The StandDown Texas Project

Brady Violation in a Harris County Death Case; Innocence at Issue

"Appeals court resets murder trial after finding evidence withheld," is by Lisa Falkenberg of the Houston Chronicle.

Texas' highest criminal court on Wednesday threw out the 2005 conviction and death sentence of Alfred Dewayne Brown after finding that the Harris County District Attorney's Office withheld material evidence favorable to Brown's case.

In a brief order, the Texas Court of Criminal Appeals sent the case back to the lower court for a new trial.

District Attorney Devon Anderson now will have to decide whether to retry Brown for the 2003 death of veteran Houston Police Officer Charles R. Clark. Clark was shot while trying to stop the burglary of a

And:

Brown had always maintained his innocence, insisting he was at his girlfriend's apartment the morning of the shooting, and made a land line call that could prove it. But his attorneys presented no evidence to back up that alibi. And his strongest alibi witness, his girlfriend, later changed her story and testified against him after being threatened by a grand jury.

After Brown lost his direct appeal, a private law firm, K&L Gates LLP, took Brown's case in 2007 and began searching for evidence to support his alibi.

Then, in the spring of 2013, a Houston homicide detective found an old box of documents from Brown's case while cleaning out his garage. Inside was a phone record that showed a land line call was made from the girlfriend's apartment exactly when Brown said he made it.

The Los Angeles Times reports, "Texas death row conviction overturned," by Molly Hennessy-Fiske.

On Wednesday, a year and a half after Brown’s trial judge recommended a new trial, the Texas Court of Criminal Appeals overturned his conviction and sent the case back for potential retrial. The appeals court found that telephone records bolstering Brown's case were withheld at trial, records that apparently surfaced last year when a homicide investigator cleaned out his garage.

Former Harris County Dist. Atty. Mike Anderson had said a new trial was warranted. Anderson died last year, and his widow, a former judge who was appointed to replace him then elected on Tuesday, said she was still deciding Wednesday.

And:

Anthony Graves, another Texas death row prisoner whose conviction was overturned in 2010, had tried to help Brown win a new trial, speaking with Brown’s girlfriend about the case and to the Houston Chronicle.

An earlier reference to Alfred Brown's case is at the link.

Related posts are in the prosecutorial misconduct category index.  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.

Texas CCA Stay Larry Hatten Execution

"Reprieve for Texas prisoner facing execution," is the AP report, via KVUE-TV.

The state's highest criminal appeals court has blocked the scheduled execution this week of a 40-year-old man convicted of fatally shooting a 5-year-old boy sleeping with his mother at a Corpus Christi apartment 20 years ago.

Larry Hatten had ordered no appeals be filed to stop his scheduled Wednesday evening lethal injection in Huntsville for the slaying of Isaac Jackson.

But the Texas Court of Criminal Appeals has given him a reprieve to resolve a 1997 filing with his trial court in Nueces County. The judges said Monday in a three-page ruling that the filing never was decided by the trial court and was never properly forwarded to the appeals court.

The appeals court has given the trial court six months to resolve the claims in the in filing.

Earlier coverage of Larry Hatten's case begins at the link.

Because of the stay, Houston's KPFT-FM will not broadcast an edition of Execution Watch on Wednesday.

According to TDCJ, one scheduled execution remains for 2014, on October 28.

Manuel Velez Released From Texas Incarceration

The Guardian posts "Texas releases death row inmate Manuel Velez after wrongful conviction," by Ed Pilkington.

A building worker from Texas, who was sentenced to death for a murder he did not commit, was released on Wednesday after spending nine years in prison, four of them on death row.

Manuel Velez, 49, emerged from Huntsville prison a free man at 11.32 pm CT. He was arrested in 2005, and sentenced to death three years later, for killing a one-year-old who was partially in his care.

But over the years the conviction unraveled. Tests on the victim’s brain showed that Velez could not have caused the child’s head injuries. Further evidence revealed that the defendant, who is intellectually disabled, had suffered from woeful legal representation at trial, and that the prosecutor had acted improperly to sway the jury against him.

Brian Stull, a senior staff attorney with the American Civil Liberties Union who has represented Velez since 2009, said that “an innocent man went to death row because the entire system failed him. The defense counsel who are meant to defend him let him down, the prosecutor who is meant to secure justice committed misconduct, and even the judge made errors that were recognized on appeal.”

"Man Freed After Wrongful Convictions for Baby's Death," is by Gregg Zoroya of USA TODAY, via WLTX-TV.

A construction laborer who spent nine years in prison — four on death row — was freed Wednesday after a judge ruled that the man's pro bono lawyers in South Texas did a shoddy job defending him.

"An innocent man went to death row because of a complete system failure," says Brian Stull, an American Civil Liberties Union attorney who represented Manuel Velez, 49, in the successful effort to overturn his 2008 murder conviction.

Velez was convicted and sentenced to death for the 2005 beating death of Angel Moreno, the 1-year-old son of a woman Velez was living with in Brownsville, Texas. The prosecution relied heavily on a timeline asserting that the fatal injuries occurred within the two weeks before the child died. Before those two weeks, Velez had been working in Tennessee for several weeks.

The jury never heard about a prosecution expert's report indicating that autopsy results showed that the critical head injury occurred more than two weeks before the child died.

The death sentence was overturned in 2012 in an appeal arguing that a witness on the subject of Velez's future capacity for being dangerous was no longer credible. The conviction stood.

"Ex-death row inmate from Brownsville released on parole in Texas," is AP coverage, via the Brownsville Herald.

Nearly six years after Manuel Velez was sent to Texas death row for the beating death of his girlfriend's year-old son, the former Brownsville construction worker has walked out of prison.

An appeals court threw out his conviction because of faulty testimony and deficient legal help at his trial, and the 49-year-old Velez in August accepted a plea bargain to a lesser charge, allowing him to be paroled.

His lawyers say he's innocent of the child's death and the plea was a formality to ensure his release.

MSNBC posts, "Innocent Texas man freed after nine years in prison," by Meredith Clark.

A Texas man is free Wednesday after spending nine years in prison for a crime he did not commit, four of them on death row.

Manuel Velez, 49-year-old native Spanish speaker with little knowledge of English and an IQ of 65, was convicted in 2008 of killing his girlfriend’s baby son. Despite evidence that Velez was not with the child when he suffered the injuries that led to his death, and evidence that his girlfriend had been abusive to her children, Velez was found guilty.

After new lawyers took on Velez’s case, they discovered that his original attorney failed to present evidence, both that Velez was in Tennessee when the child was fatally injured, and of his girlfriend’s behavior. Velez’s girlfriend was also charged with capital murder, but she was given a plea deal in exchange for her testimony against Velez.

"Manuel Velez was sentenced to death due to injustices that continue to plague our justice system; only luck saved his life," is the ACLU news release.  Here are two excerpts:

At 12:32 PM CT today, Manuel Velez stepped out of the Huntsville Unit of the Texas Department of Criminal Justice as a free man after nine years behind bars, four of them on death row, all for a crime he didn't commit.

"Manuel never belonged in prison, let alone on death row waiting to be executed. He is indisputably innocent,” said Velez's attorney, Brian Stull of the American Civil Liberties Union's Capital Punishment Project. "My joy for him and his family today is tinged with sadness for the years our criminal justice system stole from him, all because he was too poor to afford better counsel than the lawyer the state appointed to him."

And:

In 2008, Maurie Levin, a law professor tracking ongoing capital cases, noticed Velez's case and was concerned that an intellectually disabled man had just been sentenced to death. She alerted the ACLU and the American Bar Association's Capital Representation Project, which in turn recruited Carrington, Coleman, Sloman & Blumenthal, LLP, and Lewis, Roca, Rothberger LLP, whose work was instrumental in proving Velez's innocence. Without Levin's intervention, Velez could still be on death row or dead by lethal injection.

Even after Velez's conviction was overturned, and in the face of overwhelming evidence of his innocence, the State refused to dismiss the murder charge against him unless he took a plea. Velez pleaded no contest to a lesser charge of injury to a child rather than face a new trial that could be plagued by the same injustices that sent him to death row.

Earlier coverage of Manuel Velez' case begins at the link.

How Race-Based IQ Handicapping Led To A Man’s Execution

That's the title of commentary by attorney Ian Smith at the Daily Caller.  Here's the beginning of this must-read:

Although the case of Hernandez v. Stephens was one of thousands denied review by the Supreme Court this past term, that it received next to no attention by media outlets is still deeply puzzling.

The case involved a Mexican-born illegal immigrant named Ramiro Hernandez who was convicted in a Texas court in 2000 for the murder of his employer and the rape of his employer’s wife. After given the death penalty, he appealed on the grounds that he was mentally retarded. Hernandez’s lawyers argued that because IQ tests taken prior to trial showed his to be a mere 62, within the standard definition of mental retardation, his execution would be unconstitutional under the Eighth Amendment’s prohibition on “cruel and unusual punishment.”

This so-called “Atkins claim” by the defense, named after the 2002 case of Atkins v. Virginia, was rejected by the Fifth Circuit. They accepted the prosecution’s rather astonishing argument that although Hernandez’s IQ was low compared to “American norms,” when “scaled to Mexican norms” it should be adjusted upward. When assessed according to his “cultural group”, they argued, his results should be closer to 70, a level just outside the definition of mental retardation.

As a result, this past April Mr. Hernandez was executed. For this “race-based” approach to IQ, claim attorneys filing a brief on Mr. Hernandez’s behalf, the court violated the Equal Protection Clause of the Fourteenth Amendment.

Earlier coverage of Ramiro Hernandez' execution is at the links.  Related posts are in the Intellectual Disability category index.

More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation - now referred to as Intellectual Disability - is via Oyez. 

The Texas Court of Criminal Appeals has applied its Briseno standards in judging Intellectual Disability claims in Texas, rather than clinical medical standards enumerated in Atkins.  Time will tell what impact the Supreme Court's latest ruling on Intellectual Disability, Hall v. Florida, has on Texas cases.

Jerry Hartfield Still Incarcerated

"New trial set for man in Texas prison 30 years," is the AP report, via the Bryan-College Station Eagle.

A judge on Wednesday set a Sept. 22 retrial for a man kept in a Texas prison for more than three decades since his murder conviction was overturned.

Jerry Hartfield, 58, was convicted in 1977 and sent to death row for the fatal beating of Eunice Lowe at the Bay City bus station where she worked as a ticket agent. His original conviction was overturned and his sentence commuted, but no action on a retrial ever was taken.

And:

His lawyers have been seeking a speedy trial, saying he's suffered enough from mishandling of his case.

Hartfield's conviction was overturned in 1980. After prosecutors unsuccessfully appealed that ruling, then-Gov. Mark White commuted Hartfield's sentence to life in prison in 1983.

Hartfield didn't challenge his continued detention until 2006, when a fellow prisoner pointed out that once his conviction was overturned, there was no sentence to commute. Appeals courts agreed and ordered Hartfield freed or retried.

Earlier coverage of Jerry Harfield's case begins at the link.

Revisiting the Tangled Case of Jerry Hartfield

Andrew Cohen writes, "Texas has been holding this man hostage for 12,600 days," of the Week.  Here's the beginning of this must-read:

Last week, in a decision that contorted both law and fact, a state judge ruled against an illiterate, intellectually disabled black man named Jerry Hartfield.

Hartfield has been imprisoned for more than 33 years — without a valid conviction or sentence authorizing his confinement. In the latest decision, the judge ruled that even though state and local officials clearly were negligent in letting Hartfield slip through the cracks all these decades, there is nothing in the Constitution that provides him with any protection from being retried. Not the Sixth Amendment's guarantee of a speedy trial. Not the undisputed fact that key evidence in that long-ago trial — like the alleged murder weapon, for example — has disappeared. Not the fact that there is no proof that Hartfied, with an IQ testing far below standards for mental retardation, strategized to keep himself in prison for 30 years as a way of avoiding a retrial.

It's not just the third of a century of unlawful confinement that is egregious here. It's the fact that 10 months have passed since the state courts in Texas (after many years of prodding) first acknowledged the terrible mistake that was made in this case. Even this lesser period of delay is unconscionable. Jerry Hartfield, who first would have been eligible for parole in 2003 had Texas followed the law, should be free.

Earlier coverage of Jerry Hartfield's case begins at the link.  You can also jump to Andrew Cohen's earlier commentary on the case.

Texas CCA Rejects Larry Swearingen Petition

The Texas Court of Criminal Appeals ruling in Texas v. Swearingen is available in Adobe .pdf format.

"CCA Denies DNA Testing in Swearingen Case," is Jordan Smith's post at the Austin Chronicle.

Death row inmate Larry Swearingen cannot prove that biological materials exist on evidence connected to the 1998 murder of Melissa Trotter – including on the alleged murder weapon – and therefore is not entitled to DNA testing of those items, the Court of Criminal Appeals ruled this morning.

And:

In ruling against Swearingen on Wednesday, Judge Paul Womack wrote for the unanimous court that a district court ruling that last year approved the requested DNA testing would be overturned because Swearingen "cannot prove the existence of biological material" that could be tested. Although the defense presented to the district court expert testimony that biological evidence would "likely" be found on the pantyhose that is not enough to secure testing, the court ruled. "[W]e have explicitly held that appellee must prove biological material exists and not that it is merely probable."

In other words, without testing, there can be no testing.

The court's conclusion also precludes any testing of cigarette butts found near Trotter's body or of Trotter's clothes absent a showing that biological material exists on each item.

Only finger nail scrapings taken from Trotter are considered "biological evidence per se" and thus not restricted by the need to prove DNA exists before testing can be done. Only some of the collected scrapings were tested, and material found from under one of Trotter's fingernails produced DNA from an unknown male.

The Texas Tribune reports, "Court Reverses DNA Testing Decision in Swearingen Case," by Brandi Grissom and Edgar Walters.

The state’s highest criminal court on Wednesday unanimously reversed a lower court’s decision to allow further DNA testing in the case of death row inmate Larry Swearingen, sending his case back to a district court for further proceedings.

Swearingen was sentenced to death in 2000 after he was convicted of kidnapping, raping and killing 19-year-old Melissa Trotter in Montgomery County. His lawyers say DNA testing on evidence found near Trotter’s body could prove his innocence, but prosecutors say further testing is unnecessary.

James Rytting, a lawyer representing Swearingen, said he would revisit the present motion for further DNA testing now that the case is before the district court once again.

“They remanded it,” Rytting said of the Court of Criminal Appeals' decision. “They didn’t say DNA testing is completely forbidden.”

Bill Delmore, the Montgomery County assistant district attorney prosecuting Swearingen’s case, said he would ask the court to set another execution date, adding that there was a “mountain of evidence” of Swearingen’s guilt.

Earlier coverage of Larry Swearingen's case begins at the link.

Texas CCA Vacates Angel Galvan Rivera's Death Sentence

The Court of Criminal Appeals Opinion in Ex Parte Rivera is available in Adobe .pdfo format.

"New penalty trial for man on death row since 1986," is the AP report, via the Houston Chronicle.

An El Paso man convicted and sent to death row for the slayings of two women almost 30 years ago has won a new punishment trial.

The Texas Court of Criminal Appeals on Wednesday agreed with a trial judge's findings that Angel Galvan Rivera had poor legal help at his 1986 trial in El Paso.

Rivera's appeals lawyers argued his trial attorneys didn't properly investigate Rivera's background or present evidence that could have convinced jurors to decide on a sentence other than death.

Related posts are in the ineffective assistance of counsel category index.

Andrew Cohen on the Buck Ruling & Dissent

"In Texas, Prosecutors Add Twitter Insult to Capital Punishment," is Andrew Cohen's follow-up on the Texas Court of Criminal Appeals opinions in Duane Buck's case.  Here's the beginning of another Cohen must-read:

Twice, as we’ve recounted here at The Atlantic, Texas has deprived convicted murderer Duane Buck of his constitutional right to equal protection. The first time came in 1997 when a now-notorious expert unlawfully told jurors under prosecution questioning that Buck would be more dangerous in the future because he was black. "Future danger" was an "aggravating" factor Buck's jury had to consider in imposing the death penalty on him, which those jurors quickly did after that explosive testimony.

And:

There has indeed been a great deal of unprofessional conduct in the Duane Buck case. It started with that now-disgraced expert and, as the dissent says, terrible defense work at trial and on the initial appeal of Buck's conviction. It continued years later with a broken promise by Texas officials to Buck that, like the others similarly situated, he would get a new sentencing hearing void of unlawful racial undertones. And it continues to this day in the effort by state attorneys, and these six judges, to diminish the import of what happened to Buck by precluding even a review of his case on its merits.

This man—this indigent black man in Texas with a low IQ who received inadequate assistance of counsel and whose trial was rocked by racial prejudice— deserves a new sentencing hearing. If Texas had given him one in 2000, this case would be long over (the five other men tainted by that "expert" were re-sentenced to death).  It's not only unprofessional, it's unjust that Texas is fighting so hard to prevent that new sentencing trial from taking place. And I'd be willing to bet that at least a few justices in Washington agree.

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

The NAACP Legal Defense & Educational Fund has more information on Duane Buck's case.

More 50,000 people from Texas and around the country have signed a Change.org petition calling on Texas officials to grant Mr. Buck a new sentencing hearing.

Related posts are in the race category index.

NPR 'Hear & Now' to Feature Duane Buck Case

Today's edition of Here & Now, the WBUR produced NPR program, will feature a report on the Duane Buck Case.  On Austin's KUT-FM, the program airs at 1:00 pm (CST.)  You can listen live at the link, or check your local NPR station for broadcast time.

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

News Coverage of the Duane Buck Ruling & Dissent

The Texas Court of Criminal Appeals ruling in Ex Parte Buck is at the link.  Judge Alcala's Dissent was joined by Judges Price and Johnson.

The Austin American-Statesman report is, "Appeal dismissed in death row case with racial backdrop," by Chuck Lindell.

The state’s highest criminal court Wednesday dismissed an appeal by death row inmate Duane Buck, who claims his sentence is improper because it was based, in part, on a psychologist’s finding that he presents a greater danger to society because he is black.

In a 6-3 ruling, the Court of Criminal Appeals said that Buck had already filed his one guaranteed appeal, known as a petition for writ of habeas corpus, in 1999 and wasn’t legally entitled to another.

But the court’s newest member, Judge Elsa Alcala, submitted a blistering dissent that said Buck had been ill-served by previous lawyers and the court system.

“The record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness,” Alcala wrote in a dissenting statement joined by Judges Tom Price and Cheryl Johnson.

The upshot, Alcala said, is that no state or federal court has examined, let alone ruled on, Buck’s claim that his constitutional rights had been violated by the inclusion of inappropriate racial testimony and by the incompetence of previous lawyers.

“This cannot be what the Legislature intended when it (voted in 1995 to provide) capital habeas litigants ‘one full and fair opportunity to present all claims in a single, comprehensive post-conviction writ of habeas corpus,’” Alcala wrote.

"CCA Dismisses Buck Appeal," by Jordan Smith for the Austin Chronicle.

A divided Court of Criminal Appeals this morning declined an appeal from condemned inmate Duane Buck, who has asked to have a sentencing hearing free from racially biased testimony.

The majority of the state's highest criminal court, six judges, issued an unsigned opinion, dismissing the appeal outright without any elucidation beyond stating that it failed to meet the criteria set out in statute for the consideration of a subsequent writ.

Nonetheless, two judges – Tom Price and Cheryl Johnson – joined a dissent filed by Judge Elsa Alcala, who argues at length that the record in Buck's case "reveals a chronicle of inadequate representation [by counsel] at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness at the punishment phase," she wrote. Buck's initial habeas attorney was "so incompetent," she continued, that he did not assert any cognizable claim for the court to review. As a result, "no Court has ever considered the merits" of Buck's appeals for post-conviction relief – including that racially-biased testimony tainted his jury. "This cannot be what the Legislature intended" to happen under the state's habeas laws, she wrote.

"Appeals court denies hearing in death penalty case where race testimony questioned," by Mike Tolson in the Houston Chronicle.

Buck, 50, was one of six condemned killers whose trials in the 1990s were marked by the testimony of Walter Quijano, a psychologist who often referred to statistics on race when assessing the extent of potential future dangerousness, one of the questions asked of juries in capital cases. Unlike the others' cases however, Quijano appeared on Buck's behalf and testified that his personality and the nature of the crime, committed in rage, made him less likely to repeat his violence.

During cross-examination, a prosecutor asked him about racial statistics and violent crime, then asked whether those statistics indicated blacks would be more likely to be a danger in the future. Quijano answered affirmatively. Prosecutors referred to the testimony during closing arguments.

"Texas Court Rejects Condemned Inmate's Appeal," is the updated AP report by Michael Graczyk.  It's via ABC News.

Buck was within a six-hour period set for his execution on Sept. 15, 2011, when the Supreme Court gave him a reprieve. The high court decided months later not to review his case and lifted its reprieve.

He does not currently have an execution date.

AFP posts, "Texas rejects death penalty appeal that argued racial bias."

Neither Buck's attorneys nor prosecutors dispute his conviction for the double-murder, but they have argued that racial considerations factored into the sentencing phase of his trial.

During the 1997 hearing, psychologist Walter Quijano testified that blacks pose a greater risk of "future dangerousness" than whites. The prosecutor cited this testimony in asking for the death penalty.

The Supreme Court intervened just hours before Buck's execution on September 15, 2011, with justices Sonia Sotomayor and Elena Kagan arguing that the case needed to be reviewed because "our criminal justice system should not tolerate (a death sentence) marred by racial overtones."

But despite an outcry from some politicians, religious leaders, and judges calling for a new hearing, the nine justice-panel at Texas' highest criminal court rejected Buck's appeal.

"We are gravely disappointed," Buck's lawyers, Kate Black and Christina Swarns, said in a statement.

They said they will bring the case to the Supreme Court "and we are hopeful that the Supreme Court will intervene to right this unequivocal wrong."

Additional coverage includes:

"Texas court denies appeal to death sentence determined by race," by Natasha Lennard at Salon.

"Texas Court Rejects Appeal Of Death Row Inmate After Testimony That Blacks Are More Dangerous," by Nicole Flatow for Think Progress.

"Texas Man Denied New Trial Despite Evidence Of Racial Bias," by D.L. Chandler at News One.

"Texas Court of Criminal Appeals Denies Duane Buck a New Sentencing Hearing," by Dianna Wray in the Houston Press.

"Divided Court Denies Case Where Race Impacted Death Sentence," at the Orlando Advocate.

Earlier coverage of Duane Buck's case begins with initial news of the CCA ruling.

The NAACP Legal Defense & Educational Fund has more information on Duane Buck's case.

More 50,000 people from Texas and around the country have signed a Change.org petition calling on Texas officials to grant Mr. Buck a new sentencing hearing.

Related posts are in the race category index.

Split Texas CCA Denies Relief to Duane Buck in Racially Tinged Sentencing

The Texas Court of Criminal Appeals ruling in Ex Parte Buck is at the link.  Judge Alcala's Dissent was joined by Judges Price and Johnson.

"Split Texas court rejects condemned man's appeal," is Michael Graczyk's AP report, via KDFW-TV.

A divided Texas Court of Criminal Appeals has rejected an appeal from a convicted killer in a Houston case where supporters contend his death sentence unfairly was based on race.

The state's highest criminal court Wednesday refused an appeal from 50-year-old condemned inmate Duane Buck. Buck was convicted of the slaying of his ex-girlfriend and a man at her Houston apartment in July 1995.

During the punishment phase of his 1997 trial, a psychologist testifying for the defense said black people were more likely to commit violence. Advocates for Buck, who is black, say that unfairly influenced the jury, is grounds for a new sentencing hearing and should have been pursued vigorously by lawyers early in the appeals process.

Three of the nine appeals court judges joined in a dissent.

Duane Buck's attorneys have issued the following statement:

“We are gravely disappointed that the Texas Court of Criminal Appeals has dismissed Duane Buck’s appeal and failed to recognize that his death sentence is the unconstitutional product of racial discrimination. As noted by three members of the Court, ‘[t]he record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness at the punishment stage.’  These judges recognized that this outcome ‘jeopardizes both the integrity of the underlying conviction and of this Court’s judicial processes’ and deprives Mr. Buck of ‘one full and fair opportunity to present his claims.’

“With today’s decision, Texas has once again reneged on its promise to ensure that Mr. Buck would not be executed pursuant to a death sentence that was the unfair product of a prosecutorial appeal to racial bias and stereotype. ,For this reason, more than one hundred civil rights leaders, clergy of various faiths, former judges, former prosecutors, and thousands of individuals in Texas and across the world, have joined our call for a new, fair, and colorblind sentencing for Duane Buck. We now urge the Harris County District Attorney’s Office to respect these calls and refrain from seeking an execution date for Mr. Buck. We will ask the U.S. Supreme Court to review the important due process and equal protection issues at stake in Mr. Buck’s case, and we are hopeful that the Supreme Court will intervene to right this unequivocal wrong.”

-- Attorneys Kate Black, Christina Swarns (Director of the Criminal Justice Practice at NAACP Legal Defense & Educational Fund), and Kathryn Kase (Executive Director of Texas Defender Service)

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

The NAACP Legal Defense & Educational Fund has more information on Duane Buck's case.

More 50,000 people from Texas and around the country have signed a Change.org petition calling on Texas officials to grant Mr. Buck a new sentencing hearing.

Related posts are in the race category index.

Texas CCA Orders Ford Hearing for Marcus Druery - Updated

The Texas Court of Criminal Appeals ruling in Druery v. Texas is available in Adobe .pdf format.

Today, in a unanimous decision, the Texas Court of Criminal Appeals ruled that death row prisoner Marcus Druery is entitled to a hearing to determine his competency to be executed. On July 27, 2012, the Court of Criminal Appeals stayed Mr. Druery's execution to consider his appeal for a hearing to determine whether his psychotic disorder renders him incompetent. The case is now remanded for competency proceedings to the 85th Judicial District Court in Brazos County.

Kate Black, Marus Druery's attorney, issued the following statement in response:

"We are pleased that the Texas Court of Criminal Appeals found sufficient evidence of Marcus Druery's severe mental illness to warrant competency proceedings. Much of the evidence of Mr. Druery's mental illness comes from the State's own mental health professionals, who have repeatedly diagnosed Mr. Druery as schizophrenic, paranoid and delusional. A full hearing is critically important to establish that Mr. Druery lacks a rational understanding of his execution. We are confident that the Brazos County District Court will give Mr. Druery's case the thorough and fair consideration it deserves in order to ensure that Texas does not execute a severely psychotic man."

"Bryan Death Row Inmate Gets New Competency Hearing," is the KBTX-TV post by Steve Fullhart.

The Texas Court of Criminal Appeals has ruled a Bryan man whose execution was put on hold deserves a competency hearing to determine whether he is fit to die for his crimes.

Marcus Druery had originally been due to die August 1, 2012 for shooting death of Skyyler Browne, who was murdered on Halloween 2002. Druery's lawyers argued the 33-year-old had a schizophrenia diagnosis, and lacked a rational understanding that he was going to die despite a factual understanding.

In the United States, an inmate must be aware of their execution and why they are being put to death prior to the execution.

Judge J.D. Langley of Brazos County's 85th District Court denied a defense motion for a competency hearing on July 24, 2012. Three days later, the Texas Court of Criminal Appeals stayed Druery's execution until they could further review the case.

Wednesday, the court ordered the defense-requested competency hearing to take place in Langley's court, saying "the trial court erred in weighing the credible evidence of Appellant's incompetency against credible evidence of his competency to determine that he had not made a 'substantial showing' of incompetency."

The Bryan-College Station Eagle posts, "Brazos County death row inmate to get competency hearing," by Maggie Kiely.

At various hearings concerning Druery’s mental state in 2012, defense attorneys Kate Black and Greg Wiercioch argued that their client met the criteria for incompetency and doesn’t have a “rational understanding” of why he’s to be executed, which would make him ineligible for the death penalty.

Langley denied Druery’s request for competency proceedings in July 2012 after finding that “statements that the defendant made in the courtroom” show that he did understand why he was going to be executed.

But the appellate court unanimously disagreed, stating in an opinion released Wednesday that Langley “erred in weighing the credible evidence of appellant’s incompetency against credible evidence of his competency to determine that he had not made a ‘substantial showing’ of incompetency.”

While on death row, Druery has reported hearing “voices” giving him demands and has repeatedly insisted his cell is wired, according to court documents.

In recent years, Druery has been diagnosed as schizophrenic by more than one psychiatrist — including a doctor hired by the defense who concluded Druery’s delusional beliefs kept him from fully understanding his punishment.

Update - The Texas Tribune posts, "Court Orders New Mental Competency Hearing in Death Penalty Case," by Brandi Grissom.

Druery's lawyers contend that his psychotic disorder renders him incompetent for lethal injection. In their unanimous decision to send the case back to the trial court, the nine judges on the appeals court panel wrote that Druery had made a "substantial showing of incompetency to be executed" and that he is entitled to both a hearing and the appointment of at least two mental health experts to determine his competency.

"Much of the evidence of Mr. Druery's mental illness comes from the State's own mental health professionals, who have repeatedly diagnosed Mr. Druery as schizophrenic, paranoid and delusional," Kate Black, a lawyer at the Texas Defender Service who represents the inmate, said in a statement. "A full hearing is critically important to establish that Mr. Druery lacks a rational understanding of his execution."

Earlier coverage of Marcus Druery's case begins at the link.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in the 1986 case, Ford v. Wainwright; more via Oyez.  The Court revisited the issue in its 2007 ruling in Panetti v. Quarterman, also via Oyez.

Related posts are in the competency and mental illness category indexes.

CCA Overturns Manuel Velez' Conviction

The Texas Court of Criminal Appeals ruling in Ex Parte Velez is available in Adobe .pdf format.

"Appeals court throws out Velez’s capital murder conviction," is by Mark Reagan in the Brownsville Herald.

Nearly eight years after 1-year-old Angel Gabriel Moreno died from a head injury, the conviction of the man sentenced to death in the case has been overturned.

Manuel Velez was convicted of capital murder in October 2008 and sentenced to death. Last June the Texas Criminal Court of Appeals threw out that sentence, and Wednesday morning it overturned the conviction and ordered Velez, and the case, back to Cameron County.

District Attorney Luis V. Saenz said his office is preparing to examine the case and determine how it will react to the ruling.

“What did the court find? Can we overcome what the court found? And then we decide the answers to those questions and we decide that depending on how strong we feel the case is, or how not strong it is at this point. Then we make a decision as to what charge,” Saenz said of re-trying Velez.

Angel Gabriel Moreno died after suffering head injuries. The child was rushed to the hospital after Velez found he had stopped breathing. Two days later, on Nov. 2, 2005, the child died.

The Texas Court of Criminal Appeals ruled Wednesday morning that Velez’s defense attorneys during his 2008 trial “failed to conduct an adequate investigation, and, as a result, failed to present evidence at trial that supported defense.”

In 2012, that same court overturned Velez’s death sentence but upheld his conviction. Lawyers with the American Civil Liberties Union then sought a writ of habeas corpus, which challenged the validity of his conviction and sentence.

Earlier coverage of Manuel Velez' case begins at the link.

Related posts are in the forensics and expert witnesses category indexes.

Bob Ray Sanders on the Staley Ruling

"Some measures Texas employs in capital punishment not really sane," is the title of Bob Ray Sanders' latest column in the Sunday Fort Worth Star-Telegram.

The more I think about executions in Texas, and the extent to which this state will go in order to kill someone, the more insane I find the very idea of capital punishment.

Before I talk about the latest case of absurdity involving a Texas Death Row inmate from Tarrant County, let me remind you of two other instances in which the state’s actions seemed beyond ludicrous.

And, turning to the Court of Criminal Appeals ruling in Steven Staley's case:

What really ought to happen, as one law professor suggested to the Tribune, is Staley’s sentence should be commuted to life in prison. It not only would be the most humane but also the most cost-effective solution, considering the amount of money already spent on years of appeals, the professor notes.

But don’t hold your breath waiting for that to happen.

Too many people in this state are bent on carrying out the barbaric practice of putting others to death, no matter the measures that have to be taken to achieve that.

Earlier coverage of Steven Staley's case and the issue of forced medication begins at the link.

Additional Coverage of the Staley Ruling

Today's Dallas Morning News reports, "State’s top criminal court says trial courts can’t force death row inmates to take medication," by Todd J. Gillman.

The Texas Court of Criminal Appeals ruled that trial courts lack the authority to order involuntary medication to restore competency for execution. The Supreme Court has ruled that condemned inmates must understand what death means and why the state wants to kill them before an execution can be carried out.

The court did not address whether forcibly medicating someone so he can be executed violates the U.S. Constitution. But the Staley case highlights a longstanding debate about the appropriateness of restoring someone’s mental health only to kill him.

“It’s time for us to recognize that it’s not civilized to forcibly medicate someone to execute them,” said John Stickels, Staley’s appellate attorney. “That doesn’t make any sense.”

Without the drugs, Staley would be mentally incompetent and would thus linger on death row with no prospect of execution.

“A criminal defendant should not be able to avoid a sentence because he refuses to take his medication,” said Chuck Mallin, chief of the appellate division for Tarrant County. “The court should have the authority to enforce its own judgment.”

Mallin said he was disappointed that the Court of Criminal Appeals didn’t address the constitutional question, which has been bouncing around state courts across the country for years.

“Had they addressed the constitutional issue we could have taken the case up … to the U.S. Supreme Court.”

Mallin said prosecutors may ask for a rehearing. “We’re going to consider every option,” he said.

The issue is a difficult one for both doctors and lawyers, said Texas Tech law professor Brian Shannon, who specializes in criminal law and the mentally ill. For example, forced medication is allowed to make a defendant competent enough to participate in his own trial.

Earlier coverage of Steven Staley's case and yesterday's CCA ruling begins at the link.  Related posts are in the competency category index.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in the 1986 case, Ford v. Wainwright; more via Oyez.  The Court revisited the issue in its 2007 ruling in Panetti v. Quarterman, also via Oyez.

An Update on Steven Staley

The Texas Court of Criminal Appeals ruling in Staley v. Texas is available in Adobe .pdf format.  CCA Presiding Judge Keller and Judge Meyers both wrote dissents.

"Court Rules Judge Didn't Have Right to Forcibly Medicate Death Row Inmate," is Jordan Smith's post at the Austin Chronicle.

A split Court of Criminal Appeals today ruled that a Fort Worth court did not have the legal right to force a mentally ill death row inmate to be medicated in order to make the defendant competent to be executed.

The ruling, by a 5-4 majority of the court, sends the case of Steven Staley vacates the trial court's order forcing his medication, but is silent on whether the Texas Constitution would absolutely forbid the execution of someone forcibly drugged or whether Staley is too ill to be executed at all.

Staley has been on death row for 22 years for the 1989 murder of Robert Read in the aftermath of a botched robbery attempt by Staley and two accomplices at a Fort Worth Steak & Ale restaurant. After moving to death row in 1991, his mental health began a marked deterioration, according to court records, and his first execution date, in February 2006, was ultimately stayed because he was too ill to be executed. The state subsequently argued that it should be allow to force Staley to take medication, in order to both ease his suffering from the effects of his paranoid schizophrenia and to enforce the judgement of death. Staley's defense argued that to medicate him under such circumstances would be to create an "artificial competence" that would not pass legal muster for execution, and that the law did not allow a judge to order such forced medication. The court disagreed and ordered Staley forcibly medicated with – a process that, at times, according to the ruling, saw Staley restrained in order to be injected with drugs. For six years the state medicated Staley with about a 60% success rate of forcible medication, according to the majority opinion.

After years of medication Staley was again found competent and set for execution in May 2012; again, his defense contested.

The Texas Tribune posts, "Court: Death Row Inmate Can't Be Forcibly Medicated," by Brandi Grissom.

The Texas Court of Criminal Appeals issued a ruling Wednesday declaring that Steven Staley, a mentally ill death row inmate, cannot be forcibly medicated for the purpose of making him competent for execution; and without medication, the judges decided, he is not competent to be executed.

"We hold that the evidence conclusively shows that appellant's competency to be executed was achieved solely through the involuntary medication, which the trial court had no authority to order under the competency-to-be-executed statute," Judge Elsa Alcala wrote in the court's majority opinion. 

And:

The American Psychiatric Association and the American Medical Association both consider it ethically unacceptable for doctors to provide treatments to patients when the purpose is for execution. And state supreme courts in Louisiana and South Carolina have ruled that forcibly medicating patients so they can be executed violates those states' constitutions.

The court stayed Staley's execution in May 2012 to give the arguments in the case more consideration. In Wednesday’s ruling, the court did not answer the constitutional questions about medicating Staley so that he could be competent for execution. Instead, the judges ruled that Salvant did not have authority to order Staley to medicated. And, without that medication, they ruled, he was not competent for execution.

"Texas court rules death row inmate can't be forcibly medicated to prepare him for execution," is AP coverage, via the Republic.

The Texas Court of Criminal Appeals has ruled that a convicted killer with a history of mental illness cannot be forcibly medicated for the purpose of making him competent for execution.

The court ruled Wednesday in favor of 51-year-old death row inmate Steven Staley, who was convicted for the 1989 shooting death of a Fort Worth restaurant manager during a botched robbery.

The same court in May 2012 granted a reprieve for Staley two days before he was scheduled to die by lethal injection.

Ealier coverage of Steven Staley's case and long history of severe mental illness begins at the link.

An Update on the Cathy Lynn Henderson Case

Today's Austin American-Statesman reports, "No death penalty in Henderson retrial, DA says," by Chuck Lindell.

Travis County prosecutors will not seek the death penalty when Cathy Lynn Henderson is retried for the 1994 death of an infant she was baby-sitting.

Henderson, who was once two days from execution for the death of 3-month-old Brandon Baugh, will be tried for capital murder and faces a potential sentence of life in prison, District Attorney Rosemary Lehmberg said Monday.

“I just think it’s best considering the evidence we have,” Lehmberg said. “Considering what the jury will be hearing, I think that’s the wisest decision.”

Henderson, now 56, claims Brandon died after slipping from her arms and falling about 4 feet to the tile-on-concrete floor of her kitchen. She said she panicked and buried the boy’s body in a Bell County field before fleeing Texas.

And:

At her trial a year later, then-medical examiner Roberto Bayardo testified that it was “impossible” to attribute the boy’s extensive head injury to an accidental fall, saying it resembled a plunge from higher than two stories. The only explanation, he said, was a deliberate and forceful blow struck by Henderson.

But Bayardo recanted his testimony in 2007, providing defense lawyers with a sworn affidavit saying that advances in the understanding of pediatric head injuries found that relatively short falls onto a hard surface could produce injuries similar to those he discovered during Brandon’s 1994 autopsy.

Bayardo concluded that he could not determine if the boy’s injuries were the result of “an intentional act or an accidental fall.”

Earlier coverage of Cathy Lynn Henderson's case begins at the link.

 If the case sounds familiar, that's because the central facts are similar to the case of Robert Avila.

Federal Review for Texas Death Penalty Case

The 5th Circuit ruling in Matamoros v. Stephens is available in Adobe .pdf format.

"Mexican Mafia gang member on death row for 1990 Houston slaying wins federal court review," is AP coverage, via the Republic.

A Harris County man on Texas death row for 20 years has won a federal court appeal that allows him to pursue claims he's mentally impaired and ineligible for the death penalty.

The 5th U.S. Circuit Court of Appeals ruled Tuesday in the case of 50-year-old John Reyes Matamoros.

And:

Matamoros' lawyers contended he deserved a court review because of trial testimony from a Fort Worth psychiatrist whose methodology and credibility have been questioned in other capital cases.

The testimony in question came from disgraced psychiatrist George Denkowski; earlier coverage begins at the link.  Related posts are in the mental retardation category 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 on the website.  More on Atkins v. Virginia, the Supreme Court's 2002 ruling banning the execution of those with mental retardation, is via Oyez.

Texas Reaches Death Penalty Milestone

That's the title of Lincoln Caplan's post at the New York Times Taking Note blog.

On Wednesday, Texas is scheduled to execute its 500^th death-row inmate since the Supreme Court restored capital punishment in 1976. The state has executed nearly five times as many people as Virginia, the second state on the list.

Texas’s death penalty system is notorious for its high tolerance of ineffective counsel for defendants, overly zealous prosecutors, and racial discrimination in jury selection. The case of Kimberly McCarthy, the woman scheduled for execution, seems tainted by all three.

Ms. McCarthy is an African-American who was sentenced to death in 2002 for murdering a white woman. That’s not surprising: In Texas as well as other states, a black person who murders a white person is more likely to receive the death penalty than when the victim is black.

The 12-person jury that convicted and sentenced Ms. McCarthy included only one person who wasn’t white, after prosecutors used their peremptory, or automatic, challenges to strike three other non-whites. That was in apparent violation of a Supreme Court ruling against purposeful exclusion of minorities from a jury when a minority is the defendant.

The defense counsel did not challenge these apparently unconstitutional race-based strikes or request the kind of hearing for doing so that the Supreme Court allows. The lawyer did not raise the issue on appeal. A different counsel did not raise the issue in the defendant’s later challenge through a writ of habeas corpus.

Because of these failures, no court has ever reviewed the merits of Ms. McCarthy’s claims about racial discrimination.

"Request to stop Texas woman's execution denied," is the AP report, via KDFW-TV.

Texas' highest criminal court has denied a request to block a Dallas County woman's execution this week.

Kimberly McCarthy's execution would be the 500th in Texas since the state resumed carrying out the death penalty in 1982. She contends black jurors were improperly excluded from her trial by Dallas County prosecutors and this wasn't challenged by her lawyers.

But the Texas Court of Criminal Appeals in Austin denied McCarthy's request on Monday. The court said it didn't consider the merits of McCarthy's appeal because she should have raised her claims previously.

Maurie Levin, McCarthy's attorney, says she is "reviewing the order and considering our options."

Earlier coverage of Kimberly McCarthy's case, and the Texas execution milestone, begins at the link.

Anderson Cooper Examines Duane Buck Case

Last night's Anderson Cooper 360 on CNN examined Duane Buck's case.

"Inmate on death row because he's black?" is by Ed Lavandera.  It contains the first half of the archived video.

A Texas man named Duane Buck, convicted of murdering two people,  has been sentenced to die. He's asked an appeals court to grant him a new sentencing hearing.

Buck's appeal is supported by a broad coalition of individuals and organizations,  including a former Texas governor and one of the prosecutors who convicted him. They're not arguing for a new hearing because he's innocent – there are no doubts that he committed murder.

Instead, supporters argue that Buck is on death row because he's African American, and they point to testimony that jurors heard from an expert witness.

The second half of the archived video is, "Was race a factor in death sentence?"  Among others, it features legal analyst Jeffrey Toobin.

CNN has also posted a transcript of the program.  Here's a brief excerpt:

COOPER: Jeff, what they're saying in not granting a new hearing is that this guy was a defense witness, and that makes some sort of a difference?

TOOBIN: Not. The jury hears what the jury hears, regardless of who is putting forth the witness. The other factor here is Texas has an unusual death penalty law in that the issue of future dangerousness is very important. Unfortunately, that law leads to all sorts of quackery. The idea -- the legal system has a hard enough time telling people -- determining what happened in the past. The idea that you can put a psychologist on and predict future dangerousness is just absurd.

COOPER: It's like that movie about future crime, you know. You're fighting future crime.

TOOBIN: Exactly. And Quijano is not the only psychologist who's gotten in trouble here. There is a famous Dr. Death who has testified all the time, who gave similarly ridiculous testimony. But the whole idea of psychologists telling juries that they can predict who's dangerous is fraudulent in and of itself.

Earlier coverage of Duane Buck's case begins at the link.  The NAACP Legal Defense Fund maintains up to date information on the Buck case.

Related posts are in the race 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.

Court: Texas Inmate's Decades-Old Sentence Invalid

That's the title of an AP report by Michael Graczyk, via WBAY-TV.  It's also available through Huffington Post as, "Jerry Hartfield, Texas Inmate, Has Life Sentence For Murder Deemed Invalid By Court of Criminal Appeals."

The Texas Court of Criminal Appeals ruling in Hartfield v. Thaler is available in Adobe .pdf format.

Here's an extended excerpt from the AP report:

The life sentence given to a Texas man who has remained in prison for 33 years since being pulled off of death row isn't valid, Texas' highest criminal court said Wednesday, possibly paving the way for a new trial or the inmate's release.

The Texas Court of Criminal Appeals said once it overturned Jerry Hartfield's murder conviction in 1980 for the killing of a bus station worker four years earlier, there was no longer a death sentence for then-Gov. Mark White to commute.

The opinion was given in response to a rare formal request by the 5th U.S. Circuit Court of Appeals to confirm the validity of its ruling overturning Hartfield's conviction, in light of the governor's 1983 commutation. The New Orleans-based federal court made the request, which upheld a lower state court's ruling that the sentence was invalid.

"The status of the judgment of conviction is that (Hartfield) is under no conviction or sentence," Judge Lawrence Meyers wrote in a decision supported by the court's other eight judges. "Because there was no longer a death sentence to commute, the governor's order had no effect."

Hartfield, now 57, was convicted and sentenced to death for the 1976 robbery and killing of a Southeast Texas bus station employee. The criminal appeals court overturned his murder conviction, ruling that a potential juror improperly was dismissed after expressing reservations about the death penalty.

White commuted Hartfield's sentence in 1983 at the recommendation of the Texas Board of Pardons and Paroles, and he has remained in prison since then, unaware until a few years ago that his case was in legal limbo. Court documents in his case described him as an illiterate 5th-grade dropout with in IQ of 51, although Hartfield says he's learned to read and write while in prison.

In its failed appeal to the 5th Circuit, the state argued that Hartfield's life sentence should stand because he missed a one-year window in which to appeal aspects of his case.

Earlier coverage of Jerry Hartfield's case begins at the link.

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.

Racism in a Texas Death Case

That's the title of a New York Times editorial on the case of Duane Buck.  It appeared in the Saturday edition.

In the annals of racism in the Texas criminal justice system, seven death penalty cases are in a class by themselves. In 2000, after the Supreme Court ordered a new sentencing hearing in one of them, Senator John Cornyn, who was then the state attorney general, called for new sentencing hearings in the other cases for the same reason: because race was improperly and explicitly considered as a factor in determining the sentence.

Duane Buck, who was convicted of two murders, is the only one among the defendants who was not granted a new sentencing hearing. His post-conviction lawyers have uncovered a lot of mitigating evidence that his trial counsel did not present to the jury that sentenced him to death. He is seeking life without parole and is awaiting a decision on this matter by the Texas Court of Criminal Appeals.

Texas has long fought his request for resentencing because it insists that Mr. Buck is responsible for introducing race into his case.

And:

The racial bias in this case reflects a wide and disturbing pattern in death penalty prosecutions in Harris County, Tex., where Mr. Buck was tried. A recent study found that from 1992 to 1999 the county prosecutor was three times as likely to seek the death penalty for blacks in murder cases as they were for whites, and juries were twice as likely to impose capital punishment. The Buck case is yet more evidence that capital punishment should be abolished.

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

Lubbock Avalanche-Journal Series

The Lubbock Avalanche-Journal has published a series of articles under the heading, "Ultimate Punishment: The Death Penalty in Lubbock and the South Plains."  The series is written by Walt Nett.  There are infographics at the link.

"Four local inmates, linked by one three-digit number, waiting on Death Row."

They are four men from Lubbock, connected by a single three-digit number, who may think more than most people about how long they have to live.

The number Joe Garza Jr., Rosendo Rodriguez III, Vernon Ross and Michael Yowell have in common is 999 — the first three digits of a Texas death row inmate’s identification number since mid-1991.

"Movement apparent in local death penalty cases; Pace of verdicts slowing statewide."

Execution by lethal injection, the punishment Texas law allows a jury to recommend to deal with “the worst of the worst,” has quietly re-entered the South Plains legal environs.

It’s back, nearly five years after Lubbock County prosecutors last tried a death penalty case and four years after the last execution of a capital murder defendant from the South Plains.

It’s also arriving when fewer prosecutors across the state are asking jurors to recommend a death sentence, and more death penalty juries are choosing to sentence convicted capital murderers to life without possibility of parole.

"Courts granted relief for 7 men once condemned."

Since Texas resumed executions in 1982 — six years after the death penalty law was reinstated in the state — seven men won back a portion of their lives through successful appeals.

All had killed; none contested the verdict on appeal.

Instead, each successful appeal turned on some aspect of Texas’ capital murder law, and whether it had been applied properly during the punishment portion of their trials.

Six were commuted as a result of decisions in the Texas Court of Criminal Appeals, including three who said prosecutors had insufficient evidence for the jury to determine if the defendant would be a continuing threat to society.

The seventh commutation — also the most recent — arose from a spectacular “inadequate representation” ruling in U.S. District Court in Lubbock with a bizarre element.

Rather than going back for new punishment trials, six defendants accepted prosecutors’ offers of life in prison, while the seventh received a 55-year sentence.

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.

New Trial Recommended for Manuel Velez

"Retrial closer for convicted killer," is the Brownsville Herald report written by Mark Reagan.

State District Judge Elia Cornejo Lopez has recommended Brownsville resident Manuel Velez, who was convicted of murdering a toddler, get a new trial. Lopez issued the order Tuesday.

Velez had been convicted of killing 1-year-old Angel Gabriel Moreno in October 2008. He received the death sentence.

“After a thorough and critical review of the evidence presented, Judge Lopez found that Mr. Velez’s trial counsel was ineffective for, among other reasons, failing to investigate and present medical evidence exculpating Mr. Velez,” said pro bono attorney Tami Goodlette. “She further concluded that this and other failures undermine confidence in the jury’s verdict.”

Velez was convicted and sentenced to death, but the Texas Court of Criminal Appeals threw out the sentence last June because expert witness testimony on future dangerousness of the defendant was deemed inaccurate.

In Lopez’s ruling, she wrote that a new trial should be granted because of ineffective assistance of counsel.

“Mr. Velez has now shown that, at the time of his 2008 trial, compelling medical evidence was available to refute the theory on which he was convicted,” Lopez wrote in her finding. “His trial counsel, Hector Villarreal and O. Rene Flores, inexplicably failed to develop and present to the jury this exculpating evidence. These failures were not the result of sound trial strategy.”

In December, Velez appeared before Lopez for an evidentiary hearing to determine whether Lopez would or wouldn’t recommend a new trial for him.

During that hearing, pro bono attorneys said there is no evidence that Velez struck the child and said new medical evidence shows the child sustained the injuries that killed him while Velez was out of town, working in Memphis, Tenn.

The Court of Criminal Appeals will rule on Judge Cornejo's recommendation.

Earlier coverage of  Manuel Velez' case begins at the link.  Related posts are in the forensics and expert witnesses category indexes.

Democracy Now Examines Duane Buck Case

"Prosecutor Seeks Stay of Execution for Texas Prisoner Duane Buck, Sentenced to Death for Being Black," is the Democracy Now report with Amy Goodman.  There is audio at the link.

Although Duane Buck’s guilt is not in question for the 1995 murder of his former girlfriend Debra Gardner and her friend Kenneth Butler, critics say jurors in his case were led to choose a death sentence over life without parole based on testimony of a state psychologist who argued that African-American criminals are more likely to pose a future danger to the public. We’re joined by two guests: Linda Geffin, the second-chair prosecutor who helped win Buck’s death sentence in 1997, but now opposes his execution, and Christina Swarns, an attorney with Duane Buck’s legal defense team and director of the NAACP Legal Defense Fund’s Criminal Justice Project.

Here's an excerpt from the interview:

For more, we go to Houston, where we’re joined by Linda Geffin, second-chair prosecutor who helped win the death sentence for Duane Buck in '97. She now opposes his execution. She is currently senior assistant prosecutor in Harris County attorney's office. And here in New York, we’re joined by Christina Swarns, attorney who’s part of Duane Buck’s legal defense team. She is the director of the NAACP Legal Defense Fund’s Criminal Justice Project.

We welcome you both to Democracy Now! Linda Geffin, let’s go to you. You helped convict Duane Buck. He ended up with the death penalty, being sentenced to death. Why have you changed your view on his case right now?

LINDA GEFFIN: Fourteen years after the trial, I saw on the Internet the offensive testimony in black and white. And when I had the opportunity to read it and to really absorb what it was saying, it was so—I had so much clarity that it was racially offensive, it was egregious, and it was error. So I emailed Mr. Buck’s lawyer and asked how I could help.

AMY GOODMAN: Talk about what that quote was. I’ll read a comment Dr. Quijano made to The New York Times. He said, quote, "I was asked a question whether there is a relationship between race and violence or dangerousness. The literature suggests that there is a correlation. So I had to say yes." He added, "It’s not because of the blackness of the person that is causing the violence. It is what goes with it. Poverty, the exposure to lack of education, exposure to criminal elements." Let’s go to our guest right here in New York, Christina Swarns. Your response to that?

CHRISTINA SWARNS: Well, I think Dr. Quijano made quite clear that what he believed and what the state was looking for him to say was that because Mr. Buck was and is African American, he posed a future danger to society. And the prosecution, in cross-examination, elicited that testimony. They then went on to argue specifically that point during closing argument. What the prosecutor said in closing was: Dr. Quijano testified that he would pose a future danger, and that—on that basis, you should find that he is a future danger, and he should be sentenced to death. I would go on to say that, as The New York Times reported, Dr. Quijano’s opinion, of course, about this is false: There isn’t a real connection to support a future dangerousness finding.

Earlier coverage of Duane Buck's case begins at the link.  Related posts are in the race category index.

Victim and Prosecutor Back Death Row Inmate’s Bid for Resentencing

That's the title of Manny Fernandez' report in today's New York Times on the case of Duane Buck.

One morning in July 1995, Phyllis Taylor stood inside her best friend’s house here, face to face with her stepbrother. He was holding a .22-caliber rifle, his eyes bloodshot red. Then he pulled the trigger.

Ms. Taylor survived — the bullet came within one inch of her heart and lodged in her right shoulder. More than 17 years later, a scar the size of a nickel remains on her chest, but her anger has faded: She has forgiven her stepbrother, Duane E. Buck, 49, and has been trying to secure his release from Texas’ death row.

“This is not an easy thing,” said Ms. Taylor, 46, who visited him last month at the prison that houses death row in Livingston, Tex. “It’s very hard. I still have moments. But I know that I’m doing the right thing. The Bible says that I have to forgive, and that’s just my key to my everyday living.”

Ms. Taylor is part of an unusual network of supporters who have been trying to halt Mr. Buck’s execution. His advocates include leaders of the N.A.A.C.P., one of the lawyers who prosecuted him and a former governor of Texas. While many contested death-row cases center on guilt or innocence, Mr. Buck’s case is different — his guilt has never been disputed, but the testimony of a psychologist has raised questions about the role that race played in the jury’s decision to sentence him to die by lethal injection.

And:

Last week, a statement calling for a new sentencing hearing for Mr. Buck that was signed by Ms. Taylor and dozens of others — including another of the prosecutors who had helped convict him, Linda Geffin — was delivered to the Harris County district attorney, Mike Anderson. It was handed to him by Mark W. White Jr., a governor of Texas in the 1980s.

Mr. White and Mr. Buck’s lawyers said that they believed his death sentence was a product of racial discrimination, and that Dr. Quijano’s testimony — and the prosecutor’s emphasis on that testimony — made the color of Mr. Buck’s skin a factor in the jury’s deliberations, violating his constitutional rights. In addition to their claims of racial bias, they said Texas was failing to follow through on a promise it had made to Mr. Buck.

In 2000, the attorney general at the time, John Cornyn, identified six capital cases in which Dr. Quijano had presented race-based testimony. Mr. Cornyn, now a United States senator from Texas, admitted that the state had erred in relying on such testimony in those and other cases, and that it was “inappropriate to allow race to be considered as a factor in our criminal justice system.”

Mr. Buck’s case was among the six. But he is the only defendant who has not been granted a new sentencing hearing. The others had all been on death row, and were ultimately resentenced to death after their new hearings. The state has opposed Mr. Buck’s attempts to receive a new hearing, but did not oppose the requests for new hearings made by the five other defendants.

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

Race and the Death Sentence

That's the title of an editorial in today's Houston Chronicle on the case of Duane Buck.  It's subtitled, "Keep race out of death sentence hearings to help ensure that justice is equal for all."

Whenever Texas juries sentence a criminal to death, they have to find beyond a reasonable doubt that the convicted is a continuing threat to society. When Duane Buck was sentenced to death, prosecutors relied on his race to help prove this point. As a black man, the jury heard, Buck was more likely to pose a future criminal threat.

There is no doubt that Buck is guilty of murder. There is also no doubt that his death sentence is tarnished by racial considerations.

The Texas Court of Criminal Appeals is currently considering an appeal arguing that Buck deserves a new sentencing hearing. Our state needs to show our criminal justice system is free of racial discrimination, and it can start by granting Buck a clean, unbiased hearing.

And:

Our state criminal justice system does not have a sterling reputation for race-blind procedure. Juries in Harris County are twice as likely to sentence black criminals with the death penalty than they are white criminals, according to a recent study by University of Maryland criminologist Ray Paternoster.

Texas has to prove that everyone, no matter how cruel or evil, receives proper due process in our courts, free of immoral and now illegal racial bias. And we can do so by granting Duane Buck a new sentencing.

Earlier coverage of the case of Duane Buck begins at the link.  Related posts are in the race category index.

Duane Buck Case Live Chat Today at 12 Noon, CDT/1:00 PM, EDT

"Duane Buck case live chat: what's next for inmate sentenced by race?" will go live in just over an hour, at 12:00 noon (CDT), 1:00 pm (EDT).

Join Ed Pilkington and Christina Swarns, director of the NAACP Legal Defense and Educational Fund, to discuss Buck's case.

What does his case tell us about the way African Americans are treated generally in the application of the death penalty in America? Join Guardian reporter Ed Pilkington and Christina Swarns, director of the NAACP legal defence and educational fund, to discuss the case from 1 to 2pm ET Wednesday.

Other questions to consider:

• What is the current role of race in US capital punishment?

• Why do his advocates say Buck was sentenced to death because of his race?

• How did Buck's lawyer allow such evidence to be presented in court?

• What is the status of Buck's new sentencing hearing?

Guardian writer Pilkington also posts, "Texas convict's death row sentence challenged over claim of racial bias."

More than 100 prominent civil rights leaders, lawyers, politicians and clergy are calling on the state of Texas to provide a new fair sentencing hearing for Duane Buck, the African American man who was put on death row in 1997 after the jury was told he was a danger to society because he was black.

The Buck case is rapidly becoming a focal point for anxieties that the application of the death penalty across America is riddled with racial discrimination. Last week an appeal was filed in the Buck case that included new research showing that at the time of his sentence black defendants in Houston, Texas – the death penalty capital of the US – were three times more likely to be charged with a capital crime than whites.

The statement put out by 102 national and Texan leaders calls for a new fair sentencing hearing for Buck that would be free from racial bias. "The state of Texas cannot condone any form of racial discrimination in the courtroom. The use of race in sentencing poisons the legal process and breeds cynicism in the judiciary," it says.

The signatories include Linda Geffin, who was one of the prosecutors in the original trial of Buck, as well as Phyllis Taylor who was shot by Buck but survived. The statement says that Taylor has "forgiven Mr Buck and does not wish to see him executed".

Earlier coverage of Duane Buck's case begins at the link.  Related posts are in the race category index.

Harris County Texas and Race

The research paper, "Racial Disparity in the Case of Duane Edward Buck," is available in Adobe .pdf format.

"Report: Racial Bias Prevalent When TX Man Sentenced to Death," is by John Michaelson for Texas Public News Service.

Advocates for a Texas man on death row filed a petition on Wednesday seeking a new sentencing hearing, pointing to just-released research on racial bias when his execution was ordered. The analysis looked at some 500 cases in Harris County around the time of Duane Buck's sentencing. It found the death penalty was much more likely for blacks, according to Christina Swarns with the NAACP Legal Defense Fund.

"For African American defendants like Mr. Buck, the Harris County District Attorney's office was three times more likely to seek death than for similarly situated white offenders, and Harris County juries were twice as likely to impose the death sentences for offenders like Mr. Buck than they were for similarly situated white offenders," she said.

The petition cites a promise to Buck made more than a decade ago. His attorney, Kate Black, says the promise was made because the prosecution elicited race-based testimony at several sentencings, Buck's included.

"In 2000, then (Texas) Attorney General John Cornyn looked at cases in which the expert who testified at Mr. Buck's trial testified in a number of other trials and found that there was Constitutional error in seven cases," Black said. "In six of the cases, those individuals received new sentencing hearings. Mr. Buck is now the only person who has not received a new sentencing hearing."

The Guardian reports, "Research exposes racial discrimination in America's death penalty capital," by Ed Pilkington.

Black defendants facing trial in Houston – the death penalty capital of America – are more than three times as likely to face a possible death sentence than whites, new academic research has revealed.

The study, by a criminologist at the University of Maryland, exposes the extent of racial discrimination inherent in the administering of capital punishment in Harris County, the ground zero of the death penalty in the US. The county, which incorporates Houston, Texas's largest city, has carried out 116 executions in the modern era – more than any entire state in the union apart from Texas itself.

Professor Raymond Paternoster of the university's institute of criminal justice and criminology was commissioned by defence lawyers acting in the case of Duane Buck, a death row prisoner from Houston whose 1995 death sentence is currently being reconsidered by the Texas courts.

Paternoster, whose report is based on the latest quantitative methods, looked at 504 cases involving adult defendants who had been indicted for capital murder in Harris County between 1992 and 1999 – the period during which Buck was charged for murdering his former girlfriend, Debra Gardner, and a man called Kenneth Butler. Paternoster whittled down that pool to 20 cases that most closely echoed that of Buck's own in terms of the factors involved in the crime that were likely to incur a death sentence.

He found that of the 21 men, including Buck, seven out of the 10 who were African American were sent by the Harris County district attorney for capital trial, compared with just one of the five white defendants.

"The probability that the district attorney will advance a case to a [death] penalty trial is more than three times as high when the defendant is African American than for white defendants," Paternoster writes. He adds: "The disparity by race of the defendant, moreover, cannot be attributed to observed case characteristics because these cases are those that were most comparable".

AFP posts, "Texas urged to overturn a racially-tinged death penalty."

Lawyers for an inmate whose execution was halted at the last minute urged a Texas court Wednesday to overturn his death penalty on the grounds that it was the result of racial discrimination.

Duane Buck, 49, was condemned to die for the 1995 murder of his girlfriend and one of her friends.

Neither Buck's attorney nor prosecutors dispute his conviction for the double-murder, but they have argued that racial considerations factored into the sentencing phase of his trial.

The Supreme Court intervened just hours before Buck's execution on September 15, 2011, with justices Sonia Sotomayor and Elena Kagan arguing that the case needed to be reviewed because "our criminal justice system should not tolerate (a death sentence) marred by racial overtones."

Buck's attorneys urged the Texas court in a brief filed Wednesday to vacate Buck's sentence and give him a new trial as a result of the "long history of racial discrimination" in the administration of criminal justice in Harris County, Texas.

"This case is very simple: no death sentence can be supported by an appeal to racial prejudice," defense attorney Kate Black said.

They cited a study which concluded that from 1992 to 1999 -- the period during which Buck was tried and sentenced -- prosecutors in Harris County were "over three times more likely to seek the death penalty against African American defendants, than against similarly-situated white defendants."

The study also found that juries in Harris County were more than twice as likely to impose death sentences on African American defendants than on whites.

The study also found evidence that race played a role in Buck's particular case.

"Study: Blacks Twice as Likely as Whites to Get Death Penalty in This Texas County," by Tim Murphy at Mother Jones.

In September of 2011, the Supreme Court granted a stay of execution for Texas death row inmate Duane Buck, who was given a death sentence in 1997 for the murder of an ex-girlfriend and a male acquaintance. The reason: Buck's race (he's black) was cited by a psychologist—whose testimony was in turn cited by the prosecutor—as evidence that he may pose a threat to other inmates should he be sentenced to life in prison. Texas' Republican attorney general in 2002, now-Sen. John Cornyn, recommended that Buck and six other inmates in similar situations be tried again; Buck is the only one who hasn't. Buck's case has since returned to the state courts, and his attorneys are still appealing for a re-trial. (No one disputes his actual guilt.)

On Wednesday, Buck's attorneys released a new report from University of Maryland criminology professor Ray Paternoster examining the impact race played on sentencing in Harris County (which includes Houston, where Buck was tried) from 1992 to 1999. Paternoster examined 504 cases. The takeaway:

The probability that the district attorney will advance a case to a penalty trial is more than three times as high when the defendant is African-American than for white defendants (this includes Mr. Buck’s case). This disparity by race of the defendant, moreover, cannot be attributed to observed case characteristics because these cases are those that were most comparable in terms of the estimated propensity score.

This racial disparity is only partially corrected at the jury sentencing stage...Ultimately, among this group of comparable cases a death sentence was twice as likely to be imposed on an African American defendant as a white defendant.

"Study: Harris County, Texas Juries Twice As Likely to Demand Death Penalty for Black Defendants Than White," by Julianne Hing at Colorlines.

Ebony posts, "Racism and the Death Penalty: New Evidence," by Lumumba Akinwole Bandele.

Earlier coverage of Duane Buck's case begins at the link.  Related posts are in the race category index.

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. 

Death Penalty Insanity in the Case of Andre Thomas

That's the title of a Dallas Morning News editorial, following Brandi Grissom's Texas Tribune/Texas Monthly reporting on Andre Thomas.

Stripped of the modern trappings of the court system, the saga of condemned Texas murderer Andre Thomas resembles a medieval horror story featuring madness, a family’s homicidal slaughter, the defendant’s self-mutilation and a waiting executioner.

Knowing it’s real makes the story almost too grotesque to stomach.

Still, it was a service by the Texas Tribune and Texas Monthly to render it in stark detail, because it challenges this state’s collective conscience.

Thomas would have a standard death row cell today were it not for his mental instability. With his eyelids surgically shut over empty sockets, he waits in a prison psychiatric unit until a federal judge decides whether he can be put to death.

A reading of the case file is a journey into darkness.

And:

The Texas Court of Criminal Appeals has deferred to the jury verdict, ruling that Thomas “is clearly ‘crazy,’ but he is also ‘sane’ under Texas law.”

It seems, rather, that the world has gone mad. That this human being is responsible for his psychotic actions is a preposterous notion. To strap down and terminate the life of such a tortured creature is the way a medieval society would deal with its embarrassments.

Earlier coverage of Andre Thomas begins with Grissom's reporting, noted at the link.

5th Circuit Overturns Tarrant County Capital Conviction

The U.S. Court of Appeals ruling in Gongora v. Thaler is available in Adobe .pdf format.

The Texas Tribune posts, "Court Reverses Death Row Inmate's 2003 Conviction."  It's by Maurice Chammah.

A man sentenced to death for the 2001 murder of another man in Fort Worth has had his case overturned by a federal appeals court.

The 5^th U.S. Circuit Court of Appeals agreed with attorneys for Nelson Gongora that prosecutors in his 2003 murder trial should not have suggested to the jury that Gongora's decision to not testify indicated his guilt.

In their decision Wednesday, the 5th Circuit judges wrote that repeated comments by the Tarrant County prosecutor about Gongora's lack of testimony violated his right to a fair trial. The 5th Amendment guarantees criminal defendants the right to not testify at trial and in 1965, the U.S. Supreme Court ruled that this meant a prosecutor could use a decision to not testify as evidence of guilt. The lead prosecutor in Gongora's case, J.D. Granger, did not return a call requesting comment.

Gongora remains on death row while the Tarrant County district attorney's office decides whether to try him again. "It's premature to determine how we're going to proceed," said Melody McDonald, the office's spokeswoman.

And:

The Court of Criminal Appeals, Texas’ highest criminal court, wrote in 2006 that the prosecutors’ comments were “inartful and often confusing,” but did not violate Gongora’s rights. A federal district judge said in 2007 the prosecutor should not have made the comments, but that they did not affect the jury’s decision.

On Wednesday, however, the 5^th Circuit, which reviews appeals from all Texas death penalty cases, wrote that the prosecutor’s comments were “repeated and direct violations” which were “both inexplicable and inexcusable.” In context, the court said, the comments might be read as the prosecutor’s attempt to correct his initial mistake, but over time they served to “reinforce the impression of Gongora’s guilt.”

"Courts Overturn Three Capital Murder Cases," is Jordan Smith's report in the Austin Chronicle.

In that case, a three-judge panel of the Fifth Circuit concluded that the conviction and death sentence handed to Nelson Gongora in 2003 should be vacated, and the case handed back to the district to retry or to dismiss. In its ruling, the court concluded that Tarrant County prosecutors made impermissible comments to the jury about Gongora's failure to take the stand in his own defense, a clear violation of his Fifth Amendment right not to be compelled as a witness. "We find that the extraordinarily extensive comments on Gongora's failure to testify resulted in actual prejudice," the panel ruled.

Gongora was among a handful of men indicted for the 2001 robbery and murder of Delfino Sierra. Gongora was indicted for capital murder in the case, though at trial prosecutors argued that he was either guilty of the robbery and shooting or that he was a participant in the robbery during which Sierra was shot by one of Gongora's cohorts. The result, it seems was confusing: "The jury heard sharply conflicting evidence regarding Gongora's role in the offense, including evidence that the shooter may have been someone other than...Gongora" or a co-defendant, Albert Orosco, reads the Feb. 27 opinion. One witness testified that she didn't see who did the shooting, while others pointed their fingers in several different directions, before ultimately ending up on Gongora – including a witness indicted for the crime but, after agreeing to testify against Gongora, given a plea for 20 years, and a promise that he would not be prosecuted for a second shooting, a fact about which the Fifth Circuit seemed none too amused.

Ultimately, though, prosecutors pointed out that only Gongora did not testify, implying that meant he was the guilty party. Over repeated objection by the defense, prosecutors continued to point out that he failed to take the witness stand. The trial judge declined to grant a mistrial and later rejected Gongora's direct appeal. Texas' Court of Criminal Appeals also ultimately rejected Gongora's argument that the constant comments violated his Fifth Amendment protections. The "complained-of comments appear to be the prosecutors attempt" to comment on the failure of some other witnesses to testify, the CCA concluded. The comments were "not so blatant" that they would have prejudiced the jury, the CCA ruled.

Not only was the CCA wrong, the Fifth Circuit has concluded, but to "conclude otherwise" that the comments did not violate the Fifth Amendment "empties all meaning of this cornerstone of rights upon which our criminal justice system rests," the panel ruled. "Its very centrality renders it a primer rule – etched in the minds of all players in a criminal case. Single episodic violations wil creep in, but repeated and direct violations are both inexplicable and inexcusable. Certainly not excusable by ignorance or inexperience." Not only was the evidence against Gongora fairly weak, the panel noted, but based on notes from the jury during their deliberations, it appears they focused on who and who had not testified – just as prosecutors had suggested they should.

Earlier coverage of Nelson Gongora's case begins at the link.  Related posts are in the prosecutorial misconduct index.

Andre Thomas: Questions of Competence

That's the title of Brandi Grissom's report in the today's Texas Tribune, the sixth and final installment in her series, "Trouble in Mind."  Here's the beginning:

On Feb. 15, 2005, nearly a year after Andre Thomas committed a brutal triple murder that rocked this North Texas town — the stabbing and mutilation of his estranged wife, Laura Boren, 20, their 4-year-old son, Andre Jr., and her 1-year-old daughter, Leyha Hughes — Thomas’ much-awaited trial began.

“I really can’t remember a single person I spoke to in town who didn’t think it should be prosecuted as a death penalty case,” Grayson County District Attorney Joe Brown recalled. 

Sitting at the defense table, Thomas appeared almost catatonic at times. He wore a black patch where his right eye had been and munched on Skittles during some of the trial’s most stomach-churning testimony. 

Despite the fact that he had ripped out his eye and had a long history of mental instability, 21-year-old Thomas was found competent to stand trial and was later sentenced to death. At age 29, he is blind — he pulled out his other eye while on death row — and is awaiting execution in a psychiatric prison. In a federal appeal, Thomas’ lawyers argue that his trial was unfair and that executing the mentally ill man would “make a mockery of our system of justice.” Prosecutors in Grayson County argue that Thomas’ drinking and drug abuse exacerbated whatever mental issues he had and fueled his rage, that he exaggerated symptoms of mental illness, and that the jury fairly assessed his punishment. (Click here to view an interactive timeline of the case.)

For criminal justice advocates, Thomas’ case raises critical questions about how courts determine competency for trial and about the fairness of a legal system that prevents juries from knowing what might happen to a defendant if they find him not guilty by reason of insanity. Most starkly, Thomas’ case presents questions about how mentally ill defendants who commit unimaginable crimes should be punished and whether they should be exempt from the death penalty, an issue that the U.S. Supreme Court may soon tackle.

This collaboration between the Tribune and Texas Monthly runs in a different form in the March edition of TM, "Trouble in MInd: How should criminals who are mentally ill be punished?"

Salon takes note of Grissom's reporting in, "A schizophrenic who gouged out his eyes is on Texas death row," by Natasha Lennard.

Texas Tribune managing editor Brandi Grissom has followed Thomas’ case closely. As she noted in an excellent feature for theTexas Monthly, “as he awaits execution, Andre and his tragic case force uncomfortable questions about the intersection of mental illness and the criminal justice system.” Thomas is certainly not the only death row inmate to have been diagnosed with mental illness; more than 20 percent of the 290 inmates on Texas’ death row are considered mentally ill, as Grissom noted. But the extremity of his situation has prompted fervid responses locally and nationally. “It’s astonishing, just how many problems in the legal system [this case] exemplifies,” said Levin in a phone interview.

Who gets to be sane? Who gets to be accountable? Who gets to be executed? — Thomas, fully blind and heavily medicated, faces the death penalty as a limit case for Texas’ answer to these problematic questions.

Earlier coverage of Andre Thomas begins at the link.

Continuing Coverage of Andre Thomas & 'Trouble in Mind'

Today's Texas Tribune posts, "Andre Thomas: Struggling to Maintain Sanity In Prison," by Brandi Grissom.  It's part five of the six-part series, "Trouble in Mind."  There are infographics at the link.

Thomas is among thousands of mentally ill inmates in the state’s sprawling prison system, which is struggling to keep pace with the increasing need for mental health care. After years of state budget cuts that resulted in trimming staff and reducing programs, leaders at the University of Texas Medical Branch, which provides much of that care, say they need more state funding to provide adequate treatment. And some lawmakers want the prison system to adopt policies that may help alleviate some inmates’ mental health problems by reducing the use of solitary confinement, where more than 8,000 inmates now find themselves, according to prison officials.

After being convicted of murder in 2005, Thomas, then 22, was sent to TDCJ’s death row at the Polunsky Unit in Livingston. On the health status form that medical staff from the Grayson County Jail sent along with Thomas when he was transferred, they wrote that he was a “paranoid schizophrenic,” that he had “enucleated” his own eye, and that he was wearing mittens to prevent him from ripping out the other eye. (Click here to view an interactive timeline of the case.)

Like the rest of the condemned, Thomas spent 23 hours a day confined alone in a 6-foot-by-10-foot cell. There, his mental illness worsened, his lawyers say.

Part four of Grissom's series ran as, "Advocates Seek Mental Health Changes, Including Power to Detain," in the Sunday Texas edition of the New York Times, and as, "Andre Thomas: Gaps in a 30-Year-Old Mental Health Code," at the Tribune.

At least twice in the three weeks before the crime, Mr. Thomas had sought mental health treatment, babbling illogically and threatening to commit suicide. On two occasions, staff members at the medical facilities were so worried that his psychosis made him a threat to himself or others that they sought emergency detention warrants for him.

Despite talk of suicide and bizarre biblical delusions, he was not detained for treatment. Mr. Thomas later told the police that he was convinced that Ms. Boren was the wicked Jezebel from the Bible, that his own son was the Antichrist and that Leyha was involved in an evil conspiracy with them.

He was on a mission from God, he said, to free their hearts of demons.

Hospitals do not have legal authority to detain people who voluntarily enter their facilities in search of mental health care but then decide to leave. It is one of many holes in the state’s nearly 30-year-old mental health code that advocates, police officers and judges say lawmakers need to fix. In a report last year, Texas Appleseed, a nonprofit advocacy organization, called on lawmakers to replace the existing code with one that reflects contemporary mental health needs.

“It was last fully revised in 1985, and clearly the mental health system has changed drastically since then,” said Susan Stone, a lawyer and psychiatrist who led the two-year Texas Appleseed project to study and recommend reforms to the code. Lawmakers have said that although the code may need to be revamped, it will not happen in this year’s legislative session. Such an undertaking requires legislative studies that have not been conducted. But advocates are urging legislators to make a few critical changes that they say could prevent tragedies, including giving hospitals the right to detain someone who is having a mental health crisis.

From the time Mr. Thomas was 10, he had told friends he heard demons in his head instructing him to do bad things. The cacophony drove him to attempt suicide repeatedly as an adolescent, according to court records. He drank and abused drugs to try to quiet the noise.

By the time he was 16, he was a father with a long history of arrests. At 18, he was married to his son’s mother. A few months after their wedding, the two separated. Mr. Thomas struggled to hold a job, and the older he got, friends and family members say, the more pronounced his mental illness became.

By March 5, 2004, it was too much. A friend took Mr. Thomas to a local mental health clinic, where he told staff members that he wanted to die and that he could not stand the sound of his own voice. He said that if someone there did not shoot him, he would do it himself, court records show. Frantic and delusional, he said, “If I can’t talk to someone now, I will throw myself in front of a bus.”

Clinicians told Mr. Thomas to go to the emergency room, and at their request a judge issued an emergency detention order. But Mr. Thomas did not make it to the emergency room that day, and no one sought him out.

This collaboration between the Tribune and Texas Monthly runs in a different form in the March edition of TM, "Trouble in MInd: How should criminals who are mentally ill be punished?"

Earlier coverage of Andre Thomas begins at the link.

At Huffington Post, Chicago attorney Andrea Lyon posts, "Blind Justice.

This matters because the United States Supreme Court in a case called Ford v. Wainwright that the Eighth Amendment's ban on cruel and unusual punishment prohibited the execution of the insane. "We may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life," wrote Justice Thurgood Marshall in his majority opinion. Nonetheless, the court left it up to the states to determine who was too mentally ill to be put to death. And as we know, the devil is in the details.

Mr. Thomas's case shouldn't even be considered a close one legally -- he simply is too mentally ill to execute. In fact, Mr. Thomas has been found by the department of corrections too mentally ill to be on death row -- so he is housed in a mental health facility where medication appears to be of some help. He is too ill for death row, but not to be killed by the State of Texas? If this case does not fall into the category of someone who should not be executed under our law, it is hard to imagine who would fit in that category. The state of Texas should abandon its pursuit of death in this case, and continue to confine Mr. Thomas in a locked mental health facility.

This case illustrates is something even more troubling; our failure to have any real strategy for dealing with mental illness. Tragically, just weeks before the murders for which he was sentenced to death, mental health professionals issued detention orders, fearing what Andre Thomas would do to himself, or others. Twice the police failed to carry out those orders including one that had been issued just days before these voices commanded him to commit these acts.

I wish I could tell you that this is the only time something like this has happened, but it isn't.

'Trouble in Mind' - Part 3 of 6

"Andre Thomas: Services Scarce for Troubled Youths," is part three of the six-part Texas Tribune series, "Trouble in Mind."  There is an infographic at the link.

In a letter to his pregnant girlfriend, Laura Boren, on July 1, 1999 — the day after his latest threat to commit suicide — Andre Thomas said he worried he wouldn’t be around for his son.

“I love you so much, and tell my beautiful son I love him, too,” he wrote from the Grayson County Juvenile Detention Center. “I cry at night when I think about him having to grow up without [me] being there.”

There was little doubt Thomas, now 16, needed mental health treatment: By age 10 voices echoed in his head; by 13, he had twice attempted suicide. One of his first arrests of at least six came at age 11 after he and some buddies took golf carts for a 4 a.m. joy ride. In 1997, when he was 14, he was caught three times stealing cars.

This collaboration between the Tribune and Texas Monthly runs in a different form in the March edition of TM, "Trouble in MInd: How should criminals who are mentally ill be punished?"  It's in the March edition.

Earlier coverage of the Tribune series begins at the link.

Andre Thomas: The Mentally Ill, From Asylums to Jails

That's the title of the second installment of "Trouble in Mind," written by Brandi Grissom, at the Texas Tribune.  It's a collaboration between the Tribune and Texas Monthly examining Texas death row inmate Andre Thomas' mental illness.  Here's the beginning of today's installment in the six-part series:

Wanda Banks remembers Andre Thomas and his brothers from the Sunday school classes she taught at Harmony Baptist Church, a modest brick building that welcomes parishioners with a plaque reminding them it’s a place “Where Everybody is Somebody.”

Sitting in her office behind the church, Banks said she is still troubled by what became of Thomas, who for years manifested signs of mental illness before being convicted and sentenced to death in 2005 for the brutal murders of his estranged wife and her two children — one of whom was his son. (Click here to view an interactive timeline of the case.)

Banks, who would drive Thomas and his brothers in the church bus on Sundays, knew that their mother’s behavior was unusual and that the boys were regularly left to fend for themselves. But as she racked her mind to think of clues she might have missed that could have helped her steer Thomas on a better course, she came up blank.

Earlier coverage of this extraordinary journalism is at the link.  That's also where earlier coverage of Andre Thomas' case begins.

Grissom's report runs in a different form in the Texas Monthly article, "Trouble in MInd: How should criminals who are mentally ill be punished?"  It's in the March edition.

Trouble in Mind

That's the title of a collaboration between Texas Monthly and the Texas Tribune.  Brandi Grissom's report runs as a TM article with the subtitle, "How should criminals who are mentally ill be punished?" in the March edition of the magazine.  Here's the beginning of the article:

Wanda Banks remembers Andre Thomas when he was a bright, curious kid in her Sunday school class at Harmony Baptist Church, a little boy so eager to speak about the Bible stories he had memorized that he would shoot his hand into the air before she could even finish her question. Harmony Baptist, which sits at the edge of a predominantly black neighborhood on Sherman’s east side, served as a second home to Andre during his chaotic childhood. Banks used to drive him and his four brothers home on the church bus after Sunday school, and during the winter months, she always made a point to drop them off last so they could stay warm a little longer. Despite the charity that their mother received from the church, their small, unkempt home often lacked heat, electricity, and running water. Still, Andre never complained. “He was a very respectful kid, just a sweet kid,” Banks told me. “He could have been so brilliant with the right set of circumstances.”

From a young age, Andre’s appetite for knowledge about the world around him was insatiable. “He wanted to know why the grass was green and why the sky was blue,” one of his brothers, Danny Ross, told me. “He wanted answers for everything.” He was a tinkerer too, taking things apart to figure out how they worked, once disassembling a beat-up brown Fiat that his father, Danny Thomas, had bought for $300. “He tore it all to pieces and then put it back together,” recalled Thomas, shaking his head at the memory. Thomas was an ephemeral presence in his son’s life, providing little in the way of guidance. But Andre still managed to excel in school early on, and he made ambitious plans, sketching intricate drawings of the futuristic cars that he planned to design one day.

As he neared adolescence, though, something seemed to go awry.

At the Texas Tribune, "Andre Thomas: Mental Health, Criminal Justice Collide," is the first of a six-part series, by Grissom.

This is Part One in a six-part series exploring the intersections of the mental health and criminal justice systems in Texas. It examines the case of Andre Thomas, a death row inmate who began exhibiting signs of mental illness as a boy and committed a brutal triple murder in 2004. Blind because he pulled out both of his eyes while behind bars, Thomas awaits a federal court's decision on whether he is sane enough to be executed.

Both forms represent the highest values in journalism, shining a light onto a segment of society most people never see.

Earlier coverage of Andre Thomas begins at the link.

How Crazy Is Too Crazy to Be Executed? - Updated

That's the title of a lengthy examination of the case of Andre Thomas in Texas.  It's written by Marc Bookman for Mother Jones; it's subtitled: "The voices told Andre Thomas to gouge out his eyes. But even that hasn't convinced the state of Texas to reconsider his death sentence."  There is audio at the link.  Here's the beginning of this disturbing report:

Years later, after Andre Thomas had been convicted of killing his estranged wife, his 4-year-old son and her 13-month-old daughter in the most bizarre case in Grayson County history, after he had received a death sentence and been told that it would be imposed at the appropriate future time, after he had been dispatched to Texas' death row to wait his turn with the other condemned men and women, the prosecutors were still talking about "the eyeball issue."

Certainly there were other details that made the crime uniquely memorable. For one thing, Andre had cut out the children's hearts and returned home with the organs in his pockets. For another, he was careful to use three different knives so that the blood from each body would not cross-contaminate, thereby ensuring that the demons inside each of them would die. He then stabbed himself in the chest, but he did not die as he had hoped. In fact, he was well enough to leave a message on his wife's parents' phone explaining that he thought he was in hell, and he managed to confess to the police what he had done before they took him in for emergency surgery.

The entire episode had biblical overtones—Andre had convinced himself that his wife was Jezebel, his son the Antichrist, and her daughter just plain evil. In short, the case had enough spectacular aspects to keep the most jaded of court watchers buzzing for months, but it was the eyeball issue that garnered most of the attention. And that was only the beginning.

Earlier coverage of Andre Thomas' case begins at the link.

2/14 - Simon McCormack posts, "Andre Thomas, Death Row Inmate, Faces Execution Despite History Of Mental Health Issues," at Huffington Post, pointing to the Mother Jones article.

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.

Mistrial Declared in Brazos County Capital Case

The Bryan-College Station Eagle posts, "Judge declares mistrial in Falk capital murder case after 55-day delay," this morning.  It's by Maggie Kiely.

District Judge Ken Keeling Monday morning declared a mistrial in the capital murder trial of John Ray Falk Jr.

Brazos County jurors returned after 55 days of trial delay to hear closing arguments but instead were dismissed after Keeling explained he didn't believe they could remain impartial in reaching a verdict considering the highly unusual circumstances.

“Asking jurors to return a verdict in a complicated case such as this places an impossible and unconscionable burden on them,” Keeling said.

“I don't believe justice can be done in this case when y'all were sitting on the sidelines for 55 days,” he said.

The article notes that the prosecutor intends to retry the case and seek the death penalty.

A Saturday Eagle report by Kiely is, "Capital murder case to resume: Judge blunt in comments regarding appeals court."  Kiely also wrote, "Appeals court approves change to jury instructions in murder trial," which appeared in the January 17th edition of the Eagle.

The Court of Criminal Appeals ruling and Judge Tom Price's dissent are available in Adobe .pdf format.

Earlier coverage of the case begins at the link.

Andrew Cohen on the Case of Jerry Hartfield

"Held Without Retrial for 11,800 Days, Texas Inmate Still Waits for Justice," is Andrew Cohen's latest post at the Atlantic.  Here's the beginning of this must-read:

When American civilization finally crumbles, and future historians download the wreckage, it is conceivable that they will cite the case of Jerry Hartfield to explain to their curious audience how law and justice in our time could be so bluntly subverted by the very men and women whose job it was to administer it. Look how these public officials elevated form over substance, our descendants will say; look how hard they defended such manifest injustice. Look how long it took for the justice system to do justice, even after it became clear to the world that a man was imprisoned for decades without a viable judgment against him.

Hartfield is a black man from Kansas who was quickly convicted in 1977 of murdering a white woman in the Deep South. He is a man who once recorded an IQ of 51, which is far beneath the level at which courts recognize mental retardation in criminal defendants. He is the inmate who remains locked in a Texas prison 32 years -- 11,800 days -- after a state appeals court reversed his murder conviction and ordered that he be given a new trial, a new trial he has never received. He is the prisoner who has continued to sit in a cell while state and federal judges, and state attorneys, piddle over the technicalities of his case.

It has now been more than six years since Hartfield first began to try to unravel the series of errors and omissions which resulted in his wrongful imprisonment. And it could be years more before the courts finally grant him relief. It's hard to know which period is more infuriating: the 23 years during which Hartfield's rights were left unprotected by the justice system; the half-decade or so years since, when state officials, including judges, have refused to help him; or the years more of legal briefings and oral argument that the man will likely have to endure before he gets some relief.

Earlier coverage of Jerry Hartfield's case begins at the link.  More from Andrew Cohen at Atlantic.

Execution Date Set for Larry Swearingen

Today's Houston Chronicle reports, "Judge sets fourth execution date for convicted killer."  It's written by Renée C. Lee.

The fourth execution date in five years has been set for death row inmate Larry Swearingen , convicted of killing a Montgomery County college student 14 years ago.

The Texas Court of Criminal Appeals last week denied Swearingen's latest claim of innocence, clearing the way for state District Judge Fred Edwards to sign an order for a Feb. 27 execution.

And:

Swearingen, 41, has based his claims of innocence on insect and pathology evidence. His experts argued that the decomposition of Trotter's body suggested that she was killed and placed in the forest some time after Dec. 11, contradicting the prosecution's claim that she was abducted and killed on Dec. 8.

His lead attorney, James Rytting, said Swearingen could not have killed Trotter because he was arrested and booked into jail on Dec. 11 on an unrelated charge. Rytting could not be reached for comment Thursday.

Earlier coverage of Larry Swearingen's case begins at the link.

Texas CCA Orders New Trial in Cathy Lynn Henderson Case

The Court of Criminal Appeals ruling in Ex Parte Henderson is available in Adobe .pdf format, as are concurring and dissenting opinons.

"Henderson Granted New Trial," is by Jordan Smith for the Austin Chronicle.

In an opinion delivered this morning, the Texas Court of Criminal Appeals says Cathy Lynn Henderson should be granted a new trial in the 1994 Travis County murder of three-month-old Brandon Baugh. Henderson was convicted and sentenced to die for Baugh's murder. Henderson was babysitting Baugh at her Pflugerville-area home when the baby died. Instead of calling for help, Henderson took off with Baugh's body and buried him in a field in Bell County before fleeing to her native Missouri.

Her April 2007 execution was postponed by Judge Jon Wisser in order to give her defense a chance to prepare an appeal arguing that "new" science demonstrated that the head injury suffered by Baugh could easily have been an accident. Indeed, at an evidentiary hearing former Travis County Medical Examiner Roberto Bayardo testified that the science had changed and that although he had previously testified, at Henderson's trial, that Baugh's injury could not have been the result of an accident there was now no way to say with any medical certainty that was the case.

At the close of the hearing Wisser recommended that Henderson be granted a new trial.

Now the CCA has agreed, deferring to Wisser's determination that the new scientific evidence was exculpatory in nature. "Although we need not accept the trial court's conclusions concerning actual innocence, we accept the court's recommendation to grant relieve and remand for a new trial," the court wrote.

"Henderson granted new trial in baby’s 1994 death," is by Chuck Lindell for the Austin American-Statesman.

Cathy Lynn Henderson, once two days from execution for the 1994 death of an infant she was baby-sitting, was granted a new trial Wednesday by the state’s highest criminal court.

The Court of Criminal Appeals deferred to the findings of Travis County District Judge Jon Wisser, who said last May that no reasonable juror would convict Henderson if they were presented with new scientific discoveries into the causes of head trauma similar to the injury suffered by 3-month-old Brandon Baugh.

In recommending that the appeals court grant Henderson a new trial, Wisser also noted a change of heart from the prosecution’s star witness, former medical examiner Roberto Bayardo.

Bayardo testified at Henderson’s trial that it was “impossible” to attribute the boy’s extensive head injury to an accidental fall. Later, Bayardo said advancements in the understanding of pediatric head injuries indicate that relatively short falls onto a hard surface could produce injuries similar to those he discovered during Brandon’s 1994 autopsy.

The Court of Criminal Appeals ruling was unsigned but accompanied by concurring opinions from five judges. Three judges dissented and one did not participate.

Earlier coverage of Cathy Lynn Henderson's case begins at the link.

Deutsche Welle on Larry Swearingen's Case

Deutsche Welle reports on the case of Larry Swearingen, "Justice is debatable in Texas death penalty case."  It's written by Andrew Purcell.  Here's the beginning:

In his 12 years on death row, Larry Swearingen's execution date has been set three times. Three times he has known when he will be strapped to a stretcher and put down with drugs: sodium thiobarbital to anesthetize him, pancurium bromide to paralyze his muscles and potassium chloride to stop his heart.

In January 2009, he had written his goodbyes and was on his way to the chamber when the stay of execution came through. "The way I had to look at it was 'I'm just gonna lay down and go to sleep,'" he said. "I wasn't gonna grovel. I wasn't gonna sit there and cry. I can't be remorseful for a crime I didn't commit."

Swearingen lives at the Allan B. Polunsky unit, an hour or so north of Houston, together with around 300 men and women awaiting execution for capital crimes committed in Texas. He is kept in solitary confinement 24 hours a day, in a cell not quite four meters long (13 feet) and a little over two meters wide, with a slit above head height, more a vent than a window.

Swearingen is strikingly calm, his voice rarely rising, even as he complains about the injustice of being locked up for a murder that forensic science shows he cannot have committed.

Earlier coverage of Larry Swearingen's case begins at the link.  Related posts are in the forensics index.

Sharon Keller Re-Elected Texas Court of Criminal Appeals Presiding Judge

Here are the election results, via the Texas Tribune.

Texas Court of Criminal Appeals
Place 1
Precincts counted - 99%

R-Keller (i)    4,232492    55.5%
D-Hampton   3,144,498   41.2 %
L-Stott             248,721    3.3%

The Dallas Morning News reports, "Sharon Keller re-elected to Texas criminal appeals court; Geraldine Miller leads in education board race."  It's written by Terrence Stutz.

Texas Court of Criminal Appeals Presiding Judge Sharon Keller won re-election Tuesday night, turning aside a challenge from a Democratic opponent who tried to capitalize on the Republican’s ethics problems.

Results showed the state’s two highest courts — the Texas Supreme Court and the Court of Criminal Appeals — would remain all Republican.

Despite the GOP lock on the two courts, Democratic defense lawyer Keith Hampton took on Keller, targeting her for well-publicized missteps. Among those was her decision to not allow a last-minute appeal from a death row inmate because the court’s office in Austin closed at 5 p.m. — an action that drew a rebuke from the State Commission on Judicial Conduct.

The races for two other spots on the Court of Criminal Appeals were won by GOP incumbents Barbara P. Hervey and Elsa Alcala. Both were opposed by Libertarians.

Earlier coverage of the CCA election begins at the link.

Election Day in Texas

"Appeals judge who closed court fights to keep job," is the AP report, via the Bryan-College Station Eagle.

A judge nicknamed "Killer Keller" by death penalty opponents after she ordered her court shut while lawyers for a death row inmate tried to file a last-minute appeal is fighting to keep her job in one of several statewide races on the Texas ballot Tuesday.

Texas Court of Criminal Appeals Presiding Judge Sharon Keller faced discipline in 2010 for closing the court at 5 p.m. on Sept. 25, 2007. Lawyers for condemned killer Michael Richard said they were blocked from filing a last-minute appeal, and he was executed that night for the rape and slaying of a Houston-area nurse.

She faces defense attorney Keith Hampton, a Democrat who is trying to win a six-year term on the Court of Criminal Appeals and break the GOP's hold on the state's highest court for criminal cases.

Keller, first elected in 1994, faced removal from the bench over the court's closure. The state Commission on Judicial Conduct instead issued one of the least severe sanctions, a "public warning," which later was tossed on appeal.

Keller also has appealed a $100,000 fine _ the largest in Texas Ethics Commission history _ for not disclosing more than $2 million in property and income on her personal financial statements.

"2 Top Texas judges on ballot fight ethics fines, is another AP report, via the Stamford Advocate.  It's written by Jim Vertuno.

Two of Texas' top judges have been able to put off paying huge ethics fines for more than two years, and neither case stands to be resolved before Election Day when both are on the ballot for new six-year terms.

The $100,000 fine in 2010 against Court of Criminal Appeals Presiding Judge Sharon Keller, and the $29,000 fine levied against state Supreme Court Justice Nathan Hecht in 2008 rank among the largest in state history.

Both Republicans have appealed the fines and the cases have dragged on the point where court watchdogs and political opponents are asking if state ethics laws are truly a deterrent.

"It reeks," said Alex Winslow, director of Texas Watch, which monitors the state Supreme Court and filed the original ethics complaint against Hecht. "You've got a large fine that was intended to send a message. (The delay) causes real questions about the legitimacy of the process."

Yesterday's Wichita Falls Times Record News reported, "Ex-Wichitan seeks criminal appeals seat
Austin lawyer promotes integrity," by Alyssa Johnston.

A former Wichitan decided to run against incumbent Judge Sharon Keller for her seat in the Texas Court of Criminal Appeals in Austin this election cycle.

The TCCA is the highest court of appeals for criminal cases in Texas and consists of a presiding judge and eight judges.

Living in Austin, Keith Hampton said that he is proud of his roots and that he hopes to restore integrity as presiding judge. Hampton graduated from Burkburnett High School after attending Barwise Junior High and Rider High.

After graduating, he attended Midwestern State University before moving to Austin and attending the University of Texas at Austin.

Hampton said he's been an attorney since 1989 and has a lot to offer. He said he loves the court and worked for Judge Sam Houston Clinton in the early '90s.

And:

Keller was elected to the TCCA in 1994 and was elected as presiding judge in 2000. In 2006, Keller was elected to another six-year term, which expires this year.

Keller is well-known for an issue in 2007 where Michael Wayne Richard was executed because Keller allegedly did not allow the attorney to file documents postponing his execution.

Earlier coverage of the Texas Court of Criminal Appeals election begins at the link.