The StandDown Texas Project

Texas Execution Scheduled Wednesday

Texas is scheduled to carry out its sixth execution of 2012, tonight in Huntsville.  It would be the state's 483rd post-Furman execution since 1982.  Texas accounts for more than 37% of the nation's executions.  Texas' last execution was on April 26.

There is extensive controversy about the scheduled execution of Yokamon Hearn.  The AP report is, "Carjacker Will Be Texas' 1st Single-Drug Execution," via the New York Times.

An inmate who once bragged about the headlines generated by the carjacking and murder that sent him to death row will be noted in Texas history for a different reason: Yokamon Hearn will be the first prisoner executed under the state's new single-drug procedure.

Hearn, 33, is set to die Wednesday for the March 1998 fatal shooting of Frank Meziere, a 23-year-old suburban Dallas stockbroker who was abducted at gunpoint while he cleaned his car at a self-service car wash in Dallas. Meziere was driven to an industrial area and shot 10 times before his body was dumped on the side of a road.

Hearn will be the sixth Texas prisoner executed this year, but the first since the Texas Department of Criminal Justice announced its switch to single-drug lethal injections amid a drug shortage that has left states scrambling for acceptable alternatives.

Texas said last week it will now use a single dose of pentobarbital, instead of using the sedative in combination with two other drugs. Ohio became the first state a year ago to use a single drug, and several other states have since made the switch. Courts have upheld the practice, despite death penalty opponents' claims that it takes prisoners take longer to die with a single drug.

Hearn has not made an appeal based on method of execution or claims of innocence. Instead, his appeals have focused on his mental capacity, the competence of his attorneys and whether recent lower federal court rulings improperly blocked his current lawyers from pursuing appeals.

In 2004, a federal court spared Hearn less than an hour before he could have been taken to the Huntsville death chamber so that it could consider arguments that he was mentally impaired and therefore ineligible for the death penalty.

That appeal subsequently was rejected, and attorneys more recently told the U.S. Supreme Court that while tests show Hearn's IQ is considerably higher than levels determining mental impairment, he suffers from a fetal alcohol disorder that should disqualify him from execution.

As I pointed out in a post on Monday, the real issue in Hearn's case now is the failure of his trial and initial post-conviction appeal lawyers to examine his life history for mitigating factors to present to the jury during the punishment phase of his trial.  A 2012 Supreme Court ruling, Martinez v. Ryan held that prisoners who have compelling claims of ineffective assistance of trial counsel, can have those claims heard even if an ineffective state habeas lawyer's failure to raise those claims would have otherwise barred them from being heard in federal court.

Hearn's execution would be the 244th execution conducted under the administration of Rick Perry.  He became Governor of Texas upon the resignation of George W. Bush in December 2000.  152 men and women were executed in five years under Governor Bush's tenure.

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

To date, there have been 23 executions in the nation this year; a total of 1,300 post-Furman executions since 1977.  According to TDCJ, eight additional executions have been scheduled for 2012 by state district courts.

I'll have more on the Hearn case and the case of Warren Hill in the next post.  Both cases are receiving extensive media coverage and international attention.

Earlier coverage of Yokamon Hearn's case begins at the link; coverage of Texas' switch to a single-drug lethal injection procedure is also available.

Yokamon Hearn & the Tattered Legacy of the Fifth Circuit Court of Appeals

Yokamon Hearn is scheduled to be executed by Texas on Wednesday, July 18, even though his trial and appeals lawyers never discovered – and no judge or jury ever considered – compelling life history evidence that would have explained why he came to be charged with capital murder and why he should have been sentenced to life in prison rather than death.

Even though the U.S. Supreme Court has found that cases such as Yokamon Hearn's should get evidentiary review, the Fifth Circuit once again is saying that U.S. Supreme Court precedent doesn't apply to Texas.

The Fifth Circuit has just denied Hearn's petition for review.  The Order is available in Adobe .pdf format.

As I've noted before, problems with Texas' jury charge in death penalty cases were first ruled unconstitutional by the Supreme Court in the 1989 case Penry v. Lynaugh, and subsequently, in Penry v. Johnson.  The Court held that juries must be able to consider all mitigating evidence that might lead them to issue a life sentence rather than a death sentence.  Texas' 1975 death penalty law did not allow jurors to do that.

For more than a decade, the Fifth Circuit allowed executions to continue in spite of the two Penry rulings.

Only after the Supreme Court intervened in the Abdul-Kabrir and Tennard cases did that dark chapter of Texas history close.  It is critically important that the Supreme Court intervene in this case to determine decisively whether its 2012 decision in Martinez v. Ryan applies to Texas.

In Martinez, the Court held that prisoners who have compelling claims of ineffective assistance of trial counsel, can have those claims heard even if an ineffective state habeas lawyer's failure to raise those claims would have otherwise barred them from being heard in federal court.

A three-judge panel of the Fifth Circuit, however, recently decided that Martinez does not apply to Texas, in the case of Ibarra v. Thaler, thereby preventing prisoners from the country's most active death penalty state from having access to Martinez's protections. This is the ruling that Yokamon Hearn is attempting to challenge.

The Failures of Yokamon Hearn's Trial

Hearn was sentenced to death for the 1998 murder and kidnapping of Frank Meziere in Dallas. Pleadings show that his trial counsel conducted virtually no investigation into Hearn's life history, an essential part of any capital case. The jury that sentenced Hearn to die did not know that:

• Mr. Hearn's parents were severely impaired and neglected him throughout childhood;
• His mother's alcoholism was so severe that she drank to the point of passing out during her pregnancy with Mr. Hearn;
• Mr. Hearn has been diagnosed with a disabling condition known as Fetal Alcohol Syndrome;
• His mother also suffered from serious mental health problems throughout Mr. Hearn's life;·
• His father suffered from cognitive deficits and had a history of incarceration for violent offenses.

As a result of his parents' utter inability to meet his needs, Hearn suffered from mental health problems as a child.  At the age of ten, his suicidal thoughts resulted in emergency care.  Testing shows that he suffers from brain damage. All of these facts were discovered in investigations long after Mr. Hearn’s trial and his state and federal habeas proceedings were concluded. The jury that sentenced him heard none of this evidence.

Yokamon Hearn's First Postconviction Proceedings

After he was sentenced to death, new lawyers were appointed to represent Hearn on his post-conviction appeals. At that point, his new lawyers should have discovered and brought Hearn's life history evidence to the courts' attention, but they did not. They failed to do any investigation or raise any claim about trial counsel’s ineffective assistance.  Again, a critical failure of an essential part of the habeas attorney's role in a capital case's post-conviction review.

As a result, Mr. Hearn now suffers from what the Atlantic columnist Andrew Cohen recently described as "ineffective assistance of counsel squared."   If you haven't read his must-read column, I hope you'll do so now.

In March of this year in Martinez v. Ryan, the Supreme Court recognized for the first time that the situation presented in cases like Hearn's requires that courts review the case in depth. The Supreme Court called this a matter of fundamental fairness.

What changed with Martinez is that the Supreme Court recognized that prosecutors could no longer use procedural rules to bar federal court inquiries into bad lawyering in capital cases.  Because of the Supreme Court's Martinez decision, Hearn is seeking federal court review of his ineffective assistance of trial counsel claim for the first time.

Unless the Supreme Court intervenes, Mr. Hearn will be executed with no review of his claim that trial counsel were ineffective.  His Petition for Writ of Certiorari is available in Adobe .pdf format.

Earlier coverage of Yokamon Hearn's case begins at the link.  It's also referenced in an article on fetal alcohol syndrome.

A Day in the Life of the Death Penalty: July 18, 2012

That's the title of Andrew Cohen's latest post at the Atlantic.  Here's the beginning of this must-read:

Next Wednesday, July 18, reckons to be another banner day in the history of capital punishment in America. Sometime between 6 p.m. and midnight, the state of Texas is scheduled to execute a convicted murderer named Yokamon Hearn, a man who has, since early childhood, shown clear and consistent evidence of brain damage. And at 7 p.m., the state of Georgia plans to execute a convicted murderer named Warren Hill, who years ago was deemed by a veteran state judge to be mentally retarded.

These executions will take place, absent extraordinary Supreme Court or gubernatorial intervention, because federal and state judges at lower levels of our nation's justice system have perversely interpreted recent United States Supreme Court decisions.  Whereas the Justices have tried in the past few years to give men like Hearn and Hill more access to meaningful appellate review, judicial obstructionists down below have refused to apply either the letter or the spirit of the new procedural rules. 

In Texas, the perpetually rogue Fifth Circuit, in an opinion dripping with disdain for the justices in Washington, has just refused to apply the precedent established in Martinez v. Ryan, a Supreme Court decision issued in March that sought to expand appellate rights for defendants like Hearn. In Georgia, meanwhile, the state supreme court has refused to designate Hill as mentally retarded, scoffing at the mandate of Atkins v. Virginia, the Supreme Court's ruling banning the execution of the mentally retarded.

Neither man claims to be innocent. Neither man would ever set foot outside of a state prison even if he were to prevail on his claims. In both instances, original fact-finders (the trial judge or jury) were deprived of material evidence that the Supreme Court has long expected of the "mitigating" phase of a capital case. In both cases, incomplete and therefore inaccurate judgments were rendered. Yet look at how hard all these jurists have fought, how much they have contorted controlling precedent, to block Hill and Hearn from fixing the record.

Earlier coverage of the cases of Yokamon Hearn and Warren Hill, at the links.  The Atlantic has much more from Andrew Cohen.

Fetal Alcohol Syndrome an Issue in Texas Cases

"Should killer with fetal alcohol syndrome be spared?" is Dianna Hunt's extensive report in the Fort Worth Star-Telegram.

A mother’s failures are etched on Mark Anthony Soliz’s face.

It’s the damaged face of a child whose mother drank heavily, sniffed paint and used drugs while pregnant, the face of a youth who was largely abandoned.

The face of a killer.

Now, with Soliz sitting on Texas Death Row awaiting an execution date, the long-ago failings of his mother could hold the key to sparing his life.

Soliz's appeal of his capital murder conviction in the death of a Godley grandmother has joined a growing list of cases nationwide seeking to exclude the death penalty for defendants with fetal alcohol syndrome, a form of brain damage caused by maternal alcohol abuse.

Experts say the death penalty should be off the table in such cases, just as the U.S. Supreme Court has abolished the death penalty for defendants with mental retardation.

And:

Those people have the same diminished capacities as those with mental retardation, they say, even though their IQs may test somewhat higher than the 70-75 range typically used to define mental retardation.

"The damage to the executive functioning of the brain is as severe as someone who is intellectually disabled," said John Niland, director of the Capital Trial Project with the Texas Defender Service, a nonprofit law firm in Houston and Austin that also provides training and consultation for attorneys in death penalty cases. "I don't think we've been aware of it long enough to identify all of the cases."

The U.S. Supreme Court has already rejected a request to review a fetal alcohol case involving Louisiana Death Row inmate Brandy Holmes, who was named after her mother's favorite liquor. But death penalty opponents say that does not rule out that other fetal alcohol cases could be considered by the nation's highest court.

The article also mentions the case of Yokamon Hearn, who has a July 18 execution date in Texas.

There is more on the topic from the National Organization for Fetal Alcohol Syndrome.