-bedroom apartment on El Paso's west side watching a basketball game on TV when he looked up and saw 4-year-old Dylan Salinas standing in the hallway, looking frightened.

Avila, then 27, a former Navy man with no criminal record, was babysitting Dylan and the boy's 19-month-old brother, Nicholas Macias, at the request of the boys' mother, Marcelina Macias. Avila and Marcy, as she was known, had become friends less than a year before, while both were employed at Roto Rooter, and Avila, and sometimes his mother, helped Macias, then 25, care for her four children; Macias was studying for her GED and whenever he was free, Avila helped out. That's what he'd agreed to do the night of March 29, 2000. After Macias left the house sometime after 6pm, and the two young boys moved off to a shared bedroom to play (their older siblings were at a relative's house), Avila settled in to watch the game.

And:

Now, more than 12 years later, and with the aid of a newly passed, groundbreaking state law that allows for the reconsideration of convictions in which science – or so-called science – played a key role, Avila hopes that modern analysis done by physicists and doctors specifically trained in the mechanics of injury to children will help him finally to prove his innocence.

Earlier coverage of Rigoberto Avila's case and Senate Bill 344 authored by Sen. John Whitmire begins at the link.  Related posts are in the forensics category index.

Daily Texas Editorial on ABA Assessment

"If Texas executes at all, it must do so fairly," is the editorial in today's Daily Texan, at the University of Texas at Austin.

In a speech before Parliament in 1868, the English political philosopher John Stuart Mill — an ardent supporter of capital punishment — pointed out the sole argument against it that gave him pause: “that if by an error of justice an innocent person is put to death, the mistake can never be corrected... The argument is invincible where the mode of criminal procedure is dangerous to the innocent, or where the Courts of Justice are not trusted.”

Nowhere in the United States is Mill’s warning of greater import than here in Texas, the state that consistently executes more prisoners than any other.

On Wednesday, Sept. 18, the American Bar Association released the results of a two-year study of the death penalty in Texas, which stated that Texas’ death penalty system “fell far short” of the necessary standards of proof for conviction and sentencing.

The ABA Texas Death Penalty Assessment is at the link; also available, more on the American Bar Association Death Penalty Due Process Project and other state death penalty assessments.

Earlier coverage of the ABA Texas report begins at the link.

Austin American-Statesman Editorial Lauds ABA Report

Today's Austin American-Statesman publishes the editorial, "Recommended death penalty reforms deserve consideration."

The American Bar Association released a report this week assessing Texas’ death penalty laws, procedures and practices. The state has improved the way it pursues the death penalty, the report says, but the administration of capital punishment in Texas hardly can be called accurate and fair.

Far from pointing out the obvious, however, the report recommends ways Texas lawmakers can reform the state’s death penalty system. Legislators would do well to consider the recommendations.

Members of the team that assessed the death penalty in Texas presented the report Wednesday. They were joined by Anthony Graves, who was wrongly convicted in 1992 of participating in the murder of six family members in Somerville. His conviction was overturned in 2006, and he was declared innocent in 2010.

“We have a failed system from top to bottom. I am encouraging all branches of our government to read this, examine this and implement this,” Graves said of the report. “Had this study been done 20 years ago, I probably wouldn’t” have been convicted.

And:

The state should clarify its criteria for evaluating and determining the intellectual disabilities of defendants, something it has failed to do even though the U.S. Supreme Court declared the execution of defendants with intellectual disabilities unconstitutional in 2002.

And the state should abandon its use of “future dangerousness.” Texas juries weighing whether to sentence someone to death must first decide whether the person poses a future danger to society. This is a nearly impossible task, and experience has shown it is one subject to manipulation by bad science and racial bias.

“Jurors are left to comprehend ‘probability,’ ‘criminal acts of violence,’ and ‘society’ so broadly that a death sentence would be deemed warranted in virtually every capital murder case,” the report says.

The primary purpose of the association’s recommended reforms is to eliminate wrongful convictions in death penalty cases. Wrongful convictions not only send an innocent person to death row, but as the report points

Th Houston Press posts "American Bar Association to Texas: Your Administration of the Death Penalty is Woefully Inept," by Calvin TerBeek.

 The report opens with this salvo:

"In many areas, Texas appears out of step with better practices implemented in other capital jurisdictions, fails to rely upon scientifically reliable methods and processes in the administration of the death penalty, and provides the public with inadequate information to understand and evaluate capital punishment in the state. For example, since 1992, Texas has paid over $60 million to those it has wrongfully imprisoned--money that could have been applied more effectively to find the "right guy" the first time around. In addition, the state and federal courts must spend significant time and resources correcting errors in capital cases--errors that could have been prevented--to the detriment of the vast majority of Texans who rely on the justice system every day. Indeed,preventing error is often far less expensive than correcting error."

It gets worse: from 1989 to 2012, 47 (!) Texas death row inmates have been exonerated via DNA testing or the discovery of new evidence. But yet, almost unbelievably, Texas does not require "indefinite preservation" of DNA/biological evidence for violent felony crimes. (Dallas County's District Attorney has been the exception to this rule and has been remarkably open to getting it right).

What is more, Texas is behind the times on eyewitness identifications, a problem I highlighted in an article for the Law & Psychology Review back in 2007 (which has been cited by Connecticut Supreme Court). Texas courts routinely allow in unreliable eyewitness identifications which have repeatedly been shown to problematic. No matter, Texas prosecutors just want their conviction. But, according to the report, Texas leads the nation in wrongful convictions and exonerations in criminal cases generally.

Earlier coverage of the ABA Texas report begins at the link.  

The ABA Texas Death Penalty Assessment is at the link; also available, more on the American Bar Association Death Penalty Due Process Project and other state death penalty assessments.

Impact of New Texas Pre-Trial DNA Testing Being Felt

The Beaumont Enterprise reports, "Slaying case stuck in limbo," by Tim Monzingo.  It's via the San Francisco Chronicle.

Senate Bill 1292, passed by the state Legislature this year, makes it mandatory for all evidence containing DNA collected in a criminal investigation to be tested before a capital murder case goes to trial. Prosecutors must meet with the defendant and "agree on which biological materials constitute biological evidence," the law reads.

The bill was sponsored by Sen. Rodney Ellis, D-Houston, and had the support of Texas Attorney Greg Abbott.

And:

Some attorneys are concerned about the new law's unintended consequences, including a potential drop in the number of death-penalty cases prosecutors pursue and a delay in the handling of non-capital cases.

Shannon Edmonds, a staff attorney for the Texas District and County Attorneys Association, said one question is whether prosecutors might forgo a death-penalty case to speed up the trial process.

Edmonds said when the state adopted a life-without-parole option for capital offenders, prosecutors began turning to that more often than they sought the death penalty. He said only time will tell if this legislation has a similar effect.

Part of the concern, he said, is that all death penalty cases set to go to trial after Sept. 1, no matter how long they have been in the system, could be delayed by the additional testing.

Another issue is that testing evidence in capital punishment crimes will take priority. DNA samples from non-death penalty murders, rapes and other crimes will "go to the back of the line," Edmonds said.

Earlier coverage of the new Texas law begins at the link.  Related posts are in the DNA and Texas Legislature category indexes.

 

A New Law Gives Hope to an Inmate on Death Row

That's the title of Brandi Grissom's report in the Texas edition of the Sunday New York Times and the Texas Tribune.

When Iris Morgenstern, an English teacher, remembers her former student Robert Avila, she pictures the towering El Paso teen squeezing a tiny dropper of food into the mouth of a scrawny newborn kitten.

“Robert is just a really gentle, kind soul,” she said.

That is why, more than a decade after he was convicted of stomping to death his girlfriend’s 19-month-old son in a fit of jealousy, she still cannot believe that he is facing execution. Now, after years of fighting to prove his innocence, Ms. Morgenstern and Mr. Avila’s legal team hope a new law will give the death row inmate a chance for a new trial and the opportunity to prove his innocence.

In the last legislative session, in the wake of dozens of exonerations in recent years based on advances in forensic science, Texas lawmakers approved Senate Bill 344. The first law of its kind in the nation, it allows courts to grant defendants new trials in cases in which forensic science has evolved. On Friday, Mr. Avila’s lawyers filed a motion under the new statute arguing that recent developments in biomechanical science that were unavailable at the time of their client’s 2001 trial indicate that Nicholas Macias’s death may have been the result of an accident.

But Jaime Esparza, the El Paso County district attorney, said he was not convinced that the jury’s verdict, based on scientific testimony and a signed confession, was wrong. On Wednesday, a judge will hear arguments from both sides as Mr. Avila’s lawyers seek the withdrawal of his January 2014 execution date to allow time for full consideration of his claims under the new law.

And:

State Sen. John Whitmire, D-Houston, the chairman of the Senate’s Criminal Justice Committee, wrote the bill. He said he has watched for years as cases have been overturned that were based on outdated arson theories, bogus dogsniffing evidence and inaccurate evaluations of brain injuries that were thought to have resulted from shaken baby syndrome.

“We should always be certain, obviously in more extreme cases of the death penalty being the outcome, that you have the right person,” Whitmire said.

Ealier coverage of SB 344 begins at the link.   A brief post on the Robert Avila case is also available.

Texas Defender Service has issued a news release, "Groundbreaking Law Provides Avenue for Newly Available Scientific Evidence to be brought before Court; Death Penalty Case First to Test New Law."  Here's the full text of the release:

EL PASO, TEXAS - This week, Rigoberto “Robert” Avila, who is scheduled to be executed on January 15, 2014, will ask the Texas Court of Criminal Appeals to order an evidentiary hearing under a groundbreaking new Texas law, Senate Bill 344, to consider newly available scientific evidence that suggests he is innocent. Mr. Avila’s case will be the first death penalty case in the state to be considered by the courts under this new legislation which allows access to the courts for defendants challenging their convictions based outdated forensic techniques.

Mr. Avila was convicted of causing the tragic death of a nineteen-month old child in his care in El Paso in 2001. He has consistently maintained his innocence over the past twelve years. Newly available scientific evidence has come to light that strongly points to Mr. Avila's innocence.

Attorney for Mr. Avila, Cathryn Crawford of the Texas Defender Service (TDS), says the legislature and Gov. Perry passed SB 344 to create an avenue for defendants to challenge their convictions if they were gained through outdated forensic techniques.

“When passing the law, legislators specifically mentioned its application to infant death cases,” says Crawford. “My client, Mr. Avila, is a prime example for its existence.”

Texas Defender Service argues that before Texas proceeds with the execution of Avila, he should be granted the opportunity to present a biomechanical analysis of the cause of death and the testimony of a forensic pathologist. If the court orders an evidentiary hearing, it will become clear that today’s science shows that this case involves the tragic, accidental death of an infant.

Dr. Janice Ophoven, a pediatric forensic pathologist, agrees that Mr. Avila’s conviction should be re-examined in light of this newly available evidence, “The field of biomechanics is an essential framework that must considered by the court in Mr. Avila’s case.”

In addition to the newly available scientific evidence, which strongly points to Mr. Avila’s innocence, Crawford argues that the case also contains serious flaws that call into question the integrity of the conviction, namely Mr. Avila’s false confession and the questionable testimony of the 4-year old brother. 

Professor Steven Drizin, Assistant Dean of the Bluhm Legal Clinic at Northwestern University School of Law and staff attorney at the Center on Wrongful Convictions, says that the signed confession in Mr. Avila’s case contains many of the hallmark problems he has seen in wrongful convictions in which the innocent person confesses to the crime. “False confessions are a tragic but common phenomena and justice requires that we be critical of confessions when they are secured using improper techniques and, mostly importantly, when the case has scientific evidence that points to likely innocence,” says Drizin. “Both of these factors exist in Mr. Avila’s case, which greatly calls into the question the validity of his alleged confession.”

Additionally, Mr. Avila's conviction rests partly on the testimony of the infant’s four-year-old brother. Dr. Maggie Bruck, child psychologist in the Division of Child and Adolescent Psychiatry at The Johns Hopkins Hospital comments that, “the child’s statements at trial are inconsistent, contradictory, and the result of highly pressurized interviewing techniques.”  Crawford adds that, “child psychologists, and common sense, suggest that a death sentence cannot rest on statements made by a suggestible and grieving child.”

After the El Paso trial court certifies the petition this week, Texas Defender Service will deliver copies of an application for writ of habeas to the Texas Court of Criminal Appeals (CCA), asking that the CCA to allow Mr. Avila to present the evidence in an evidentiary hearing in the trial court.

“The State of Texas cannot proceed with an execution without considering legitimate and persuasive claims of innocence,” comments Crawford. “There is no room for uncertainty when it comes to the ultimate punishment.”

Hank Skinner DNA Testing Results

The latest Advisory filed with the 31st Texas District Court on DNA testing results in Hank Skinner's case is available in Adobe .pdf format.

The Texas Tribune posts, "Skinner's Lawyer, AG Disagree Over DNA Results," by Brandi Grissom.

Lawyers for death row inmate Hank Skinner say the latest round of DNA testing in the 1993 triple murder he was convicted for show that someone else likely committed the crime.

“In light of this latest round of DNA tests, supported by other exculpatory evidence, the doubts about Mr. Skinner’s guilt are far too substantial to allow his execution to proceed,” Douglas Robinson, an attorney for Skinner, wrote in an email.

But lawyers with Texas Attorney General Greg Abbott’s office argue that the same test results only reinforce Skinner’s guilt.

“The new round of testing does nothing to vindicate Hank Skinner in the murder of Twila Busby,” said Jerry Strickland, an Abbott spokesman.

And:

Prosecutors agreed to allow the DNA testing in June 2012, and on Aug. 6, lawyers received the results of a third round of tests — analysis of mitochondrial DNA on four hairs found on Busby’s hands. One of the hairs belonged to Skinner, which his lawyers say is unremarkable because he lived in the home where the killing occurred. The other three hairs came from the “maternally-related line of persons that included the victims.” A previous examination of those hairs indicated they weren't from the victims.

The testing on the hairs, Skinner’s lawyers argue, aligns with their contention that the killer was likely Busby’s maternal uncle, who they allege had a history of violence and had been making unwanted sexual advances toward her the night of the crime.

"Skinner's lawyers say DNA testing points to relative of victims," is Allan Turner's Houston Chronicle report.

Attorneys for convicted triple killer Henry Skinner on Thursday told a Texas Panhandle court that mitrochondrial DNA testing of hairs in one victim's hand supports their contention that their client is innocent.

In an advisory to Pampa's 31st District Court, lawyer Rob Owen reported that three hairs found in the hand of Twila Busby, who was bludgeoned to death in the home she shared with Skinner, belonged to a maternal relative of the victims. Earlier state testing showed the hairs did not come from Busby or her sons, Edwin Caler and Randy Busby, who also were killed.

A fourth hair, Owen conceded, came from Skinner.

Owen argues that the test results "support the inference that Robert Donnell, a maternal relative of the victims and the man who stalked Ms. Busby and frightened her with crude sexual advances less than an hour before she was murdered, committed the crimes." Donnell since has died.

AFP posts, "New evidence could free US death row inmate."  It's also available via Global Post.

New DNA evidence could help exonerate a man on death row in the US state of Texas for the murder of his girlfriend and her two adult sons, his lawyers claimed Thursday.

Hank Skinner, 51, has been on death row for 20 years over the 1993 triple murder. He has always denied the charges against him.

A private Virginia laboratory on Thursday published the results of tests conducted on four hairs found in the hand of the slain woman, Twila Busby -- and three of them show a family link with the three victims.

The fourth belongs to Skinner -- a result the lawyers called "unremarkable," given that the accused lived in Busby's house.

"The doubts about Mr. Skinner's guilt are far too weighty to allow his execution to proceed," said his attorneys, Robert Owen and Douglas Robinson.

"DNA Testing Allegedly Supports Skinners Claims," is from KAMR-TV.  There is video at the link.

Attorneys for death row inmate Hank Skinner say DNA testing points to his innocence.

Independent testing done by Skinner's defense team allegedly identifies a relative of one of the murder victims as a possible suspect.

Skinner says a man named Robert Donnell, an uncle of victim Twila Busby, could be guilty of the triple murders that sent him to death row.

In an advisory filed with the court Thursday, Skinner's attorneys say their testing shows three hairs found in the hand of Twila Busby belong to a maternal relative, implying Donnell may have been at the scene.
They concede a fourth hair belongs to skinner.

Earlier coverage of Hank Skinner's case begins at the link.  Related posts are in the DNA category index.

In 2011, Texas legislators strengthened access to post-conviction DNA testing.  The original Code of Criminal Procedure Chapter 64 process for post-conviction DNA testing was passed in 2001.  Earlier this year, the Texas Legislature passed a measure requiring pre-trial DNA testing in capital murder cases.  The measure becomes state law on Sunday.

Some Worry Over a Law to Increase DNA Testing

That's the title of a report by Brandi Grissom in the Texas editition of the Sunday New York Times.  An expanded version is posted at the Texas Tribune.  There is an interactive infographic at the Tribune page.  The article references the case of Hank Skinner.

In some Texas counties, it takes six months or longer to get DNA test results from the Department of Public Safety, says William Lee Hon, the Polk County criminal district attorney.

Now, Mr. Hon and other prosecutors fear that come Sept. 1, when a new law takes effect requiring DNA analysis of all biological evidence in death penalty cases, the wait could grow longer. “We’re not sure that D.P.S. has the resources currently to adequately comply with that legislation,” he said.

In Texas, there have been 54 exonerations based on DNA test results, including those of two inmates on death row, according to the National Registry of Exonerations. Lawmakers this year approved Senate Bill 1292, written by Senator Rodney Ellis, Democrat of Houston, which aims to prevent wrongful convictions. Many prosecutors say that the bill may go too far, and that the pursuit of testing in some cases could be used to delay a conviction.

Tom Vinger, a safety department spokesman, said it was too early to predict the law’s impact. Mr. Ellis, who is the board chairman of the Innocence Project, which is dedicated to using DNA evidence to exonerate the wrongfully convicted, said that if the state sought the death penalty, expedience should not take priority over certainty.

“If you’re going to ask for the death penalty,” he said, “you ought to be confident that you have the right person.”

The bill’s champions include Attorney General Greg Abbott, the leading Republican candidate for governor, who said the measure would save Texas years of appeals.

“There’s no reason to test these items more than a decade after the crime was committed,” Mr. Abbott said in March.

Earlier coverage of the DNA testing legislation begins at the link; also available, additional coverage of the Texas Legislature's 2013 regular session and  more on Hank Skinner's case.  Related posts are in the DNA category index.

Trevino-Based Appeal Filed in Texas Case of Kimberly McCarthy

The Houston Chronicle reports, "Appeal filed for woman set become state's 500th executed killer."  It's by Allan Turner.

Lawyers for a Dallas woman scheduled to become Texas' 500 execution since the death penalty was reinstated have filed an appeal, claiming blacks were improperly excluded from her jury and her previous attorneys did nothing about it.

Kimberly McCarthy, 52, an African-American woman convicted of murdering her 71-year-old Anglo neighbor during a 1997 robbery to raise money to buy drugs, is scheduled to be executed next Wednesday for the July 1997 murder of Dorothy Booth. She would be the 500th killer executed in Texas since executions were resumed in 1982, and the fourth woman to be executed by lethal injection.

Maurie Levin of the University of Texas Capital Punishment Clinic filed the appeal to the Dallas trial court and the Texas Court of Criminal Appeals late Tuesday.

In it she asserts that Dallas County prosecutors inappropriately eliminated three African-Americans from serving on McCarthy's jury. Only one black sat on the jury that sentenced her to death. Two of the three prosecutors, Levin charges, were trained under former Dallas County District Attorney Henry Wade, a prosecutor whose three-decade tenure was criticized for discriminating against minorities.

The appeal cites a 2005 Dallas Morning News study that "being black was the most important trait affecting which jurors prosecutors rejected."

The appeal argues that McCarthy's trial lawyer was ineffective in not challenging the elimination of blacks, and that her first state appeals lawyer also was ineffective for not raising the issue.

"Appeal seeks halt to Texas woman's execution," is the AP filing, via KTRK-TV.

McCarthy's appeal, filed Tuesday to the Texas Court of Criminal Appeals, contends black jurors improperly were excluded from her trial by Dallas County prosecutors and her lawyers should have challenged the exclusions both at the trial and in early appeals. McCarthy is black; her victim white. Of the 12 jurors at her trial, one was not white.

Maurie Levin, a University of Texas law professor representing McCarthy, said the punishment should be stopped and McCarthy's case reviewed in light of a 5-4 U.S. Supreme Court decision three weeks ago that backed another Texas prisoner who raised similar arguments about deficient legal help.

"I do think her case does present some of the topical issues of this decade," Levin said Wednesday, referring to a "pervasive influence of race in administration of the death penalty and the inadequacy of counsel -- a longstanding issue here."

The failings of McCarthy's earlier appellate help means no court ever has looked at McCarthy's claims, she said.

Jordan Smith writes, "Texas Poised to Hit 500th Execution," for the Austin Chronicle.

McCarthy was first slated to be executed in January, but that date with death was halted by a Dallas County judge in order to consider a claim that minority potential jurors were improperly struck by prosecutors from serving in McCarthy's trial (it was actually her second trial; her initial 1998 conviction was overturned after the courts found that the state improperly included into evidence a statement McCarthy made to police after she had "unambiguously" invoked her right to counsel). In a letter to Dallas County District Attorney Craig Wat­kins, McCarthy's attorney Maurie Levin pointed out that at the time of McCarthy's trial racial discrimination "pervaded" the county's jury selection process. Levin also noted that Watkins had told The Dallas Morning News that he would advocate during the recently concluded 83rd Legislature for passage of the Texas Racial Justice Act, which would allow death row inmates to appeal based on claims that racism played a role in their conviction.

McCarthy's execution was postponed until April 3 and then again, to June 26, on Watkins' request, in order to afford the Legislature time to consider whether to pass a racial justice law – either Dallas Sen. Royce West's Senate Bill 1270 or Houston Rep. Senfronia Thompson's House Bill 2458. Neither bill was successful. Thomp­son's bill received a hearing in the House Criminal Jurisprudence Committee, but was not called up for a vote; West's measure wasn't even given a hearing. Those bills were fashioned after the landmark Racial Justice Act passed by North Carolina; in early June, the Republican-led legislature there repealed the RJA.

Nonetheless, litigation is expected to continue as McCarthy's date draws nearer. Indeed, an appeal filed June 18 again raises claims related to racial bias. A separate filed motion seeks also to recuse CCA Presiding Judge Sharon Keller and Judge Michael Keasler from considering McCarthy's appeals based on the fact that both judges once served as prosecutors in Dallas where McCarthy's case – and racial bias claims – originated.

"Texas poised to execute 500th prisoner as lawyers fight to save her life," is Guardian coverage by Ed Pilkington, reporting from New York.

Lawyers in Texas are fighting to save the life of a female prisoner scheduled to become the 500th person to be executed by the state since the death penalty was reinstated in America in 1976.

Barring a last-minute stay, Kimberly McCarthy, 52, will face lethal injection next Wednesday for the 1997 murder of her neighbour. Should the execution be carried out, she would be the 500th person put to death by Texas, a state that has shown more enthusiasm in modern times for capital punishment than any other.

The next seven days will be the culmination of an emotional and legal rollercoaster for McCarthy. This is her third appointment with the death chamber in the space of five months.

"She is a very spiritual person. She believes what's meant to be is meant to be, and it's all in God's hands," said Maurie Levin, McCarthy's legal counsel since January.

Now Levin has filed a new motion to stay execution with the Texas court of criminal appeals. The filing argues that McCarthy has suffered from two fundamental flaws that persistently crop up in death penalty cases.

The basis for the appeal is the Supreme Court's May ruling in Trevino v. Thaler, that an earlier high court ruling on standards for review of ineffective assistance of counsel claims applied in Texas cases.  News coverage and commentary on Trevino begins at the link.

Earlier coverage of Kimberly McCarthy's case begins at the link.  Related posts are in the female and race category indexes.

San Antonio Express-News Columnist O. Ricardo Pimentel

San Antonio Express-News columnist O. Ricardo Pimentel writes, "The unfinished business: the death penalty."  Here's the beginning of this must-read:

The photo of Gov. Rick Perry signing legislation that diminishes the chances of wrongful convictions in Texas is rich in irony. More important, it projects an indelible sense of job undone.

The irony is embodied in the now-deceased person of Cameron Todd Willingham, who also points to the unfinished work. Those intimately familiar with Texas' criminal justice history can tell you that Willingham, even more than Michael Morton — whose case prompted this legislation — is the state's prime example of wrongful conviction.

Morton's story is incredibly tragic. He spent nearly 25 years in prison after being convicted in the beating death of his wife. The prosecution withheld evidence that would have cleared him. Thanks to the work of the New York-based Innocence Project, Morton was exonerated by DNA evidence that pointed to another man, who has since been convicted.

But Morton is alive. Texas executed Willingham in 2004, convicted on the strength of highly flawed arson evidence for the deaths of his three daughters in Corsicana. The evidence actually points to no arson.

The photo shows Perry signing the bill at his desk, flanked by Morton and legislators. The irony: a report discrediting the evidence used to convict Willingham came across that desk or one similar in plenty of time for Perry to have spared Willingham's life.

Earlier coverage of the new criminal discovery law - aka, the Michael Morton Act - begins at the link.  Related posts are in the Michael Morton and Todd Willingham category indexes.

Thoughts on the the Texas Legislature

Today is the 133rd day of the 140-day legisltive session.  Sine Die - aka, adjournment - is Monday, May 27.  You can view the various deadlines that limit legislative activity as the days peel off the calendar.

Andrew Cohen writes about the passage of a major criminal discovery law, "In Texas, a Bold Step Toward Justice," for the Brennan Center.  He recently joined the Center as a Fellow.

It is altogether fitting that Texas, a state where some of the worst of these transgressions have taken place, is confronting part of its unconstitutional past the same week America commemorates the 50th anniversary of the Brady ruling, which came down unanimously from the high court on May 13, 1963. The Morton Act, which now awaits Gov. Rick Perry’s signature after passage in both houses of the Texas legislature, is a bold, progressive step that creates an “open-file” discovery rule requiring prosecutors to share more information more quickly with defense attorneys.

The new law means prosecutors now have an affirmative duty under state law to comply with Brady by making sure defendants and their lawyers can see and copy all police reports and witness statements. Prosecutors will be able to protect the identity of witnesses — which always has been a sticking point in these measures — but will have to provide defense counsel with a list of the disclosed evidence. In other words, Texas now has taken a significant step toward giving its criminal defendants, whose life or liberty are on the line, many of the same discovery protections routinely afforded litigants in state court civil cases, where neither life nor liberty are at stake.

It’s about time. Morton spent 25 years in prison for the murder of his wife before a DNA test exonerated him just a few years ago. The behavior of his prosecutor, Ken Anderson, was so egregious that Anderson himself now faces criminal charges of tampering with evidence. Michael Toney also spent nearly 25 years in a Texas prison because his prosecutors suppressed evidence about the credibility of the only witnesses to testify directly against him. Anthony Graves was relatively lucky — he spent just 18 years behind bars for a crime he did not commit.

The Morton Act will require prosecutors to play more fairly in criminal trials. And a related measure, Senate Bill 825, also passed by the Texas House this week, addresses what will happen when they don’t. This measure will give aggrieved criminal defendants more time to challenge prosecutorial errors once they are discovered. And, critically, it will publicly reprimand prosecutors who cheat. I’d like to see harsher sanctions in these cases — more teeth to the measure — but if the new law is faithfully observed by state court judges no longer will the legal community in a particular jurisdiction be able to close ranks around district attorneys who violate the law.

Cohen's essay was written before Governor Perry signed the measure into law.

The Austin Chronicle posts, "Junking Junk Science?"  It's by Jordan Smith.

It appears the third time filed is the charm for a bill that allows defendants to challenge their criminal convictions based on the state's use at trial of junk or outdated science – but will it actually cure the problem it seeks to address?

The Texas House Thursday morning unanimously passed Senate Bill 344, by Sen. John Whitmire, D-Houston, queueing up the bill for Gov. Rick Perry's signature, but whether it will have any bite to it is unclear.

As passed, the measure tells the Court of Criminal Appeals how to consider scientific evidence challenged in writs of habeas corpus – an issue that, aside from those cases involving DNA, remains a source of some uncertainty and tension – including in cases that involve pure junk, like dog scent-lineups, or cases that involve more evolved scientific understanding, as with the now discredited trifecta of "symptoms" once considered the hallmark of so-called "shaken baby syndrome."

As the law had to be changed in order to allow the CCA to consider appeals specifically citing DNA evidence, so too SB 344 amends habeas law to allow the court to grant relief where sufficient facts demonstrate that relevant, and admissible, scientific evidence contradicts that which the state used to convict, or that was unavailable at the time the defendant was convicted. The bill also prohibits the court from denying relief based on the fact that a defendant either confessed to the crime or took a plea deal.

Earlier coverage of the 83rd Regular Session of the Texas Legislature begins at the link.

Innocence Commission Bill Update

Today is the 130th day of the Texas Legislature's 140 day regular session.

"Senator Says Innocence Commission Bill is in Trouble," is by Brandi Grissom at the Texas Tribune.

Legislation that would create a commission to review wrongful convictions in Texas is in peril after an advocate for the bill — the brother of an exoneree who died while wrongfully imprisoned — lambasted a state senator who opposes it during a committee hearing this week.

"I don't have my votes in committee," state Sen. Rodney Ellis, D-Houston, said Thursday. He is the Senate sponsor of House Bill 166, which would establish an innocence commission in Texas. "I had them, but I don't have them now."

And:

Under the bill, which is pending in committee, the commission's governor-appointed members would investigate wrongful convictions, identify why they occur and examine appeals filed with the state’s courts for evidence of ethical violations by attorneys and judges.

The Houston Chronicle posts, "Session apologizes for outburst; exonerees bill left pending again," by Eva Ruth Moravec.

The brother of Timothy Cole, a man who died while incarcerated for a crime he didn’t commit, said he regrets an outburst during a hearing in which he called a senator a “bitch,” but says the senator’s actions were “deplorable.”

The emotional testimony took place Tuesday during the Senate Committee on Criminal Justice meeting, in which House Bill 166 was discussed. Authored by Rep. Ruth Jones McClendon, D-San Antonio, the bill would establish a nine-member commission that would evaluate future exoneration cases.

And:

Several exonerees also gave testimony, and the item was left pending in committee because a quorum wasn’t present – Sen. Dan Patrick, R-Houston, said he left the meeting because “I had something else to do.” On Wednesday, committee members met at Whitmire’s desk to take up the pending items, but again didn’t vote on HB 166, this time because there weren’t enough votes.

Earlier coverage of HB 166 begins in the previous post; you can also jump directly to more on the Committee kerfuffle.

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The Dust-Up in the Senate Criminal Justice Committee

"Drama in committee hearing — Sen. Joan Huffman chewed out by witnesses on exoneree bill," is Rodger Jones' post at the Dallas Morning News Opinion blog.

Sen. Joan Huffman was chewed out today by witnesses at a Senate hearing after she hit a nerve about whether the state is doing enough to fight wrongful convictions.

One of the witnesses was Cory Session, brother of Timothy Cole, the state’s only posthumous exoneree, who raised his voice at her and said he was “pissed off” and “sickened” at her opposition to a bill (HB 166) to establish a wrongful convictions panel.

Huffman was chairing the Senate Committee on Criminal Justice at the time, and she flat out dumped on the bill as unnecessary. Angered and agitated, Session ended his testimony by telling Huffman she needed to get another job, and he stormed off.

The emotion boiled over after a long recitation by Huffman, R-Houston, in which she listed the various justice reforms that the Legislature has passed over the past 12 years, essentially saying enough is enough. It was a tedious beatdown. Huffman may have thought supporters of the bill would be impressed and mollified, but some of them obviously were insulted by her tactic.

Huffman, a former judge, was addressing bill sponsor Sen. Rodney Ellis, D-Houston, who is carrying the House-passed bill in the Senate. The bill would create a panel to study wrongful convictions and recommend improvements in the justice system.

Next came the witnesses. Four exonerees and Session walked to the witness table, and Session went first. He reached a boil fast.

Click to read the rest of the post and Jones' transcription of the hearing.

You can also view the archived video of Tuesday's Senate Criminal Justice Committee meeting, using Real Player.  Sen. Rodney Ellis begins testimony on HB 166 at about 2:33 into the hearing. You can slide the bar at the bottom of the screen to fast forward to that point.

Earlier coverage of the Committee meeting and this Texas legislative session begins at the

 

Texas Editorials Applaud Legislature's Criminal Justice Reforms

"Morton Act a victory for justice," is the Austin American-Statesman editorial.  It's a must-read on the state of major criminal justice reforms in the Texas Legislature.

All that remains to be done to make the Michael Morton Act state law is for Gov. Rick Perry to do the expected and sign it. This necessary legislation, which once appeared doomed in the Texas Senate before winning unanimous approval there and, on Tuesday, in the Texas House, brings statewide consistency to criminal cases by requiring prosecutors to share information with defense lawyers.

When the governor puts his signature on this important act, a statewide “open file” policy will be created. Such a policy should help prevent the kind of wrongful conviction that sent Morton to prison for almost 25 years for the murder of his wife, Christine.

And:

The Michael Morton Act, which was co-authored by Democratic state Sen. Rodney Ellis of Houston and Republican state Sen. Robert Duncan of Lubbock, almost didn’t make it out of the Senate. District attorneys had expressed concern that the bill put at risk the safety of witnesses and victims, prompting Lt. Gov. David Dewhurst to push a reasonable compromise that allows prosecutors to delete identifying information from their files before turning them over to defense lawyers.

A related bill giving exonerated Texans four years from the date of their release from prison to pursue allegations that a prosecutor hid evidence also has been sent to the governor for him to sign. Under current law, the four-year statute of limitations begins at the time a violation occurs, a preposterous provision that makes it all but impossible to hold prosecutors accountable.

Today's Dallas Morning News publishes the editorial, "Legislative progress report."

Haven’t we done enough?

The implied question hung like a stink bomb over what should have been a satisfying day of landmark reform of criminal justice in Texas.

Just a few hours earlier on Tuesday, the Texas House gave final legislative OK to breakthrough legislation, the Michael Morton Act, to clarify and broaden a defendant’s access to evidence that could prove innocence. Passage of the bill, SB 1611, comes the week of the 50th anniversary of the Supreme Court decision in Brady vs. Maryland, which established access to exculpatory evidence as a constitutional right.

It was inspiring to see the Texas House rally to that founding principle and pass SB 1611 unanimously, 146-0, and send it to the governor.

Then came the sour note from Sen. Joan Huffman, R-Houston, as she chaired a Senate hearing on HB 166 to study cases of proven exoneration, like Morton’s. The goal is to apply lessons learned after analyzing cases of government overreach that robbed people of their freedom.

But Huffman lectured the committee — and a group of exonerees waiting to testify — that the state of Texas has done just fine by victims of wrongful conviction and has compiled an impressive list of reforms in recent years. Her recitation was as boneheaded as it was insulting to people who had lost decades of their lives because of slipshod work, backward practices or ethical lapses by cops and prosecutors.

Learning from breakdowns in justice should be an ongoing process. The state has adopted some new safeguards, but there is little track record.

I'll have more of the Huffman episode in the next post.

"Texas Senate must move quickly to pass exoneration bill," is the Fort Worth Star-Telegram editorial.

There is a stain on the Texas criminal justice system that no spot remover can erase.

But Texas’ indelible shame of having sent too many innocent people to prison should not keep lawmakers, law enforcement officials, judges and prosecutors from working to improve the procedures whose flaws have led to serious mistakes.

With 117 exonerations, Texas leads the nation in erroneous convictions. Since 1994, there have been 49 exonerations based on DNA testing; 41 of those occurred in the last 12 years.

To its credit, the Legislature in the last few sessions has passed legislation aimed at reducing the chances of convicting innocent people, including strengthening the reliability of eyewitness identification such as through photo lineups.

This week, the state House passed the Michael Morton Act on a vote of 146-0. Named for a man who was wrongly convicted of murder in Williamson County after a district attorney withheld important evidence, the bill requires prosecutors to have an “open file” policy of sharing information with defense attorneys.

And:

The Morton case and many others in which the system failed make it extremely important that another pending bill is not allowed to die in the Senate.

HB166, which passed the House with strong bipartisan support, would create the Timothy Cole Exoneration Review Commission, a nine-member body that would examine all Texas cases in which a conviction was erased through exoneration.

The panel is named for a Fort Worth man who died in prison before his innocence was proven. Timothy Cole became the first person in the state to be exonerated posthumously.

The commission’s role would be to “identify errors and defects” in the criminal justice process and point out “ethical violations or misconduct by attorneys or judges.”

Earlier coverage of the Michael Morton Act begins at the link.

Texas Criminal Discovery One Vote From Governor's Desk

The Longview News-Journal posts AP coverage, "House OKs Morton criminal justice bill."

The House on Monday approved the Michael Morton Act, a measure designed to prevent wrongful convictions and named in honor of a Texan who spent nearly 25 years in prison for a murder he did not commit.

It would create a uniform “open file” policy in Texas, compelling prosecutors to share case files with defense attorneys that can help defendants’ cases.

Morton, 58, was sentenced to life in prison for the 1986 slaying of his wife Christine, but freed in October 2011, after DNA testing was done on a bloody bandanna originally found near the couple’s Austin home. Investigators said the DNA evidence led them to another man, Mark Alan Norwood, whose DNA was in a national database as a result of his long criminal history.

"House Tentatively Approves Morton Act, DA Sanctions," is by Brandi Grissom for the Texas Tribune.

On the 50th anniversary of the landmark U.S. Supreme Court ruling in Brady v. Maryland, in which the justices ruled that prosecutors are obligated to provide defendants with exculpatory evidence “material either to guilt or to punishment,” the Texas House tentatively approved two bills meant to prevent wrongful convictions.

State Rep. Senfronia Thompson, D-Houston, said the measures, which she sponsored in the House, were designed "to improve the reliability of criminal convictions."

Both measures come in response to the high-profile exoneration of Michael Morton and the ongoing investigation and trials of the former prosecutor who oversaw his wrongful conviction, state District Judge Ken Anderson of Williamson County. Morton was convicted in 1987 of murdering his wife in Austin. He was exonerated and released from prison in 2011 after DNA testing linked another man to the crime. Morton's lawyers say that Anderson violated Brady rules by withholding crucial evidence that could have pointed to the real killer and prevented the innocent Morton from spending 25 years in prison. Anderson has denied wrongdoing.

"This is a huge first step," Morton said in an interview outside the House gallery. "It will prevent all sorts of abuse."

Morton and his wife, Cynthia, looked on as legislators unanimously approved the measures with little discussion. Lawmakers gave him a standing ovation when Thompson introduced him to the chamber. Since his release, Morton has lobbied lawmakers to enact reforms that would prevent his tragedy from befalling others.

"House approves Michael Morton Act," is by Chuck Lindell for the Austin American-Statesman.

The Texas House tentatively approved the Michael Morton Act without opposition and without debate Monday, then followed with unanimous approval for a Morton-backed bill extending the statute of limitations on misconduct complaints against prosecutors.

With final House approval expected Tuesday, sending the bills to a receptive Gov. Rick Perry, Morton finds himself in the midst of an extraordinary string of victories — beginning with the biggest in October 2011, when he was freed after almost 25 years in prison and declared innocent of the 1986 murder of his first wife, Christine.

Morton next turned the tables on his prosecutor, former Williamson County District Attorney Ken Anderson, pushing an unprecedented investigation that led to Anderson’s arrest and brief detention last month after a special court found that he intentionally hid evidence to help ensure Morton’s conviction.

On Monday, seven weeks after watching a jury convict Mark Alan Norwood of his wife’s murder, Morton sat in the House gallery as the two reform bills received overwhelming support on the floor.

After the vote, Morton said he expects the bills to reduce the likelihood that other innocent people are wrongly convicted, particularly the Morton Act, which requires Texas prosecutors to adopt a uniform “open file” policy for sharing information with defendants before trial.

“Had it been in force when I was tried and arrested and all that, I wouldn’t have gone to prison, I wouldn’t have been convicted,” he said. “Open files are common in most counties, but having it legislatively required is a huge step to prevent all sorts of abuse. And I am very encouraged and very happy about it.”

Dallas Morning News coverage is, "Final approval near for bill inspired by Texas exoneree’s murder case," by Claire Cardona.

After the vote, Morton thanked his lobbyist, Thomas Ratliff, who took up the case pro bono.

“He has done this all out of the kindness of his heart, something he thought was very important and Thomas Ratliff should be patted on the back,” he said. “Like a lot of people in my life these days, they’re not accepting a dime. It restores some of my faith in people.”

The measure, which would take effect next year, faces a final procedural vote Monday and then heads to Gov. Rick Perry.

Morton was exonerated by DNA evidence in the 1986 murder of then-wife Christine Morton. Among evidence withheld during his trial was a record of Morton’s young son saying his father wasn’t the “monster” who murdered his mother.

Prosecutors never made the interview available to defense lawyers. Morton’s exoneration sparked investigation of the Williamson County prosecutor who led the case. Another man has since been convicted of killing Christine Morton.

“This is an incredible day for justice in Texas,” said Ellis. “We must weigh all relevant evidence and ensure we bring all the relevant facts to light to safeguard the innocent, convict only the guilty, and provide justice the people of Texas can have faith in.”

“I want to thank Mr. Morton for holding our feet to the fire and making this happen,” he said.

The House also passed a bill by Sen. John Whitmire, D-Houston, that would increase prosecutor accountability.

Whitmire’s bill would give exonerees four years after their release to file a complaint of prosecutorial misconduct. Current statute of limitations requires that a complaint be made within four years of when the misconduct occurs, which can make it hard for convicted inmates to access the resources to make their claim.

Earlier coverage of the criminal discovery legislation begins at the link.

Hearings at the Texas Legislature

The Texas Tribune posts, "House Panel Hears Testimony on 'Michael Morton Act'," by Brandi Grissom.

Just more than a week after the arrest of Ken Anderson, the former prosecutor who oversaw the wrongful conviction of Michael Morton in 1987, a House committee on Monday considered legislation that would require prosecutors to turn over evidence to defense lawyers in criminal cases.

Senate Bill 1611, dubbed the "Michael Morton Act" by state Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, was approved unanimously April 11 by the Senate. Currently, prosecutors aren't required by state law to provide evidence to defense lawyers unless ordered to by the court. Among the charges Anderson faces is failing to comply with a judge's order regarding turning over evidence.

Morton told members of the House Judiciary and Civil Jurisprudence Committee on Monday that the bill would prevent wrongful convictions like the one he suffered.

"If it could happen to me, it could happen to you," said Morton, who spent nearly 25 years behind bars. The measure was left pending in the committee.

And:

"We want to improve fairness and consistency,” said state Rep. Senfronia Thompson, D-Houston, who is sponsoring the bill in the House. The measure, she said, is the first major reform to the Texas discovery system since 1965.

Many Texas prosecutors now have some form of open file policy, but the procedures vary by county and sometimes within a district attorney's office. In a February report based on a survey of more than 40 prosecutors' offices, Texas Appleseed and Texas Defender Service, both justice advocacy organizations, found that "lack of uniformity in discovery policies in Texas makes access to justice dependent, in part, on where a defendant is charged."

Under SB 1611, prosecutors would be required to turn over evidence both before trial and after it begins. A record would be kept of the exchange of evidence. 

Legislators have proposed opening the discovery process in previous legislative sessions, but the high-profile Morton case and his promotion of reform to prevent wrongful convictions gave the effort momentum this year.

"Exonerated Man Tells Legislature: Repeal Death Penalty," is Chris Tomlinson's AP filing, via KXAS-TV.

A man who spent 18 years on death row before a court exonerated him begged the Texas Legislature on Monday to repeal the death penalty.

Anthony Graves made his appeal to the House Criminal Jurisprudence Committee, which was considering a bill to stop executions in Texas.

"You tried to execute me twice for a crime that I knew nothing about," Graves told lawmakers. "You not only put me on death row, you put my family on death row, you put my children on death row ... and my children grew up without me."

Graves spent 18 years in prison before he was cleared by DNA evidence. The state gave him two execution dates before he was finally cleared and on Monday he pleaded with the lawmakers to end the death penalty.

"There are innocent men, mentally challenged men, insane men on death row, and you want to execute them," he added. "As long as we continue with this death penalty, as long as we don't get serious about it, you're going to continue to execute innocent people and you are going to call it justice."

Rep. Jessica Farrar, D-Houston, authored the bill, but she acknowledged it had little chance of passing.

"Every time we bring this up we get a bit closer to seeing this become a reality in Texas," Farrar said. "In the past six years, six states have done away with the death penalty."

Earlier coverage of the criminal discovery and death penalty repeal bills, at the links.  Related posts are in the Texas Legislature category index.

Texas Legislative Roundup

"Texas Lawmakers to Discuss Repealing Death Penalty," is Chris Tomlinson's AP filing, via KXAS-TV.

Texas lawmakers will hear testimony on a bill to repeal the death penalty.

A Democratic lawmaker from Houston has introduced the measure, and the House Criminal Justice committee will consider it on Monday.

Rep. Jessica Farrar and some other Democrats have repeatedly called for an end to the death penalty. But the ultim ate punishment remains popular in Texas, and her measure is unlikely to gain traction.

More on Rep. Farrar's House Bill 1703 is at the Texas Legislature Online website.

The San Antonio Express-News reports, "Texas House OKs review of wrongful convictions," by Michelle Casady.

It had been nearly a 10-year struggle, but last week, with little opposition in a 115-28 vote, the Texas House passed legislation that would allow for the creation of an exoneration commission to review wrongful convictions.

HB 166, authored by state Rep. Ruth Jones McClendon, D-San Antonio, is championed by some legislators and innocence project groups as a step forward for the state. Texas is among the leaders nationwide in wrongful conviction cases, with 119, according to the National Registry of Exonerations.

But some prosecutors worry about unintended consequences of the bill, including conflicts of interest stemming from the proposed private and grant funding of the commission and even the end of the death penalty in Texas.

Justin Wood, an assistant district attorney in Harris County, told a House panel he opposed the bill that would create the Timothy Cole Exoneration Commission — named after a man wrongfully convicted of rape in Lubbock who died in prison in 1999 but was given the first posthumous pardon in the state.

And:

House passage of the bill came a week after the Senate unanimously approved SB 1292, which would require mandatory DNA testing in cases where the defendant faces the death penalty.

The bill's author, state Sen. Rodney Ellis, D-Houston, said he's gotten similar bills passed by the Senate two times before, only to later see them die.

“You never declare victory on a piece of legislation until it's on the governor's desk and you have a pretty clear indication he's going to sign it,” he said of the 31-0 vote. “That being said, even when it did pass in previous years, it certainly was never unanimous.”

McClendon credited a new era of “civility” in the House for her bill's bipartisan support.

Jordan Smith posts, "One Step Closer to Preventing Wrongful Convictions," at the Austin Chronicle.

House Bill 166, authored by Rep. Ruth Jones McClendon, D-San Antonio, would create the Timothy Cole Exoneration Review Com­mis­sion, named for a man who died in prison while serving time for a sexual assault he did not commit. The commission would be tasked with reviewing criminal cases where there has been a formal exoneration, in an attempt to find the root causes of the wrongful conviction and to make recommendations for avoiding future miscarriages of justice.

Backers of the measure have tried to move the bill through in previous sessions without success. This time around, with a wealth of bipartisan support, the measure is in much better shape. Nonetheless, backers on the House floor were faced with a number of probing questions, mostly from Rep. Larry Phillips, R-Sherman, who took issue with some language within the measure: Why would the commission not be subject to sunset until 2025, he asked, and why does the bill mention "wrongful execution" if this is about wrongful convictions? An amendment by Rep. Jeff Leach, R-Plano, reduced the time to sunset to eight years, or 2021. As for the wrongful execution language, Leach – who has signed on with Rep. Myra Crownover, R-Denton, as a joint author of the bill – said the idea was to prevent all wrongful convictions. Indeed, among Texas' confirmed wrongful convictions are those who were sentenced to die, but who escaped that punishment – including Anthony Graves and Clarence Brandley.

More on Rep. McClendon's HB 166 is at the link.

"Texas Prosecutors No Longer Unassailable," is Ross Ramsey's excellent analysis at the Texas Tribune.  Here's the beginning:

An elected prosecutor used to have one of the most respected jobs at any level of Texas government.

District attorneys were often big personalities — the courtroom muscle of the criminal justice system, the people showing up on TV to play out the real-life version of “truth, justice and the American way.” Candidates for Texas attorney general — an office with almost no duties in criminal law — have tried to capture the crime-busting aura of prosecutors for years. It was strong stuff in a political arena.

Running a political campaign against a sitting prosecutor in Texas was a job for egotistic dunces and legal-minded Quixotes. Even weak DA’s were invincible.

But a strange thing is happening in the impervious ranks of high-profile Texas prosecutors. That cachet is taking a beating.

One prosecutor is in jail. A former district attorney is facing charges related to sending an innocent man to jail. One county spent nearly $400,000 settling a sexual harassment charge against its DA. Another prosecutor is fighting contempt of court charges after refusing to testify in a prosecutorial misconduct inquiry.

Earlier coverage from this year's Texas legislative session begins at the link; also available, coverage of the Ken Anderson Court of Inquiry.

Innocence Commission Bill to Hit House Floor

That's the title of Maurice Chammah's post at the Texas Tribune, today.

A bill that would create a state panel to investigate wrongful convictions will go before the state House on Tuesday.

In a session of high-profile debates over wrongful convictions, the bill has garnered unlikely supporters, including Texas Supreme Court Chief Justice Wallace Jefferson.

House Bill 166, by state Rep. Ruth Jones McClendon, D-San Antonio, would create an “exoneration review commission” named after famed exoneree Tim Cole. Members, appointed by the governor, would investigate wrongful conviction cases, identify why wrongful convictions occur, and examine appeals filed with the state’s courts for evidence of ethical violations by attorneys and judges.

And:

Other bills filed this session aim to decrease wrongful convictions with more specific policy changes. SB 87, also by Ellis, would require police to record interrogations of suspects in custody for violent crimes, which advocates say will help in cases involving false confessions. SB 344, by state Sen. John Whitmire, D-Houston, would explicitly allow judges to order new trials in cases in which the science that led to the original conviction has changed. Several bills pushed by Morton aim to require prosecutors to share their materials with defense attorneys and extend the statute of limitations for filing grievances against prosecutors whose work has led to a wrongful conviction.

Earlier coverage of this year's Texas legislative session begins at the link; related posts are in the Texas Legislature category index.

Race & Capital Punishment in Texas

The Texas Tribune posts ,"Panel Debates Death Penalty Cases, Race Considerations," by Maurice Chammah.

Death row inmates who believe their condemnation in court was tainted by race considerations would be able to appeal their sentences under a bill a panel of legislators in the House considered Tuesday. 

House Bill 2458, by state Rep. Senfronia Thompson, D-Houston, would prohibit death sentences based on race-related evidence. It would allow defendants to appeal based on claims that “race was a significant factor in the decision to seek or impose the [death] sentence,” and they could use statistics or specific trial testimony to bolster their arguments. Rebecca Bernhardt, policy director of the Texas Defender Service, which represents death row inmates, said allowing the use of statistics to prove racial bias is crucial because prosecutors and jurors will seldom admit whether race played a role in their decisions.

Under the bill, prosecutors would be able to argue that race played no part in a conviction, and a judge would decide whether to maintain the death sentence. The bill would require a the defendant who files such an appeal to waive their right to object to a sentence of life without parole.

Similar versions of the bill, which do not include such a waiver, have been filed by state Rep. Eric Johnson (HB 2614) and state Sen. Royce West (SB 1270), both Dallas Democrats. The proposals have already had an effect on death penalty cases even before they were considered by the Legislature.

Death row inmate Kimberly McCarthy — who is black and was convicted of murdering her 71-year-old white neighbor — was scheduled to be executed on April 3, but Dallas District Attorney Craig Watkins asked a judge to temporarily delay the execution in case the Legislature approves a bill that could affect race-based appeals in death penalty cases.

At the House Criminal Jurisprudence Committee hearing Tuesday, Thompson referred to the Duane Buck case as a prime example of how black defendants are more likely to receive the death penalty.

“We know that blacks and Hispanics and are overrepresented on death row relative to their overall population,” she said.

"Bill Could Allow Death Row to Appeal Sentences Based on Race," is the AP report by Michael Brick, via KXAS-TV.

Rallying around the case of a black man sentenced to death on racially charged testimony, opponents of capital punishment asked state lawmakers on Tuesday to create a new avenue of appeal for death row inmates in Texas.

But despite national attention to the case, including support from a surviving victim, a lawyer who worked for the prosecution and a former governor, several members of the House Criminal Jurisprudence Committee called the proposal unnecessary.

Under House Bill 2458, convicted murderers could challenge their sentences by proving that race played a significant role in the decision to seek or impose the death penalty. While statistical evidence of a district attorney's record on seeking the death penalty could be offered, other evidence particular to the case would be required. To qualify for a hearing, defendants would have to accept an alternate sentence of life without parole. Kentucky and North Carolina have enacted similar laws.

Of the 304 inmates on death row in Texas last year, according to the most recent count by the Death Penalty Information Center, 122 were black, 89 were white and 89 were Latino.

And:

At the hearing Tuesday, Rep. Steve Toth, a Republican from the Woodlands, expressed a lack of familiarity with the case. He called the use of race as a factor "shocking."

Yannis Banks, a spokesman for the state chapter of the NAACP, offered statistics dating from the 19th century to the present day.

"Race continues to play an undeniable role in Texas' use of the death penalty," he testified.

Additional information on House Bill 2458 is at the Texas Legislature Online website.

Earlier coverage of the legislation begins at the link; also available; voerage of the Duane Buck and Kimberly McCarthy cases. 

Related posts are in the race category index.

Gary Bledsoe on the Buck Case - TxRJA Proposal Gets Hearing

Today's Dallas Morning News publishes the OpEd, "Turn the page on racism in Texas death penalty," by Gary Bledsoe.  He's the President of the NAACP of Texas, and a former Texas Assistant Attorney General.  Here's the beginning of this must-read:

When I was about 10 years old, growing up in Odessa, I got picked up by the police because a car had been stolen the night before. I didn’t know how to drive. In fact, I didn’t even know how to put a key in the ignition. I was late to school that day for no reason.

Actually, there was a reason, just not a good one. I was picked up because I am black. The same thing happened to my friends and members of my family.

That was the early 1960s. A lot has changed for the better since then. Even so, there are still wrongs from our state’s history with racism that haven’t been made right.

Duane Buck was convicted of murder in Harris County in 1997. At his sentencing hearing, the prosecutor relied on testimony from a psychologist who said that Buck would be more dangerous in the future because he is black. The jury agreed that Buck posed a future danger and sentenced him to the ultimate punishment.

People have different views on the death penalty. But we can all agree that we must have compassion for all victims, and also that no one should be sentenced to death because of the color of his skin.

Racial discrimination, or at least the appearance of it, was prevalent among some in the district attorney’s office at the time of Buck’s case. We might add that the perceived bias is historical and not just isolated to one point in time, as we are aware that one DA resigned in recent years after circulating racist emails with his subordinates.

There is also additional video coverage of the Buck case.  HuffPost Live streamed, "Killing Duane Buck," hosted by Marc Lamont Hill.  Houston ABC affiliate's KTRK-TV News program "Crossroads," hosted by Melanie Lawson, also provided coverage of the case.

Today, the House Criminal Jurisprudence Committee will hear Senfronia Thompson's HB 2458.  The Committee agenda is available in Adobe .pdf format.  The Committee will convene upon adjournment of the House.  You can watch streaming video of the meeting at the link.  Be aware that bills may be brought up out of order of the printed agenda.

NAACP LDF has issued a news release, "Former Governor, Former Prosecutor, Civil Rights Leaders, and Other Prominent Individuals Offer Testimony in Favor of Texas Racial Justice Act.  Testimony: Duane Buck’s Case, Whose Sentencing Hearing Was Poisoned With Racial Discrimination, Shows That Texas Needs The Racial Justice Act." 

Here's the beginning of the release:

Several prominent Texans submitted testimony to the House of Representatives Criminal Jurisprudence Committee today in support of the Racial Justice Act, which seeks to prohibit the imposition of a death sentence or execution under any judgment that was sought or obtained on the basis of race.  The Harris County, Texas, death penalty case of Duane Buck was cited as a clear example of how racial discrimination corrupts Texas’ death penalty system. Mr. Buck, an African American man, was condemned to death in 1997 after his sentencing jury was told that he posed a future danger because he is Black. 

The Criminal Jurisprudence Committee is hearing testimony today on House Bill 2458, Texas Racial Justice Act, sponsored by Representative Senfronia Thompson, who represents District 141, which includes part of Harris County.

Those offering testimony in favor of the Racial Justice Act include: Mark White, Texas Governor (1983-1987); Linda Geffin, former Harris County Assistant District Attorney who served as a prosecutor in Mr. Buck’s case; and Yannis Banks, Texas NAACP Legislative Liaison.

“The way we determine punishment in the United States is with a fair trial and sentencing. Duane Buck did not receive that. His case, and other cases, shows how racial discrimination can infect Texas’ courtrooms. We cannot condone any form of racial discrimination in our criminal justice system and we must act to end it,” said Governor White in testimony submitted to the Committee. Governor White and more than 100 civil rights leaders, clergy, elected officials, past ABA Presidents and former judges and prosecutors delivered a letter to Harris County District Attorney Mike Anderson urging a new, fair sentencing hearing for Mr. Buck.

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

Criminal Discovery Legislation Clears Texas Senate

The Austin American-Statesman has published the editorial, "Texas Senate’s attempts to limit wrongful convictions commendable."

Its passage wasn’t as sure as it should have been, given that it was as much a no-brainer as any piece of legislation could be, but this week the Senate finally and unanimously passed the Michael Morton Act.

Morton was on hand for the occasion Thursday. He stood, as the American-Statesman’s Chuck Lindell reported, in a Capitol corridor while holding the gavel Lt. Gov. David Dewhurst had used minutes earlier to announce approval of the legislation named in his honor. The vote, coming 18 months after Morton’s release from prison, was 31-0.

It’s hard to imagine opposition to a bill designed to prevent wrongful convictions by requiring prosecutors to share crucial information with defense attorneys, but the Michael Morton Act appeared doomed Wednesday until a delicate compromise, prodded along by Dewhurst, appeased concerns by district attorneys that the bill threatened the safety of witnesses and victims in some cases. So lawmakers added a few restrictions to shield some identities.

Point taken on protecting the potentially vulnerable. Now the House should follow the Senate’s lead and pass the Michael Morton Act.

Let's begin news coverage of the vote with the Statesman report, "Senate passes Michael Morton Act," by Chuck Lindell.

Wednesday’s intense negotiations — including not-so-gentle prodding by Dewhurst, who gathered all the parties into a room in the afternoon and told them not to emerge without an agreement — produced a breakthrough on victim and witness information that saved the legislation.

“It feels very, very good of course, but I know we’re not through. We have the other side to go through, the House,” Morton said.

State Rep. Senfronia Thompson, a highly respected 20-term Democrat from Houston, will shepherd the bill through the House.

Morton will be there, too, hoping that the agreement forged by prosecutors, defense lawyers and a half-dozen senators will find relatively easy acceptance.

The Texas Tribune posted, "Senate Unanimously Approves Michael Morton Act," by Brandi Grissom.

A year and a half after he took off his prison whites for the last time, exoneree Michael Morton stood in the Senate beside his wife, Cynthia, on Thursday as lawmakers in that chamber unanimously approved a bill named in his honor that aims to prevent others from being wrongfully convicted. 

"Had this been in place when I was arrested, I probably wouldn't have gone to prison," Morton said shortly before senators passed Senate Bill 1611, by Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock. It would require prosecutors to turn over evidence to defense lawyers in criminal cases.

"Michael's tragic case brought to the forefront something we already knew in Texas," Ellis said. "Our criminal discovery process in Texas needs serious reform."

And:

Today — as in 1987 when Morton was tried — prosecutors aren't required by state law to provide evidence to defense lawyers unless ordered to by the court. Though many Texas prosecutors have some form of open file policy, those procedures vary from county to county and sometimes even within a district attorney's office. In a February report based on a survey of more than 40 prosecutors' offices, Texas Appleseed and Texas Defender Service, both justice advocacy organizations, found that "lack of uniformity in discovery policies in Texas makes access to justice dependent, in part, on where a defendant is charged."

Since his release from prison, Morton has been on a mission to see the implementation of laws that help prevent wrongful convictions like his and that hold prosecutors accountable when their decisions result in innocent people losing years of liberty. The Senate has already approved SB 825, by Sen. John Whitmire, D-Houston, which would extend the statute of limitations for offenses involving evidence suppression by district attorneys. Under current law, the four-year statute of limitations begins ticking on such offenses when they occur. Whitmire's proposal would begin the clock on the statute of limitations at the time a wrongfully convicted defendant is released from prison. That measure is awaiting a hearing Monday in the House Committee on Judiciary and Civil Jurisprudence.

"Senate OKs bill to share DA case files with defense," was the AP filing written by Will Weissert, via the Fort Worth Star-Telegram.

The Senate unanimously approved the Michael Morton Act, named in honor of a Texan who spent nearly 25 years in prison for a murder he did not commit and designed to prevent future wrongful convictions.

After their vote Thursday, senators stood and applauded and Lt. Gov. David Dewhurst banged a specially engraved wooden gavel that was later awarded to a beaming Morton, who watched the proceedings from just off the floor -- a long way from the prison cell he was sitting in two years ago.

The measure now heads to the House for consideration.

Dallas Morning News editorial board member Rodger Jones posted, "Michael Morton Act passes Senate unanimously," on the Views blog.

Ellis, a Houston Democrat, co-author with Sen. Robert Duncan, Republican of Lubbock, credited Morton for using his “life’s tragedy” to lobby strongly for the bill, SB 1611.

The legislation updates, broadens and clarifies the access defense attorneys have to case files compiled by prosecutors. Morton spent nearly 25 years in prison for the murder of his wife, but has maintained in court that the DA kept vital information from him. Morton was freed after DNA tests cleared him in 2011, despite years of efforts by the DA’s office to keep evidence away from him for testing.

Ellis told the Senate that he thought months of work on the bill was lost a few times, especially in the last week, after Sen. Joan Huffman, R-Houston, began lobbying for changes after the bill already emerged from committee. One key to breaking the impasse, I’m told, was Dallas Sen. Royce West, a former prosecutor, who got involved in a come-to-Jesus meeting among negotiators on Monday.

"Ken Anderson court of inquiry resumes April 19," is from the American-Statesman.

A moment of truth for district court judge Ken Anderson is expected to arrive April 19, when the court of inquiry investigating his alleged wrongdoing reconvenes.

At 1 p.m. at the county’s Justice Center in Georgetown, Judge Louis Sturns is to hear closing arguments from attorneys, as he considers whether Anderson – in his prior role as district attorney – withheld evidence during Michael Morton’s 1987 murder trial. The judge has three issues to consider: whether Anderson tampered with physical evidence, if he tampered with a government record and/or he committed contempt of court.

If Sturns rules Anderson did any of these, it’s possible Anderson could face misdemeanor or felony criminal charges, but Sturns would also have to rule statutes of limitations have not passed.

The court of inquiry – which was first in session Feb. 4-8 – is not an actual trial.

“This is like a public grand jury proceeding and the judge is like the sole person on the grand jury,” one lawyer familiar with the case said this week. “He [Sturns] can say, ‘This should go forward [for prosecution].’ The standard for that is, ‘Is there probable cause?’”

Throughout five days of February testimony, special prosecutor Rusty Hardin produced witnesses who testified as to what they did and did not know before and during Morton’s February 1987 trial.

Earlier coverage of the Texas criminal discovery legislation begins at the link; also available, more information from this Texas legislative session, coverage of Michael Morton's exoneration, and the Anderson Court of Inquiry.

Texas Legislative Update

KUT News posts, "Bill Would Change DNA Testing Procedures in Death Penalty Cases."  It's by Veronica Zaragovia and Laura Rice.  There is audio at the link.

A Texas Senate committee passed a bill last night that would require DNA testing of evidence in cases involving the death penalty.

The proposal will now go to the full senate for a vote.

Original Story (April 9, 2013, 5:24 p.m.) Texas lawmakers are weighing a bill that would require DNA testing of evidence in cases involving the death penalty.

In the state, local crime labs handle DNA testing at the discretion of local law enforcement. State Sen. Rodney Ellis (D-Houston), wants to change that.

Working with Texas Attorney General Greg Abbott, Sen. Ellis has authored a bill that would require the state to pay for DNA testing before death penalty trials begin.

The Texas Tribune posts, "Huffman Wants 'Michael Morton Act' to Add Restriction," by Brandi Grissom.

A fight over what defense lawyers can do with information about their clients in criminal cases after prosecutors turn it over to them is threatening to stymie the “Michael Morton Act.” 

The measure, Senate Bill 1611 by state Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, would require prosecutors to turn over evidence to defense lawyers in criminal cases. Currently, prosecutors aren't required to provide evidence to defense lawyers unless ordered to by the court, though many Texas prosecutors have some form of open file policy.

The bill is one of several filed in response to the 2011 exoneration of Michael Morton, who spent nearly 25 years in prison after he was wrongly convicted in 1987 of his wife’s murder. His lawyers allege that the prosecutor in the case, Ken Anderson, who is now a Williamson County state judge, withheld critical evidence from Morton’s lawyers. Anderson denies any wrongdoing in the case.

State Sen. Joan Huffman, R-Southside Place, and some prosecutors want a restriction in SB 1611 that would limit whom defense lawyers can share information with once they’ve received it from the state. They said the current bill could jeopardize the safety of victims by allowing public disclosure of private information. Ellis, defense lawyers and at least one victims organization, however, say the current bill would not present danger for crime victims or witnesses. Some worry that Huffman and the prosecutors are working to render the measure meaningless.

Huffman, a former Harris County prosecutor and criminal court judge, said that she supports SB 1611 and that it contains "very necessary reforms." She described the changes she is requesting as “tweaks.”  

She and some district attorneys want to include a requirement in the bill that would force defense attorneys to seek court approval before sharing information they obtain in the discovery process with third parties. Defense lawyers could share information with their staff, the defendant, co-counsel in the case as well as expert witnesses. But they would be prohibited from telling anyone outside that “entrusted circle” without permission of the court.

More information on SB 1292 (DNA testing) and SB 1611 (Criminal Discovery) is at the Texas Legislature Online website.

Earlier coverage of the Texas Legislature current session notes several items:

• Racial justice legislation proposed by Dallas District Attorney Craig Watkins
• Creation of a Texas Innocence Commission
• Scientific standards for the evaluation of Intellectual Disability
• Criminal discovery
• Forensics
• Electronic recording of custodial interrogations

Related posts are in the Texas Legislature categoy index.

No Martyrs in Huntsville

That's the title of a Dallas Morning News editorial on Craig Watkins withdrawal of an execution date last week.  It is reprinted in the Odessa American.

It’s a welcome surprise when the justice system gives deference to the political system on the sensitive subject of capital punishment. Doubt should not linger when the finality of the death penalty is in play.

Case in point is a decision to postpone the execution of convicted killer Kimberly McCarthy this week until after the Legislature’s session, allowing for the possibility that a bill could pass and affect the case’s outcome. Dallas County District Attorney Craig Watkins agreed to that request from McCarthy’s attorney, and the deal was sealed by a state district judge.

And:

Watkins maintains that the prosecutor in McCarthy’s case used no unconstitutional methods to strike blacks from the jury pool. He says her death sentence was not a function of race, considering that jurors decided it after hearing evidence that McCarthy had killed and robbed two other elderly women — both black.

At the same time, Watkins says, it’s naive to think that embedded racial attitudes don’t affect justice in Texas, and for that reason he supports passage of a so-called Racial Justice Act that would give defendants extra protection against bias in death cases. Sen. Royce West, D-Dallas, has filed such a measure (SB 1270), and Rep. Eric Johnson, D-Dallas, has filed a companion (HB 2614).

Today's Dallas Morning News notes a bill being heard today, "Texas House committee looks at death penalty for killing a DA."  It's by Christy Hoppe.

A bill being heard by the House Criminal Jurisprudence Committee on Tuesday has taken on new meaning after the murder of Kaufman County District Attorney Mike McLelland and his wife, Cynthia.

The measure calls for the death penalty as a punishment option for anyone convicted of killing a district attorney over the perfomance of his or her duty.

The bill, as written here, was filed before the McLelland killings, and it wouldn’t apply in this case because that crime was committed before the bill, if it passes, would become law.

Earlier coverage of the Kimberly McCarthy case, Dallas DA Craig Watkins, and the murder of the Kaufman County District Attorney, at the links.  Related posts are in the Texas Legislature categoy index.

Dallas DA Craig Watkins Speaks to Wake Forest Law Student

"First black district attorney in Texas speaks to Wake Forest law students; has pushed for Racial Justice Act in Texas," is by Michael Hewlett in today's Winston-Salem Journal in North Carolina.

As the first black District Attorney in Texas, Craig Watkins doesn’t shy away from race; he confronts it.

And he said that’s because of his experience growing up black in Dallas.

“Traditionally, people of color have had a negative view of law-enforcement, and it’s warranted,” he said in an appearance Thursday at Wake Forest University School of Law that was sponsored by the Black Law Students Association and the Innocence and Justice Clinic. Mark Rabil, the director of the Innocence and Justice Clinic, moderated the conversation with Watkins, who has been district attorney in Dallas County, Texas, since 2006.

He said he remembers when police officers would come to his neighborhood to investigate a dead body. The officers seemed more concerned with checking on possible outstanding warrants on people in the neighborhood than in figuring out who committed the crime, Watkins said.

That experience has led Watkins to be a different kind of prosecutor, one he describes as being smart on crime rather than tough on crime. Watkins has a conviction integrity unit in his office that investigates claims of wrongful convictions and has resulted in 33 exonerations.

Watkins currently is pushing for a Racial Justice Act in Texas, similar to the North Carolina law that the N.C. Senate repealed Wednesday. The law, adopted in 2009, allowed death-row inmates and defendants facing the death penalty to use statewide statistics to prove that racial bias played a significant role in their case. If successful, a judge would commute a death sentence to life in prison without the possibility of parole. The proposed legislation still has to go through the N.C. House.

And:

Watkins is also opposed to the death penalty in Texas. Because of his opposition, Watkins said, he decided to form a death penalty review panel, made up of the most experienced prosecutors in his office. That panel reviews each murder case that could be eligible for the death penalty, he said.

He said he doesn’t want to leave the decision to pursue the death penalty up to politics. Watkins said his office has prosecuted eight capital murder cases and out of those, defendants in seven of those cases received the death penalty.

Earlier coverage of Craig Watkins begins at the link; also available, coverage of North Carolina legislation repealing the state's RJA.

Related posts are in the race category index.

Kimberly McCarthy Execution Date Reset for June

"Judge Delays Execution Of Texas Women’s Death Row Inmate," is the AP report, via KWTX-TV.

State District Judge Larry Mitchell Monday delayed the execution of convicted killer Kimberly McCarthy, 51, who’s held on women’s death row in Gatesville and who was originally scheduled to die Wednesday in Huntsville for the murder of a retired college professor.

Mitchell's order resetting the execution date for June 26 formalized an agreement last week between Dallas County District Attorney Craig Watkins and McCarthy's attorney to put off the lethal injection until the fate of death penalty-related bills now in the Texas Legislature is determined.

Lawmakers are about halfway through their six-month session.

McCarthy, who avoided execution with a last-day reprieve in January, asked Mitchell in a court filing two weeks ago to delay her execution until the fate of a bill related to issues in her case that was introduced March 6 in the Texas Legislature is determined.

The bill proposed by Sen. Royce West and Rep. Eric Johnson, both Dallas Democrats, would bar racial discrimination in capital case prosecution.

Attorney Maurie Levin contends McCarthy's 1998 trial jury may have been unfairly selected on the basis of race.

The Dallas Morning News reports, "Execution date moved for woman who killed elderly Lancaster neighbor," by Jennifer Emily.

Dallas County District Attorney Craig Watkins requested the change Friday to see if any of the six bills pending in the Texas Legislature pass. The DA’s office would then determine if they impact McCarthy, who killed Booth in 1997.

Watkins has said he has no doubt that McCarthy is guilty and will be executed. He said the delay is more about the process of death penalty cases in Texas than McCarthy’s individual case.

The six pending bills look at issues ranging from whether race was a factor in the prosecution or sentence to whether police interrogations were videotaped.

Earlier coverage of Kimberly McCarthy's case begins at the link.

According to TDCJ, eight Texas executions are currently scheduled during the seven week period between April 9 and May 21.

Dallas DA Agrees to Stay in Case of Kimberly McCarthy

KWTX-TV posts, "Texas Prosecutor Agrees To Execution Stay For Women’s Death Row Inmate."

Dallas County District Attorney Craig Watkins will announce Friday that he’s agreed to a stay of execution for convicted killer Kimberly McCarthy, who’s held on women’s death row in Gatesville and who’s now scheduled for execution next Wednesday.

A statement from Watkins' office says he agreed to the delay of McCarthy's execution because of proposed legislation that would improve the fairness of the death penalty.

Watkins' agreement moves McCarthy's execution to June 26.

McCarthy, who avoided execution with a last-day reprieve in January, asked State District Judge Larry Mitchell in a court filing last week to put off the April 3 lethal injection until the fate of a bill related to issues in her case that was introduced March 6 in the Texas Legislature is determined.

Attorney Maurie Levin contends McCarthy's 1998 trial jury may have been unfairly selected on the basis of race.

A bill proposed by Sen. Royce West and Rep. Eric Johnson, both Dallas Democrats, would bar racial discrimination in capital case prosecution.

Levin argues that McCarthy, who’s black, was the subject of racial discrimination by the jury of 11 whites and only one black that convicted her.

"Dallas County DA Craig Watkins makes rare public appearance to call for stay of execution, refuses to discuss misconduct allegations," is the Dallas Morning News report by Jennifer Emily.

Dallas County District Attorney Craig Watkins appeared at a hearing this morning asking for a temporary stay of execution for a woman sentenced to death in the slaying of an elderly Lancaster woman.

After the hearing, Watkins refused to answer any questions about allegations of prosecutorial misconduct against him or the contempt of court charge he faces after refusing to testify in the case.

It was a rare pubic appearance for Watkins, who has not often been seen since at least Valentine’s Day when he refused to show up at a hearing where he was supposed to testify about allegations of misconduct against him. His staff at first argued the hearing was improper and then said Watkins was too sick to attend. The hearing was reset.

Earlier coverage of McCarthy's case begins at the link.  Also available, Craig Watkins' proposal for a Texas Racial Justice Commission.

Mark White & William Sessions Call for Texas Innocence Commission

Former Texas Attorney General and Governor Mark White, and former federal district judge and FBI Director William Session write the OpEd, "White, Sessions: Innocence commission needed in Texas," for today's Austin American-Statesman.  Here's the beginning:

We applaud Texas Chief Justice Wallace Jefferson’s recent call for a special commission to investigate wrongful convictions in Texas. Over the past 25 years, at least 117 Texans spent years in jail for crimes they did not commit.

Just two examples are enough to convince us that such a commission is vital: Michael Morton, a grocery store manager convicted of killing his wife, spent 25 years in prison before DNA evidence exonerated him in 2011. Tim Cole, an army veteran convicted of rape, spent 14 years in prison, dying in 1999 after the real rapist confessed but before DNA established his innocence.

The exact number of Texans wrongfully convicted is likely much higher. The Texas Legislature must find out how and why these wrongful convictions occurred, to minimize their risk in the future, and to restore public faith in the legal system, which is undermined every time a person is wrongly convicted in our great state.

In his biennial address to the Legislature, the chief justice called for the establishment of an innocence commission to investigate each instance of exoneration, assess the likelihood of wrongful convictions in future cases and establish statewide reforms.

Earlier coverge of the Texas Innocence Commission proposal begins at the link.

Both White and Sessions are active in the Constitution Project's Death Penalty Committee.

Is an Innocence Commission in Texas' Future?

The Atlantic posts, "In Texas, From a Chief Justice, Welcome Candor About Unequal Justice," by Andrew Cohen.

Last Wednesday, in Austin, Texas, a remarkable thing happened. In a state where the promise of equal justice under law often is a farce, where poor people and people of color far too often are subject to unfair treatment by prosecutors, police, judges, jailors and jurors, the Chief Justice of the state supreme court spoke out at length with great clarity and candor about the desperate legal conditions of his fellow Texans and the immediate need to secure for them all the right to "liberty and justice." (Note good update below).

Wallace B. Jefferson, the first black justice on the state's supreme court, the first black chief justice of the state's supreme court, the man appointed by Republican Gov. Rick Perry to replace Alberto Gonzales, offered his remarks in his annual "State of the Judiciary" address and his timing could hardly be better. Next week, America marks the 50th anniversary of the United States Supreme Court's landmark decision in Gideon v. Wainwright, which was designed to secure the right to counsel for people too poor to afford their own attorney.

Jefferson's speech is yet another detailed reminder of how far we've come from the premise and the promise of Gideon. (Last week, on this topic, I wrote here about the Alabama case of Christopher Lee Price, a death row inmate whose constitutional right to counsel has been consistently denied by the courts. Next week, in advance of the March 18th anniversary of the decision, we'll be posting here at The Atlantic a special piece on the legacy of Gideon).

"Chief Justice Pushes for 'Innocence Commission'," is Maurice Chammah's coverage for the Texas Tribune.

At his biennial speech in front of the Legislature, Chief Justice Wallace Jefferson reiterated his calls for more funding for civil legal aid, indigent defense and juvenile justice reform, and pushed for the establishment of an "innocence commission" to investigate wrongful convictions. 

Presenting his State of the Judiciary speech to Texas lawmakers, Jefferson said that "wrongful convictions leave our citizens vulnerable, as actual perpetrators remain free" and recommended the Legislature create a commission "to investigate each instance of exoneration, to assess the likelihood of wrongful convictions in future cases, and to establish statewide reforms." He cited the recent exoneration of Michael Morton, who spent nearly 25 years in prison for murder.

The creation of such a commission nearly passed in 2011, but failed at the last minute. Part of the opposition has come from Jeff Blackburn, chief legal counsel of the Innocence Project of Texas, a nonprofit organization that attempts to overturn wrongful convictions and investigate why they happen in the first place. He said recently that such a commission would have to be “extremely well-funded,” and would more likely become “a paper commission that would give a lot of people an excuse to turn away from a lot of the real issues we face in the criminal justice system."

But the bill creating such a commission, House Bill 166, by state Rep. Ruth Jones McClendon, D-San Antonio, got a favorable review from the House Criminal Jurisprudence Committee on Tuesday.

Related posts are in the innocence commission and Texas Legislature indexes.

Texas Legislation Introduced to Correct Briseno Standards

Brandi Grissom reports, "Bill Would Limit Execution of Intellectually Disabled," at the Texas Tribune.  Here's the beginning:

Before Texas executed Marvin Wilson last year for the 1992 murder of Jerry Robert Williams in Beaumont, his case generated headlines, reminding the nation of a rather unique corner of death penalty law here.

The standards used to determine whether a Texan convicted of murder is mentally fit to be executed are based in part on the fictional character Lennie from John Steinbeck’s classic novel Of Mice and Men, a fact that enraged the author’s son.

"I find the whole premise to be insulting, outrageous, ridiculous and profoundly tragic,” Thomas Steinbeck said, calling for a halt to Wilson’s execution. “I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way."

State Sen. Rodney Ellis, D-Houston, said Wilson’s execution and other cases left him feeling embarrassed for his home state. “It’s junk science. Its not a credible way of making a decision,” he said.

So Ellis filed Senate Bill 750, which would establish new — and, he argues, more scientific — standards to determine when a convicted Texan is too intellectually disabled to face the death penalty. The bill revives a decade-old fight with prosecutors, who argue that the current standards are adequate and that Ellis’ proposal would make it too easy for defendants to make a case that they are mentally retarded and exempt from the death penalty.

Coverage of Marvin Wilson's Development Disability and his execution begins at the link.  Related posts are in the mental retardation category index.

Some notable posts include:

• How Texas Applies Atkins
• Bad Science Behind Unconstitutional US Executions
• Texas's Death Penalty Machine Executing the Mentally Disabled?
• The Long, Questionable History of George Denkowski
• Cracked

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

New Report Points to Criminal Discovery Reforms for Texas

Improving Discovery in Criminal Cases in Texas is the title of a new report issued by Texas Appleseed and Texas Defender Service.  A news release announcing the report is also available.  This is from the news release:

The new report, Improving Discovery in Criminal Cases in Texas, is based on an analysis of discovery policies solicited from 43 district attorney’s offices across the state and interviews conducted by pro bono partner Locke Lord LLP in Dallas.

The report recommends Texas’ discovery statute (Code of Criminal Procedure, Article 39.14) be amended to provide these ABA best practices:

• Automatic access to discovery;
• Open file discovery that includes access to police reports, witness statements, expert reports, and criminal histories;
• Defined timelines for initiating discovery; and, 
• An explicit continuing obligation to disclose.

"Transparency could lessen wrongful convictions, study finds," is Chuck Lindell's report for the Austin American-Statesman.

Criminal justice in Texas could be fairer, faster and less likely to convict innocent people if prosecutors and defense lawyers were required to share more information before trial, a report by two legal advocacy groups says.

Texas law does not require prosecutors to disclose information that is commonly shared in most states, including police reports, witness statements and reports compiled by expert witnesses, says the report, “Improving Discovery in Criminal Cases in Texas,” to be formally released Wednesday.

The result is a hodgepodge of rules varying from county to county, with many district attorney’s offices employing a robust open-file policy for defendants while others restrict information, “meaning access to justice can depend, in part, on where the case is filed,” the report says.

What’s more, Texas is the only state that does not require some sort of mutual discovery before a criminal trial, with defense lawyers opening their files to prosecutors to reveal witness statements, expert opinions and other information that does not incriminate the defendant.

“By disclosing all relevant information, both parties are able to investigate and scrutinize the evidence against the accused. This increases the likelihood that a just result will be reached,” concludes the report, which was compiled by Texas Appleseed, a nonprofit public interest law center, and the Texas Defender Service, a nonprofit that represents death row inmates, by examining the practices of more than 40 Texas counties.

The Texas Tribune posts, "Report: Open Discovery May Thwart Wrongful Convictions," by Brandi Grissom.

The amount of evidence that Texans accused of crimes can get from prosecutors varies across the state, leading to inequities in the way justice is meted out, according to a report released Wednesday, which suggests that requiring more transparency could prevent wrongful convictions.

Texas Defender Service, which represents death row inmates, and Texas Appleseed, a nonprofit that advocates for social justice, researched discovery practices in 40 Texas counties. They found that the wide variation in discovery practices among prosecutors makes access to justice dependent upon the jurisdiction in which the defendant is charged. Those findings, said Rebecca Bernhardt, a Texas Defender Service spokeswoman, give weight to legislation filed in both the House and Senate that would create uniform discovery procedures and require both prosecutors and defense lawyers to share more information in criminal trials.

“We hope that lawmakers get an understanding of the status quo and understand the problems that exist under our current, outdated discovery statute,” Bernhardt said.

Rob Kepple, executive director of the Texas District and County Attorneys Association and a former prosecutor, said he agreed with the conclusions of the report.

“A good open file discovery system could help prevent some problems,” Kepple said. “I think it’s a pretty good report.” 

Efforts to reform discovery laws in Texas are not new but have picked up steam since the 2011 exoneration of Michael Morton. He spent nearly 25 years in prison for his wife’s murder before DNA evidence revealed that he was innocent and led to the arrest of another man who is awaiting trial for the crime.

Jordan Smith writes about a separate proposal, "Holding Prosecutors Accountable," at the Austin Chronicle.

In an effort to combat the growing number of wrongful convictions in Texas, state Sen. John Whitmire, D-Houston, on Tuesday filed a bill that would expand the statute of limitations for filing with the State Bar grievances alleging prosecutorial misconduct.

Senate Bill 825 would start once a person is released from prison on a wrongful conviction the four-year statute of limitations for pursuing a complaint of prosecutorial misconduct with the State Bar of Texas. The current statute begins the clock at the time the violation occurs.

The proposed change in the law was prompted by the plight of Michael Morton who was convicted and sentenced to life in prison for the 1986 murder of his wife Christine. Morton was finally released from prison in 2011 after evidence testing revealed the DNA of another man, Mark Alan Norwood, was mingled with Christine's blood on a discarded blue bandana found after the murder behind the Morton's home.

Related posts are in the Michael Morton and Texas Legislature category indexes.  The responsibility of the state to provide exculpatory evidence to the defense was articulated in the 1963 Supreme Court ruling in Brady v. Maryland; more via Oyez.

Wrongful Convictions Pricetag

"Tab for wrongful convictions in Texas: $65 million and counting," is Mike Ward's report in today's Austin American-Statesman.  Here's an extended excerpt from the beginning of this must-read:

For a state perhaps best known as the leader in executing murderers, Texas now has another distinction: It is the most generous in compensating those who were wrongly locked up.

In all, the state has paid more than $65 million to 89 wrongfully convicted people since 1992, according to updated state figures.

And if legislation being discussed at the Texas Capitol becomes law, that tab could soon grow.

“The justice system in Texas had fundamental flaws, and this is the result,” said state Sen. Rodney Ellis, a longtime champion of the falsely imprisoned. “At this point, I don’t think anyone can seriously doubt that we had a problem — a big problem.”

For a hint of how off-track Texas’ justice system once was, and how expensive those mistakes have become for taxpayers, consider the case of Michael Morton, the exonerated former Austin-area resident who served 25 years in prison for a murder he didn’t commit. A Williamson County court convicted him in 1987 of killing his wife Christine.

Morton, who was 57 when he was freed from prison in 2011, so far has received $1.96 million for his mistaken imprisonment, state records show.

Under a law signed by Gov. Rick Perry in 2009, some exonerees will receive $80,000 each year for the rest of their lives and are eligible for the same health insurance as employees of the Texas Department of Criminal Justice, where the ex-prisoners did their time.

Twenty-six other states and the District of Columbia also provide compensation to exonerees — but they pay less, according to statistics compiled by the Innocence Project, a privately funded national initiative that works on behalf of the wrongfully convicted. Currently, Ellis, D-Houston, serves as its board chairman.

Since the first wrongful conviction through DNA was logged in 1989, 65 percent of exonerees nationally have received some form of compensation, according to the Innocence Project.

Related posts are in the wrongful incarceration category index.

Bill Addresses Changing Science in Criminal Appeals

That's the title of a Texas Tribune report by Maurice Chammah on new legislation filed by Senate Criminal Justice Committee Chairman, John Whitmire.

Advocates are backing a renewed push to streamline the appeals process for those who were convicted based on science that has since been discredited.

Senate Bill 344, filed Monday by state Sen. John Whitmire, would establish a statute expressly allowing Texas courts to overturn convictions in cases where the forensic science that originally led to the verdict has changed. Though the bill has failed twice before, Whitmire said that several recent Court of Criminal Appeals decisions may make it more likely to pass, and that prosecutors who have opposed it in the past should come around. “Why wouldn't we want to find out there's flawed evidence based on new science?" he said.

Currently, people convicted of a crime in Texas can submit a writ of habeas corpus to the Court of Criminal Appeals, in which they ask for a new trial based on evidence that was not available when they were originally convicted. If the science used to convict them has changed, there is no special guideline allowing the court to grant them a new trial, and the judges often disagree about whether to do so.

Supporters of the bill point to the history of DNA testing as an example for why the change is needed. In 1998, the Court of Criminal Appeals denied a new trial to Roy Criner, then serving 99 years for a rape and murder, even though new DNA evidence suggested that Criner was innocent. Then-Gov. George W. Bush pardoned Criner in 2000, and in 2001, the Legislature created Chapter 64 of the Code of Criminal Procedure, which streamlined the process for new testing of DNA.

Related posts are in the forensics and  Texas Legislature category indexes.

Race and the Death Penalty

That's the title of an editorial published in today's Dallas Morning News.

Dallas County District Attorney Craig Watkins wants to make sure Texas executions are not carried out if racial bias played an unfair role in a defendant’s death sentence.

No argument. Good goal, in general.

Now comes the hard part — getting there.

Watkins said this week that he is preparing a proposal, the Racial Justice Act, that would allow a death row inmate to bring up the issue of race in state appeals. North Carolina has a measure like that on the books, and three death-row inmates — two of whom killed law enforcement officers — used it to overturn their sentences in favor of life in prison last month. Their lawyers argued that racial bias affected the sentencing and jury selection in the three emotionally charged cases.

Whether Texas defense lawyers need or should have that tool is an important debate to have in the state Capitol among legal experts and lawmakers.

This newspaper opposes the death penalty on grounds that it can never be immune from human error and is unevenly applied. More than half of Texas’ 254 counties have never sent a single person to death row in the modern era, and studies have indicated that the races of the killer and the victim affect decisions, from prosecutors to juries, on whether to apply capital punishment.

And:

This session should be the one to get the discussion started, and time’s already slipping away.

Earlier coverage of Craig Watkins' proposal for a Texas Racial Justice Act begins at the link.  Related posts are in the race, state legislation, and Texas Legislature indexes.

Craig Watkins Proposes a Texas Racial Justice Act

Today's Dallas Morning News reports, "Dallas DA Craig Watkins to push for law allowing appeals based on racial factors."  It's written by Scott Goldstein.

Dallas County District Attorney Craig Watkins said he plans to advocate for a state law that would allow criminals to appeal their conviction or sentence on the grounds that race was a factor.

The Racial Justice Act would be based in part on similar laws passed in recent years in North Carolina and Kentucky and would apply, at least initially, only in death penalty cases, Watkins said in an interview Monday. Defendants would be allowed to present evidence from their case or through general statistics to show that race was a significant factor in their prosecution or sentence.

“Throughout history, race has unfortunately played a part, an ugly part, in our criminal justice system,” Watkins said. “This is an opportunity for us to address not only the past, and those individuals who are still being affected by the disparities in treatment, but also in looking forward to make sure that we don’t have those same disparities in our criminal justice system.”

Watkins acknowledged a difficult fight for any such bill in the heavily conservative Texas Legislature. But he said he sees a benefit in floating the proposal now nonetheless because “even if it’s not passed, at least we’ve started the conversation,” he said.

Watkins said he plans to discuss the idea with lawmakers and hopes to have a bill filed in the next few months.

And:

Academic studies have argued that a racial disparity in sentencing exists. One 2008 study by a University of Denver professor concluded that black defendants in Harris County, which includes Houston, were more likely to get a death sentence than white defendants.

Blacks comprise 40 percent of Texas’ nearly 300 death row inmates, while 11 percent of the state’s population is black. Researchers caution, however, that such raw numbers don’t take into account a number of factors.

"Dallas DA: Texas should pass 'Racial Justice Act'," is the AP report filed by Nomaan Merchant. It's via the Galveston Daily News.

The Dallas prosecutor who built a reputation for freeing wrongfully convicted inmates says he has an idea to advance criminal justice reform in Texas: allowing defendants to appeal convictions and sentences on the basis of race.

Craig Watkins, the Dallas County district attorney, said in a recent interview that he wants lawmakers to consider what he called the Racial Justice Act. Such an act might allow defendants to introduce evidence, either in their specific case or through general statistics, to argue that their prosecutions or sentences were influenced by race, he said.

"The issue that we're bringing to light is to make sure that everything is fair, no matter what you look like, no matter where you come from, and you're treated just like anyone else," Watkins said. "And if you deserve a death sentence, then you will get it. If you didn't, then you shouldn't be on death row."

Related posts are in the race, state legislation, and Texas Legislature indexes.

Electronic Recording of Custodial Interrogations

I hope to finish catching up on holiday news coverage by the end of the day.  On December 28, the Texas Tribune reported, "Inmate's Case Adds to Debate on Recorded Interrogations."  It was written by Maurice Chammah, and was also printed in the Texas edition of the New York Times. 

Max Soffar slurred his words in 1980 as he confessed to shooting two teenagers while robbing a Houston bowling alley, a confession that can be heard over the hisses and crackles of an audiotape. Only two hours of at least 26 hours of questioning over three days were recorded, according to the police officers who were at the interrogation.

Three decades and two trials later, Mr. Soffar, 57, maintains that he never committed the crimes — he says he confessed to shooting the two teenagers while trying to implicate someone else in the shootings at the bowling alley, in which three people were killed and another was injured. But Mr. Soffar also says he only has faint memories of the interrogation.

The investigators “took full advantage of someone who had no idea of the danger of the situation,” Mr. Soffar said recently from death row.

Prosecutors said that the evidence against Mr. Soffar was solid.

Mr. Soffar’s lawyers say his case highlights a broader debate about false confessions, and as they ask the United States Supreme Court to look at the case, Texas lawmakers are renewing a push to require police officers to record interviews in cases of violent crime.

And:

Richard A. Leo, who teaches at the University of San Francisco School of Law and has written several books on police interrogation procedures, analyzed Mr. Soffar’s tape and determined that officers in the case used verbal techniques like accusation, forceful pressure, repetition and confrontation.

All of these, Dr. Leo wrote in an affidavit, “create a risk of eliciting false confessions when misapplied to the innocent.” Mr. Soffar, sleep-deprived and coming down from drug use, was particularly susceptible, Dr. Leo said.

Earlier coverage of prefiled Texas legislation begins at the link.  Related posts are in the custodial interrogation and false confessions category indexes.

Earlier coverage of Max Soffar's long and tangled case is also available.

The Fort Worth Star-Telegram on the Death Penalty and Exonerations

"Hope and concern on death penalty, exonerations," is the title of the editorial in today's Fort Worth Star-Telegram.

Two reports issued this week offer news that's both sobering and encouraging about crime and punishment in America, especially regarding the justice system's ultimate penalty and the continuing trend of righting wrongs through exoneration.

A study by the Death Penalty Information Center shows that numbers of both capital sentences and executions are down significantly. Meanwhile, the Innocence Network released reports on 22 more people -- including one in Tarrant County -- who have been exonerated of the crimes for which they were convicted.

It's troubling that Texas leads the nation in both categories.

While findings in the reports speak to an evolving and improving system of justice, the statistics show that making the criminal justice system truly just must be an ongoing process.

And:

Efforts to make convictions more reliable resulted last legislative session in a law to improve eyewitness identification evidence. For 2013, Sen. Rodney Ellis, D-Houston, has pre-filed SB 87, to require that police electronically record interrogations in cases including murder, kidnapping, human trafficking and sexual assault. Texas must keep trying to perfect justice.

The editorial also reference this month's report from the Texas Coalition to Abolish the Death Penalty and its annual report on Texas capital punishment developments in 2012.

Earlier coverage of SB 87 begins at the link.

Related posts are in the report index.

Read more here: http://www.star-telegram.com/2012/12/19/4497567/hope-and-concern-on-death-penalty.html#storylink=cpy

Two Texas Prosecutors Speak Out Against the Death Penalty

Today's Houston Chronicle publishes the OpEd, "Legislature should seriously reconsider the death penalty."  It's by Grant Jones and Sam Millsap.  Jones served as district attorney for Nueces, Kleberg and Kenedy counties; Millsap, served as district attorney for Bexar County from 1982 to 1987.  It's a must-read.

As district attorneys in the 1980s, we believed that the death penalty was the best punishment for certain crimes. We no longer believe that today. We haven't gone soft. We have come face to face with some hard truths. Both of us have been involved in the execution of men who may well have been innocent.

This year, an investigation by a law school revealed that eyewitnesses might have mistaken Carlos DeLuna, who was executed for murder in 1989, for another man, also named Carlos. The two men bore such a strong resemblance that even family members mistook photographs of one man for the other. No one will ever know for sure whether a mistake was made, but cases like DeLuna's raise serious doubts about the wisdom of continuing the death penalty.

Long after Ruben Cantu was put to death in 1993, an investigation by this newspaper persuasively argued that he was wrongfully convicted and executed. Two decades after the trial, the only eyewitness recanted his testimony and explained that he felt pressured by the police to identify Cantu as the shooter. This witness had nothing to gain by changing his position.

As long as human beings are in charge, there will be mistakes. Even people who are hardworking, and acting in good faith, make mistakes. In most criminal cases, the appeals process is there to identify and remedy errors. But the problem with the death penalty is that once it is carried out, there is no way to go back and fix a mistake.

Family members of Cameron Willingham know this fact all too well.

And:

Next month, when the legislators convene for a new session, they should seriously reconsider the death penalty. A sentence of life without parole - that is, without any possibility of release under any circumstances - keeps society safe while eliminating the chance of an irreversible mistake.

The Texas Legislature convenes January 8th.  Earlier legislative session coverage begins at the link.

Also available, more on Ruben Cantu, Carlos DeLuna, and Todd Willingham.  Related posts are in the abolition and OpEd category indexes.

Texas Bill Prefiled to Require Electronic Recording of Custodial Interrogations

"Bill Would Require Police to Record Interrogations," is the Texas Tribune report by Maurice Chammah.

There are moments of the two-day police interrogation that led to Christopher Ochoa’s wrongful conviction — which resulted in his spending 12 years in prison before a 2002 exoneration — that will never be known. Not all of the interrogation that preceded Ochoa's false confession to the murder of Pizza Hut employee Nancy DePriest in Austin — and implication of his roommate, Richard Danziger — was recorded.

Some advocates argue that such false confessions could be prevented if police interrogations were recorded. SB 87 by state Sen. Rodney Ellis, D-Houston, would police require police to record the questioning of suspects in cases involving murder, kidnapping, human trafficking and some sex crimes.

“Recording an interrogation is the most accurate means of preserving what happened in an interrogation room and what a suspect actually said,” Ellis said in an email.

Texas law already requires in most cases that investigators tape the confession itself. But in the wake of a handful of exonerations involving false confessions, defense attorneys and other advocates worry that without a recording of the entire interrogation, they may never know how a false confession occurred. Nineteen other states and the District of Columbia already require such recordings.

While some prosecutors and police support the idea, others worry that it could be used to unfairly target law enforcement officers and that it would make it harder to convince a jury that a confession was valid in the absence of a recording. The bill includes a variety of exceptions to the rule, allowing for spontaneously-given confessions and faulty equipment, and advocates hope those will make police officers comfortable that the recording requirement would not undermine their work.

Requiring recorded interrogations was a suggestion of the 2010 Timothy Cole Advisory Panel on Wrongful Convictions, which made policy recommendations based on its review of overturned convictions. Among the panel's other suggestions was reforming eyewitness sidentification practices, and lawmakers approved legislation that aligned with that recommendation in 2011.

More on SB 87, including the text, is at the link.  The 83rd Texas Legislature convenes January 8th for its 140-day session.  The Texas Legislature Online website is a model of open, accessible information.  It allows individuals to track bills, committee meetings, and create alerts.  The Legislative Reference Library, located on the 2nd Floor of the Texas Capitol, also has a helpful website.

Related posts are in the custodial interrogation, false confessions, state legislation, and Texas Legislature category indexes.  More on the Timothy Cole Advisory Panel on Wrongful Convictions and its 2010 report, at the links.

Coverage of the 2011 Texas legislative session and its work on the Cole Panel recommendations is also available.

83rd Texas Legislature Convenes January 8

The 140-day legislative session will convene on January 8th and adjourn on May 27th.  Pre-filing of bills has begun.

"Bill Would Restrict Informant Testimony in Death Cases," is Brandi Grissom's Texas Tribune post on one of the pre-filed bills.  Here's an extended excerpt from this must-read:

Anthony Graves was wrongly convicted and sent to death row in 1994 based largely on the testimony of an alleged accomplice in the fiery murders of six people. The accomplice, while on the execution gurney, admitted he was the lone killer. Ten years later, in 2010, Graves was exonerated. 

Like Graves, Muneer Deeb, Michael Toney and Robert Springsteen were sentenced to death after trials that involved the testimony of their cellmates or alleged accomplices. Their convictions were all overturned. 

State Rep. Harold Dutton, D-Houston, has filed a bill, HB 189, that aims to prevent wrongful death sentences in cases that involve unreliable testimony from alleged accomplices or jailhouse snitches who receive a reward for implicating someone else. 

“What we have found is that there have been people who, for their own self-interest, have basically fabricated testimony about other folks, and as a consequence that person has been found guilty,” Dutton said. 

Criminal justice reform advocates said the measure is a critical next step in Texas’ efforts to prevent wrongful convictions. Critics of the measure, though, argue that current rules already protect defendants against unreliable testimony and that eliminating such accomplice or informant testimony could tie prosecutors’ hands.

Under HB 189, prosecutors in death penalty cases would be unable to use testimony from informants or from alleged accomplices of the defendant if the evidence were obtained in exchange for immunity, leniency or any other special treatment. The measure would also make testimony from cellmates of the defendant inadmissible unless the conversation was recorded. 

“Odd as it may sound, Texas is at the vanguard of snitch testimony,” said Alexandra Natapoff, a law professor at Loyola Law School Los Angeles, and author of the Snitching Blog. Texas was one of first states to require the corroboration of jailhouse informant testimony and drug snitches, she said. And Dutton’s bill would make Texas among the first states to prohibit prosecutors from offering criminals benefits for their testimony. 

A 2004 Northwestern University study of wrongful convictions found that informants played a major role in more than 45 percent of overturned death sentences nationwide.

More on HB 189, including the text, is at the link.  The Texas Legislature Online website is a model of open, accessible information.  It allows individuals to track bills, committee meetings, and create alerts.  The Legislative Reference Library, located on the 2nd Floor of the Texas Capitol, also has a helpful website.

Related posts are in the informant/snitch testimony, state legislation and Texas Legislature category indexes

How Texas Applies Atkins

Atkins v. Virginia is the 2002 case in which the Supreme Court ruled that the execution of offenders with mental retardation was unconstitutional.  The ruling left it to the individual states that did not already ban the practice to bring their state laws into conformance with the ruling.  The Texas Legislature has not addressed the question, even though 10 years and five legislative sessions have passed.

That left the Texas Court of Criminal Appeals to establish standards.  They did so in 2004 in the ruling, Ex Parte Briseno, and the standards have faced widespread criticism ever since.

"Supreme Court asked again to review Texas' mental retardation test for convicted killers," is the editorial published in the Sunday Fort Worth Star-Telegram.

The killing for which Elroy Chester was sentenced to death was as awful as they come, a clear violation of both law and morality.

What the U.S. Supreme Court is being asked to review in his case is whether allowing the state of Texas to execute him would violate the U.S. Constitution's prohibition on cruel and unusual punishment.

On Oct. 26, the justices could decide whether to hear arguments on the petition from Chester, who has been on Death Row since 1998. His lawyers argue that he has an IQ less than 70, can't function independently, has been considered mentally retarded by the Texas prison system and received that diagnosis upon his arrest for capital murder.

On a larger scale, they argue that Texas assesses criminal defendants' mental retardation using factors that were "invented" by the Texas Court of Criminal Appeals, "are not rooted in the clinical standards, have no basis in the scientific literature, and do not reliably distinguish between those who are and are not mentally retarded."

And:

There's no certainty that the Supreme Court wants to review the way Texas determines mental retardation for death penalty purposes. In August, the justices turned down a petition from Marvin Lee Wilson, whose lawyers argued that he was mentally retarded. He was executed Aug. 7.

Apparently, the Court of Criminal Appeals developed its criteria on the grounds that clinical factors were too subjective. However, the court's guidelines might be just as problematic.

Whether or not the Supreme Court accepts Chester's case, it's time for the Legislature to deal with yet another problematic area of Texas' death penalty.

Earlier coverage of the Texas standards to assess mental retardation begins at the link.  Related posts are in the mental retardation index. 

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

Texas Eyewitness ID Reforms

"Innocence Project to Grade Witness Lineup Policies," is Brandi Grissom's latest post at the Texas Tribune.

The Innocence Project of Texas is preparing to grade about 1,200 law enforcement departments statewide on their compliance with a law that requires police agencies to adopt eyewitness identification policies.

“Unless somebody is really grading their papers, nobody knows whether the law is really being implemented,” said Scott Henson, a policy consultant for the Innocence Project. 

Last year, Texas legislators approved a measure that required police agencies to adopt policies meant to prevent faulty eyewitness identification in criminal cases. Under the law, departments were required to adopt a written policy by Sept. 1. Last week, the Innocence Project sent the departments letters requesting copies of their lineup policies.

Faulty eyewitness identifications are the leading cause of wrongful convictions, according to the New York-based Innocence Project. In 297 DNA exonerations across the nation, the Innocence Project reported, mistaken identifications contributed to 75 percent of the wrongful convictions.

In Texas, faulty eyewitness identification contributed to wrongful convictions in 40 of the 52 DNA exonerations, according to the National Registry of Exonerations.

And:

Legislators instructed the Law Enforcement Management Institute of Texas at Sam Houston State University to develop a model policy on eyewitness identification that departments could use as a template.

That policy sets out guidelines for conducting lineups in a way that does not suggest to witnesses whom they should select. Those guidelines are the criteria against which the Innocence Project of Texas plans to judge the policies that departments have adopted, Henson said.

Among other things, the criteria include ensuring that the person presenting the photos does not know who the suspect is, asking witnesses how confident they are that the person they identified is the same one they saw at the crime scene, giving witnesses instructions that include letting them know the perpetrator may not be among the choices presented, showing potential suspects sequentially instead of simultaneously, and choosing subjects for the lineup who have similar characteristics to one another and to the suspect described.

The LEMIT Model Policy is available in Adobe .pdf format.  More information on eyewitenss identification is also available from LEMIT.

Earlier coverage of the Texas eyewitness ID standards begins at the link.

Related posts are in the eyewitness identification index.

Texas's Death Penalty Machine Executing the Mentally Disabled?

That's the title of Renee Feltz' article in the latest edition of the Texas Observer.  She has written extensively about the Texas criminal justice system's dubious assessments of persons with Intellectual Disability (ID), also known as mental retardation.

In the final hours before his execution in Huntsville Tuesday night, 54-year-old Marvin Wilson told his attorney that, comforted by his god and family, he had reconciled himself to what was about to happen. Now we are left to wonder how Texas was able to kill a man with an I.Q. of 61 who reportedly sucked his thumb into adulthood. This was supposed to be a case about science, but the courts failed to apply it.

And:

Wilson’s execution is an example of what has happened—and could continue to happen—to mentally disabled death row inmates in the Texas justice system —unless state lawmakers finally pass legislation instructing the court to use a science-based definition of mental retardation. State Sen. Rodney Ellis, a Houston Democrat, has vowed to re-introduce a measure that would ensure Texas implements the medically accepted criteria set out by the American Association on Intellectual and Developmental Disabilities to make sure that the “ultimate penalty should be reserved for those that can clearly comprehend why they are going to die.”

Ellis floated a similar proposal in 2010, the last time the Observer reported on Texas’ attempts to execute a mentally retarded prisoner, Daniel Plata. Plata’s life was spared when state District Judge Mark Kent Ellis took issue with methods used by psychologist George Denkowski, whose opinion state prosecutors relied on to argue Plata was eligible for execution, noting that "it is not generally accepted practice within the field of psychological assessment to obtain an IQ score, declare it invalid, and then estimate an IQ score with numbers," as Denkowski had done. Plata is now serving a life sentence in a unit designed for mentally challenged offenders.

In the meantime, as Texas courts rely on stereotypes and unscientific evidence to determine if the roughly dozen men on death row with mental retardation claims should live or die, some prosecutors in new capital punishment cases are working to determine the defendant’s intellectual capacity before they go to trial. This is a key development because, as the Wilson case shows, once an intellectually disabled person is convicted and sentenced to death, neither state judges, or the U.S. Supreme Court, are eager to reverse the mistake.

More from journalist Renee Feltz at the link.

Earlier coverage of the execution of Marvin Wilson begins in the preceding post.

Stop This Execution

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

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

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

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

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

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

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

And:

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

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

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

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

- Thomas Steinbeck

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

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

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

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

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

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

Wilson is a textbook example.

And:

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

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

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

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

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

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

And:

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

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

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

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

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

As I often point out, mental retardation is now generally referred to as a developmental or intellectual disability.  Because it has a specific meaning with respect to capital cases, I continue to use the older term.

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

Texas Bar to Honor UT Arlington Professor for Indigent Defense Work

The Fort Worth Star-Telegram reports, "State Bar of Texas to honor UT Arlington official," by Diane Smith.

Michael Moore isn't a lawyer, but his work is helping change how Texas provides the poor with legal representation.

Moore, dean of undergraduate students and senior vice provost at the University of Texas at Arlington, is the first recipient of an award created in his honor by the State Bar of Texas.

He is being singled out for 15 years of service on the Committee on Legal Services to the Poor in Criminal Matters.

"I am humbled by the recognition," Moore said. "I always felt the work that we did was very much a collective effort by members of the committee. To be recognized by my former committee members and the State Bar with this award is indeed a surprise and a humbling experience."

The Michael K. Moore Award for Research and Writing in the Area of Indigent Defense will be presented July 23 in San Antonio during the State Bar of Texas' annual Advanced Criminal Law Course.

Jeff Blackburn, committee chairman, said Moore used his research talents to expose problems in Texas' criminal defense of low-income people.

And:

Allan Butcher, UTA professor emeritus and founding member of the committee, said Moore was enlisted to advise the committee about how to best survey the state of indigent defense in Texas.

The result was, "Muting Gideon's Trumpet: The Crisis in Indigent Criminal Defense in Texas."

Butcher said this work exposed a system in crisis and alludes to the U.S. Supreme Court case Gideon v. Wainwright, which determined that criminal defendants have a right to an attorney when they can't afford one. The report helped lay the foundation for the Fair Defense Act of 2001, which overhauled the legal representation of poor people accused of crimes.

You can read the 2000 report, Muting Gideon's Trumpet: The Crisis in Indigent Criminal Defense in Texas, in Adobe .pdf format.

Related posts are in the indigent defense category index.

What Miller v. Alabama Means for Texas

The Texas Tribune posts, "Decision on Juvenile Sentences Stirs Questions in Texas," by John Wayne Ferguson.

Twenty-eight states currently allow mandatory life without parole for juveniles and will now have to change their laws to accommodate the rulings. The decision still allows for such sentences, but judges must now consider the age of the convicted individual.

Texas already abolished mandatory life-without-parole sentences for juveniles in 2009. But the Texas law stipulated that no one under the age of 17 could receive the sentence.

There are currently 27 individuals incarcerated in Texas who were sentenced to life without parole before they were 18. All 27 were convicted of capital murder, and all but two are male. Seventeen of them were 17 years old at the time of their offense. The others were 16 or younger. Nationwide, 2,300 individuals are serving life without parole sentences for murders committed before they were 18. Only about 79 were under the age of 14. Ninety percent of them are serving mandatory life sentences.

And:

After the Supreme Court in 2005 decided that the death penalty for juveniles was unconstitutional, Gov. Rick Perry commuted the sentences for 28 17-year-olds on death row. All 28 were given life sentences with the possibility of parole in 40 years.

After Monday's ruling, the state is still determining what action to take. “The Governor’s Office is working with the Attorney General, the Board of Pardons and Paroles, prosecutors and the Texas Department of Criminal Justice to determine how many individuals may be affected by this ruling and what the appropriate steps will be for Texas going forward,” Josh Havens, a spokesman for the governor’s office, said in a statement.

Jason Clark of the Texas Department of Criminal Justice said his office began preparing soon after the court’s announcement, and identified the 27 convicts in anticipation of any requests from the attorney general or governor’s offices.

Earlier coverage of the Supreme Court ruling on juvenile sentencing begins with the preceding post.

DNA Testing for Hank Skinner

There are editorials this morning in the Dallas Morning News, Fort Worth Star-Telegram and Amarillo Globe-News supporting the Texas Attorney General's revised position to test all the evidence in the Skinner case.

"DNA tests in Skinner case," is the Dallas Morning News editorial.

It took them awhile over at the Texas attorney general’s office, but they got the point.

Back in May, attorneys for the AG were hard at work defending the death sentence of inmate Hank Skinner of West Texas, arguing in court once again that it was a waste of time to allow DNA tests on a trove of items from the crime scene.

Enter Judge Michael Keasler, of the Texas Court of Criminal Appeals, who reduced the matter to common sense.

“You really ought to be absolutely sure before you strap a person down and kill him,” Keasler told lawyers for the state.

Point made. The AG’s office announced a new position in the Skinner case Friday with words familiar to any of us who have found ourselves defending the indefensible.

“Upon further consideration …,” the state’s lawyers wrote in a new brief, which went on to drop the state’s opposition to new DNA tests.

The AG’s lawyers might have used language as plain as Keasler’s. Maybe something like this:

“Sorry, judge. What were we thinking? We get it. We get it that executing someone would be madness if we didn’t erase as much doubt as possible with DNA tests. We didn’t want to kowtow to a guy we think is trying to manipulate the system, but we’ll suck it up. We know the public is looking over our shoulder on these things, because of all those DNA exonerations, and to deny that possibility here — however slight — would be a public relations nightmare. So let’s go and schedule those tests.”

"Texas AG relents on Death Row inmate DNA tests," in the Fort Worth Star-Telegram.

At least we know this much: Given enough time, the Texas attorney general's office can read handwriting on the wall.

After getting an earful from the Texas Court of Criminal Appeals during a May hearing, AG Greg Abbott's office has done an abrupt about-face and ended its years of objection to DNA testing for Death Row inmate Hank Skinner.

And:

Remember that this is an all-Republican court not known for broadly interpreting the law to favor inmates' appeals.

The state: If inmates can seek testing this late after a conviction, prosecutors will have to test everything before trial to avoid grounds for later appeals.

Judge Michael Keasler: "Prosecutors should be testing everything anyway."

The state: A 2001 law on post-conviction DNA testing was limited to cases in which the DNA material or technology was available at the time of a trial.

The court: The Legislature in 2011 expanded the law specifically to include cases like Skinner's.

The state: Other evidence against Skinner is overwhelming.

Judge Elsa Alcala: It's "not overwhelming; it's circumstantial."

The state: Skinner is frivolously trying to delay his execution.

Alcala: "If you had tested this upon their first DNA motion 10 years ago, we would have had results 10 years ago. Under your theory, they would have showed Skinner's guilt, and he would have been executed nine years ago."

"Skinner gets wish: DNA under scope," is the Amarillo Globe-News editorial written by John Kanelis.

Still, Attorney General Greg Abbott’s office made the right call in ordering the DNA tests, but not because of any belief here that they will exonerate Hank Skinner.

The AG made the right call because the state must be certain it has ironclad evidence to execute someone for a capital crime.

“You really ought to be absolutely sure before you strap a person down and kill him,” said Court of Criminal Appeals Judge Mike Keasler in a hearing this past month.

David Protess posts, "Texas Finally Agrees to DNA Testing for Condemned Man. What Took So Long?" at Huffiington Post.  He's President of the Chicago Innocence Project.  While at Northwestern University, Protess an his journalism students examined Skinner's case extensively.

For more than 11 years -- 3,888 days, to be exact -- Texas death row prisoner Henry "Hank" Skinner has been asking the courts for DNA tests that he believes can prove his innocence.

Since Oct. 9, 2001, when Skinner's lawyers filed their first motion for DNA testing, Texas lawmen have stood in the way, saying Skinner is guilty and his request is simply a stalling tactic.

Turns out the lawmen were stalling.

On Friday, they finally caved after spending this century fighting the tests in the Texas courts, the federal district and appellate courts, the U.S. Supreme Court and back again in both federal and state courts -- wasting taxpayers' dollars when Skinner's legal team had long ago promised to pay for the tests.

And:

The battle over DNA began, innocently enough, as a class project for my investigative reporting students at Northwestern University in 2000. The assignment: Review all the documents in the case, interview Skinner on death row and head to the Panhandle to interview key witnesses. It quickly became complicated for the student-sleuths when they discovered reports on the untested evidence that -- if properly preserved -- should be rich with DNA. Next, they wanted to know whether Skinner would agree to the tests.

Skinner didn't hesitate: He told the students that he always wanted the tests, but unwisely heeded the advice of his trial lawyer -- the former D.A. of that county. He would gladly supply whatever samples were needed to finally do the tests.

A few days later, in the Panhandle, the State's star witness recanted her trial testimony in an audio-taped interview with the students, saying the D.A. who prosecuted Skinner had pressured her to lie. They also interviewed witnesses who were sure the female victim's uncle had committed the crime. Most damning: A witness swore that the jacket found next to the woman's body belonged to her uncle.

Back on campus, we planned the release of the students' findings, which eventually were reported in the spring of 2000 on the AP wires and NBC News. That led to a memorable confrontation on Court TV between the D.A. and me in which host Nancy Grace shamed him into promising tests on the remaining evidence.

But when several of results excluded Skinner, the D.A. backed off. Fearful of what the forensics would turn up on the murder weapons, the hairs and the jacket, he unilaterally halted the testing. That's when Skinner's lawyers filed suit in 2001 to complete what the D.A. had started. The two D.A.s who succeeded him have maintained the same no-test policy, as did the Texas attorney general -- until three days ago.

Also in the Amarillo Globe-News, reporter Bobby Cervantes writes, "Decade of requests for DNA testing may make difference for Skinner."

Hank Skinner, the convicted triple murderer from Pampa, had to wait nearly 10 years before state attorneys agreed Friday to test crime-scene DNA he said will clear him. But the wait may make all the difference as the appeal moves forward.

John Raley, a Dallas attorney who has successfully argued for additional DNA testing in murder cases, said time has ultimately helped prisoners seeking the tests, which were largely in their infancy when Gray County prosecutors tried Skinner’s case.

And:

Franklin McDonough, the incoming 31st District Attorney, said he only had heard about Friday’s developments through media reports.

“At this point, it’s in the AG’s hands, and it’s premature to make statements about what may happen,” he said.

McDonough will replace Lynn Switzer, the Pampa-based district attorney who has directed all inquiries about the case to Austin. State attorneys there have handled the case’s appeals for Switzer’s office.

McDonough defeated 31st Assistant District Attorney Jason Ferguson in the Republican primary May 29. He will take office in January, since no Democratic candidate filed to run for the seat.

Recent changes to the state’s post-conviction DNA testing law have clarified the cases in which the tests must be granted. The prisoner’s attorney must show that the evidence was never previously tested, or if it was tested before, that newer techniques may provide a more accurate result.

Earlier coverage of Hank Skinner's case begins at the link.

The June Issue of Texas Monthly

It's jam packed with criminal justice coverage.  Editor Jake Silverstein introduces it with, "The Scales of Injustice."

About a year ago, it was reported that Randall Dale Adams had died, bringing to a close one of the more tragic stories in recent Texas history. A construction worker from Ohio, Adams (pictured here, in 1989) was convicted and sentenced to die in 1977 for the murder of Dallas police officer Robert W. Wood. He spent twelve years behind bars—and, in 1979, came within three days of being executed—before being released in 1989 after the key eyewitness recanted his previous testimony. The story was brought to widespread attention by the landmark documentary The Thin Blue Line, and Adams’s case became a rallying point for advocates of criminal justice reform. But after a few years of speeches and television appearances, he mostly shunned the spotlight, and by the time he died he was living in complete obscurity. When his obituary ran last June, he had already been dead for eight months.

For a time, Adams was the public face of wrongful convictions, but that dubious mantle has long since passed on to others who suffered a similar fate.

The main course is a roundtable discussion, "Trials and Errors," moderated by Michael Hall and Jake Silverstein.  It features:

Art Acevedo has been the chief of the Austin Police Department since 2007.

Rodney Ellis was elected to the state Senate in 1990 from District 13, in Houston.

Anthony Graves was wrongfully convicted in 1992 and released from jail in 2010. He lives in Houston.

Barbara Hervey is a judge on the Court of Criminal Appeals and the chair of the court’s fourteen-member Texas Criminal Justice Integrity Unit. She lives in San Antonio.

Kelly Siegler is a special prosecutor. She lives in Houston.

Craig Watkins is the DA of Dallas County and a former defense attorney.

Here's the beginning of this must-read:

Jake Silverstein, editor of TEXAS MONTHLY: Senator Ellis, we’re here tonight to discuss the issues in our criminal justice system that have led to some wrongful convictions and to talk about what can be done. But for starters, can you try to give us a sense of how serious you think this problem is?

Senator Rodney Ellis: I think it’s a major problem. We incarcerate more people than anyone else in the nation, we execute more people than anyone else in the nation, and we spend less on indigent defense than virtually everybody else in the country. You add those up, and it’s like 1-2-3: we have more DNA exonerations than any other state in the country. The criminal justice system is a government program. In every other sphere of public policy, the assumption is that sometimes the government makes a mistake. In this area, it could be life or death. Now, with that said, I’ll take the criminal justice system in America, on the whole, over any other in the world. And I am convinced that most people who are in jail are guilty. But we can do better.

Silverstein: Judge Hervey, the senator says he thinks we have a major problem. Would you define it the same way?

Judge Barbara Hervey: I would, but I have a little different spin. If the other 49 states think for a minute that they don’t have people in prison that shouldn’t be there, they’re mistaken. Texas is paying attention. My approach is that education is the key to the whole thing. You’ve got to get every person in the system on the same page with regard to wrongful convictions, because if they’re not on the same page, we’ll continue to have these problems.

And it’s about the public too. I recently went to a forum in Dallas with a lot of interested citizens, and I’ll tell you what, they were angry. This concept of innocence meant people were getting a bunch of money; it’s costing the state. And I said, “Wait a minute, let’s start at the beginning. How would any of you like to spend one day in prison for something you didn’t do?” And I was amazed. This group turned around and went, “Oh my God, this is horrible.”

The issue also contains a Letter From Corpus Christi, "Hannah’s Prayer," an update on the case of
Hannah Overton.  It's by Pamela Colloff.  Earlier this year, Colloff examined the case for TM in, "Hannah and Andrew."