The StandDown Texas Project

Anthony Graves Files Suit for Declaration of Innocence

"Graves sues for his innocence," is the title of the Houston Chronicle report written by Harvey Rice and Joe Holley.

Lawyers for Anthony Graves filed a lawsuit Monday asking a Travis County district court to declare him innocent of capital murder, making him eligible for state compensation for the 18 years he spent behind bars.

"He holds no grudge against the state of Texas" but only wants his reputation restored, the lawsuit says about Graves.

Prosecutors said publicly in October that he was innocent, but the Texas comptroller denied him compensation under the Timothy Cole Compensation Act because the document ordering his release did not contain the words "actual innocence."

Graves did not seek an order compelling Comptroller Susan Combs to pay the compensation because he believes she erred in interpreting a relatively new and untested law and will correct it upon receiving the court order, the lawsuit says.

Graves, 45, also does not want to sue state officials or Burleson County, where he was convicted in 1992 in the slayings of a grandmother and five children, his lawyers said.

"Anthony Graves just wants the compensation money," said his lead attorney, Jeff Blackburn, in an interview. "He's one of the most decent guys I've known."

Blackburn said his client would prefer not to pursue a civil lawsuit against Burleson County.

"I've gotta tell you, if there's anybody who deserves to be sued it's the authorities in Burleson County," Blackburn said at a news conference in Austin at the offices of the Texas Civil Rights Project, which helped draft the lawsuit. "But they're lucky, I guess, because despite all the evil and all the wrong they have done to this guy, he just wants to let it go and move on with his life."

And:

The lawsuit names Texas Attorney General Greg Abbott as a defendant but seeks no action from his office. The attorney general is named to satisfy a requirement of the Uniform Declaratory Judgment Act, Blackburn said.

"In this case, the attorney general is the right person to be involved," he said. "Someone has to speak for the state, and he is the most appropriate party."

The attorney general's office declined comment because officials had not received a copy of the lawsuit.

The lawsuit seeks a declaration of innocence under the state Uniform Declaratory Judgment Act, citing sections of the Texas Constitution guaranteeing every person "remedy by due course of law" and equal rights under the law as reasons for the court to act.

Blackburn said the lawsuit may be the first to use the declaratory judgment law to win a declaration of innocence.

"As far as I know, this has never been done before," he said. "It's the Declaratory Judgment Act that gives the court the ability to do something about those rights."

Brandi Grissom posts, "Exoneree Sues to Clear Name, Get Compensation," at the Texas Tribune.

Anthony Graves, who was freed from jail this year after spending 18 years behind bars for brutal murders he did not commit, sued the state of Texas today to officially clear his name and to force the Texas comptroller to pay him for the time he was wrongfully imprisoned.

Under the Timothy Cole Compensation Act, inmates who are freed from jail after being found innocent of the crime for which they were convicted are entitled to $80,000 per year of wrongful imprisonment plus a lifetime annuity. In total, Graves is due at least $1.4 million under the act, said his lawyer, Jeff Blackburn, chief counsel for the Innocence Project of Texas.

Graves filed a claim with Texas Comptroller Susan Combs after he was released, but it was denied earlier this month. Combs said the order releasing Graves did not have the correct wording to allow him access to compensation.

"Graves Sues for Innocence," is by Jordan Smith at the Austin Chronicle.

Lawyers with the Texas Civil Rights Project and the Innocence Project of Texas, along with lawyer Nicole Casarez – whose journalism class at the University of St. Thomas was integral to having Graves' conviction overturned – have filed the petition with the Travis County Civil District Court of Judge Gisela Triana-Doyal, seeking to have Graves declared "actually innocent" and to have his "name cleared and reputation restored" under Article I of the Texas Constitution – a move that, if successful, could clear the way for Graves to receive compensation from the state for the years he spent wrongfully incarcerated.

Earlier coverage begins at the link.  You can also look back at coverage of Anthony Graves' exoneration.   All coverage is in the Anthony Graves index.

Lethal Injection Roundup

The AP report on the FDA lawsuit is, "FDA sued over shipments of drug used in executions."  It's written by Greg bluestein and is via the Washington Post.

A federal lawsuit filed against the Food and Drug Administration urges a judge to block imports of a key drug used in the nation's executions that has been in short supply since the sole U.S. maker decided to stop producing it.

The lawsuit filed Wednesday in federal court in Washington, D.C., claims the FDA has knowingly allowed state corrections officials to import sodium thiopental, the sedative used in a three-drug execution cocktail, that has not been approved by the agency.

"It just seems wrong to allow these suspect goods into the country in violation of federal law just because they're used on prisoners rather than law-abiding citizens," said Brad Berenson, the attorney who filed the lawsuit on behalf of death row inmates in California, Arizona and Tennessee.

The shortage has delayed executions in several states, and an Associated Press review found that at least five states - Arizona, Arkansas, California, Georgia and Tennessee - had to turn to England for their supply of the drug. Nebraska, meanwhile, secured a stockpile from an Indian firm.

The lawsuit claims the FDA is neglecting its duty to inspect shipments of sodium thiopental, noting that there are no FDA-approved overseas manufacturers of the drug.

"From our perspective, the FDA has the obligation to make sure the anesthetic works whether it's used in a lethal injection or used in surgeries," Berenson said. "In each case, the purpose is the same - to relieve pain and suffering."

The FDA did not immediately respond to requests for comment, though the agency has long maintained it has nothing to do with the drugs used in executions. But its role has come under more scrutiny after the lone U.S. manufacturer of sodium thiopental, Hospira Inc., announced it would no longer make the drug.

Today's Arkansas Democrat-Gazette reports, "State tight-lipped on execution drug," by Andy Davis.

The Arkansas Department of Correction on Thursday withheld information about its purchase of a British supplier’s lethal injection drug, saying the information is exempt under the state’s Methods of Execution Act.

The Arkansas Democrat-Gazette requested information about the purchase on Wednesday, a day after reporting allegations in a lawsuit by death-row inmates that the department bought the drug from a “ramshackle” business run from the back of a British driving school.

Attorneys for the inmates contend the department cannot guarantee the drug works because it has not been approved by the federal Food and Drug Administration.

In denying the newspaper’s Freedom of Information Act request, Assistant Director Dina Tyler cited the Methods of Execution Act.

Earlier coverage of the FDA lawsuit begins at the link; the civil law suit, Beaty v. FDA, is available in Adobe .pdf format.  More on Dream Pharma, the British supplier is at the link.  Earlier coverage of the Arkansas law, at the link.

Additional News Coverage of the FDA Lawsuit

The civil law suit, Beaty v. FDA, is available in Adobe .pdf format.

Today's New York Times carries, "F.D.A. Sued Over Drug Used in Executions," by John Schwartz.

Lawyers in Washington sued the Food and Drug Administration on Wednesday on behalf of death-row prisoners, demanding that a Federal District Court prohibit importation and use of sodium thiopental, a drug used in many executions. When the sole supplier of the drug in the United States stopped producing it, executions were delayed in several states, and states obtained the drug from overseas suppliers. The agency has long said it has no authority over executions. The lead lawyer in the suit, Bradford A. Berenson, said it was “not about halting executions but rather about ensuring that illegal drugs are not used in carrying out otherwise lawful sentences.”

"Lawsuit seeks to block imports of key execution drug," is the USA Today post by Kevin Johnson,

The lawsuit alleges that large amounts of unapproved sodium thiopental have been imported by at least six states: Arkansas, Arizona, California, Georgia, Nebraska and Tennessee.

"Death Row Inmates Sue U.S. Over Importation of Execution Drug," by Tom Schoenberg for Bloomberg.

The suit said the FDA allowed states to import “bulk amounts” of thiopental, which hasn’t been sold in the U.S. since 2009 when the sole U.S. manufacturer, Hospira Inc., stopped producing it.

The inmates are seeking an injunction barring future imports of thiopental and the removal of supplies already in the possession of state governments.

The shipments of thiopental entering the U.S. originated from an Austrian facility owned by Sandoz International GmbH, a German company, according to the complaint. The drug was shipped to the U.S. from a London wholesaler, Dream Pharma Ltd., the complaint claimed. Dream Pharma bought the drug from a unit of Archimedes Pharma Ltd., a privately held company based in Reading, U.K., the inmates said in the complaint.

"US inmates challenge importation of execution drug," by Lucile Malandain for AFP.

Arizona used imported thiopental for the execution of Jeffrey Landrigan in October, with the approval of the Supreme Court, but under a flood of public criticism.

The last doses of thiopental made in the United States will reach expiration this spring, which will put American states that practice the death penalty at a crossroads.

"FDA's own regulations preclude the importation of any unapproved new drug and any drug that is not listed with FDA and produced at a registered foreign source," the lawsuit states.

They accuse the agency of being "arbitrary and capricious" and that its agents have "never inspected the processes used to manufacture the thiopental."

"Whatever one's views may be on the death penalty, no reasonable person is in favor of botched or inhumane executions," Bradford Berenson, a lawyer for the plaintiffs, said in a statement.

"Ineffective anesthesia that subjects condemned prisoners to needless, and indeed unconstitutional, suffering serves no one's interests," he said.

Michael Kiefer files an updated report for today's Arizona Republic, "Execution drugs: Arizona inmate lawsuit seeks FDA policing."

In mid-October, Donna Benjamin of the American Society of Health-System Pharmacists, which tracks drug shortages, said there were no approved manufacturers of thiopental outside the U.S., and the FDA wasn't aware of any sites making thiopental that would import it.

"Any import to alleviate a drug shortage would have to come from an FDA-approved source," she said.

And Shelly Burgess, a spokeswoman for the FDA, told The Republic in October, "For any product that is planned to be made available in the U.S., FDA would have to first evaluate any potential risks associated with that product including where it is manufactured and whether it meets FDA quality standards."

In November, Dr. Murray Lumpkin, a deputy FDA commissioner, told British government officials, "There are no approved or permitted foreign sources of sodium thiopental."

Nevertheless, the drug was getting through customs, signed off by FDA.

Five shipments from Dream Pharma were seized in Memphis by the FDA between June and November. But all were eventually released.

The Arizona shipment sailed through Customs in Phoenix with approval of the Los Angeles office of the FDA on Sept, 29. According to Cattani, the state has since obtained another shipment.

But then, the FDA changed its tune.

On Dec. 30, Burgess told The Republic that the agency would exercise "enforcement discretion" on the matter.

"Reviewing substances imported or used for the purpose of state-authorized lethal injection clearly falls outside of FDA's explicit public health role," she said. The agency would "continue to defer to law enforcement on all matters involving lethal injection . . . "

"Suit could halt executions in states, including Tennessee," is the report in today's Tennessean.

Wednesday's lawsuit demands that FDA follow its congressional mandate to screen "all commercial shipments of drugs, as well as all shipments of controlled substances."

It points out the diligence with which FDA prevents states and individuals from obtaining cheap prescription drugs from Canada, while allowing states to import sodium thiopental.

"The law requires FDA to ensure that only safe, effective drugs are brought into the United States. When the agency allowed states to import unapproved sodium thiopental, it abdicated its responsibilities and violated federal law," said Bradford A. Berenson, a partner in the law firm Sidley Austin LLP, which filed the suit in Washington, D.C.

The firm has expertise in FDA licensing and is working with the Federal Public Defender's Office in Phoenix on the suit.

The suit asks the FDA to not only ban further imports of the drug but to recall the shipments that have already been delivered.

Earlier coverage of the FDA lawsuit begins at the link.

Lawsuit Filed Against FDA Over Imported Sodium Thiopental

"Lawsuit Filed Against FDA To Prohibit The Importation And Use Of Unapproved Sodium Thiopental In Lethal Injections," is the news release issued by attorneys for the inmate plaintiffs.  The civil lawsuit, Beaty, et al. v. FDA, is available in Adobe .pdf format 

Here's the entire text:

Washington, D.C. – Today, on behalf of six death-row prisoners from California, Arizona, and Tennessee, Sidley Austin LLP filed suit against the Food and Drug Administration (FDA) seeking to prohibit FDA from allowing the importation or use of unapproved sodium thiopental. During the past year, FDA has knowingly permitted unapproved sodium thiopental to be imported by state corrections agencies for use in executions by lethal injection. According to Bradford A. Berenson, a partner in the firm’s Washington, D.C. office, “The law requires FDA to ensure that only safe, effective drugs are brought into the United States. When the agency allowed states to import unapproved sodium thiopental, it abdicated its responsibilities and violated federal law.”

The Complaint alleges that FDA is required to deny admission to any drug that is unapproved, misbranded, or adulterated. Sodium thiopental recently imported by various states for use in lethal injections is all three. Because sodium thiopental has not been approved by FDA—meaning that FDA has made no determination of its safety, effectiveness, purity, potency, or any other characteristic—it cannot legally be imported into the United States. Plaintiffs allege that FDA has violated U.S. federal law and acted in a manner inconsistent with its own prior policies and practices by allowing importation of the unapproved drug.

Berenson noted that the lawsuit is “not about halting executions but rather about ensuring that illegal drugs are not used in carrying out otherwise lawful sentences.” Because unapproved sodium thiopental has not been shown to work as intended, using it in executions creates unacceptable risks that prisoners will not be properly anesthetized before the other drugs used in lethal injection protocols stop the prisoners’ breathing and induce cardiac arrest. “Whatever one’s views may be on the death penalty, no reasonable person is in favor of botched or inhumane executions,” Berenson said.

“Ineffective anesthesia that subjects condemned prisoners to needless, and indeed unconstitutional, suffering serves no one’s interests, least of all the states’.”

FDA’s decision to allow the importation of unapproved sodium thiopental is unprecedented. The clear command of the federal Food, Drug, and Cosmetic Act (FDCA) is that no unapproved drug may be imported. For that reason, FDA has consistently maintained that no one—including state governments—may lawfully import unapproved drugs for commercial use. In fact, in other contexts, FDA has repeatedly sent letters to state and local governments, denied permission requests, and taken law enforcement measures against states and firms seeking to import unapproved drugs.

Today’s lawsuit asks the federal district court in Washington, D.C. to declare that FDA has violated the law, enjoin it from allowing any further shipments of unapproved sodium thiopental into the United States, and take reasonable steps to recover and destroy the unlawful, unapproved product previously admitted for use by the states. According to Coleen Klasmeier, a partner in Sidley’s Washington D.C. office and head of the firm’s Food, Drug and Medical Device Regulatory practice, “Assuring drug safety and efficacy is the bedrock of FDA's public health mission. We are asking FDA only to fulfill its duty to secure the border against the unlawful importation of potentially substandard and dangerous unapproved drugs.”

Records obtained through requests under various open records laws show that large amounts of unapproved sodium thiopental have been imported into the U.S. by at least five states with the knowledge and acquiescence of FDA. The records suggest that the imported drug was manufactured in Austria and sold by a broker sharing space with a driving school in London to state officials in Arizona, Arkansas, California, Georgia, and Tennessee. Nebraska recently announced that it obtained the drug from India.

Sodium thiopental for injection has never been approved for use by FDA, and there are currently no domestic producers of the drug. There are, however, adequate FDA-approved alternatives available for use in lethal injections.

The Arizona Republic posts, "Arizona inmate lawsuit seeks FDA policing."  It's written by Michael Keifer.

Lawyers for three Arizona Death Row prisoners filed suit in federal court in Washington, D.C., this morning to force the U.S. Food and Drug Administration to police foreign imports of a drug used in execution by lethal injection.

Arizona inmates Donald Beaty, Daniel Cook and Eric King are joined in the suit by Death Row prisoners from Tennessee and California, states which have also recently imported the anesthetic sodium thiopental from Great Britain.

Thiopental has been in short supply since last May because the only U.S. manufacturer of the drug ceased production in 2009.

Though the FDA as recently as last November stated publicly that there was no authorized way to import thiopental, at least five states including Arizona imported the drug secretly from a pharmaceutical supply house in London last summer and fall.

Some of the shipments were detained by the FDA in Memphis for weeks or months, but all eventually were allowed through.

At the end of December, the FDA announced that it would exercise "enforcement discretion" regarding thiopental imports for execution and allow them to enter the country with little more than a caveat that they have not examined the quality of the drug.

Today's lawsuit demands that FDA follow its congressional mandate to screen "all commercial shipments of drugs, as well as all shipments of controlled substances."

And:

Furthermore, the suit claims, "FDA is without authority to allow shipments of unapproved new drugs, misbranded drugs or adulterated drugs into this country."

The suit asks the FDA to not only ban further imports of the drug, but to recall the shipments that have already been delivered.

The inital AP report is, "Inmates Challenge Use Of Ark. Execution Drug," via KHBS-TV.

Eight inmates on Arkansas' death row have filed a court challenge over the state's purchase of a drug used as an anesthetic during executions, claiming there may be a problem with its production.The Arkansas Democrat-Gazette reported Wednesday that the suit seeks an order barring use of sodium thiopental unless it is approved by the Food and Drug Administration.The drug is no longer manufactured in the United States, and the suit claims an imported version can't be guaranteed to work without oversight from the federal government.

Earlier lethal injection coverage begins at the link; also, more on the FDA role.  Related posts are in the lethal injection index.

Stephen Bright's Commentary on Race

"Term 'boy' is proof of racial animus," is the title of his OpEd in today's Fulton County Daily Report.  Bright is president of the Southern Center for Human Rights and teaches at Yale Law.

The 11th U.S. Circuit Court of Appeals’ third ruling that a white supervisor calling black men "boy"—as in "Boy, you better get going" and "hey, boy"—is not evidence of racial animus was issued last week by Judges Edward E. Carnes and William H. Pryor Jr. in an unsigned, unpublished opinion. Carnes and Pryor are white men and alumni of the Alabama attorney general's office.

The third judge on the panel, a visiting senior district judge from Ohio appointed by President Ronald Reagan, dissented. He would have upheld a jury verdict finding that Tyson Foods discriminated against a black man, John Hithon, in not promoting him to position as a shift manager at Tyson’s chicken processing plant in Gadsden, Ala., and awarding damages of more than $1 million to Hithon.

The extraordinary conclusion that there is nothing racial in calling black men "boy" was reached in two earlier decisions by panels that involved Carnes and two other white men on the court, Judges Joel F. Dubina, also from Alabama, and Stanley Marcus of Florida. The most recent opinion was the second time the 11th Circuit substituted its opinion for that of Alabama federal juries that awarded more than $1 million to Hithon for employment discrimination by Tyson Foods. (Alyson M. Palmer provided an excellent report on the case in the Daily Report, "11th Circuit: Term ‘boy’ doesn’t prove race discrimination," published Aug. 20.) The case is Ash v. Tyson Foods, 2010 WL 3244920 (11th Cir. No. 08-16135.)

The panel of Carnes, Dubina and Marcus originally held that "[w]hile the use of ‘boy’ when modified by a racial classification like ‘black’ or ‘white’ is evidence of discriminatory intent, the use of ‘boy’ alone is not evidence of discrimination." It also applied an absurdly demanding standard for establishing that the reason for promoting the white applicant over the black one was pretextual: The plaintiff must show "the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face." Ash v. Tyson Foods, 129 Fed. Appx. 529, 536, 2005 U.S. App. LEXIS 7219 (2005).

The U.S. Supreme Court summarily and unanimously reversed both holdings. Ash v. Tyson Foods, 546 U.S. 454, 456 (2006). It made it clear that use of the term "boy" is not "always benign" and "[t]he visual image of words jumping off the page to slap you (presumably a court) in the face is unhelpful and imprecise as an elaboration of the standard for inferring pretext from superior qualifications."

And:

Alabama juries are not known for being generous in employment discrimination cases—or any other kind of discrimination cases. But Carnes and Pryor—and many of their colleagues—do not see the federal courts as a place where businesses like Tyson Foods must answer for their discrimination against black people in promoting employees.

Mercifully, Judges Elbert Tuttle, Frank Johnson and John Minor Wisdom and many—although not all—of the other great members of the 11th and former 5th Circuit who did so much to advance civil rights are not alive to see this sad, sad day.

This march back to Jim Crow would surely be more difficult if there were more people of color on the federal bench. About a quarter of the population of three states that make up the 11th Circuit are African Americans and Hispanics. Yet there have been only two black judges on the 12-member 11th Circuit in its history, and they have served one at a time. There is only one active African-American federal judge in all of Georgia today, Judge W. Louis Sands in the Middle District. The Northern District of Georgia, which includes Atlanta and has three African Americans representing it in Congress, has no African American judges in active status at this time.

The 11-member court has had only two in its history, Horace T. Ward and Clarence Cooper. Ward was appointed in 1979 and took senior status in 1994. Cooper was appointed in 1994 and took senior status in 2009. President Barack Obama has nominated Steve Jones, an African-American man, and Amy Totenberg, a white woman, for judgeships on the Northern District. There are two vacancies on the court awaiting nominations. There has never been an African-American woman on any federal district court in Georgia or the 11th Circuit. Perhaps Obama will correct this with his remaining appointments to the Northern District.

Related posts can be found in the race index

At the Bar

Rick Casey's column in today's Houston Chronicle is, "The coddled lawyers of our fair state."

Criminal defense attorneys will tell you that the most important question to ask a potential client is not whether he is innocent or guilty.

It's how much money does he have.

Houstonian Brisby Brown has learned that it might be useful to turn the tables.

Brown sat in jail for about 18 months on drug charges as, he claims, his attorney pressured him to plead guilty while refusing to look at evidence showing his innocence. Only on the day a jury was being selected did the lawyer send an investigator to the scene of the alleged crime, he said in a complaint to the State Bar.

Apparently when prosecutors got around to examining the evidence, they weren't impressed. They dropped the charges.

In addition to filing a complaint with the Bar, Brown engaged an attorney to sue his defense attorney for malpractice. But the attorney, who would be paid from the winnings, dropped the matter when he learned that the defense attorney had no malpractice insurance.

A jury might have awarded Brown a nice chunk of money for sitting in jail needlessly, but it would be hard to collect that money from an uninsured lawyer, and the new lawyer didn't feel he could afford to spend a lot of time on the case with little chance of getting paid.

So before hiring a lawyer, you may want to ask if he or she has malpractice insurance.

But asking such a question can feel awkward, and one lawyer I talked to said it could discourage a lawyer from taking your case.

That's a good argument for why the Texas Supreme Court, which makes ethical rules for lawyers, should have joined a growing number of states in requiring lawyers to disclose whether they carry malpractice insurance.

And:

In a news release, the Supreme Court justified its decision by saying that nobody clamored for the rule at public hearings.

But according to Austin attorney Charles Herring, who has written a book on legal ethics, “25 of 29 states that have addressed the issue have adopted such a rule.”

What's more, the Texas Supreme Court has already issued rulings relieving two entire bodies of lawyers from much exposure for malpractice.

In a 1995, the Supreme Court considered the case of a woman who accepted a plea deal over a white-collar crime. Only later did she learn that her attorney had not informed her of an offer by federal prosecutors not to seek her indictment if she agreed to testify against associates who were more culpable than she was.

The Supreme Court ruled that anyone convicted of a crime couldn't sue their attorney, no matter how bad the representation, until they had their conviction overturned. It would, the court said, be bad public policy to allow criminals to shift the consequence of their crime to their lawyers.

Additional News Coverage of the Hank Skinner Stay

Allan Turner writes, "Justices may opt to settle DNA issue," in today's Houston Chronicle.

The U.S. Supreme Court on Thursday stayed Skinner's execution to consider taking up his lawyers' writ of certiorari seeking review of a lower court's rejection of Skinner's civil rights request for such testing.

Skinner's lead attorney, Rob Owen of the University of Texas' Capital Punishment Center, called on the court to resolve the question, noting that, at present, five circuit courts allow civil rights claims, two do not and five others are undecided.

The New Orleans-based 5th Circuit U.S. District Court denied Skinner's request for DNA testing of bloody knives, material found beneath his victim's fingernails, rape kit samples and other items found at the crime scene in the Panhandle town of Pampa.

Skinner, 47, was condemned for the Dec. 31, 1993, murders of his girlfriend, Twila Busby, and her two adult sons.

Adam Gershowitz of the University of Houston Law Center said it is “very likely” the court will take up the case. “The issue has been brewing for a long time,” he said. “There's been a lot of controversy between the circuits. ... You need five votes to grant a stay and only four votes to take up a review.”

Prisoners wanting courts to order DNA testing can submit the requests in the form of habeas corpus filings or as Section 1983 civil rights claims. But, said Gershowitz, making habeas corpus claims for DNA testing at the federal level rarely is successful. That's especially true when petitioners attempt to introduce new issues that the defendant's lawyer failed to raise at trial.

Federal courts, he said, are loathe to second-guess lower state courts.

“They don't want to step in at the last minute and reverse a case, especially if the state court hadn't had an opportunity to look at all the issues,” Gershowitz said. “They consider it the petitioner's fault for not bringing up the issues earlier.”

At the heart of the controversy over civil rights appeals is whether the prisoner simply is seeking DNA testing of evidence or is demanding to be released from prison.

An effort to be set free typically would be presented as a habeas corpus case, Gershowitz said, while an effort only to obtain testing could be a civil rights case.

The proper route for seeking testing becomes less clear when a prisoner wants to obtain DNA testing in order to be freed from prison.

The BLT/Law.com has, "Justices Delay Execution, May Examine DNA Testing Issue," posted by Marcia Coyle.

The Supreme Court’s “11th hour” stay of execution issued last evening for a Texas death row inmate may give the justices another chance to revisit a key DNA testing question left unanswered last term.

The justices unanimously granted the delay one hour before Henry Skinner was scheduled to die for the 1993 murders of his girlfriend and her two adult sons. Skinner, who claims he is innocent, has sought DNA testing of bloody knives, material beneath the dead woman's fingernails, rape kit samples and other items found at the murder scene. The Court’s order will remain in effect until the justices act on Skinner’s petition for certiorari.

Skinner’s counsel, Robert Owen of the University of Texas School of Law, last night expressed relief in a statement, saying, “As a result of this action, the Court will have more time to determine whether to hear his appeal. This action suggests that the Court believes there are important issues that require closer examination. We remain hopeful that the Court will agree to hear Mr. Skinner's case and ultimately allow him the chance to prove his innocence through DNA testing.”

The main issue raised by Skinner that may have captured the Court’s attention is whether a state inmate seeking access to DNA testing of evidence may raise that claim in a Section 1983 civil rights action instead of a federal habeas petition.

In Skinner’s petition for review, Owen told the justices that seven of nine federal courts of appeals have approved of the civil rights vehicle. Two, including the U.S. Court of Appeals for the 5th Circuit which rejected Skinner’s claim, do not.

Last term, the civil rights versus habeas issue was raised in a case from Alaska -- District Attorney’s Office for the Third Judicial District v. Osborne. The Court decided Osborne on other grounds.

ABC News posted, "Down to His Final Meal, Hank Skinner Granted Stay of Execution in Texas Murder Case," by Eamon McNiff.

Hank Skinner never wavered in his insistence that he did not murder Twila Busby and her two sons.

According to toxicology tests, Skinner had taken a mixture of Xanax and alcohol and a nearly-lethal dose of codeine the night of the murders; Skinner claims he was passed out on Busby's couch at the time she was killed. An affidavit from Skinner's friend Howard Mitchell said that Mitchell found Skinner "out cold" when Mitchell arrived to take him and Busby to a New Year's party.

Skinner also maintained that the real killer was Busby's uncle, Robert Donnell, whom Skinner claimed was a violent man who had made unwanted sexual advances toward Busby earlier on the night of her death. Donnell was killed in a car crash in 1997.

In 2000, Skinner's case was picked up by a group of students from the Medill Innocence Project at Northwestern University in Evanston, Ill. Led by their teacher, David Protess, the students had already helped win stays of execution for 11 inmates on death row in Illinois by the time they took up Skinner's case.

They quickly began interviewing witnesses, including Andrea Reed, the prosecution's star witness at the time of the trial who said Skinner told her he killed Busby. Reed later recanted her testimony and told Protess' group she "felt pressured" by prosecutors to implicate Skinner, the group's report on the case says.

They also interviewed Donnell's widow, who they say claimed Donnell became violent when he drank. The report also says Donnell's neighbors claimed he wore a windbreaker similar to one found at the crime scene, and was spotted cleaning out his truck a few days after the murders.

The group's biggest find -- and the central point in Skinner's plea to have his case reexamined -- was DNA evidence never tested for trial, partly because Skinner's attorney at the time didn't want it.

Skinner's DNA was found at the crime scene, but Harold Cormer, his attorney at the time, said in reports then that he felt the samples would have implicated Skinner in the killings.

"It was obvious from the start that DNA would determine the truth of what happened in that house," Northwestern's Protess said today in an e-mail to ABC News.

Earlier coverage begins with the preceding post.

An Update on Gary Gauger

His case was featured in the play, "The Exonerated."  "Jury rules detectives did not frame Gauger," is Jillian Duchnowski's report in today's Northwest Herald in Illinois.

Both sides in Gary Gauger’s civil trial agreed that he sat on death row while innocent of slashing his parents’ throats, but jurors did not find that three sheriff’s detectives framed him.

Eleven jurors found in favor of Undersheriff Gene Lowery and retired Detectives Beverly Hendle and Chris Pandre after deliberating about five hours Thursday. The verdict denied Gauger of the $20 million or more he was seeking for post-traumatic stress disorder and for the 3½ years he spent behind bars, including nine months on death row.

Gauger, 57, sat staring straight ahead as Judge Maureen McIntyre read the jury’s verdict after a trial of almost two weeks. Jurors also found that the three detectives had probable cause to arrest him in April 2003 and had not acted with malice nor conspired against him.

Lowery said the verdict restored his and his former colleague’s honor.

“I don’t think there’s anything to celebrate but what we’ve personally gained,” Lowery said.

“... We were accused of wrongdoing, and we were just doing our jobs” Lowery said.

Gauger’s attorney, Matthew Crowl, said he and his client respected the verdict but were “very disappointed.” Crowl said they planned to appeal.

“We felt the evidence was strong, but we understand it’s a high burden to meet [in] a malicious prosecution case,” Crowl said.

Gauger was sentenced to die by lethal injection after a McHenry County jury convicted him late in 1993 of his elderly parents’ grisly murders. Ultimately that conviction was overturned, former Gov. George Ryan pardoned him, and two motorcycle gang members were convicted of murdering Ruth and Morris Gauger as part of a federal racketeering case.

Earlier coverage of Gauger's civil suit is here.

More Misconduct ... And Cost?

Gary Gauger, the exonerated former Illinois death row inmate, is suing law enforcement officials over his treatment.  The Northwest Herald today reports, "Jury selection continues in malicious prosecution case."  It's written bu Jillian Duchnowski.

Jury selection will continue today for Gary Gauger’s malicious prosecution lawsuit against the sheriff’s office.

Gauger, who was convicted and later exonerated of his elderly parents’ 1993 murders, is claiming three sheriff’s investigators maliciously initiated and supported the criminal proceedings against him. Gauger, 57, seeks damages for the more than three years he spent behind bars and for post-traumatic stress disorder.

On Monday, attorneys chose six jurors; they will pick a total of 12 jurors and two alternates.

Attorneys asked potential jurors about their opinions on post-traumatic stress disorder, wrongful convictions, and police credibility. Several potential jurors were excused because they had heard about Gauger’s legal struggles in the news media or through friends.

The original criminal case hung on a confession that police claimed Gauger made after a long interview shortly after his parents’ bodies were discovered.

And:

Gauger was sentenced to die by lethal injection and spent 20 months at Stateville Correctional Center.

In March 1996, an appellate court threw out Gauger’s confession to sheriff’s detectives after law professor Larry Marshall and Northwestern University School of Law’s Center on Wrongful Convictions took up his case.

Former Gov. George Ryan pardoned Gauger after his conviction was overturned, and federal authorities secured convictions of two Outlaw motorcycle gang members for the murders of Morris and Ruth Gauger.

Gauger was one of the individuals depicted in the play, "The Exonerated."

Walter Mondale on Gideon

"A Key Legal Right at Issue," is former state attorney general, U.S. Senator and Vice President Walter Mondale's OpEd in today's Washington. Post.

More than 45 years ago, as attorney general of Minnesota, I joined with the attorneys general of 21 states in asking the Supreme Court to ensure that counsel would be appointed for all people facing criminal charges who could not afford it. The court answered our plea. Yet today, its historic decision in Gideon v. Wainwright is at risk.

In Gideon, the Supreme Court ruled that Florida violated the Constitution when it refused to appoint counsel for Clarence Gideon, a defendant who lived in a rooming house and had just $25 to his name. The opinion recognized the "obvious truth" that "in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."

Yet states across the country routinely fail to appoint counsel to people who are genuinely unable to afford representation on their own. A report published by the Brennan Center for Justice at NYU Law School last fall, "Eligible for Justice," found that if Gideon were to face criminal charges in Florida today, he might well be denied a public defender. Under Florida law, he could be disqualified for counsel if he has assets exceeding $2,500 (excluding a house), a car valued above $5,000, or had posted bail of more than $5,000, even if none of those assets permitted him to pay the retainer -- often several thousand dollars -- that defense lawyers routinely charge.

And:

A number of lawyers groups, led by the American Bar Association, have endorsed an expansion of the right to counsel recognized by Gideon to noncriminal matters where important legal rights, such as loss of housing, are at stake.

Many European countries provide such representation to indigent civil litigants. The backtracking that we are experiencing in the area of criminal representation undermines these efforts to move forward in the civil area. Our justice system depends on the idea that everyone is to be treated fairly, but a lack of resources is affecting the progress the Gideon decision brought to our criminal justice system and is blocking progressive efforts to extend the right to counsel in certain civil cases.

This month marks the 46th anniversary of the ruling in Gideon v. Wainwright. It is crucial that the states rededicate themselves to providing competent defense counsel to all people facing criminal charges who cannot afford to pay. The federal government, too, has an important role in providing the states with technical assistance, monitoring their compliance and enforcing the constitutional right to counsel. The promise of Gideon is ringing hollow, both for defendants, who count on competent counsel for their freedom, and for our society, which counts on the courts to achieve fair and reliable results. We cannot move forward until we stop the erosion of Gideon's promise to criminal defendants. My hope is to celebrate the 50th anniversary of Gideon -- not to have to use that occasion to mourn our continuing failure to heed its call.

More is in StandDown's indigent defense index.  It's always a good time to promote Anthony Lewis' 1964 classic, Gideon's Trumpet.  There's a reason that it remains in print 45 years after its initial publication.

The Scheduled Execution of Willie Pondexter

AP's Michael Graczyk writes this updated report, via the Houston Chronicle website.

Attorneys looked to the courts to stop the scheduled Tuesday execution of an Oklahoma man convicted of shooting an 85-year-old woman to death during a burglary in far northeast Texas.

Willie Pondexter, 34, was one of two men condemned for the murder of Martha Lennox at her home in Clarksville.

Pondexter would be the ninth Texas inmate executed this year and the first of two scheduled to die on consecutive nights in Huntsville. Pondexter is a high school dropout from Idabel, Okla., with an extensive criminal record that began as a juvenile. At the time of the slaying he was a 19-year-old unmarried father of two.

Lawyers asked the U.S. Supreme Court to stop the punishment and order the 5th U.S. Circuit Court of Appeals to rule in their lawsuit accusing the Texas Department of Criminal Justice and an East Texas sheriff of interfering with efforts to gather information for a clemency petition. The New Orleans-based 5th Circuit refused to consider the lawsuit. State attorneys called the suit meritless and frivolous and said the appeals court's refusal to consider the lawsuit, in effect, was a ruling.

Another appeal rejected by the Texas Court of Criminal Appeals contended Pondexter was a model prisoner who showed no signs of violence and should be spared with a life prison sentence.

Pondexter said he was in Lennox's elegant Victorian home near the courthouse square the night of Oct. 28, 1993, and acknowledged shooting her but said he didn't fire the fatal shot.

"I wasn't the guy who killed her," he told The Associated Press recently from death row. "For the part I played in it, I apologize."

Lennox was shot twice — once in the jaw and once in the head. A medical examiner testified either shot could have been fatal.

Pondexter said a companion, James Leon Henderson, 35, shot Lennox first and then gave the gun to him to fire the second shot.

"At 19, I was like, a follower," he said. "If I didn't go along, you're a punk. At 19, that's my thought process."

Earlier coverage of the case, which calls out for review, is here.

As noted, it would be Texas' ninth execution of 2009; the 432nd in the state since 1982.  It would be the 16th execution in the nation this year; the 1,152nd execution since executions resumed in America in 1977.

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

According to TDCJ, another Texas execution is scheduled for tomorrow in Huntsville, with two more next week.  Capital Defense Weekly notes execution dates in other states.

Willie Pondexter

Attorneys for Willie Pondexter have filed this petition with the U.S. Supreme Court, today.  He is scheduled to be executed tomorrow evening.

Last week, Pondexter's attorneys filed a federal civil rights lawsuit complaining that the Polk County Sheriff's office and TDCJ were interfering with their ability to gather evidence to plead for clemency from the Texas Board of Pardons and Paroles.  The U.S. Fifth Circuit Court of Appeals dismissed the suit without ruling on the questions presented in the suit.

Earlier coverage of the harrasment by Polk County officials is here.

Pondexter's case for clemency is based on rehabilitation and not being a future danger.  Backing that up is one TDCJ guard who has urged that Pondexter's death sentence be commuted to life in prison.  The Board of Pardons and Paroles would have to make such a recommendation and the governor would have to approve the recommendation.

Texas' unique reliance of predictions of future behavior does not allow any judicial remedy for a faulty conclusion reached by trial jurors.  Only the BPP with the governor's agreement can make such a correction under the Texas system.

I discussed this unique Texas criminal justice problem last October in this post.  Here's an excerpt:

Even in Texas the death penalty is supposed to be reserved for the worst of the worst.

One of the unique aspects of Texas criminal law is a reliance on predictions of future behavior in determining whether or not a person is sentenced to death.  In order for any person to receive a death sentence, all 12 jurors must agree that the individual will represent a continuing threat; a future danger.  Some have likened it to a ticking time bomb, bound to explode.

That charge to the jury, “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society,” is written into the Texas Criminal Code.

Keep in mind that means being a continuing threat in a prison setting, one of the most secure, locked down environments on the planet.  It means being a danger to cause harm not to the general public, but to other inmates, prison employees and guards.

Eric Nenno assaulted and killed a child in 1995.  When he was convicted in Harris County in 1996, all 12 jurors voted that he would be a future danger, and Nenno was sentenced to death.  He faces a scheduled execution tonight in Huntsville.

But what if that prediction was wrong?

And:

Executive clemency in Texas has been criticized by many criminal justice watchers as failing to live up to its historic responsibility as a failsafe.  The facts of Eric Nenno’s case called out for serious review by the Board.  He has proven on a daily basis over the past 160 months that he has not been a continuing threat.  He has demonstrated that he is not the worst of the worst.  But the Board of Pardons and Paroles rejected Nenno's clemency petition, as noted in this earlier post.

The prediction answered in 1996 got it wrong.  It seems that the Texas Board of Pardons and Paroles was not interested in revisiting the question or how to set it right.

This reliance on predictions of future behavior was the subject of Texas Defender Service's, "Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness."  It was published in 2004.

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

Blood Money

That's the title of an article in Best of New Orleans by David Winkler-Schmit concerning the aftermath of John Thompson's exoneration in Louisiana.  It's the talk of the Crescent City.  LINK

Here's the introduction of this must-read:

New Orleans District Attorney Leon Cannizzaro has enough on his plate trying to put today's criminals in jail with scant resources, but now he also has to clean up a mess left by some of his predecessors.

   For starters, the DA's office may have to pay a $15 million civil judgment awarded after a prosecutor under former DA Harry Connick Sr. admitted he withheld evidence in a murder trial more than 20 years ago. In that case, John Thompson spent 14 years on death row at Angola and was later acquitted of the murder after a second trial. The case could have been settled long ago for substantially less, but former DA Eddie Jordan refused to negotiate. Now Cannizzaro has to figure out how to pay for those mistakes.

  Financially, the Thompson case is the largest of its kind in New Orleans history and could lead to taxpayers paying for more prosecutorial misconduct. Last month, a three-judge panel of the U.S. Fifth Circuit Court of Appeals upheld a jury decision awarding Thompson $14 million in damages and $1 million in attorney fees because the DA's office failed to properly train, monitor and supervise its attorneys on evidence disclosure.

  Last week, Cannizzaro reportedly began exploring the possibility of asking the state to let his office declare bankruptcy. The only other alternative is to ask taxpayers to pick up the tab.

  The Thompson case is a cautionary tale of prosecutorial misconduct.

And, conclusion:

Dane Ciolino, a Loyola University law professor, notes that Brady cases take a long time to develop, so it is possible more will surface from the Connick era. Innocence Project New Orleans, a nonprofit group, recently released a damning report on Connick's 29-year tenure that claimed four innocent men were sentenced to death because prosecutors withheld evidence. Still, Ciolino says the Thompson case doesn't set a legal precedent. The fiscal ramifications, however, are substantial.

   "Fourteen million (dollars) is huge," Ciolino says. "Keep in mind these weren't the actions of a few rogue prosecutors; rather they were a pattern of practice in the DA's office at the time.

  If the Thompson judgment is upheld, it will be the largest — but not the only — civil judgment hanging over Cannizzaro's office, which has an annual budget of about $11 million. In 2005, 40 former DA employees were awarded $1.9 million in a federal racial discrimination suit against Eddie Jordan for firing them after he took office. The DA dragged out the appeals process, and the $1.9 million grew with interest to $3.7 million by late 2007. The state and the city agreed to lend the DA's office $2.7 million for the judgment — $1.7 million from the state and $1 million from the city — but the office must pay both the city and state $100,000 a year until the loan is repaid. The first payment to the state is due in 2010; the city's repayment process starts in December of this year.

  Cannizzaro says he has a legal obligation to try to overturn the Thompson decision, adding he will appeal the case all the way to the Supreme Court if necessary. Once the appeal process is exhausted, Cannizzaro says he would consider negotiating a settlement with Thompson. Cannizzaro filed a request with the state for permission to file for Chapter 9 bankruptcy, but as of Friday he had withdrawn that request. Banks says he sympathizes with Cannizzaro and is willing to negotiate a settlement, but time is running out.

  "[Cannizzaro] is cleaning up a mess that was created in part by predecessors, but now he's the guy with the broom," Banks says. "You can sit around and complain all you want that there's a mess on the floor of your kitchen, but if it's your kitchen, you have to clean it."

"New Orleans DA backs off bankruptcy idea," is an AP report from the weekend.

New Orleans' district attorney is backing off the idea of his office filing for bankruptcy.

District Attorney Leon Cannizzaro had warned Louisiana officials that his office may need Chapter 9 protection.

He says that's because his office can't afford to pay $15 million awarded to a man who spent 18 years on death row before being exonerated.

But a spokeswoman for the district attorney's office said Friday that Cannizzaro wants to exhaust all appeals in the civil case rather than request for state authority to file a bankruptcy petition.

District Attorney’s Office v. Osborne

Continuing in catch up mode, On Monday The Supreme Court agreed to hear District Attorney’s Office v. Osborne.  The SCOTUSwiki page is here.

At SCOTUS Blog, Lyle Denniston had this initial report.

In the new DNA evidence case, District Attorney’s Office v. Osborne (08-6), an implied question is whether an inmate has a right under the Fourteenth Amendment, after conviction, to seek that type of evidence when the right is based upon the Supreme Court’s 1963 ruling in Brady v. Maryland, requiring prosecutors to turn over evidence that would help the accused’s defense.

The Ninth Circuit Court relied upon Brady in ruling that an Alaska inmate may sue under the 19th Century civil rights law, so-called Section 1983, to discover evidence in the government’s possession in advance of filing a free-standing claim of innocence that would rely, at least in part, upon that evidence.  The case involves William G. Osborne of Anchorage, who was convicted of kidnapping, first-degree sexual assault and first-degree assault, and sentenced to 25 years in prison with five years suspended.  At Osborne’s trial, his defense lawyer made a strategic decision not to seek additional DNA testing of biological evidence found near the scene of the assault.  After his conviction, he began pursuing a post-conviction plea for access to that evidence.  If the results turned out to be favorable, he planned to file a claim of innocence in federal court.

The appeal by prosecutors contends that the Brady decision created a right of access to evidence only at the trial stage, not in a post-conviction proceeding, and contended that there is no right to pursue a free-standing claim of innocence following a trial that was free of errors.

"Justices Agree to Consider DNA Case," is Adam Liptak's Tuesday report in the New York Times.

The Supreme Court agreed Monday to decide whether people convicted of crimes have a constitutional right to test DNA evidence that could prove their innocence.

The case pits the value of finality in criminal cases against the possibility of proving an inmate’s innocence long after trials and appeals are concluded.

In April, the United States Court of Appeals for the Ninth Circuit, in San Francisco, ordered prosecutors in Alaska to turn over DNA evidence that had been used to convict William G. Osborne of kidnapping and raping a prostitute. The appeals court said that biological evidence — hairs and semen — could be subjected to more sophisticated DNA testing than had been used by the prosecution to implicate Mr. Osborne.

Prosecutors in Alaska, in their brief urging the Supreme Court to hear the case, District Attorney’s Office v. Osborne, No. 08-6, said the appeals court had “created from whole cloth” a constitutional right of post-conviction access to DNA evidence. The prosecutors added that the court had made a separate mistake in allowing a right of access to be pursued even if a conviction was not being challenged in a pending case.

The federal government and 44 states — but not Alaska — have laws allowing post-conviction DNA testing.

"Court to decide on convict's right to DNA test," is the AP report via the Boston Herald.

Osborne admitted his guilt under oath to the parole board in 2004. Another man also convicted in the attack has repeatedly identified Osborne as having participated in the crimes. The testing would be done on a condom and hairs found by investigators.

The 9th U.S. Circuit Court of Appeals, based in San Francisco, said Osborne has a right to subject the evidence to advanced DNA testing that was not available at the time of his trial.

Forty-three states and the federal government have laws that give convicts access to DNA testing, but Alaska does not.

Osborne urged the court to reject the appeal, saying that because so many states have laws on the topic, it rarely arises in federal court.

Prosecutors argued that even if testing determines that the hairs and sperm are not Osborne’s, other evidence introduced at his trial is sufficient to leave his conviction in place. That matter is not before the high court.

Civil Suit Against CCA Presiding Judge Keller Dismissed

"Keller Immune to Justice," is Jordan Smith's report in the Austin Chronicle.

According to federal district Judge Lee Yeakel's ruling last week, Court of Criminal Appeals presiding Judge Sharon Keller enjoys "judicial immunity," which insulates her from being sued for violating the civil rights of an executed inmate. "Judicial immunity is immunity from suit, not just damages, and therefore applies despite allegations of malice or corruption," Yeakel wrote. And, indeed, there were plenty of allegations of malice and corruption to be found in the lawsuit filed last fall by the family of executed inmate Michael Richard.

On Sept. 25, 2007, Keller closed the courthouse door, blocking Richard's 11th-hour appeal challenging the constitutionality of the trichemical lethal injection method. That same day, the U.S. Supreme Court had said it would review a similar case from Kentucky (Baze v. Rees), and Richard's attorneys were seeking a stay for their client pending the outcome of the Baze case. In order to get the Supremes to consider Richard's appeal, however, the case first had to be considered by the CCA. The appeal was delayed because his attorneys had computer problems. They called the clerk to say the appeal would be late, but Keller refused to accept it: "We close at 5," she said.

And:

And so in the aftermath of her much derided decision, Keller has so far emerged legally unscathed. Indeed, the status of a complaint filed with the Texas Commission on Judicial Conduct by Texas Civil Rights Project Director Jim Harrington and signed on to by more than a dozen other influential attorneys is also in limbo – Harrington says that because of the rules of the commission, which keep the status of such complaints away from the public, he doesn't know if his complaint is still pending or has been dismissed.

Earlier coverage of the controversy begins with this post.

Civil Suit Filed Against Former Officer Involved in Reed Case

"Woman sues police, Fennell over sex assault," is Isadora Vail's report in today's Austin American-Statesman.

A woman who accused former Georgetown police Sgt. Jimmy Lewis Fennell Jr. of kidnapping and sexually assaulting her last year is suing him and the Police Department in federal court, accusing them of violating her civil rights.

In the suit, the woman claims that last October, Fennell responded to a domestic disturbance call at her apartment and then forced her to leave with him, dance for him and have sex with him before he returned her to her home. She called 911 after he departed and reported that she'd been raped by an officer named Fennell, according to the suit, but she said she was "shocked and terrified at seeing Fennell as one of the responding officers."

Fennell has since pleaded guilty to two felony charges of kidnapping and improper sexual activity with a person in custody and will be sentenced today in state District Judge Burt Carnes' court. He could face a maximum of 12 years behind bars.

The lawsuit claims that Fennell and several other officers tried to get her to recant her story and said she would not be arrested if she did. She unsuccessfully asked for medical attention and a rape kit test, according to the suit.

Instead of receiving help, the lawsuit states, she was arrested on a public intoxication charge. Jail records don't show that she was charged, and a search of Texas criminal records also revealed no such charges against her.

After sitting in jail for hours, she was seen by a nurse examiner, who collected physical evidence that might validate her claims, the suit says. She also picked Fennell out of a photo lineup, according to the lawsuit.

The American-Statesman is not publishing her name because she was the victim of a sex crime.

And:

The lawsuit contends that the Georgetown Police Department could have prevented the incident if it had researched Fennell's background.

"Prior to Fennell kidnapping and raping plaintiff, there was a disturbing pattern known to Fennell's superiors regarding Fennell's sexually deviant behavior," the lawsuit states.

The lawsuit, which seeks a jury trial, claims that the department knew of "Fennell's deception of law enforcement officers" in the his former fiancée's murder case, prior lawsuits against him for abuse of police authority and excessive force, a previous incident in which he offered an exotic dancer to trade a lap dance for a traffic ticket, and a personal Web site that "focused on sexually explicit and violent images of women."

In 1996, Fennell was a suspect in the slaying of his fiancée, Stacey Stites, in Bastrop County while he was a Giddings police officer. Despite failing two polygraph tests, the lawsuit says, he was ruled out as a suspect. A Bastrop man, Rodney Reed, is on death row for the crime.

More on the case is in the Rodney Reed index.

Judge Dismisses Libel Suit Against John Grisham, Barry Scheck

That's the headline of an AP report via Law.com.  LINK

A federal judge has dismissed a libel lawsuit filed against best-selling author John Grisham and two other writers over books they wrote about the wrongful conviction of two men in a 1982 murder.

The lawsuit was filed last year by former Pontotoc County, Ok., District Attorney Bill Peterson, former Oklahoma State Bureau of Investigation investigator Gary Rogers and Melvin Hett, a state criminalist. All three helped win the original convictions in the slaying of cocktail waitress Debbie Sue Carter.

The plaintiffs alleged that the defendants conspired to commit libel, generate publicity for themselves by placing the plaintiffs in a false light and intentionally inflicted emotional distress.

But U.S. District Judge Ronald White rejected those claims in his ruling Wednesday in the U.S. District Court for the Eastern District of Oklahoma.

The two men initially convicted in the slaying -- Ron Williamson and Dennis Fritz -- were later cleared by DNA evidence and freed after 12 years in prison.

A key witness for the prosecution, Glen Gore, was later linked to the crime by DNA, found guilty of the murder and sentenced to life in prison.

In his ruling, the judge wrote that it was important to be able to analyze and criticize the judicial system "so that past mistakes do not become future ones."

"The wrongful convictions of Ron Williamson and Dennis Fritz must be discussed openly and with great vigor," White wrote.

The lawsuit named Grisham -- whose account was titled "The Innocent Man" -- his publishing company and the authors and publishing companies of two other books critical of Peterson and his prosecution of murder cases. Also named as a defendant was Barry Scheck, founder of the New York-based Innocence Project and an attorney for one of the men falsely accused in the murder.

Earlier coverage of The Innocent Man is here.

New Texas Solicitor General Named

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

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

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

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

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

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

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

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

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

Keller Moves to Dismiss Suit Filed By Executed Man's Widow

That's the headline of a report by Texas Lawyer's Mary Alice Robbins.  LINK

Contending that a death-row inmate could have filed a last-minute appeal to save his life, Texas Court of Criminal Appeals Presiding Judge Sharon Keller has asked a federal judge to dismiss the wrongful death and survivor suit that the inmate’s widow brought against Keller last month.

In her Dec. 13 motion to dismiss Richard v. Keller, et al., Keller contends that Michael Wayne Richard, through his counsel, failed to avail himself of Texas Rule of Appellate Procedure 9.2(a), which allows pleadings to be filed at any time directly with a judge on the CCA.

Marsha Richard, widow of the executed inmate, filed a suit against Keller on Nov. 11 in the U.S. District Court for the Western District in Austin. U.S. District Judge Lee Yeakel presides over the case.

The widow alleges in her original complaint that Keller, “without any authority to do so, or in the alternative, in her administrative function,” prevented Michael Richard from filing an appeal Sept. 25 to stop his execution.

Keller allegedly had declined to keep the CCA clerk’s office open past the normal closing time of 5 p.m. on Sept. 25. Texas Defender Service (TDS) litigation director David Dow, a professor at the University of Houston Law Center, had encountered computer problems while working on the writs of prohibition and habeas corpus TDS had prepared in an effort to stop Richard’s execution. Earlier that day, the U.S. Supreme Court had granted a petition for writ of certiorari in Baze v. Rees, a Kentucky case in which two death-row inmates allege that the chemicals used in lethal injections constitute cruel and unusual punishment. Texas uses those same chemicals for executions. TDS had addressed the lethal injection issue in the documents they were unable to file with the CCA after 5 p.m. [See “Out of Time,” Texas Lawyer, Nov. 19, 2007, page 1.]

Marsha Richard alleges in her complaint that Keller ordered the CCA’s clerk not to accept any paperwork for Michael Richard after 5 p.m. on Sept. 25.

But Keller contends in her motion to dismiss that while the clerk’s office closed in keeping with Texas Government Code §658.005(a), which sets the operating hours for state agencies as 8 a.m. to 5 p.m., the CCA remained open. Judges remained at the courthouse to accept any motions, according to Keller’s motion.

Richard Lawsuit Withdrawn, Refiled

The federal civil rights lawsuit filed by Michael Richard's widow last week has been withdrawn and refiled in order to move the case from Houston to Austin.

Chuck Lindell has, "Plaintiff drops lawsuit in Houston, intending shift to Austin court," in the Austin American-Statesman.

Marsha Richard, the widow of the latest man to be executed in Texas, has withdrawn her lawsuit against Judge Sharon Keller so she can refile it in Austin federal court, her lawyer said Saturday.

Richard's original lawsuit, filed last week in Houston, accused Keller of exceeding her authority as presiding judge of the Texas Court of Criminal Appeals, the state's highest criminal court, when she refused to accept a death penalty appeal after the court's 5 p.m. closing time.

And:

Richard's lawyer, Randall Kallinen of Houston, said he is moving the lawsuit because most potential trial witnesses live in Austin.

"I also want the jury to be able to walk into the Court of Criminal Appeals and see where that phone call came in," Kallinen said. He said the change also allowed him to beef up portions of the suit dealing with judicial immunity, the lawsuit's highest hurdle. Judges are immune from lawsuits dealing with their judicial actions, but can under limited conditions be sued over administrative decisions.

Kallinen said he withdrew the lawsuit Thursday and mailed the new version to the Austin federal court, where he anticipates it will be filed Tuesday.

In the Houston Chronicle, Cindy George reports, "Widow's execution lawsuit moved to new court."

On the morning of Sept. 25, the U.S. Supreme Court agreed to hear a challenge to the chemicals used for lethal injections in Kentucky. That case alleges that the method of execution used in almost every death-penalty state causes inmates to experience torture.

Throughout the day, Richard's attorneys worked to halt his execution on the same basis.

The lawsuit claimed Keller's actions denied the condemned man his right to file a proper request for a stay of execution with the U.S. Supreme Court because the Court of Criminal Appeals had not had a chance to rule. Three other state appeals court judges said they were available that evening and could have handled Richard's appeal if they had known about it. The U.S. Supreme Court denied the stay request.

Michael Richard, 49, was executed at 8:22 p.m. for the 1986 rape and murder of a Harris County mother of seven.

Since then, all other executions in the nation have been halted pending the outcome of the Kentucky case.