The StandDown Texas Project

How Texas Applies Atkins

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

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

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

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

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

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

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

And:

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

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

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

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

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

Prison-Crime Witness Now on the Defensive

That's the title of a report in the Texas edition of the New York Times, by Maurice Chammah of the Texas Tribune.  "Death Penalty Witness Condemned by Courts," is posted at the Tribune.

A. P. Merillat has spent two decades investigating crimes in Texas prisons, and his testimony about the violence that inmates serving life sentences can inflict has helped send at least 15 murderers to death row.

Now the credibility of Mr. Merillat — a go-to expert for prosecutors seeking the death penalty — has been condemned by the state’s highest criminal court, after judges determined that Mr. Merillat gave false testimony. Two death sentences were reversed to life sentences, the most recent in June. Mr. Merillat said he was close to being devastated by those decisions. “A guilty capital murderer was removed from the punishment a jury, according to proof beyond a reasonable doubt, determined he deserved,” Mr. Merillat said.

Mr. Merillat says he believes the court has unfairly jeopardized his standing and that he is facing an uphill battle to repair it.

“I am currently attempting to rebuild my reputation for honor and integrity that was so unjustifiably destroyed by our own Court of Criminal Appeals,” he said.

Mr. Merillat, 56, began his career as a police officer in Huntsville and Houston, and for years, he said, he assumed that anyone who committed a “heinous capital murder” would be closely watched by the prison.

“I was very mistaken,” he said.

For the last 20 years, Mr. Merillat has been an investigator with the Special Prosecution Unit, an independent agency financed by the governor’s office to investigate and prosecute crimes that occur in prison.

And:

For a Texas jury to sentence a murderer to death, it must find that he or she will be a continuing threat to society. For decades, prosecutors relied on psychiatrists to testify that the accused would commit violent crimes again if given a sentence less than death.

Many of those psychiatric experts, like James Grigson (popularly known as Dr. Death), Richard Coons and George Denkowski, have since been discredited for their predictions of future likelihood of causing harm. Instead, prosecutors have turned to prison experts for testimony about the opportunities for violence behind bars — but outside death row.

Also:

But in 2010, the Texas’ Court of Criminal Appeals threw out the death sentence of Adrian Estrada for the 2005 stabbing of 17-year-old Stephanie Sanchez. Judge Barbara Hervey found Mr. Merillat erred by testifying that a convicted capital murderer would have more freedom in prison than would ever be possible.

Then, earlier this year, the court threw out the death sentence of Manuel Velez, a death row inmate convicted of killing his girlfriend’s infant son, after his lawyers found Mr. Merillat had given similar testimony in his Cameron County trial.

Earlier coverage of Manuel Velez' case and Adrian Estrada begins at the links.

Related posts are in the expert witnesses and future dangerousness catagory indexes; also available, coverage of George Denkowski.

An Update on Larry Swearingen

"Judge Signals Intent to Rule Against Condemned Inmate," is Brandi Grissom's Texas Tribune post.  Here's an extended excerpt:

A judge in Montgomery County plans to recommend that the state move forward with the execution of Larry Swearingen, a death row inmate who argues that science proves he is innocent of the 1998 murder for which he was condemned to die.

Bill Delmore, assistant district attorney in Montgomery County, said Wednesday that state district Judge Fred Edwards told lawyers in an in-chambers meeting that he intends to rule in favor of the state, which disputes Swearingen’s claims of innocence. Edwards asked the district attorney’s office to prepare recommendations that will be sent to the Texas Court of Criminal Appeals, which will ultimately decide whether to grant Swearingen’s request for a new trial.

“We expected a railroad job in the 9^th district court, and I believe we’re getting it,” said James Rytting, Swearingen’s lawyer, adding that Edwards made his decision before transcripts from a two-week-long hearing on the scientific evidence in the case were complete. “The judge, I believe, has had his mind set from the beginning.” 

Swearingen, 41, was convicted of kidnapping, raping and murdering 19-year-old community college student Melissa Trotter in Conroe after she disappeared on Dec. 8, 1998. Her body was discovered was discovered 25 days later, on Jan. 2, 1999, by hunters in the Sam Houston National Forest.

Since Swearingen’s 2000 conviction, though, reports from more than a half-dozen scientists have concluded that evidence from Trotter’s decomposing body indicate that he wasn’t the killer. Her body, they reported, had not been dead for 25 days as prosecutors asserted. Their examinations of Trotter’s organs showed that she was killed while Swearingen was already behind bars for a different offense. He was arrested on unrelated outstanding warrants three days after Trotter disappeared.

Last year, the Court of Criminal Appeals stayed Swearingen’s execution and ordered the Montgomery County trial court to hear the scientific evidence in the case. During that hearing in February, lawyers for Swearingen presented experts, including former medical examiners, who testified that Trotter’s body had not been in the forest for two weeks when she was found. Had Swearingen killed Trotter before he went to jail, her body would have been badly decomposed after spending so much time exposed to the elements, the defense argued.

“The overwhelming evidence of innocence has been swept under the rug through irregular judicial proceedings,” Rytting said.

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

David Dow on the Case of Marvin Wilson

"Supreme Court Outlawed Executing Mentally Retarded, But Texas Does It Anyway," is the title of David R. Dow's commentary at Daily Beast.  He's the Cullen Professor at the University of Houston Law Center and the author of The Autobiography of an Execution.  Here's the beginning:

Last week Texas killed Marvin Wilson—the 484th person the Lone Star State has executed since the death penalty was reinstated in 1977. Wilson’s execution became national news because he was mentally retarded: his IQ had been measured at 61. He was also my client.

When I first met Wilson nearly seven years ago, he was soft spoken, almost shy. His reading and writing skills were around the level of my son’s, who was 5 at the time. He told me getting convicted of murder was good because it gave him an opportunity to learn a lot of things. I asked him what he meant. He said, “You know, how to live on your own and things.”

In 2002 the Supreme Court ruled in Atkins v. Virginia that it was unconstitutional to execute the mentally retarded. You might think that would have ended the execution of the mentally retarded, but you would be wrong.

Why? Because Texas executes the mentally retarded anyway, and the federal courts don't seem to care. In a 2004 decision the Texas Court of Criminal Appeals issued a decision called Ex parte Briseno, which basically said it is OK to execute people who are mentally retarded, so long as their retardation is “mild.” That is not what the Supreme Court said in Atkins. In fact, it is pretty much the opposite of what the Supreme Court said. Without putting too fine a point on it, doing the opposite of what the Supreme Court says is what is known as being lawless. Which raises the question: If you do something over and over again, and court after court appears not to care, is it still lawless?

Earlier coverage of David Dow includes a recent TED Talk, his essay on this year's 40th anniversary of Furman v. Georgia, and a discussion with Terry Gross on NPR's Fresh Air, regarding his critically acclaimed, Autobiography of an Execution.

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

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

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

More From the Steinbeck Family

"Steinbeck Family Outraged That Texas Judge Cited ‘Of Mice and Men’ in Execution Ruling," is Robert Mackey's post at the New York Times Lede blog.

After Thomas Steinbeck, the writer’s son, read a Guardian article on how his father’s novel had been used in a Texas court to argue for the execution of the mentally retarded, he joined the effort to halt the killing of Mr. Wilson, The Beaumont Enterprise reported. In a statement released on Tuesday, just before Mr. Wilson was put to death for a fatal shooting in 1992, Mr. Steinbeck wrote:

On behalf of the family of John Steinbeck, I am deeply troubled by today’s scheduled execution of Marvin Wilson, a Texas man with an I.Q. of 61. Prior to reading about Mr. Wilson’s case, I had no idea that the great state of Texas would use a fictional character that my father created to make a point about human loyalty and dedication, i.e., Lennie Small from “Of Mice and Men,” as a benchmark to identify whether defendants with intellectual disability should live or die.

My father was a highly gifted writer who won the Nobel Prize for his ability to create art about the depth of the human experience and condition. His work was certainly not meant to be scientific, and the character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous and profoundly tragic. I am certain that if my father, John Steinbeck, were here, he would be deeply angry and ashamed to see his work used in this way. And the last thing you ever wanted to do, was to make John Steinbeck angry.

In 1937, the novelist himself told The New York Times that the model for his character, a killer who did not comprehend his own actions, was shown leniency by the American legal system of the time. “Lennie was a real person,” Mr. Steinbeck said. “He’s in an insane asylum in California right now. I worked alongside him for many weeks. He didn’t kill a girl. He killed a ranch foreman. Got sore because the boss had fired his pal and stuck a pitchfork right through his stomach. I hate to tell you how many times I saw him do it. We couldn’t stop him until it was too late.”

"Steinbecks: Leave Lennie alone," by Rania Khalek at Salon.

Despite having been diagnosed with mental retardation by a court-appointed neuropsychologist, Texas courts determined, based on unfounded and highly subjective standards, that Wilson was not mentally retarded and therefore was eligible for execution. Texas, unlike any other death penalty state, measures mental retardation using nonclinical standards invented by the Texas Court of Criminal Appeals. Known as the “Briseño factors,” these standards have absolutely no basis in science or clinical application. Instead they were inspired by Lennie Small, the fictional migrant farmworker from the famous novel “Of Mice and Men,” written by the late Nobel Prize-winning American author John Steinbeck.

Wilson’s attorney, Lee Kovarsky, told Salon that eight years later, not a single clinician or scientific body uses or even recognizes the “Briseño factors” as valid. “There is no citation to any science or opinion as to where those factors come from,” he adds. In fact, the only reference the TCCA made was to Steinbeck’s Lennie Small.

"John Steinbeck's writing shouldn't be used in death row cases, says son," by Nadia Khomami at the Telegraph.

John Steinbeck’s son has criticised the State of Texas over its use of his father’s fiction in death row cases.

Texas has been using the mental disability of Lennie Small, the Nobel prize-winning author's fictional character in Of Mice and Men, to define learning difficulties and thus to justify its execution of Marvin Wilson, who was put on death row for the 1992 murder of a police informant.

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

International Condemnation of Marvin Wilson Execution

Today's The Irish Times publishes the editorial, "A death in Texas."

A DECADE AGO the US supreme court ruled that the mentally impaired “should be categorically excluded from execution” because of “their disabilities in areas of reasoning, judgment and control of their impulses.” On Tuesday the state of Texas decided for the tenth time to exercise the discretion allowed by the Atkins v Virginia ruling to examine claims of mental impairment to determine for itself a death row inmate’s degree of capacity, and it executed Marvin Wilson. The supreme court declined to intervene.

And:

He was executed under a new state procedure using a single dose of the sedative pentobarbital following shortages arising from the refusal of a European supplier under pressure from death penalty opponents to supply another drug, sodium thiopental, that had previously been used as part of a three-drug cocktail. Danish suppliers of pentobarbital now say they will not supply the drug for execution use, a refusal which the EU, strongly opposed to the death penalty, should enshrine in community law as an export ban.

Unfortunately, Texas has enough in stock for another 22 executions. Four other states – Arizona, Idaho, Ohio and Washington – have also used a single drug to carry out executions, but death penalty opponents claim single-drug executions may be less humane. They point to an April execution in Arizona, where an inmate shook for several seconds after receiving a lethal dose of pentobarbital. Europe should act quickly to cut off the executioners’ supply of the drug.

The government of France has issued the statement, "United States - Execution of Marvin Wilson."

France condemns yesterday’s execution, in Texas, of Marvin Wilson, who was mentally impaired.

His execution runs counter to internationally established guarantees protecting the rights of people who are eligible for the death penalty, including the principle of not executing individuals who are mentally impaired.

France reaffirms its opposition to the death penalty throughout the world and in all circumstances. Abolishing the death penalty is crucial to the protection of human dignity.

France continues to strive for the universal abolition of capital punishment by seeking a worldwide moratorium on executions, the first step toward accomplishing this objective.

"The Parliament posts, "EU's Ashton voices concern over Texan execution," by Martin Banks.

EU foreign affairs chief Catherine Ashton has voiced concern at the execution in Texas of a disabled man.

A spokesman for Ashton, EU high representative for foreign affairs and security policy and a commission vice president, said she "deeply regrets the execution" of Marvin Wilson.

And:

In a statement, Ashton's spokesman said, "The high representative recognises the serious nature of the crime involved and expresses her sincere sympathy to the surviving family and friends of the victim.

"However, she does not believe that their loss has been mitigated by Wilson's death.

"The EU opposes the use of capital punishment in all cases and under all circumstances and calls for a global moratorium as a first step towards its universal abolition. With capital punishment any miscarriage of justice, from which no legal system is immune, represents an irreversible loss of human life.''

"Texas Execution Prompts EU To Call For Moratorium On Death Penalty," is from RTT News.

European Union Foreign Policy chief Catherine Ashton has expressed deep regret at the execution of a US citizen who has significant intellectual disabilities, and called for a global moratorium on capital punishment.

The US state of Texas on Tuesday executed Marvin Lee Wilson, a man who has significant intellectual disabilities, ignoring calls by human rights organizations.

And:

A statement issued by the spokesperson of Catherine Ashton on Wednesday said "The High Representative recognizes the serious nature of the crime involved and expresses her sincere sympathy to the surviving family and friends of the victim. However, she does not believe that their loss has been mitigated by Wilson's death."

Ashton said "The EU opposes the use of capital punishment in all cases and under all circumstances," and called for "a global moratorium as a first step towards its universal abolition.

"With capital punishment any miscarriage of justice, from which no legal system is immune, represents an irreversible loss of human life,'' she added.

"The law of executions," is at Al Jazeera English.  There is video at the link.

To discuss this Inside Story Americas, with presenter Shihab Rattansi, speaks to: Jim Ellis, a lawyer who argued the 2002 case in which the Supreme Court ruled that executing intellectually disabled individuals is cruel and unusual punishment; Laura Moye, the Death Penalty Abolition Campaign director at Amnesty International USA; and Margaret Nygren, the executive director of the American Association on Intellectual and Developmental Disabilities.

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

Texas's Death Penalty Machine Executing the Mentally Disabled?

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

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

And:

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

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

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

More from journalist Renee Feltz at the link.

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

Supreme Court Refuses Marvin Wilson Stay of Execution

The U.S. Supreme Court has refused to stay tonight's execution of Marvin Wilson.

The breaking news AP report is, "US Supreme Court Allows Execution of Texas Inmate."

The U.S. Supreme Court cleared the way for the Tuesday evening execution of a Texas death row inmate whose lawyers say is ineligible for the death penalty because of his low IQ.

Marvin Wilson, 54, was sentenced to death for killing a police informant two decades ago. His attorneys pointed to a psychological test that pegged his IQ at 61, below the threshold of 70 that would suggest he's mentally impaired. But lower courts agreed with state attorneys who questioned the test's validity.

The Supreme Court denied his request for a stay of execution less than two hours before his scheduled 6 p.m. lethal injection.

Attorneys for the state argued Wilson's claim was based on a single 2004 test that may have been faulty and that his mental impairment claim wasn't supported by other tests and assessments of him over the years.

There has been media attention to the case throughout the day.  The Houston Chronicle has posted, "Steinbeck's son decries court opinion that invoked 'Lennie'," by Allan Turner.

Thomas Steinbeck, son of Nobel laureate John Steinbeck and a California-based novelist and journalist, sharply criticized the Texas Court of Criminal Appeals for its reference to the character Lennie Small in a ruling considering factors indicative of retardation.

And:

Thomas Steinbeck's wife, Gail Steinbeck, said the couple was alerted to the reference to the fictional character by an article appearing in the openly anti-death penalty The Guardian, an English newspaper.

She said she showed the article to the writer and "his ears turned red" in anger.

"I couldn't get this thing off my mind," she said. "I was sitting there and my skin kept crawling."

Gail Steinbeck said the court misinterpreted the Lennie Small character, saying, "What Steinbeck was saying in that story had nothing to do with execution. It was about friendship between two men..."

Steinbeck's statement is the second item in the linked post.

The Daily Beast posts, "Retarded—And Condemned To Die In Texas," by Matthew DeLuca.

The Daily Beast has annotated the report of the neuropsychologist, Donald Trahan, which is at the center of Wilson’s petition to the Supreme Court. Trahan wrote the report following his 8-hour assessment of Wilson in 2004. We spoke to both Trahan and Richard Dieter, the executive director of the Death Penalty Information Center.

You can view the annotated Trajan report at the link.

Earlier coverage of Marvin Wilson's case begins at the link.

Updated News Coverage of Marvin Wilson's Case

Today's Houston Chronicle reports, "Inmate's IQ becomes an issue in execution appeal."  It's by Heather Nolan of the Beaumont Enterprise.

Convicted killer Marvin Lee Wilson, set to die Tuesday for a crime committed 20 years ago, said he often was teased about being illiterate when he was growing up in Beaumont.

"People, when they see that you is stupid, dumb and ignorant, they rather make fun of it and laugh about it, make you the laugh of the town, rather than say man, (he) needs some help," Wilson said during a recent interview on death row. "I spent my life fighting trying to defend my honor rather than trying to learn."

His IQ is at the heart of one appeal to his execution, and his attorneys on Tuesday plan to ask a state appeals court to review DNA found at the scene of the crime, where 21-year-old Jerry Robert Williams, a Beaumont Police Department confidential informant, was kidnapped and killed.

In his appeal already before the U.S. Supreme Court, attorney Lee Kovarsky asked justices to overrule lower courts' opinions that Wilson is not mentally retarded and therefore eligible for the death penalty.

The updated AP report is, "Low IQ score focus of Texas death row appeal," by Michael Graczyk.

Death row inmate Marvin Wilson spent his school years in special education classes, got failing or near failing grades and several times received "social promotions" to the next grade level until he finally quit school in the 10th grade.

Wilson's lawyers have asked the U.S. Supreme Court to overrule state and lower federal courts that questioned the validity of a psychological test that pegged his IQ at 61, below the threshold of 70 that would suggest he's mentally impaired and thus, ineligible for capital punishment.

If Texas proceeds with Wilson's scheduled Tuesday execution in Huntsville, he "will own the grisly distinction" of becoming the lowest-IQ Texas prisoner put to death despite the Supreme Court ruling banning the execution of mentally impaired inmates, his lead attorney, University of Maryland law professor Lee Kovarsky, wrote in an the appeal.

"Texas set to execute mentally retarded man," is the UPI filing.

The Supreme Court, in 2002's Atkins vs. Virginia, banned the execution of the mentally retarded. But Texas uses its own process, called Briseno after a state court case, in which the "mildly retarded" can be executed.

In a petition to the Supreme Court, Wilson's lawyers argue using the Briseno process violates the high court ruling in Atkins.

Wilson's petition said a court-appointed neuropsychologist concluded the inmate was mentally retarded -- a conclusion that was never challenged.

"Mr. Wilson received a 61 on the Wechsler Adult Intelligence Scale, Third Edition ('WAIS-III'), recognized as the gold standard of intellectual assessment," his petition said. "The WAIS-III measures verbal and non-verbal (performance) components, yielding a full-scale IQ ('FSIQ') score. Mr. Wilson's FSIQ places him below the first percentile of human intelligence."

Additional news coverage includes:

"Texas Set To Execute Marvin Wilson Despite Diagnosis Of ‘Mental Retardation’," by Joseph Orovic for International Business Times.

"Texas set to execute mentally retarded man," by Brett Wilkins at Digital Journal.

"Marvin Wilson, death row inmate diagnosed as 'mentally retarded,' to be executed," at Global Post.

Earlier coverage of Marvin Wilson's case begins with the preceding post.

Stop This Execution

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

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

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

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

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

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

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

And:

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

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

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

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

- Thomas Steinbeck

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

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

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

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

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

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

Wilson is a textbook example.

And:

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

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

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

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

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

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

And:

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

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

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

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

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

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

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

NAMI on the Marcus Druery Case

"He needs to understand," is by Mike Fitzpatrick and Greg Hansch in the Houston Chronicle.  Fitzpatrick is the executive director of the National Alliance on Mental Illness; Hansch, the policy coordinator of NAMI-Texas.

The editorial "Texas execution stay a wise move" (Page B11, Tuesday), rightly argues that Marcus Druery deserves a hearing on his mental competency to determine if he is capable of understanding why he could be executed.

As the nation's largest grassroots organization focused on mental illness, we are gravely concerned about the potential execution of an individual who is reportedly experiencing psychiatric symptoms so severe that he may not understand why he is being executed.

Druery has been repeatedly diagnosed as having schizophrenia by the state's mental health professionals. He is reported to suffer from delusional thoughts and auditory hallucinations. He hears voices, believes that his cell is wired to broadcast his thoughts, and thinks his food is being poisoned.

He displays such severe symptoms that mental health experts for the state and for the defense all agree on his diagnosis.

The death penalty does not function as a deterrent or a punishment if the person executed does not understand why he is being put to death. The law recognizes this and has rightly prohibited those deemed mentally incompetent from being executed. We applaud the Texas Court of Criminal Appeals for staying Druery's execution, and we respectfully urge the court to find that Druery is entitled to full and fair consideration of his psychiatric condition and his competence.

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

Texas Execution Stay a Wise Move

That's the title of an editorial in today's Houston Chronicle on the Marcus Druery case.  Here's the beginning:

Last Friday, capping a flurry of activity, the Texas Court of Criminal Appeals granted a stay of execution to convicted murderer Marcus Druery, who had been scheduled to be put to death tomorrow for a Brazos County murder and robbery in 2002.

At issue was Druery's mental competency to understand the reason for his execution. Both state and private mental health professionals had diagnosed Druery as severely psychotic and therefore incompetent to be executed. But last Tuesday, Brazos County District Judge J. D. Langley denied a motion to hold a full hearing on Druery's competency.

On Wednesday, Kate Black, Druery's attorney, stating that her client's execution "would violate the Eighth Amendment's ban on cruel or unusual punishment," appealed that denial to the Texas Court of Criminal Appeals, arguing that her client "suffers from a psychotic disorder that renders him incompetent to be executed." Two days later, the court stayed the execution, writing that it had "determined that further review is necessary."

We applaud the court's decision, as far as it goes. We fervently hope that their review will persuade the justices to remand the case back to the Brazos County court for a competency hearing. Execution is irrevocable, and should never be invoked as long as a shred of doubt exists as to its constitutionality in any given case.

Prosecutors are not contesting the diagnosis of schizophrenia, nor claiming that Druery is malingering. They argue that despite his mental illness, he is competent for execution. But no court has ever ruled on Druery's competency. His attorneys are simply asking that their client not be put to death until they have had a chance to demonstrate, in a full and fair hearing, that he is not competent to be executed.

Salon posts, "Marcus Druery: Another questionable Texas execution."  It's by Rania Khalek.

Black says Druery’s awareness of his upcoming death sentence is not the same as having a “rational understanding” of why the state wants to execute him. As evidence, she points to the Supreme Court decision in Panetti v. Quarterman, a case brought forward by another psychotic inmate who was nearly executed by the state of Texas.

Panetti had schizoaffective disorder, causing delusions that led him to believe the state wanted to kill him to stop him from preaching. Though Panetti recognized the factual rationale behind his death sentence — that he was found guilty of murdering his ex-wife’s parents — the Supreme Court held that “[a] prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it.”

The court reasoned that executing a prisoner who “has no comprehension of why he has been singled out and stripped of his fundamental right to life” undermines the concept of retributive justice. “There’s no retribution for someone being executed when they think it’s for something that has nothing to do with the actual crime,” explained Black.

Druery’s failure to understand his legal circumstances was verified by Diane Mosnik, a neuropsychologist specializing in schizophrenia who was hired by the defense with court funding to conduct a comprehensive psychological assessment of Druery in May. “Because of his inflexible, psychotic and delusional interpretation of his circumstances, Mr. Druery does not have the capacity to rationally understand the connection between his crime and his punishment,” concluded Mosnik. “Although [Mr. Druery] has a factual awareness that an execution date has been scheduled for the crime for which he was tried, he does not believe that he will be executed because of his illogical, fixed, and firmly held delusional belief system.”

Black and her co-counsel, Gregory W. Wiercioch, one of the lawyers who argued the Panetti case to the Supreme Court, immediately appealed Langley’s ruling to the Texas Court of Criminal Appeals, requesting that it be overturned and Judge Langley be required to hold a competency hearing. Late Friday, the CCA granted a temporary stay pending further review of the evidence.

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

Related posts are in the competency and mental illness category indexes.  In April, I added the competency category index.  Earlier posts dealing with compentency are available under the Scott Panetti index.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in a 1986 case, Ford v. Wainwright; more via Oyez.

Coverage of Scott Panetti's case begins at the link.  More on the U.S. Supreme Court 2007 ruling in  Panetti v. Quarterman is via Oyez.

Will Texas Execute a Psychotic Man?

That's the title of Andrew Cohen's latest Atlantic post.  It' subtitled, "One prison doctor after another has diagnosed Marcus Druery as severely mentally ill. Does the Constitution permit the death penalty anyway?"  Here's the beginning:

Some things are relatively simple about the case of Marcus Druery, a convicted murderer whom Texas officials plan to execute Wednesday evening at the state's death chamber in Huntsville. The details of the Halloween 2002 crime for which Druery was convicted are horrible, for example, and there is no pending legal claim that Druery is innocent or was wrongly convicted. This time, at least, no one seems to doubt that the police, the prosecutors, the witnesses, and the jurors all got the right man.

But there is one thing about the Druery case that is very complicated, indeed. No one seems to dispute that Druery now suffers from delusions and a psychotic disorder that doctors have consistently labeled as a form of schizophrenia. Nevertheless, despite these diagnoses, and despite United States Supreme Court precedent that precludes the execution of prisoners "who are unaware of the punishment they are about to suffer and why they are to suffer it," Texas still intends to execute Druery.

If the courts permit, that is. Late Friday, the Texas Court of Criminal Appeals stayed the Druery execution "pending further order." The unpublished ruling means that state appellate judges want to look more closely at defense claims that Druery has shown enough evidence of incompetency to preclude his execution. The central legal question here is: Can a state execute an "Undifferentiated Type" schizophrenic? Put another way, how mentally ill does someone need to be to be too mentally ill to be executed?

If the substance of the Druery appeal has to do with a single man's mental health, the process that led us here is illustrative of the deeply flawed nature of Texas' capital punishment system. We see in this case a judge more angry about delays than he is committed to accuracy. We see prosecutors with risible disdain toward defense counsel. And we see it all in a case in which the condemned man has been judged to be seriously mentally ill over and over again by the state's own doctors.

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

Related posts are in the competency and mental illness category indexes.  In April, I added the competency category index.  Earlier posts dealing with compentency are available under the Scott Panetti index.

The Supreme Court established standards to assess whether severely mentally ill inmates are competent to be executed in a 1986 case, Ford v. Wainwright; more via Oyez.

Coverage of Scott Panetti's case begins at the link.  More on the U.S. Supreme Court 2007 ruling in  Panetti v. Quarterman is via Oyez.

There are several notable posts on the question of competency to be excuted:

• The Criminally Mentally Ill
• Scholarship - Mental Illness & Competency to Be Executed

CCA Stays Marcus Druery Execution Over Competency

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

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

"We are pleased that the Texas Court of Criminal Appeals stayed the execution of Marcus Druery to allow for careful consideration of our request for a competency hearing. The State has never contested the fact that Mr. Druery suffers from a psychotic disorder, which has been diagnosed by the State's own experts. Executing Mr. Druery, who lacks a rational understanding of his punishment, would stand in clear violation of the Constitution. We are hopeful the Court will find that Mr. Druery is entitled to a full and fair hearing to present the evidence of his severe psychosis and establish his incompetence to be executed."

"Texas death row inmate has Aug. 1 execution stayed," is the AP report, via KTRK-TV.

A Texas death row inmate who was scheduled to die next week had his execution stayed Friday by the state's highest criminal court, which wants to review a petition that argues he is not mentally competent to be executed.

And:

The Texas Court of Criminal Appeals ordered its stay after a lower court rejected Druery's petition. An attorney for Druery, Kate Black, said he was diagnosed with schizophrenia and was deemed incompetent by a defense expert. She says executing Druery would violate the U.S. Constitution's ban on cruel and unusual punishment.

The U.S. Supreme Court has ruled that prisoners can't be executed unless they're aware of the punishment and know why they're being punished.

"Appeals court delays Marcus Druery exceution," by Maggie Kiely for the Bryan-College Station Eagle.

The Texas Court of Criminal Appeals Friday afternoon granted a stay of execution for Marcus Druery, a 32-year-old death row inmate from Bryan who was scheduled to receive a lethal injection Wednesday.

Druery killed and robbed 20-year-old Skyyler Browne on Halloween 2002 before lighting Browne’s body on fire and dumping it in a stock pond.

He was sentenced to death in 2003 by a Brazos County jury.

Druery’s lawyers filed an appeal Wednesday asking the appellate court to review District Judge J.D. Langley’s decision to deny Druery a competency hearing as his attorneys had requested.

The appeals court “determined that further review is necessary” and issued the stay “pending further order,” according to a response from the panel of nine judges.

Defense attorneys Kate Black and Greg Wiercioch of the Texas Defender Service have argued that their client meets 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.

"Appeals court halts execution over competency issue," by Cindy George for the Houston Chronicle.

Brazos County District Attorney Bill Turner said prosecutors do not dispute that Druery has a mental disorder, but they believe he's competent enough to face execution.

"We anticipated the appellate courts would take a look at it before the execution proceeded," Turner said in an interview Friday.

Druery, who has been on death row for almost six years, was to be executed for the 2002 robbery-murder of Skyyler Browne.

"Bryan Murderer's Execution Put on Hold," on KBTX-TV.

It's unclear when the appeals court will conduct its review.

The last Brazos County killer to be executed was Ynobe Matthews in 2004.

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

Marcus Druery's Lawyers Take Competency Case to CCA

"Lawyers for Mentally Ill Inmate Seek Stay of Execution," is by Brandi Grissom's post at the Texas Tribune.

Lawyers for death row inmate Marcus Druery filed a request with the Texas Court of Criminal Appeals late Wednesday for a stay of execution for their client. They argue that executing Druery, who has been diagnosed with schizophrenia, would be unconstitutionally cruel and unusual punishment. 

On Wednesday, the trial judge in Druery's case, J.D. Langley, also unsealed the inmate's medical record from the Texas Department of Criminal Justice. Among the records is a report from a May 2012 examination by Dr. Diane Mosnik, a neuropsychologist who wrote that Druery "suffers from severe, active psychotic condition, meeting criteria for a clinical diagnosis of schizophrenia." 

The severity of his mental illness, Dr. Mosnik wrote, prevents Druery from having a understanding that he is going to be executed Aug. 1.

"Although he has a factual awareness that an execution date has been scheduled for the crime for which he was tried, he does not believe that he will be executed because of his illogical, fixed, and firmly held delusional belief system," she wrote.

The Bryan-College Station Eagle reports, "Stay of execution filed in Druery case."  It's by Maggie Kiely.

Attorneys for 32-year-old Marcus Druery — a Texas death row inmate from Bryan scheduled to be executed next Wednesday — filed a stay of execution with the Texas Court of Criminal Appeals this week.

Druery was sentenced to death by a Brazos County jury in 2003 for killing 20-year-old Skyyler Brown by shooting him in the head on Halloween 2002 on Druery’s family’s ranch. After murdering Browne, Druery robbed him of cash, a cellphone, pager and marijuana before setting his body on fire and dumping it in a nearby stock pond.

The request to postpone the execution was sent late Wednesday, a day after District Judge J.D. Langley denied motions filed by Druery’s attorneys asking that a hearing be held and for two independent psychiatrists to be appointed to assess if their client is competent for execution.

Defense attorneys Kate Black and Greg Wiercioch with the Texas Defense Service have argued that while Druery may have a “factual understanding” that he’s supposed to be executed next week, he doesn’t have a “rational understanding” about why he’s been sentenced to the death penalty.

"Bryan Killer's Lawyers Seek Stay of Execution From Appeals Court," is the KBTX-TV report.

With just six days to go before his scheduled execution, Marcus Druery's lawyers have officially filed an appeal to a higher court trying to stop the lethal injection.

And:

Druery was convicted of the 2002 murder of Skyyler Browne, but doctors have said he suffers from schizophrenia. Medical records were unsealed Wednesday by Langley noting Druery's condition.

According to the U.S. Supreme Court, an inmate must know they are being executed and why before they are put to death. Otherwise, it would be considered cruel and unusual punishment.

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 a 1986 case, Ford v. Wainwright; more via Oyez.  Related posts are in the competency and mental illness indexes.

Texas Judge Rules Marcus Druery Not Entitled to Full Competency Hearing

In response to today’s denial, Marcus Druery's attorney Kate Black issued the following statement:

“We are disappointed that Mr. Druery continues to be denied a full and fair hearing about his competency to be executed. Mr. Druery’s execution would violate the Eighth Amendment’s ban on cruel or unusual punishment because he suffers from a psychotic disorder that renders him incompetent to be executed. The State’s own mental health professionals have diagnosed him as schizophrenic, noting that he suffers from delusional and paranoid thoughts and auditory hallucinations. Mr. Druery has no rational understanding of the connection between the crime for which he was convicted and his execution. Texas must allow Mr. Druery’s counsel  the opportunity to fairly present the evidence of Mr. Druery’s mental illness so that he may establish his incompetence for execution. We intend to appeal today’s denial to the Texas Court of Criminal Appeals.”

Jordan Smith posts, "Is Druery Sane Enough to Die?" at the Austin Chronicle.

Although he's been hearing voices for years, believes that he and his cell on Texas' death row are "wired," and has spent a significant amount of time in the prison system's psychiatric ward, a judge in Brazos County today denied to hold a competency hearing to determine if Marcus Druery is indeed sane enough to die. Druery was sent to death row for the kidnapping, robbery, and murder with two accomplices of 20-year-old Skyyler Browne in 2002. Druery would be the 484th person executed in Texas since the reinstatement of capital punishment, and the 245th killed under the watch of Gov. Rick Perry, if his execution goes forward as scheduled on Aug. 1. Unless a higher court, like Texas' Court of Criminal Appeals, steps in and reverses today's decision by Judge JD Langley, that is likely to happen.

Langley's decision to deny a full competency hearing for Druery means that, in Langley's view at least, Druery's lawyers Katherine Black and Greg Wiercioch with the Texas Defender Service did not meet the statutory burden of raising a "substantial doubt of the defendant's competency to be executed."

Druery has not before raised the issue of his competency, which is to say that no other court has already determined that he is sane enough to be executed. In the absence of a previous competency finding, the court is required to consider evidence brought by the defense before determining whether or not a condemned inmate is entitled to a hearing to determine his competency. In Druery's case, Black and Wiercioch put into a 36-page motion a bevy of evidence, including a sampling of more than 5,500 pages of prison and medical records, including numerous notes and statements Druery has made and over the years – many of which detail his feelings about his cell being wired and his food being poisoned.

"Bryan judge says next week's execution can go forward," is Allan Turner's post for the Houston Chronicle.

A Bryan judge Tuesday rejected an effort to halt next week's execution of convicted killer Marcus Druery so the one-time tire repairman and ranch hand's mental health could evaluated by psychiatrists.

Houston lawyers with the Texas Defender Service argued that Druery, 32, suffers from schizophrenia and lacked a "rational" understanding of why he is to be put to death on Aug. 1. State District Judge J.D. Langley ruled that a competency hearing in the case is not warranted.

And:

In a petition filed earlier this month, Defender Service lawyer Katherine Black argued that prison psychiatrists had diagnosed Druery as schizophrenic on several occasions and that his continuing behavior indicated he suffered from debilitating psychological problems.

Additionally, Dr. Diane Mosnik, a neuropsychologist hired by the Defender Service team, found that Druery lacks the capacity to rationally understand why he is to be executed."

Although Druery "has a factual awareness that an execution date has been scheduled for the crime for which he was tried, he does not believe that he will be executed because of his illogical, fixed and firmly held delusional belief system," Mosnik wrote.

"Judge denies motions to deem death row inmate unfit for execution," by Maggie Kiely for the Bryan-College Station Eagle.

Judge J.D. Langley on Monday morning denied several motions filed by attorneys of death row inmate Marcus Druery, 32, of Bryan, claiming their client is incompetent and therefore unfit to be executed next week.

Druery has been on death row since 2003 when a Brazos County jury sentenced him to death after convicting him of killing Skyyler Browne, then robbing him and setting the body on fire.

Druery’s lawyers, Kate Black and Greg Wiercioch with the Texas Defender Service, say their client is schizophrenic and doesn’t have a rational understanding of why he’s scheduled to receive lethal injection Aug. 1, which would make him ineligible for execution based on a U.S. Supreme Court decision.

They pointed to thousands of pages of medical and prison records that detail Druery’s condition and used letters written by the inmate to support their position.

Black said while her client may be able to recite when his execution date is, he lacks understanding of why he’s to receive the punishment and believes he is innocent.

KBTX-TV posts, "Execution Upheld: Motion by Bryan Killer's Lawyers Denied."  It's by Steve Fullhart.

A Brazos County judge has denied a competency hearing and a withdrawal of an execution date for convicted killer Marcus Druery.

The 32-year-old is due to be put to death by lethal injection August 1.

Tuesday morning, his lawyers argued to Judge J.D. Langley that Druery has been diagnosed with schizophrenia and while he may have a factual understanding, he does not have a rational understanding that he is going to be put to death.

And:

According to the U.S. Supreme Court, an inmate must be aware of their execution and why they are being put to death before the act takes place.

Druery's lawyers will continue to attempt appeals on this matter.

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 a 1986 case, Ford v. Wainwright; more via Oyez.  Related posts are in the competency and mental illness indexes.

When Innocent Prisoners Finally Go Free, Their Prosecutors Do, Too

That's the title of a lengthy examination of wrongful convictions in the current Dallas Observer. It's subtitled, "On the trail for justice with Texas' exonerees," and is written by Leslie Minora.  Here's the beginning of this must-read:

The outcome was already determined, the stories already written, but the cameras and the recorders were out anyway, waiting for the judge to say the words. He was about to declare Richard Miles actually, technically, legally innocent of a 1994 murder, a shooting at a Texaco station near Bachman Lake. A higher court had already declared him innocent. There was nothing left to do but a little criminal-justice theater.

The reporters in attendance wondered what would make this day's story unique among the wave of stories about innocent prisoners. Miles was about to provide their answer.

A thin man with a strong jawline and determined face, Miles listened to the judge's apology and then, before he addressed the crowd, leaned toward his lawyer.

"Can we hit them with a bomb?" he asked. "Is it a good time to hit them with a bomb?"

"Richard, you're a free man," he remembers his lawyer saying. "You can say whatever you want to say."

He stood, encircled by reporters. After some thank yous, he lit the fuse: "I want to say that me and my lawyer, Cheryl Wattley, we'll make a formal complaint against Thomas D'Amore for prosecutorial misconduct," Miles said, referring to the lawyer who prosecuted him. "My life was taken because of malicious acts by a prosecutor. I can't just let that go by."

As he spoke, several of the 33 innocent men freed in recent years by Dallas County watched from the gallery, dressed as if for mass. At least seven of their cases had contained "official misconduct," mostly exculpatory evidence that wasn't disclosed to defense lawyers, according to Michigan and Northwestern University's National Registry of Exonerations. Misconduct contributes to 42 percent of exoneration cases nationally, those researchers say.

It's a problem that's had a particularly profound effect in Texas. In 91 criminal cases between 2004 and 2008, Texas courts found that prosecutors withheld evidence, made improper arguments or committed other misconduct, according to a report by Veritas Initiative, part of a national Prosecutorial Oversight coalition. But only one prosecutor was disciplined in that time period by the State Bar of Texas. (His license was suspended for two years.)

Earlier coverage of the National Registry of Exonerations begins at the link.  Related posts are in the exoneration, prosecutorial misconduct, and wrongful incarceration category indexes.

Errors in Judgment

That's the title of a Texas Tribune series reported by Brandi Grissom.  It features an interactive with additional information on the cases analyzed, an overview article, and a look at Kerry Max Cook's long fight for freedom and now, official exoneration.  Here's the introduction:

The Texas Tribune analyzed 86 overturned convictions, finding that in nearly one quarter of those cases courts ruled that prosecutors made mistakes that often contributed to the wrong outcome. This multi-part series explores the causes and consequences of prosecutorial errors and whether reforms might prevent future wrongful convictions.

"Courts Found DA Error in Nearly 25% of Reversed Cases," is the overview that examines several of the cases.

From the moment 4-year-old April Tucker died, Debbie Tucker Loveless and John Harvey Miller told police and prosecutors that she had been mauled by dogs. But in 1989, the couple was convicted of murdering her and sentenced to life in prison. 

Four seemingly endless years later, in 1993, the Texas Court of Criminal Appeals overturned their convictions, after a state district judge ruled prosecutors had withheld critical evidence that vindicated the couple.

Between 1989 and 2011, at least 86 Texas defendants including Loveless and Miller had their convictions overturned, according to the National Registry of Exonerations. In an extensive analysis of court rulings, news reports and pardon statements, The Texas Tribune found that in nearly one-quarter of those cases — 21 in total — courts ruled that prosecutors made mistakes that in most instances contributed to the wrong outcome. The wrongfully convicted in those cases spent a combined total of more than 270 years in prison.

In the cases, judges found that prosecutors broke basic legal and ethical rules, suppressing important evidence and witness testimony and making improper arguments to jurors. Despite the courts’ findings of some serious missteps, the State Bar of Texas reports very little public discipline of prosecutors in recent history.

The State Bar does not track discipline of prosecutors separately from other lawyers. But Linda Acevedo, the chief disciplinary counsel for the State Bar who has been at the agency since 1985, said she could recall three prosecutors who were publicly reprimanded. None of the reprimands were related to the 86 wrongful convictions.

"Interactive: Texas Wrongful Conviction Explorer," compiled by Ryan Murphy.

Grissom also writes, "Prosecutor Errors Haunt Long Exoneration Fight," on the case of Kerry Max Cook.  It appears in the Texas edition of today's New York Times as, "As Former Death Row Inmate Tries to Clear His Name, His Life Is on Hold."

Kerry Max Cook had been out of prison for about three years when his son was born.

As Kerry Justice Cook slept in his crib, his father would peer down at him and cry, battling suicidal thoughts that he says have haunted him since his 20 horrific years on Texas’ death row.

“I’d tell K. J., ‘You’ve got to hurry up so you can talk to me. I’m so alone,’” Mr. Cook said.

K. J. is 11 now, and talking seems to be one of the mature youth’s fortes. He introduces his father to crowds at speaking engagements across the world.

“I find it quite amazing that he was able to go there for 22 years and go through every obstacle which he had to go through,” said the fifth grader, wearing a Mickey Mouse T-shirt and brushing shoulder-length blond hair away from his face. “I think he’s the most respectable man that I know.”

Mr. Cook, 56, was convicted of the 1977 rape and murder of Linda Jo Edwards in Tyler, Tex. His first conviction was overturned, a second trial ended in a hung jury and a third ended with a conviction that was reversed after a court found it was tainted by prosecutorial misconduct. Before Smith County attempted to try Mr. Cook a fourth time, he agreed to a plea deal in 1999. Pleading no contest, he was set free. DNA testing subsequently revealed another man’s biological matter on the victim’s clothes.

Mr. Cook has written a book, actors like Tim Robbins have portrayed him in a play about exonerations and he teaches courses about overcoming adversity. In the eyes of the law, though, Mr. Cook is still a convicted murderer. Normal life, he said, is beyond his reach.

“This freedom means nothing with a conviction,” he said.

Thirteen years after his release, Mr. Cook is battling with Smith County prosecutors to officially clear his name.

Earlier coverage of Kerry Max Cook and the National Registry of Exonerations begins at the links.  Related posts are in the exoneration, prosecutorial misconduct, and wrongful incarceration category indexes.

What's Next in the Hank Skinner DNA Testing

"Evidence Missing in Skinner Case," is Jordan Smith's post in the Austin Chronicle, our independent alt-weekly on the stands today.

Just two weeks after the state announced it would drop its opposition to the post-conviction DNA testing of evidence in the capital murder case that sent Hank Skinner to death row, comes news that at least one piece of evidence Skinner has been seeking access to for testing has been lost. Among the key pieces of evidence never before tested, and that Skinner has sought access to for more than a decade, is a blood- and sweat-stained windbreaker found near the body of his girlfriend Twila Busby. The windbreaker is now apparently missing. "We are pleased to have reached an agreement that finally secures DNA testing in this case, but there remains reason for grave concern," Skinner's attorney Rob Owen said in a press statement. "According to the State, every other piece of evidence in this case has been preserved. It is difficult to understand how the State has managed to maintain custody of items as small as fingernail clippings, while apparently losing something as large as a man's windbreaker. To date, the State has offered no explanation for its failure to safeguard the evidence in this case."

Indeed, in addition to 40 items of evidence that have never before been tested for DNA is the windbreaker found next to the body of Busby, who was slaughtered along with her two sons, in the Pampa home she shared with Skinner. There are photos of the windbreaker, a tan jacket with snap buttons down the front, but the windbreaker itself has disappeared – and no one seems to know how or when it was misplaced, or where it might've gone. The Gray County Sheriff's Office says it has never had custody of the jacket; Gary Noblett, from the Pampa Police Department, a 41-year law enforcement veteran who now manages the department's evidence, says that everything the Pampa PD had stored as evidence in the case was eventually transported for Skinner's original trial. After Skinner was convicted the evidence was moved back to Gray County, he said, but "somehow or another" the windbreaker never made it back. He says the PD has fielded questions about the missing windbreaker for three or four years – at some point including questions from the AG's office – but "as far as I know, no one's ever been able to find that thing."

And:

All evidence is to be transported to the Texas Department of Public Safety lab in Lubbock, where it will be inspected by lawyers for both parties before any testing begins. Any unknown DNA profile found as a result of the testing will be run through state and national databases, if possible, and followed by the issuance of a report by DPS documenting the test results and DNA comparisons. Forty-five days after all of the data has been reported to the parties a hearing on the matter will be held in Gray County.

Earlier coverage of Hank Skinner and the Joint Motion for DNA testing in his case begins at the link.

CCA Overturns Two Death Sentences

The Texas Court of Criminal Appeals rulings in Velez v. State and Ex Parte Alexander are available in Adobe .pdf format.

The AP filing is, "2 death row inmates win new punishment trials," by Michael Graczyk.  It's via the Houston Chronicle.

The state's highest criminal court reversed the death sentences of two convicted Texas killers Wednesday and narrowly rejected an appeal from a third death row inmate.

The Texas Court of Criminal Appeals ruled that testimony from a prison expert during the punishment phase of Manuel Velez's capital murder trial in Cameron County was improper, meaning the 47-year-old construction worker is entitled to a new punishment trial.

Velez was convicted of killing his girlfriend's son, Angel Moreno, a day before the boy's first birthday in February 2005 at their Brownsville home. Evidence showed he either hit the boy's head on a surface or struck him in the head with an undetermined object.

The court agreed with Velez's attorneys that prison expert A.P. Merillat was wrong when he testified about the security level classification of Texas inmates who serve life without parole. Velez's jury had the task of deciding between a death sentence and life without parole. Merillat and prosecutors who called him to testify as an expert witness on prisons and inmate violence should have known the testimony was incorrect, the court ruled.

And:

In the second case, the Court of Criminal Appeals unanimously agreed Guy Stephen Alexander, 52, should get a new punishment hearing because jurors had no way in 1989 to properly consider mitigating evidence in his case.

Alexander was arrested for killing Wilma Jewel Wofford, 75, of Houston, during a January 1989 robbery. Wofford was beaten with a brick and strangled. Alexander, a 29-year-old mechanic at the time, fled to Mississippi, where he was found driving Wofford's car and arrested.

He later gave police a written confession, and evidence at the scene of the killing was linked to him.

His trial was held during a time when trial rules for Texas capital cases were evolving, particularly in the area of mitigating evidence and how it should be applied to punishment. The U.S. Supreme Court has visited the issue several times, refining trial procedures through its rulings, and several cases of that era have been returned to trial courts for new punishment hearings.

"Death Sentence Thrown Out in 2005 Murder Case," is Shefali Luthra's post at Texas Tribune.

The Texas Court of Criminal Appeals on Wednesday threw out the death sentence of Manuel Velez, who was convicted of killing his girlfriend’s infant son in 2005. The decision was based on what the court said was the use of inaccurate expert testimony during Velez’s sentencing.

Velez, who was convicted by a Cameron County jury, will be taken off death row, though he has not been cleared of his conviction. Velez has already filed an appeal of his conviction, said Brian Stull, a senior staff attorney at the American Civil Liberties Union Capital Punishment Project.

Velez’s death sentence was based on testimony from state expert A.P. Merillat, who gave the jury incorrect information about what freedoms Velez would have if not sentenced to death, according to Wednesday's ruling.

And:

Velez will be represented by lawyers from two private law firms when he appeals his sentence, though Stull said he will be available to Velez as well.

The lawyers have uncovered evidence that injuries to the baby were sustained before Velez lived with him and while Velez was out of the state, Stull said.

Related posts are in the Texas Court of Criminal Appeals category index. 

Problems with Texas' jury charge in death penalty cases were first ruled unconstitutional by the Supreme Court in the 1989 case, Penry v. Lynaugh.  That ruling was more fully applied following the 2007 case, Abdul-Kabir v. Quarterman; more on both cases via Oyez. Juries must be able to consider all mitigating evidence that might lead them to issue a life sentence rather than a death sentence.  Texas' 1975 death penalty law did not allow jurors to do that.

Agreement Reached on DNA Testing in Hank Skinner Case

Earlier this month, the State of Texas reversed course after a decade of fighting additional testing of DNA evidence in Hank Skinner's case.  This afternoon, a Joint Motion for testing was filed with the Court of Criminal Appeals.  It's available in Adobe .pdf format, as are two photos of evidence.

Hank Skinner's attorney, Rob Owen, has released a "Statement in Response to Today's Filing of a Joint Motion to Vacate and Remand in the Texas Court of Criminal Appeals."

"We are pleased to have reached an agreement that finally secures DNA testing in this case, but there remains reason for grave concern. It appears that no DNA testing will be performed on perhaps the key piece of evidence collected by the police at the crime scene - the sweat-stained, blood-spattered men's windbreaker jacket found next to Twila Busby's body. From the earliest days of his fight for DNA testing, Mr. Skinner has insisted that this jacket should be tested because it may have been worn by the assailant. Moreover, since trial, a witness has positively identified the jacket from a photograph as one regularly worn by Twila Busby's uncle Robert Donnell who was seen stalking Twila at a party shortly before her death. It is beyond reasonable dispute that DNA testing on this jacket is critically important to the reliable determination of guilt in this case.

"According to the State, every other single piece of evidence in this case has been preserved. It is difficult to understand how the State has managed to maintain custody of items as small as fingernail clippings, while apparently losing something as large as a man's windbreaker jacket. To date, the State has offered no explanation for its failure to safeguard the evidence in this case. Nor have State officials explained why, during the many court proceedings in which Mr. Skinner sought access to the evidence for DNA testing, they repeatedly avowed that the evidence Mr. Skinner sought to test existed and was in a condition to permit such testing.

"The press and the public should demand answers to these questions."

Owen is a Visiting Clinical Professor at the Bluhm Legal Clinic, Northwestern University Law School, and Co-Director of the Death Penalty Center at the University of Texas School of Law.

"Texas agrees to DNA testing in '93 slaying of 3," is the AP report filed by Nomaan Merchant, via the Houston Chronicle.

Authorities will seek to test knives, blood samples and other evidence in the case of a Texas Panhandle man on death row for the New Year's Eve slayings of his girlfriend and her two grown sons, according to a court motion filed Tuesday.

Hank Skinner once came within an hour of execution for the 1993 killings of Twila Busby and her sons in Pampa, about 50 miles northeast of Amarillo. The Texas Court of Criminal Appeals last stayed his execution in November.

Skinner's attorneys have argued that several pieces of untested evidence should be examined for DNA. Until this month, the Texas attorney general's office had dismissed requests for testing as a stalling tactic. The attorney general reversed its objection to testing in a one-paragraph advisory filed June 1, weeks after the criminal appeals court heard arguments on the proposed testing.

On Tuesday, both sides filed a joint motion asking the court to send the case back to a lower court to make way for testing. The motion included a proposed order with 40 items that would eventually be tested.

"The parties have reached an accord intended to resolve the dispute pending before this Court, which makes it necessary for the Court to address the issues presented by Mr. Skinner's appeal," the motion said.

The list of items includes vaginal swabs taken from Busby during her autopsy, two knives found in and around the Busby home and underwear from her dead sons, Elwin Caler and Randy Busby. All of the items listed are already in the custody of authorities, according to the court filing.

Authorities say they cannot locate another piece of evidence that Skinner's backers see as crucial — a windbreaker found at the crime scene that may have resembled one worn by a possible alternate suspect, Busby's now-deceased uncle. The proposed order submitted Tuesday said authorities would continue to search for the jacket after the order was approved.

The state said in the motion it had conducted a "thorough search" and would offer the chance to call witnesses at a court hearing if the jacket can't be found.

"Both Sides in Skinner Case Ask Court For DNA Test," is the Texas Tribune post by Morgan Smith.

Attorneys for the state of Texas and death row inmate Hank Skinner have filed a joint motion with the Court of Criminal Appeals to send his case back to district court so he can obtain DNA testing. 

"The parties have reached an accord intended to resolve the dispute pending before the Court, which makes it unecessary for the Court to address the issues presented by Mr. Skinner's appeal," the filing reads. (Download the filing to the left.)

Skinner was convicted in 1995 of the strangulation and beating death of his girlfriend Twila Busby and the stabbing deaths of her two adult sons on New Year’s Eve 1993 in Pampa. Skinner maintains he is innocent and was unconscious on the couch at the time of the killings, intoxicated from a mixture of vodka and codeine.

The Court of Criminal Appeals must grant the motion before anything can proceed. It is a step in the right direction for Skinner, who has fought since 2000 to allow DNA testing on crime scene evidence that was not analyzed at his original trial. But in a statement, his attorney Rob Owen cautioned "there remains reason for grave concern."

No DNA testing will be performed on what Owen called "perhaps the key piece of evidence" collected at the crime scene, the sweat and blood stained men's windbreaker jacket found next to Busby's body, because it has been lost.

"State, Skinner's attorneys agree to test 40 items from triple slaying," by Bobby Cervantes for the Amarillo Globe-News.

In November, the Texas Court of Criminal Appeals halted Skinner’s execution for the third time since 1995 to consider how changes to the state’s post-conviction DNA law would affect his requests for testing, which he has said will exonerate him.

Some items are in the possession of GeneScreen/Orchid Cellmark, an international genetic testing company, and others remain with the Wheeler County court reporter and the Gray County Sheriff’s Office, the order said.

If the DNA on the evidence does not link Skinner, Busby or her two children to the items, DPS investigators will run a profile search through federal and state DNA databases. The laboratory must notify the state and Skinner’s attorney if any other individual’s DNA can be linked to the evidence, the order said.

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

More on the Cathy Lynn Henderson Case

"Engineer enlisted scientific advances to aid Texas woman on death row," is the title of Chuck Lindell's report for the Sunday edition of the Austin American-Statesman.  It's a must-read for its reporting on advances in scientific analysis of this and other cases.

Cathy Lynn Henderson was out of appeals and seven weeks from an April 2007 execution date when an unexpected phone call from a retired mechanical engineer changed everything, offering the former Travis County resident a potential path off death row.

Engineer Edwin Newberg was troubled when the Kansas City Star, serving Henderson's former hometown, published a front-page story about her capital murder conviction for the death of an infant in her care, 3-month-old Brandon Baugh.

Prosecution experts said Brandon's head injuries were too extensive to support Henderson's claim that she accidentally dropped the child about 4½ feet onto the concrete and tile floor of her Pflugerville-area home in 1994.

Newberg tracked down the defense lawyer quoted in the story, George Cumming of San Francisco, to explain that Henderson's alibi could be reinforced by biomechanics, an emerging field of study that measures the effect outside forces have on the human body.

"From an engineering viewpoint and from the damage that I heard about," it seemed possible that Henderson was not a murderer, Newberg recalled recently.

Intrigued, Cumming and the rest of Henderson's legal team — assembled by Sister Helen Prejean of "Dead Man Walking" fame and working without charge — found a leading expert in biomechanics and secured a hastily prepared affidavit asserting that even short falls can be fatal to infants.

The information prompted state District Judge Jon Wisser to delay Henderson's execution by 60 days to give defense lawyers time to more fully explore biomechanics for a new appeal, which they filed three weeks before the June 13, 2007, execution date.

With two days to spare — just as Brandon Baugh's parents were packing to witness the execution, hoping for closure — the state's highest criminal court stayed Henderson's lethal injection and directed Wisser to examine the new claims.

And:

But last month, more than three years after the last hearing, Wisser sent his findings to the Court of Criminal Appeals, recommending that Henderson's conviction be thrown out and a new trial be ordered. Deprived of Bayardo's emphatic testimony that the boy had been murdered, no reasonable juror would have voted to convict Henderson of capital murder, Wisser said.

In essence, Wisser determined that prosecutors at Henderson's 1995 trial had an unfair advantage, presenting credible evidence that could not then be refuted — but could be challenged today because scientific advances have produced a deeper understanding of pediatric head injuries.

Like other recent cases of reconsidered science, biomechanics cannot prove Henderson's innocence.

Earlier coverage of Cathy Lynn Henderson's case begins at the link.  Related posts are in the forensics index.

State of Texas Agrees to DNA Testing in Hank Skinner Case

"State Backs DNA Testing for Hank Skinner" is Brandi Grissom's post at the Texas Tribune.

Reversing its decade-long objection to testing that death row inmate Hank Skinner says could prove his innocence, the Texas Attorney General's office today filed an advisory with the Texas Court of Criminal Appeals seeking to test DNA in the case. 

"Upon further consideration, the State believes that the interest of justice would best be served by DNA testing the evidence requested by Skinner and by testing additional items identified by the state," lawyers for the state wrote in the advisory.

Skinner, now 50, was convicted in 1995 of the strangulation and beating death of his girlfriend Twila Busby and the stabbing deaths of her two adult sons on New Year’s Eve 1993 in Pampa. Skinner maintains he is innocent and was unconscious on the couch at the time of the killings, intoxicated from a mixture of vodka and codeine.

And:

The advisory comes a month after that hearing before the Texas Court of Criminal Appeals, in which the judges on the nine-member panel grilled attorneys for the state about their continued resistance to the testing even after a spate of DNA exonerations in Texas. In Texas, at least 45 inmates have been exonerated based on DNA evidence.

"You really ought to be absolutely sure before you strap a person down and kill him," Judge Michael Keasler said at the May hearing.

State Sen. Rodney Ellis, D-Houston, praised the Texas Attorney General's move on Friday. Legislators last year approved a bill that Ellis wrote amending the state's post-conviction DNA testing law to allow for such analysis in cases like Skinner's. Under the measure, inmates can obtain testing even in instances where they had the chance to test the DNA at trial but did not do so and in cases where the DNA was tested previously but new technology allows for more advanced testing.

The AP filing is, "DNA testing allowed for Texas death row inmate," by Nomaan Merchant.  It's via the Austin American-Statesman.

A man condemned for the New Year's Eve slayings of his girlfriend and her two sons will get new DNA testing after the Texas attorney general's office on Friday withdrew its objections.

Hank Skinner was sentenced to death and once came within an hour of execution for the 1993 slayings of Twila Busby and her two grown sons in Pampa, in the Texas Panhandle. The Texas Court of Criminal Appeals granted its last stay of execution Nov. 7.

Prosecutors had consistently dismissed Skinner's request for DNA testing as a ploy to delay his execution. They reversed course Friday in a one-paragraph advisory filed with the Court of Criminal Appeals.

"Upon further consideration, the State believes that the interest of justice would best be served in this case by DNA testing the evidence requested by Skinner and by testing additional items identified by the State," prosecutors said.

A spokesman for Attorney General Greg Abbott did not say what led to his office's new stance on testing.

Skinner, 50, has acknowledged being inside the house where Busby and her sons were found. But he insists he couldn't be the killer because he was passed out on a couch from a mix of vodka and cocaine.

"Skinner Will Get DNA Testing," by Jordan Smith for the Austin Chronicle.

The decision comes almost a exactly a month after Solicitor General Jonathan Mitchell argued before the Court of Criminal Appeals that Skinner should be denied the ability to test key evidence – including a bloody windbreaker stained with sweat with two hairs clinging to it that was found near Busby's body. The problem, Mitchell argued in part, was that to allow Skinner access to testing would only incentivize other defendants charged with capital murder to forgo evidence testing at trial in order to further post-conviction appeals. To put it mildly, Mitchell's arguments before the CCA were unpersuasive, and court observers said they believed a CCA ruling in Skinner's favor was more than likely.

But the AG's office has cut that process short by agreeing today that Skinner should be able to submit for DNA analysis the previously untested evidence. "Until now, the State has opposed Skinner's request for DNA testing and argued to affirm the trial court's ruling on appeal," reads the AG's court filing. "Upon further consideration, the State believes that the interest of justice would best be served in this case by DNA testing the evidence requested by Skinner and by testing additional items identified by the State."

The Amarillo Globe-News reports, "Texas AG agrees to test Skinner evidence."  It's by Aziza Musa.

Skinner's attorney, Rob Owen, issued this statement:

In response to the filing, the following is a statement from Rob Owen, attorney for Hank Skinner and Visiting Clinical Professor, Northwestern University School of Law:
 
“For more than ten years, Mr. Skinner has been fighting to have key items of evidence in his case subjected to DNA testing.  We are pleased that the State finally appears willing to work with us to make that testing a reality.
 
“It will be necessary, of course, to work out the details of any such testing with the State, in order to ensure that the evidence is carefully and properly handled, and that every piece of evidence that we have identified as important gets tested.
 
“In 2000, the State squandered an opportunity to pursue full and fair DNA testing when it excluded Mr. Skinner's legal team from any role in such decisions.  Texans expect accuracy in this death penalty case, and the procedures to be employed must ensure their confidence in the outcome.  To that end, all determinations about how and by whom the evidence will be handled and tested must be entirely transparent, with both parties involved at every step.
 
“We look forward to cooperating with the State to achieve this DNA testing as promptly as possible.”

Owen is a Visiting Clinical Professor at Northwestern School of Law, and Co-Director of the Capital Punishment Center at UT Law.

The Texas Attorney General's Advisory filed with the Court of Criminal Appeals is available in Adobe .pdf format.

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

 

The June Issue of Texas Monthly

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

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

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

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

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

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

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

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

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

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

Here's the beginning of this must-read:

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

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

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

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

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

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

Trial Judge Recommends Reversal of Cathy Lynn Henderson Convcition

Today's Austin American-Statesman reports, "Judge: New evidence should overturn Henderson's capital murder conviction."  It's by Chuck Lindell.

The state's highest criminal court should overturn the capital murder conviction of Cathy Lynn Henderson, once two days from execution for the 1994 death of an infant she was baby-sitting, a Travis County judge has recommended.

District Judge Jon Wisser said scientific discoveries into the causes of head trauma similar to the injury suffered by 3-month-old Brandon Baugh — and a change of heart from the prosecution's star witness, former medical examiner Roberto Bayardo — mean no reasonable juror would convict Henderson if presented with the new evidence at trial.

"Testimony of the state's chief experts was, at bottom, scientifically flawed," Wisser wrote in findings dated May 14 and delivered Tuesday to the Court of Criminal Appeals.

After reviewing evidence via testimony and briefs, Wisser recommended that the appeals court dismiss Henderson's conviction and return her case to Travis County, where she may face "any indictment or charges" that prosecutors choose to pursue in the child's death.

The appeals court will determine whether to accept Wisser's recommendation. It can rule on his submission, request further briefing or schedule oral arguments. A decision on Henderson's fate is likely to be months away.

And:

Henderson, 55, had claimed that Brandon died after slipping from her arms and falling about four feet to the concrete floor of her Pflugerville-area home. She said she panicked, then buried the boy's body in a Bell County field before fleeing to Missouri, where she was found and arrested 11 days later.

The search for the boy's body and hunt for Henderson dominated headlines in February 1994.

At Henderson's trial a year later, Bayardo testified that it was "impossible" to attribute the boy's extensive head injury to an accidental fall. The only explanation, he said, was a deliberate and forceful blow struck by Henderson, adding that Brandon would have had to fall from "higher than a two-story building" to sustain a similar injury.

But in an affidavit included in Henderson's 2007 appeal, 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.

"I cannot determine with a reasonable degree of medical certainty whether Brandon Baugh's injuries resulted from an intentional act or an accidental fall," Bayardo said.

Dr. John Plunkett, one of five defense experts to testify before Wisser, said doctors were commonly taught that short falls could not cause serious injury or death in infants. However, scientific studies since 2001 have shown that falls of less than four feet can be lethal, producing complex skull fractures and other damage, said Plunkett, a Minnesota forensic pathologist who studied fatal playground accidents.

Plunkett concluded that no expert could prove that Brandon's death was an accident. "However, because of the new scientific information and analysis now available ... neither may anyone prove that Ms. Henderson intentionally caused it," he said in an affidavit to Wisser.

Also:

Henderson was two days from a June 13, 2007 execution date when the Court of Criminal Appeals ruled 5-3 to halt proceedings — directing Wisser, who had presided over Henderson's trial, to examine testimony from defense experts and Bayardo's recantation.

It is unclear how Wisser's conclusions will be received by the appeals court, an all-Republican nine-member body known as a tough venue for defense lawyers.

Three judges would not have delayed Henderson's execution in 2007— Sharon Keller, Barbara Hervey and Michael Keasler — saying defense lawyers did not meet criteria for a second appeal.

The AP filing is, "Judge: Condemned woman should have verdict nixed," by Nomaan Merchant.  It's via the Fort Worth Star-Telegram.

Henderson maintained that she accidentally dropped the boy onto a concrete floor in her home in Pflugerville, north of Austin. During her trial, the chief medical examiner in Travis County argued that the boy could not have been so badly injured in a short fall. Dr. Roberto Bayardo said Brandon would have had to fall from a height taller than a two-story building.

But Bayardo, now retired, changed his mind more than a decade later. He submitted an affidavit in 2007, saying new information about pediatric head trauma showed that his conclusion was incorrect and that a short fall could have caused the boy's injuries.

The Texas Court of Criminal Appeals halted Henderson's execution that June, two days before she was scheduled to die. She has remained on death row ever since.

And:

"The court finds that if Dr. Bayardo's re-evaluation had been presented to the jury in 1995, no rational juror could have or would have convicted (Henderson) of capital murder beyond a reasonable doubt in light of this new evidence," Wisser wrote.

Earlier coverage of the Cathy Lynn Henderson case begins at the link.  Related posts are in the forensics index.  Several notable older posts include:

• Autopsy Errors One More Troubling Trend
• Yamil Berard's Five-Part Medical Examiner Series Concludes
• Yamil Berard on Texas Autopsy Controversies
• The Case of Cynthia Case - More Bad Forensics

The Exoneration of Billy Frederick Allen

"Texas Supreme Court defines 'actual innocence' more broadly," is the Fort Worth Star-Telegram editorial. 

After decades of legal motions challenging two murder convictions, it appears that Billy Frederick Allen will receive $2 million from the state of Texas for wrongfully imprisoning him for almost 26 years.

The Texas Supreme Court on Friday issued a significant interpretation of the Tim Cole Act that allows compensation even in cases where DNA evidence is not available to nullify a conviction.

In a unanimous opinion by Justice Dale Wainwright, the court said the definition of "actual innocence" in the law includes claims like Allen's in which the trial was constitutionally flawed enough to undermine confidence in the conviction.

And:

Allen kept challenging his conviction, and a trial judge repeatedly ruled that he should receive a new trial. After the law changed for raising claims of new evidence, the Court of Criminal Appeals in 2009 threw out Allen's conviction based on the ineffective assistance of his trial lawyer in not presenting evidence pointing to someone else as the killer. Prosecutors later dropped the charges.

When Allen filed a claim with the Texas comptroller's office for compensation that's available to exonerated inmates, he was denied.

The comptroller argued that the Court of Criminal Appeals' ruling didn't amount to the declaration of "actual innocence" required by the law.

But the Supreme Court said the Legislature had made clear its intent to cover cases like Allen's.

In a detailed examination, the court said "actual innocence" encompasses both claims such as exonerations based on new evidence from DNA testing and those in which "the constitutional error at trial probably resulted in the conviction of one who was actually innocent."

"The Legislature has drawn no distinctions between the two types of 'actual innocence' claims," Wainwright wrote.

The Texas Supreme Court Ruling in In RE: Billy Frederick Allen is available in Adobe .pdf format.  Here's additional news coverage of the ruling.

Jim Vertuno writes, "Texas high court orders state to pay ex-inmate $2M," for AP.

The Texas Supreme Court ordered the state Friday to pay about $2 million to an ex-inmate who spent 26 years in prison for murder before his conviction was overturned, a decision legal experts said could set a new standard for when ex-prisoners should be compensated.

Texas has paid nearly $50 million to former inmates who have been cleared. But state Comptroller Susan Combs had resisted paying Billy Frederick Allen, arguing that his conviction was overturned because he had ineffective lawyers, not because he had proven his innocence.

The state Supreme Court, in a unanimous opinion written by Justice Dale Wainwright, disagreed, saying the state's criminal courts had shown Allen had a legitimate innocence claim and he should be paid.

Jeff Blackburn, chief counsel of the Innocence Project of Texas, which works to free wrongfully convicted inmates, said Friday's ruling could open the door for more compensation claims from ex-prisoners.

"The floodgates are not opening, but what this will do is give a fair shake to people who are innocent," Blackburn said. "This is a major step forward in terms of opening up and broadening the law of exoneration in general."

Texas' compensation law is the most generous in the U.S., according to the national Innocence Project. Freed inmates who are declared innocent by a judge, prosecutors or a governor's pardon can collect $80,000 for every year of imprisonment, along with an annuity.

What makes Allen's case different is that he didn't have an innocence declaration. What he had instead was a Court of Criminal Appeals ruling that reversed his conviction based on ineffective counsel and supported a lower court's finding that the evidence against him was too weak for a reasonable jury to convict him.

In effect, the Court of Criminal Appeals, the state's highest court in criminal matters, supported Allen's claim of "actual innocence" and he should be paid, the state Supreme Court ruled.

"Court to Texas: Pay $2 million to man imprisoned for 26 years," is the Los Angeles Times report by Molly Hennessy-Fiske.

Billy Frederick Allen, now in his 60s, was convicted of two 1983 Dallas-area murders. Unlike other inmates freed after DNA evidence proved their innocence, Allen was freed in 2009 after a court found problems with witness testimony and his trial attorneys' representation. Allen sued the state for compensation for wrongful imprisonment.

Allen's attorney said the Supreme Court ruling may prove key to developing standards for when the state must compensate former prisoners.

"There are many cases where people are struggling and they don't have DNA, but they now have hope," Allen's attorney, Kris Moore of McKinney, Texas, told The Times. "The implications of this for the Texas justice system are probably larger than people realize."

He said the ruling may make it easier for inmates such as Richard Miles of Dallas -- who served 14 years for crimes he didn't commit, then spent two years awaiting a court ruling that finally came in February -- to be  compensated more quickly.

But he said it's not clear what bearing Allen's case may have on other ongoing high-profile exoneration battles. In one such case, Kerry Max Cook has written a book and attracted celebrity supporters in his fight to prove his innocence and receive compensation for serving 22 years on Texas' death row for an East Texas murder he says he never committed.

Courthouse News Service posts, "Texas Owes $2M to Man Exonerated of Murder."  It's by David Lee.

The comptroller said Allen was freed because of ineffective assistance of counsel, not actual innocence.

A unanimous panel of the state Supreme Court concluded otherwise Friday, saying the habeas relief amounted to actual innocence.

Substantive claims based on newly discovered evidence, such as DNA, are not the only permissible actual innocence claims under the act, according to the 19-page decision.

Procedural claims that are "intertwined" with constitutional errors are permissible as well

"He asserted a constitutional claim for ineffective assistance of counsel, which coupled with a proper defense of his case at trial would probably have concluded in a not guilty verdict," Justice Dale Wainwright wrote for the panel.

The court based its holding on Schlup v. Delo, a 1995 ruling in which the U.S. Supreme Court defined actual innocence as "not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty."

Under Schlup, the standard does not address the trial court's independent judgment as to whether reasonable doubt exists. Rather the standard requires the court to make a probabilistic determination about what reasonable, properly instructed jurors would do.

In 2001, for example, the Texas Legislature changed the term "not guilty" in the statute to "actual innocence." This gives credence to the idea that lawmakers wanted to include Schlup claims of actual innocence, the judges found.

More on Schlup, via Oyez.

Relates posts are in the wrongful incarceration index.

w.star-telegram.com/2012/05/20/3973424/texas-supreme-court-defines-actual.html#storylink=cpy

The Staley Case

"Steven Staley capital case reveals another glaring flaw in Texas death penalty," is the editorial in today's Fort Worth Star-Telegram.

Staley has been diagnosed as a paranoid schizophrenic who has severe delusions when he isn't taking antipsychotic medication.

For years now, his defense team has argued that it would violate the Constitution's Eighth Amendment ban on cruel and unusual punishment to forcibly medicate Staley to make him lucid enough to comprehend his execution. Prosecutors also argue that the drugs are for Staley's benefit. But clearly having him mentally healthy enough to execute benefits the state, not Staley.

The case has wended its way through the courts, with execution dates being set and then lifted because of the difficulty of finding the correct balance.

In 2006, state District Judge Wayne Salvant in Fort Worth allowed the state to forcibly medicate Staley. But that was appealed, and the issue still isn't settled. Staley was set for execution today, but the Texas Court of Criminal Appeals issued a stay Monday, so the debate will continue.

Staley certainly must be punished for wantonly taking a life. Is forcing him to take dangerous drugs just to make him competent long enough for the state to kill him the only way to accomplish the societal goal of enforcing the rule of "Thou shalt not kill"?

If the answer is "yes," that's one more glaring flaw in Texas' capital punishment system.

If the answer is "no," commuting Staley's death sentence to life imprisonment would achieve punishment without the disturbing precedent that would be set by drugging him to administer a fatal injection.

Earlier coverage of Steven Staley's case begins at the link.

CCA Issues Stay for Steven Staley

"Court Stays Execution of Mentally Ill Inmate," is Brandi Grissom's post at the Texas Tribune.  It's also available via the Fort Worth Star-Telegram.

The Texas Court of Criminal Appeals on Monday stayed this week’s scheduled execution of Steven Staley, a severely mentally ill inmate who was convicted of a 1989 robbery and murder at a Fort Worth Steak and Ale restaurant.

The stay came after defense lawyers argued that the state was violating Staley's constitutional rights by forcing him to take powerful anti-psychotic drugs so that he could be considered mentally competent for execution. On the heels of the stay, John Stickels, a lawyer for Staley, said that a psychologist on Monday spent three hours with the inmate at the Polunsky Unit in Livingston and had concluded that after two weeks without his medication he was no longer competent.

"He is delusional again. He believes there is a big conspiracy orchestrated by the state and that everybody, everybody, is part of the conspiracy," Stickels said. "He believes that he was wrongfully convicted because of the conspiracy."

The execution was stayed until the Court of Criminal Appeals takes further action.

Staley’s case presents a unique question for the courts. His lawyers argue that it is unethical and unconstitutional for the state to forcibly medicate Staley so that he can be executed. Prosecutors in Tarrant County, though, argue that Staley’s treatment is in his “best medical interests,” not solely so that he can be executed, and that his condition has improved over the years.

"Texas inmate set to die Wednesday gets reprieve," is the AP filing by Michael Graczyk.  It's via the Austin American-Statesman.

The Texas Court of Criminal Appeals on Monday stopped this week's scheduled execution of a convicted killer whose mental health had become an issue in his appeals.

The state's highest criminal court gave a reprieve to Steven Staley, 49, who was set for lethal injection Wednesday evening in Huntsville for the 1989 shooting death of a Fort Worth restaurant manager during a botched robbery.

"This is great," said Staley's attorney, John Stickels. "I'm very happy."

Prosecutors contended Staley was competent for execution, but Stickels in his appeal to the court said that was accomplished only because a state judge in Fort Worth improperly ordered Staley be given drugs to make him competent so the state of Texas could kill him.

The appeals court spent much of the ruling's three pages recounting Staley's case in the courts and only in a final paragraph specifically addressed the appeal, saying the court had determined the execution should be halted "pending further order by this court."

It gave no reason. Justice Lawrence Meyers dissented from his eight colleagues but issued no dissenting opinion.

"I don't know what's next," Stickels said. "It just orders the execution stayed and doesn't order anything else. I'm not going to do anything until they tell me."

And:

The 8th U.S. Circuit Court of Appeals has ruled forcible medication is appropriate if it's likely to make the condemned inmate competent, if the side effects wouldn't be worse than the benefits and if it's in the prisoner's best medical interests. The Supreme Court hasn't addressed the issue.

Earlier coverage of Steven Staley's case begins at the link.

The Long, Questionable History of George Denkowski

"Death Sentence Reviews Leave Unsettled Issues," is the title of Brandi Grissom's report in the Texas edition of the Sunday New York Times.  It also appears at the Texas Tribune.

Stanley Schneider was shocked last year when Texas’ highest criminal court sent his death row client an early Christmas gift of sorts, ordering the trial court to re-examine evidence from a psychologist who had decided that John Reyes Matamoros was mentally fit to face execution.

“We were hopeful their sending it back would mean something,” Mr. Schneider said.

But his hope flagged in March when, he said, two Harris County state district judges virtually rubber-stamped Dr. George Denkowski’s findings in the cases of Mr. Matamoros and a fellow death row inmate, Steven Butler. Dr. Denkowski, the psychologist who testified in the cases of 14 current Texas death row inmates that the convicted men were mentally fit for execution, was reprimanded last year after other psychologists and defense lawyers filed a complaint alleging that he had used discredited evaluation methods.

Lawyers for Mr. Matamoros and Mr. Butler, who have filed objections with the Texas Court of Criminal Appeals, say any findings by Dr. Denkowski should be disregarded. They said that the trial court judges — who are husband and wife — simply adopted Dr. Denkowski’s conclusions instead of examining reams of evidence from other psychologists that they said proved their clients were mentally retarded and ineligible for the death penalty.

“This is a perfect example of the state taking science and trying to prostitute it,” Mr. Schneider said, adding, “The role of the courts is to protect us from junk science.”

And:

The Supreme Court of the United States ruled in 2002 that states could not execute people who were mentally retarded. The court allowed states to decide on guidelines for determining whether a person was mentally retarded. Texas courts have adopted a three-part definition that requires the convicted inmate to have below-average intellectual function, to lack adaptive behavior skills and to have had these problems since an early age.

Dr. Denkowski conducted tests to determine whether defendants who might face the death penalty aligned with those definitions. But other psychologists and defense lawyers complained that he artificially inflated intelligence scores to make defendants eligible for the death penalty. (Dr. Denkowski’s lawyer has said that he vigorously denies having violated any psychology board rules and that he used his best clinical judgment in making forensic evaluations.)

Last year, the Texas Board of Examiners of Psychologists agreed to a settlement with Dr. Denkowski in which it reprimanded him, but he did not admit guilt. He agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints.

Since that reprimand, the Texas Court of Criminal Appeals has asked trial courts to review at least six cases that included Dr. Denkowski’s work to determine what effect it had had on the case.

Defense lawyers argue that Dr. Denkowski’s conclusions should be completely excluded from those reviews.

“You can talk all day long about how you don’t want junk science used in these cases, but when you’re confronted with it, you have to take active steps to make sure it hasn’t contaminated the case,” said Kathryn Kase, executive director of the Texas Defender Service, which represents death row inmates.

The Butler and Matamoros cases are the first to be returned to the Court of Appeals.

Earlier coverage of George Denkowski and the Butler and Matamoros cases begins at the link.

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

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.  Related posts are in the mental retardation index.

More From David Protess on the Hank Skinner Case

"Texas Lawman to High Court: DNA Testing "Frivolous" in Death Penalty Case," is David Protess' latest at Huffington Post.  He's President of the Chicago Innocence Project.

Texas law enforcement officials have come up with some mighty creative legal arguments over the years to justify executing Hank Skinner without first testing evidence that could prove his innocence -- or confirm his guilt.

At times, they claimed the tests would be costly to the taxpayers. Then Skinner's legal team agreed to pay for the tests.

Shifting gears, they argued that Skinner had waived his right to the tests when he didn't request them before his trial. Then Gov. Rick Perry signed legislation that ensured post-conviction DNA testing in cases like Skinner's.

So, at the Texas Court of Criminal Appeals on Wednesday, they needed an imaginative pitch to persuade the nine judges not to apply the new DNA law to Skinner's case. That chore fell to Solicitor General Jonathan Mitchell, who told the judges -- presumably with a straight face -- that the request for DNA testing was merely a "frivolous" attempt to delay Skinner's execution.

Earlier coverage of Hank Skinner's fight for DNA testing begins at the link.

An Update on the Hank Skinner Oral Argument - UPDATED

Jordan Smith has posted, "CCA Considers Hank Skinner's Death-Case DNA Appeal," at the Austin Chronicle.  For those following the Skinner case closely, it's a must-read:

Whether death row inmate Hank Skinner will be given access to DNA testing that could demonstrate he is not guilty of the 1993 killing of his girlfriend and her two sons is now in the hands of the Court of Criminal Appeals, which considered the case during oral argument this morning. Among the items of evidence that could be subject to testing for the first time, should the CCA allow Skinner the access he's been seeking for more than a decade, is a windbreaker – its cuffs spattered with blood, stained with sweat, and with two human hairs attached – that was found next to the body of Twila Busby, who had been bludgeoned to death in her home in 1993. She shared that home with her boyfriend, Skinner, and her two grown sons who were also slaughtered that night in the home. Also never before tested is a rape kit from Busby, a bag containing bloody knives and a bloody cloth, evidence found under Busby's fingernails and human hairs found clutched in her hands. To hear Skinner's lawyer Rob Owen tell it, if this evidence is finally tested, and comes back with DNA belonging to someone other than Skinner, it would be valuable evidence and, had it actually been available at the time of his trial nearly 17 years ago, would likely have convinced a jury that Skinner was not guilty of the grisly triple murder. "It changes the picture," he argued before the court. "Having the DNA evidence makes the jury look at the other pieces of evidence differently. Because I think jurors are inclined to accept DNA evidence as reliable."

Whether state law affords Skinner access to that evidence will be up to the nine judges of the CCA to decide.

To hear the state tell it, Skinner's bid to test the evidence now is merely an unreasonable, and unlawful, tactic undertaken to delay his execution, Solicitor General Jonathan Mitchell argued to the CCA this morning.

And:
That argument did not seem to impress the judges, several of whom noted that state lawmakers removed the so-called "fault provision" of the state's post-conviction testing law in 2011 – a noncontroversial repeal (prompted by Skinner's case) that Gov. Rick Perry readily signed into law. Even Judge Michael Keasler – who indicated that he found the circumstantial evidence against Skinner compelling – appeared frustrated by Mitchell's insistence that fault could be still legally be found and used as a way to deny Skinner access to DNA testing. "This is not anything that popped up right now," he noted, since Skinner has been asking for this same testing since 2001. "You ought to be sure before you strap a person down and kill 'em."

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

UPDATE - Brandi Grissom posts, "Judges Question State's Efforts to Stymie DNA Tests," at the Texas Tribune.

Sensitive to dozens of DNA exonerations in recent years, judges on the nine-member Texas Court of Criminal Appeals today grilled the Texas solicitor general about what harm could be done by granting death row inmate Hank Skinner's decade-old request for biological analysis of crime scene evidence.

"You really ought to be absolutely sure before you strap a person down and kill him," Judge Michael Keasler said.

And:

Texas Solicitor General Jonathan Mitchell told the court that there is such "overwhelming evidence" of Skinner's "actual guilt" that DNA testing could not undermine the conviction. Mitchell argued that Skinner had his chance to test the evidence at his trial, but he chose not to. Skinner is now using the fight for DNA analysis as a frivolous attempt to delay his inevitable execution, Mitchell added. Allowing Skinner testing at this late point in the process, Mitchell said, would set a dangerously expensive precedent for guilty inmates. In future cases, he said, prosecutors would feel obligated to test every shred of evidence to prevent a guilty defendant from delaying his sentence by requesting additional DNA results.

"Prosecutors will have to test everything, no matter what the cost," Mitchell told the court. 

"Prosecutors should be testing everything anyway," Keasler said.

The Court of Criminal Appeals has previously denied Skinner's requests, citing restrictions in the state's 2001 post-conviction DNA testing law that have since been repealed. Most recently, during the 2011 legislative session, lawmakers repealed part of the law that allowed DNA testing only in cases where analysis was not done during the original trial because the technology did not exist or for some other reason that was not the fault of the defendant.

The court of appeals stayed Skinner's Nov. 9 execution date so they could determine how the change to the law should apply to his case.

The tough questions for the state today came as something of a surprise from the court, which typically favors prosecutors.

Texas CCA Hears Hank Skinner Request for DNA Testing

"Top Criminal Court to Hear Hank Skinner's DNA Plea," is the title of Brandi Grissom's post at the Texas Tribune.

Death row inmate Hank Skinner’s decade-long fight for DNA testing, which he hopes will prove his innocence in a grisly West Texas triple murder, will take center stage this morning in the state’s highest criminal court.

Skinner, now 50, was convicted in 1995 of the strangulation and beating death of his girlfriend Twila Busby and the stabbing deaths of her two adult sons on New Year’s Eve 1993 in Pampa. Skinner maintains he is innocent and was unconscious on the couch at the time of the killings, intoxicated from a mixture of vodka and codeine.

A decision from the Texas Court of Criminal Appeals could take weeks or months.

And:

Lawyers in the Texas attorney general’s office argue that Skinner is only trying to put off his inevitable execution and that the evidence of his guilt is so overwhelming that DNA testing is unwarranted. But Rob Owen, one of Skinner’s lawyers and the co-director of the University of Texas at Austin’s Capital Punishment Clinic, said he is hopeful the Texas Court of Criminal Appeals will finally allow the testing.

“The facts of Mr. Skinner’s case bear some of the hallmarks of wrongful conviction cases from around the country,” Owen said. “For all these reasons, none of the state’s arguments diminish the urgent need for DNA testing in his case.”

The appeals court has denied Skinner's previous requests for testing, citing restrictions in the 2001 post-conviction DNA testing law. Lawmakers over the last several years, though, have repealed the restrictions that the court cited. Most recently, during the 2011 legislative session, lawmakers repealed part of the law that allowed DNA testing only in cases where analysis was not done during the original trial because the technology did not exist or for some other reason that was not the fault of the defendant.

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

CCA Overturns Death Sentence in Christian Olsen case

"Appeals court rejects death sentence in Bryan case," is the AP report, via the Austin American-Statesman.

The Texas Court of Criminal Appeals has thrown out the death sentence of a Bryan man over the fatal beating of his 68-year-old neighbor five years ago and says convicted killer Christian Olsen deserves a new punishment trial.

The state's highest criminal court says State District Court Judge Steve Smith was wrong when he agreed with prosecutors who objected to testimony at Olsen's 2009 trial from an expert on female sex offenders.

Olsen's attorneys contended their client had been influenced and was the victim of sexual abuse by his 35-year-old girlfriend. Olsen was 19 when he was arrested for the slaying of Etta Jean Westbrook during a robbery at her home.

The Court of Criminal Appreals ruling in Olsen v. Texas, and a concurring opinion by Presiding Judge Keller, are available in Adobe .pdf format.

"Christian Olsen's death sentence overturned," is the Bryan-College Station Eagle report written by Matthew Watkins.

District Attorney Bill Turner said his office will review the situation and talk with the victim's family before deciding how to proceed.

Olsen's lawyer, Billy Carter, said he was pleased with the court's decision and hopes to have the case resolved soon.

"We are hoping that the DA's office will review everything and might decide not to seek death," he said.

In that case, there would be no trial. Olsen would be automatically sentenced to life in prison. If the case does go back to trial, it likely won't happen until next year, lawyers said.

Supreme Court Rules on Ineffective Assistance Case

Tuesday's Supreme Court ruling in Martinez v. Ryan is available in Adobe .pdf format.  The ABA Criminal Justice Section provides this summary of the ruling:

In an opinion by Justice Kennedy, the Court reversed the decision of the Court of Appeals for the Ninth Circuit and remanded the case for further proceedings consistent with its opinion.  The Court held that where, under state law, ineffective-assistance-of-trial-counsel claims must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.  Justice Scalia filed a dissenting opinion, which was joined by Justice Thomas.

"Court Ruling Could Affect Texas Death Row Cases," is Brandi Grissom's Texas Tribune report on the case and its implications.

Death row inmate Jesse Joe Hernandez, set to be executed next week for the 2001 death of a 10-month-old boy in Dallas, is hoping that a ruling Tuesday from the U.S. Supreme Court could give him another chance to prove that the tragedy was not entirely his fault. 

The nation’s highest court ruled that the failure of initial state habeas lawyers to argue that their client’s trial counsel was ineffective should not prevent the defendant from making that argument later on. Lawyers across the country, including those for at least two Texas death row inmates, were eagerly awaiting the court’s ruling in the Martinez v. Ryan case out of Arizona, which could expand appeals access for inmates.

“A procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in the proceeding was ineffective,” the court majority held.

Habeas lawyers investigate issues that could or should have been raised during a defendant’s original trial.

Brad Levenson, director of the Texas Office of Capital Writs, filed a petition with the Texas Court of Criminal Appeals on Tuesday afternoon on behalf of Hernandez, arguing that his March 28 execution should be stayed, in part, because of the court’s ruling.

And:

Levenson said that even though Tuesday’s Supreme Court ruling applies to claims made in federal court — not state writs like the one he filed — the same principle ought to apply.

“We’re saying the state courts should also take a look at these claims for the same reason the Supreme Court would take a look at them,” he said.

The ruling could also be a boon for death row inmate Rob Will, who was convicted in 2002 of fatally shooting a Harris County sheriff’s deputy. Will says that the man he was with that night was the real shooter and that he is innocent.

In January, U.S. District Court Judge Keith Ellison denied Will’s pleas for a new trial but wrote that he lamented doing so because of “disturbing uncertainties” raised about his guilt.

"Supreme Court Rules for Inmate With Double Claims of Ineffective Assistance; Scalia Detects a ‘Sham’," is Debra Cassens Weiss's ABA Journal report.

A prisoner who claimed he received ineffective assistance at trial and once again at his first opportunity to raise the claim on review got some help from the U.S. Supreme Court today.

The court, in an opinion (PDF) by Justice Anthony M. Kennedy, refused to address whether convicted sex offender Luis Mariano Martinez had a constitutional right to effective assistance of counsel in the state collateral appeal. But the court held in a 7-2 opinion that ineffective assistance by the appellate lawyer could excuse Martinez’s failure to raise the ineffective assistance claim, allowing a federal court to consider the issue.

And:

“When an attorney errs in initial-review collateral proceedings, it is likely that no state court at any level will hear the prisoner’s claim,” Kennedy said. “And if counsel’s errors in an initial-review collateral proceeding do not establish cause to excuse the procedural default in a federal habeas proceeding, no court will review the prisoner’s claims. The same is not true when counsel errs in other kinds of postconviction proceedings.”

Also:

In a statement released Tuesday, ABA President Wm. T. (Bill) Robinson III applauded the decision. “This significant ruling will help ensure fairness and justice for many criminal defendants throughout the country, including those on death row,” he said. “Many defendants who received ineffective representation or no representation at all during their post-conviction proceedings have been unable to present claims concerning violations of their constitutional rights at trial in federal court. The court’s decision today recognizes the injustice of that circumstance.”

Courthouse News Service posts, "Ineffective Counsel Case Gets High Court Reboot," by Barbara Leonard.

The majority opinion gives an Arizona inmate clearance to belatedly challenge his defense attorneys as he appeals his conviction for sexual conduct with a child.

Luis Mariano Martinez is serving two consecutive terms of 35 to life in Arizona for two counts of sexual conduct with a person under the age of 15. Martinez's 11-year-old stepdaughter claimed she was abused, but later recanted. The state also admitted the girl's nightgown into evidence, pointing out that it had traces of Martinez's DNA.

Arizona appointed a new attorney to represent Martinez in his direct appeal, but the lawyer never claimed that Martinez's trial counsel was ineffective. In Arizona, inmates must bring such claims separately at state collateral proceedings. Martinez said the court-appointed appellate counsel failed to consult with him or inform him about what he needed to do to raise claims he believed his counsel had overlooked.

Armed with yet another attorney for his second notice of postconviction relief in the Arizona trial court, Martinez claimed that his trial lawyer had been ineffective for not challenging the prosecution's evidence.

The state rejected this petition, however, noting that Arizona law bars relief on a claim that could have been raised in a previous collateral proceeding.

Related posts are in the ineffective assistance of counsel index

The Stephen Barbee Case in Tarrant County

The post-convictin hearing was ordered by the Court of Criminal Appeals.  Here are links to several articles on the hearing, which is continuing today.

"Consultant says convicted killer's attorneys pressured him to plead guilty," is by Deanna Boyd for the Fort Worth Star-Telegram.

A mitigation specialist hired by defense attorneys in Stephen Barbee's 2006 capital murder trial testified Wednesday that the attorneys frequently pressured Barbee to plead guilty and didn't explore or present some evidence that she believes could have helped the Death Row inmate.

Amanda Maxwell testified that Barbee's trial attorneys, Bill Ray and Tim Moore, failed to delve more into what she said were mitigating circumstances in the case, including several head injuries Barbee had suffered throughout his life and his abuse of hydrocodone for one of those head injuries.

In February 2006, Barbee was convicted of capital murder and sentenced to lethal injection for the smothering deaths of Lisa Underwood, 34, who was seven months pregnant, and her 7-year-old son, Jayden.

Prosecutors said Barbee killed Underwood because he believed that she was pregnant with his child (DNA tests later proved he was not the father) and wanted to keep their relationship from his wife.

Maxwell was the first to testify in a hearing before state District Judge Louis Sturns over allegations by Barbee's appellate attorneys that important information was withheld from Barbee's capital murder trial due to a "secret deal" between then-state District Judge Bob Gill and Ray, Barbee's lead attorney.

Barbee's appellate attorney, A. Richard Ellis of California, has said federal court testimony by Ray in connection with an unrelated case -- made public in 2010 in an article by The Associated Press -- revealed that Gill had negotiated plea deals in probation revocation cases, many of which he had appointed Ray to handle, to move cases more quickly though his docket.

Ellis says that because of that conflict of interest with the judge, Ray failed to provide effective counsel and deprived Barbee of a fair trial.

"Defense attorney answers allegation in death case," is the latest AP filing on the hearing.  It's via KTRK-TV.

The lawyer court-appointed to lead Stephen Barbee's defense at his double-murder trial six years ago is to testify to allegations that he and the trial judge had a "secret deal" to move cases quickly through the judge's court.

Former State District Judge Bob Gill testified in state court that he believed the attorneys who represented Stephen Barbee, sentenced to die foJudge Bob Gillr killing his pregnant girlfriend and her 7-year-old son, were effective despite having "a difficult case to try."

Barbee is seeking a new trial, claiming he received ineffective counsel because his lead attorney, William H. "Bill" Ray, had a "secret deal" with Gill, who retired from the bench in 2007, to make cases move quickly in the judge's court.

Wednesday was the first day of a two-day hearing in front of Judge Louis Sturns, who succeeded Gill on the bench. Sturns will recommend to the Texas Court of Criminal Appeals whether a new trial is warranted.

Gill, now an assistant district attorney in Tarrant County, acknowledged he had an "arrangement" with Ray to let the attorney handle most of the probation revocation cases involving indigent defendants in the judge's court. But he described it as a matter of picking the most available attorney.

"Mr. Ray came around the courthouse and made himself available for court on Fridays, which is when I handled most of my probation revocation hearings," Gill testified.

An earlier AP posts, "Witness: Lawyers wanted guilty plea in death case," is also via KTRK-TV.

"Double-murder case returns to Fort Worth," by Dianna Hunt is an earlier Star-Telegram report.

State District Judge Louis Sturns will decide whether Death Row inmate Stephen Barbee should get a new trial in the killing of his ex-girlfriend and her 7-year-old son based on his appellate attorney's argument that the trial judge and Barbee's trial attorney had a "secret deal."

Sturns has set a hearing to begin Wednesday to consider evidence that Barbee's lead trial attorney, Bill Ray of Fort Worth, had an ongoing agreement with former state District Judge Bob Gill that caused important information to be withheld from Barbee's capital murder trial.

In court filings, Barbee contends that he was denied due process and a fair trial because his attorneys "had a conflict of interest that precluded them from effectively representing Barbee at trial."

Barbee's appellate attorney, A. Richard Ellis of California, said Monday that important evidence was not presented at the trial, which lasted less than three days.

"Circumstantially there was a very strong suggestion of conflict of interest," Ellis said.

Ray emphatically denied the contention.

And:

The Texas Court of Criminal Appeals -- the state's highest court in criminal matters -- ordered the trial court to consider Barbee's appeal, and Sturns set the special hearing to hear evidence.

The allegation of a secret deal stems from an unrelated case in which Ray represented a woman facing revocation of her probation. During an appeal in federal court, Ray testified that Gill had a policy of personally handling plea bargaining with defendants facing probation revocation, and that the sentence was higher if the defendant rejected the plea offer, according to court documents.

It also notes:

In an article about Gill's handling of probation cases, Associated Press writer Danny Robbins reported in 2010 that Tarrant County records indicated that Ray had received more than $700,000 from 2001 to 2007 from appointments in Gill's court. That was 43 percent of his total earnings from court appointments, Robbins reported.

Ray and Gill have been subpoenaed to testify in the Barbee hearing, which is expected to continue for two days in Sturns' 213th state District Court.

The Los Angeles Times posted a preview of the hearing, "Texas death row inmate claims lawyer had 'secret deal' with judge," written by Molly Hennessy-Fiske, reporting from Houston.

A Texas death row inmate convicted of murdering his pregnant ex-girlfriend and her 7-year-old son in 2005 is seeking a new trial, alleging that his attorney had a "secret deal" with the judge to quickly dispose of his case.

Attorneys for Stephen Barbee, 44, plan to argue in a Fort Worth state court this week that his defense in the double murder case was tainted.

The proceeding, scheduled to begin Wednesday, was ordered by the Texas Court of Criminal Appeals after a 2010 Associated Press story showed that presiding Judge Robert Gill had negotiated plea deals in certain cases, many of which were handled by Barbee's court-appointed attorney, William H. "Bill" Ray.

Ray gave details about the plea deals, which expedited Gill's docket, during testimony in a 2009 federal court case that a judge subsequently sealed. The issue was kept quiet until the AP story ran.

The 2011 Court of Criminal Appeals order in Ex Parte Barbee is at the link.  Judge Sturns was recently appointed to hear the Court of Inquiry in the Morton exoneration.

CCA Overturns Murder Conviction - Journalists Faulted Forensics

A Texas case examined in a Pro Publica/PBS Frontline report on autopsies and forensics has been overturned by the Texas Court of Criminal Appeals.  The Court's ruling in Ex Parte Lopez is available in Adobe .pdf format.

Pro Publica reports, "Texas Court Voids Conviction in Child Death Case."  It's by by A.C. Thompson.

The Texas Court of Criminal Appeals today set aside the conviction of Ernie Lopez, an Amarillo man found guilty in 2003 of sexually assaulting six-month-old Isis Vas. The baby died shortly after the purported attack.

Lopez has been serving a term of 60 years in Texas prison for the crime. But a joint reporting effort by ProPublica, NPR, and PBS "Frontline" last year explored the possibility that Lopez might be innocent.

In the years since Lopez's trial, a host of physicians have reviewed the medical evidence in the case, raising questions about the soundness of his conviction. Many of these specialists have come to believe that Vas actually died of natural causes, and that Lopez never assaulted the child at all.

During a tearful prison interview, the inmate insisted he wasn’t a sex offender and killer. "That's not my character," he said. "That's not who I am."

"We are very pleased with the Court of Criminal Appeals' decision to set aside Ernie’s conviction," said one of Lopez’s attorneys, Heather Kirkwood, in an email. "The Texas courts deserve ample recognition for the careful review of the record that led to today’s decision."

The Lopez case highlights the growing international controversy about the reliability of the science used to prosecute cases of fatal child abuse and sexual assault. In Canada and the U.S. at least 23 people have been wrongly accused of killing children based on questionable medical evidence, and California Gov. Jerry Brown is currently considering commuting the sentence of a grandmother convicted of fatally shaking her 7-week-old grandson.

The Texas court didn’t rule on Lopez’s culpability and did not set him free. Instead, the court concluded that Lopez received ineffective legal representation during his trial because his lawyers failed to challenge the prosecution’s medical evidence.

"Judge Tosses Conviction Of Texas Man Accused Of Sexually Assaulting Infant," is the NPR report by Joseph Shapiro.

The NPR, Frontline and ProPublica investigation found nearly two dozen cases in the United States and Canada where people were convicted of killing children, but were later cleared when it turned out the accusations were based on flawed or biased work by forensic pathologists and other medical professionals.

Lopez's current lawyers argue that his case should get counted as one of those false convictions. They say Isis Vas died, not because she was beaten and sexually assaulted, but because of an undetected blood disorder that can create bruises and bleeding that mimic child abuse. But no witnesses were called to make that case at the original trial.

On Wednesday, the Texas Court of Criminal Appeals, the state's highest court for criminal cases, ruled that Lopez had received "deficient representation" and that had such witnesses testified on behalf of Lopez, there was a "reasonable probability the jury would not have convicted him."

And:

There is an added risk for Lopez in a new trial. Originally, Lopez was indicted on child sexual assault and murder charges. Prosecutors chose to go to trial on the sexual assault case first, and got a conviction. Jurors only learned that the child had died when it was time for them to determine Lopez's prison sentence. A new trial could also include the murder charge, and prosecutors could seek the death penalty.

Lopez's attorneys are ready to present medical experts who say there was evidence that Isis Vas suffered from a series of problems that suggested she had a rare blood disorder. They will argue that this is consistent with what Lopez told paramedics, doctors and the hospital: That the baby had been sick, lethargic and eaten little from the time her mother brought her to the Lopez house three days earlier.

The Amarillo Globe-News reports, "Sims: Will retry sex assault case."  It's by Bobby Cervantes.

Potter County’s chief prosecutor said Thursday he will retry an Amarillo man whose sexual assault conviction was overturned Wednesday.

47th District Attorney Randall Sims said Ernie Lopez, 41, will be brought back to Potter County within the month to face the 2001 indictment for aggravated sexual assault of a child.

“He’s coming back on the exact charge,” he said. “The case is at the same place any case would be right after it’s been indicted by the grand jury.”

And:

A grand jury in 2001 also indicted Lopez on a capital murder charge, which prosecutors decided to drop in lieu of the sexual assault charge.

Sims did not comment on whether he would pursue additional charges in the case.

“Other than that, I can’t tell you what’s going to transpire when he comes back,” he said

The Pro Publica series on questionalbe forensics is, "Post Mortem: Death Investigation in America."  The PBS Frontline report is also available.  Additional coverage of the series is available.  Related posts are in the forensics index.

The Morton Exoneration & Prosecutorial Misconduct

"Justice and Prosecutorial Misconduct," is the New York Times editorial from the December 29th issue.

Prosecutors have enormous power in determining who is subjected to criminal punishment because they have broad discretion in deciding criminal charges. The Brady rule, established by the Supreme Court in 1963, is supposed to be an important check on that power. It requires prosecutors to disclose evidence favorable to the defendant. But their failure to comply is rarely discovered, and, even then, prosecutors are almost never punished.

The Supreme Court, in an outrageous decision earlier this year, further weakened the ability of wronged defendants to make prosecutors’ offices liable by giving them nearly absolute immunity against civil suits. Justice Clarence Thomas justified the ruling, noting that an “attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.” But bar associations hardly ever punish this behavior; judges seldom discipline prosecutors for such violations; and criminal sanctions are rarely imposed against prosecutors.

This is why the Morton inquiry is crucial. The Innocence Project report found that Mr. Anderson willfully failed to disclose police notes that another man committed the murder, concealed from the trial judge that he did not provide the full police report and advised his successor as prosecutor “to oppose all of Mr. Morton’s postconviction motions for DNA testing.” If a court confirms these findings, it must hold Mr. Anderson accountable — or it will send a message to prosecutors in Texas and elsewhere that the criminal justice system is incapable of deterring or punishing this conduct.

There are, however, a small but growing number of prosecutors’ offices around the country that have systems to prevent the gross miscarriage of justice that Mr. Morton suffered. Like the New York County District Attorney’s Office, they allow open records so defendants can have a copy of almost anything in the case file, and they support having courts audit their compliance with Brady.

"Let Anderson's record be heard by a court," is the Austin American-Statesman editorial of December 27.

Michael Morton ends 2011 an innocent man. Meanwhile, District Judge Ken Anderson ends the year under a cloud of suspicion about his conduct prosecuting Morton for the murder of his wife almost 25 years ago.

Last week, District Judge Sid Harle formally dismissed the murder charge against Morton. Morton, wrongly imprisoned in 1987 and not released until October, was always actually innocent of beating to death his wife, Christine, in their Williamson County home in 1986. Now the state concurs; Morton is innocent.

With Morton's innocence legally declared, Harle now should convene a special court of inquiry to investigate allegations by Morton's lawyers that Anderson, who was Williamson County's district attorney when he prosecuted Morton, concealed evidence that might have exonerated Morton of the charge that he killed his wife.

Anderson denies the allegations. In our view, let a court of inquiry consider Anderson's denials.

"Inquiry warranted in Morton case," is the Dallas Morning News editorial of December 23.

One thing is now cleared up for good in the Michael Morton murder case in Williamson County. He was proclaimed officially, unequivocally innocent this week.

One thing is far from being cleared up — whether the man who put him in prison for nearly 25 years, Ken Anderson, is a scheming, unethical district attorney. If there’s an explanation for why the defense never saw critical exculpatory evidence investigators collected before trial, for why the evidence stayed hidden for nearly all of the quarter-century that Morton was imprisoned, the state of Texas hasn’t gotten a straight answer. And it needs to.

Anderson, now a judge, should be held to account, just as Morton once had to defend himself against a far thinner dossier of evidence.

A request for a special court of inquiry in the Anderson matter is now before a state district judge, in a damning, 144-page report filed Monday by Morton’s attorneys. That special proceeding should be held to get direct answers from Anderson and weigh whether he should face charges.

"Stop the prosecutorial misconduct," is the title of an OpEd by Houston criminal defense attorney Robert Fickman in the Houston Chronicle of December 31.

It is past time for us to draw another line in the sand. Too many innocent men and women have had their liberty stolen by some puffed-up bureaucrat with a law degree. It's time to fight back and demand accountability.

What has become of the men who prosecuted Graves and Morton? What is their punishment for apparently fabricating and withholding evidence?

Have they been sent to jail, disbarred or hounded from our midst? No. Nothing has happened to them.

There is no punishment for them. Their lives go on unfettered. There is no accounting for their apparent raw inhumanity. None.

This needs to change. When a prosecutor willfully withholds exculpatory evidence in a murder case, he must be held to answer. When a prosecutor willfully fabricates evidence in a murder case, he must be held to account. Prosecutors who willfully falsify evidence to rob innocent men of their liberty must be held to answer under the law.

The next time the state Legislature meets we must demand accountability. The Legislature must enact stiff laws to punish those prosecutors who willfully break the law to rob men of their liberty. Nothing less is acceptable.

"Special holiday for lawyer John Raley, innocent client," is Patricia Kilday Hart's December 26th Houston Chronicle column.

Christmas, that celebration of miracles, new life and truth, can find expression in unlikely settings.

This year, for Houston attorney John Raley and his family, it arrived six days early in a nondescript Georgetown courtroom, when a state district judge stepped down from his imposing dais to declare the innocence of Michael Morton, a man who spent 25 years in prison wrongly accused of the murder of his wife, Christine.

And:

Raley's involvement in the case began when a mutual acquaintance in Houston's legal community suggested to Innocence Project attorney Nina Morrison that she solicit his help as a volunteer.

Morrison now laughs when she recalls the naiveté that Raley, a civil litigator with expertise in medical malpractice, brought to the criminal court arena: "He said, 'Of course the prosecutors will want to do DNA testing. Who wouldn't want to do DNA testing?' "

Morrison, jaded from years of fighting injustices that occur all too often in the criminal court system, knew better. Prosecutors do not like to admit mistakes.

Brandi Grissom wrote, "Murder Cases Put 'Junk Science' in the Spotlight," for the December 26 Texas edition of the New York Times.  It's also available at the Texas Tribune.  Here's an extended excerpt from this must-read:

Undigested bits of mushrooms and tomatoes from Christine Morton’s last meal — a celebratory birthday dinner she had with her husband — were still in her stomach when the medical examiner performed his autopsy in 1986.

Those remnants, the prosecutor told the jury during Michael Morton’s trial, “scientifically proved” that Mr. Morton had beaten his wife to death.

Twenty-five years later, DNA science revealed that someone else had actually killed Mrs. Morton and that her husband’s murder conviction and more than two decades in prison were a tragic mistake. His exoneration based on DNA evidence is the 45th in Texas.

Before he dismissed the wrongful murder charges against Mr. Morton last week, Judge Sid Harle recounted the faults the case exposed in the Texas justice system. Among them: the use of so-called junk science in the courtroom.

“The courts and the sitting judges need to be ever mindful about their role as gatekeeper in regard to the admission of science,” Mr. Harle said. “Your case illustrates the best and the worst of what can happen.”

Despite scientific advancements like DNA testing, the use of unreliable scientific techniques in the criminal justice system persists. While some judges say they work to ensure only reliable scientific evidence is presented to juries, criminal justice advocates say that more must be done to root out an array of pseudoscientific practices that can have life-or-death consequences.

“What passes for science in courtrooms is not always, in fact, science,” said Kathryn Kase, interim executive director of the Texas Defender Service, which represents death row inmates.

In recent weeks, the Texas Court of Criminal Appeals has agreed to review cases that indicate it may also see a need to address the types of evidence that meet scientific standards.

In November, the state’s highest criminal court agreed to review the case of Megan Winfrey, who is serving a life sentence for murder. She was convicted largely on the testimony of a sheriff’s deputy who said his bloodhounds “alerted” to her scent on the murder victim’s clothing. The court has previously ruled that dog-scent evidence, used to convict Ms. Winfrey’s father for the same murder, was insufficient without corroborating evidence. The court acquitted her father on appeal.

This month, the court also agreed to review the cases of two men awaiting execution. Both men, convicted of murder, were sentenced to death after a psychologist who was an expert witness in several death penalty cases told jurors that they were mentally competent to face execution.

Earlier coverage of Michael Morton's exoneration begins at the link.

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.  Related posts are in the prosecutorial misconduct index. 

There is also more in the junk science index.

Texas CCA Orders Atkins Evaluation in Two Cases

The Court of Criminal Appeals rulings in Ex Parte Butler and Ex Parte Matamoros are available in Adobe .pdf format.

Brandi Grissom posts, "Appeals Court Orders Re-evaluation of 2 Death Row Cases," at Texas Tribune.  Here's an extended excerpt:

The Texas Court of Criminal Appeals on Wednesday ordered lower courts to review two death penalty cases that involved a psychologist who was reprimanded earlier this year for using questionable methods to determine whether defendants were intellectually competent enough to face capital punishment.

"What we're seeing is a growing awareness on the part of the Court of Criminal Appeals for scientific integrity in criminal cases," said Kathryn Kase, interim executive director of the Texas Defender Services, which represents death row inmates. "The evidence of retardation in both of these cases is pretty compelling."

The state's highest criminal court sent the cases of Steven Butler and John Matamoros back to Harris County courts to re-evaluate the evidence used to sentence the two men to death. Dr. George Denkowski examined both of the men and told the juries they did not suffer from mental retardation.

In April of this year, the Texas State Board of Examiners of Psychologists (TSBEP), issued a reprimand against Denkowksi, whose methods were widely criticized. Denkowksi agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints against him. The psychologist admitted no wrongdoing and defended his practice. But defense lawyers were hopeful that the reprimand would prompt the courts to review other cases where juries relied on Denkowski's evaluations to hand down death sentences.

Denkowski evaluated 14 inmates who are now on Texas’ death row — and two others who were subsequently executed — and found them intellectually competent enough to face the death penalty.

The U.S. Supreme Court ruled in 2002 that states cannot execute mentally handicapped people. The court, though, left it to the states to create guidelines for determining whether a person is mentally handicapped. Texas courts have generally adopted a three-part definition that requires the convicted inmate to have below average intellectual function, lack adaptive behavior skills and to have had those problems from a young age.

Prosecutors regularly relied on Denkowski to perform psychological evaluations to determine whether a murder suspect would be eligible for execution. But in 2009, other psychologists and defense lawyers complained to the TSBEP that Denkowski used unscientific methods that artificially inflated intelligence scores to make defendants eligible for the death penalty.

And:

Kase said she hoped the court would also order re-evaluation of the other death penalty cases in which Denkowski examined the defendants. 

"Exonerations, I think, have caused the court to become concerned about the integrity of forensic evidence," she said. "That’s really, really important here, where the decision about whether someone has retardation is a matter of life and death."

Earlier coverage of the Denkowski sanction begins at the link.

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

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.  Related posts are in the mental retardation index.

Shame Should Fuel DNA Testing in Skinner Case

That's the title of O. Ricardo Pimentel's column from last Wednesday's San Antonio Express-News dealing with the Hank Skinner case.

Texas passed a law this year intended to remove the procedural barriers blocking death row inmates from testing DNA evidence that might prove their innocence.

If embarrassment wasn't a motivator in its passage, it should have been. Texas leads the nation in the number of wrongfully convicted folks freed because of DNA evidence.

How about we now give shame a chance?

And:

I have no doubt that some guilty-as-hell inmates simply want to stall, to breathe longer. But, for the cost of testing and housing an inmate for a bit longer, the state can remove doubt. And then can still execute if testing doesn't exonerate. Why wouldn't we want such certainty?

It is as if prosecutors fear “losing” or, worse, embarrassment. And those procedural barriers have carried more weight in this state's courts than the “interests of justice.”

Too bad there is no statute requiring shame as a factor.

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

Commentary on the Buck & Skinner Cases

"Duane Buck, Race and Capital Punishment," is the title of Andrew Rosenthal's Loyal Opposition blog post at the New York Times.

This post is devoted to the Supreme Court’s declining this week to review the Texas death-penalty case of Duane Buck.

Based on the duelling short opinions from Justices Samuel Alito Jr. (who voted with the majority to deny) and Sonia Sotomayor (who filed a dissent to explain why she voted to hear the case), it seems that this life-and-death matter turned on a single fact: A freighted question that Mr. Buck’s lawyer asked 14 years ago.

And:

The point is that the prosecutor zeroed in on race, and asked the jury to consider it as a factor in predicting Mr. Buck’s future dangerousness. It was that invitation that led the jury to impose what Justice Sotomayor calls “a death sentence marred by racial overtones.”

Given that a man’s life was at stake here, I think the Supreme Court justices could have gotten their heads out of minutiae and let Mr. Buck’s case have a rehearing.

"Hank Skinner case must be reviewed," is the Fort Worth Star-Telegram editorial from the Saturday paper.

Skinner's appellate attorneys noted that a law passed by the Legislature in May, based partly on this case, gives an inmate the right to request that the convicting court order testing of biological material for DNA even if the items were not entered into evidence during the original trial.

The criminal appeals court said in its order, "Because the DNA statute has changed, and because some of those changes were because of this case, we find that it would be prudent for this Court to take time to fully review the changes in the statute as they pertain to this case."

It was an investigation in 1999 and 2000 by students at Northwestern's Medill School of Journalism that unearthed some of the disturbing facts now being used in Skinner's appeal. Since then, an arduous legal process has prevented an execution while his legal team tries to force the justice system to do all it can to discover the truth.

That should be the state's ultimate goal in any case, but especially one in which a man has been sentenced to die.

Earlier coverage of the cases of Duane Buck and Hank Skinner at the links.

Additional Commentary on Hank Skinner's Case

"Perry should ensure Skinner evidence is tested," is the title of a San Antonio Express-News editorial.

The Texas Legislature this year passed, and Gov. Perry signed into a law, a measure making it easier for convicted individuals to request DNA testing that might prove their innocence. Perry should halt the Skinner execution until the evidence has been  tested.

DNA testing has exonerated more than three dozen Texans accused of serious crimes over the last decade. The latest case occurred last month, when the Texas Court of Criminal Appeals cleared Michael Morton of the 1986 murder of his wife. Untested evidence in the case identified the actual perpetrator as a suspect in another murder case, but not before Morton spent 25 years behind bars.

Morton is eligible for restitution from the state — $80,000 for each year of confinement. If Skinner is put to death tomorrow, there's no opportunity to right a terrible wrong.

It is unconscionable that Texas would put someone to death when evidence that might prove to be exculpatory sits untested. Yet that almost happened to Skinner in March 2010. Then, Perry refused to grant a reprieve, but the U.S. Supreme Court intervened to halt the  execution.

In the subsequent 20 months, the state has had ample time to test the evidence in the Skinner case. Instead, it has continued a costly and obscene legal battle to fight testing that might confirm Skinner's guilt or might prevent Texas from making a horrific, irreversible  mistake.

The Texas Court of Criminal Appeals has saved Perry from having to issue a reprieve. But now that the court has acted and with Perry under the national scrutiny of a presidential campaign, the governor should ensure that the state follows the law and finally submits the evidence in the Skinner case for forensic testing.

Mark Osler posts, "Texas prosecutors won't stop rush to execution," at CNN. Osler is a professor of law at the University of St. Thomas Law School and a former federal prosecutor.

As the nation and the world's attention turned to the impending execution of Hank Skinner in Texas before a late stay by a Texas court, one question seemed paramount: "Why the rush?" The answer to that question is buried deep inside the psychology of prosecutors and the culture of Texas.

And:

Even the foreperson of the convicting jury has now stepped forward to ask that the tests be conducted. However, the prosecutors have steadfastly refused to allow such testing, and Skinner's attorneys have failed (thus far) to get a court order requiring those tests.

The prosecutors have been adamant about an immediate execution, precluding further tests, and it is this fact that many people find baffling. As a former prosecutor who then spent 10 years training future prosecutors in Texas, I am not surprised by this development. Quite simply, the prosecutors are committed to their conviction in a way that should surprise no one.

To a prosecutor, convicting dangerous people and incapacitating them is a life's work, nothing less than their duty to a community. Prosecutors have wide discretion in choosing whom to charge with capital murder and whether to seek the death penalty for the person they have charged.

Once they have chosen that path, though, it is a somber commitment: It is nothing less than a public pledge to kill another person, and that is the kind of thing that is not done lightly. There is a deep emotional component to it, and that emotional commitment cannot be ignored, especially when it no longer matches the trajectory of justice.

Academics such as Susan Bandes and Ellen Yaroshefsky have studied the emotional overcommitment of prosecutors, and explain it in part by looking to peer groups. Throughout the post-conviction process, prosecutors are usually surrounded by people (such as supervisors and investigators) who share their commitment to a conviction. At the same time, ethical rules keep them away from the person with the highest stake in the game, the defendant, who may want to challenge the outcome.

"The Texas D.A.s Who Denied Hank Skinner Justice," is David Protess's latest writing on the case at Huffington Post.  Here's the beginning of this must-read:

The saga of Hank Skinner's fight for DNA testing, and for his life, reads like a Russian novel. Yesterday's chapter concluded with a stay of execution by the Texas Court of Criminal Appeals. The Texas high court agreed to decide whether a new state DNA law applies to Skinner's case -- or if he should be executed without the tests.

The stay is temporary. This war is far from over.

So how did we get to this point? Why has it taken more than a decade with still no outcome in sight?

The public controversy started, of all places, on Nancy Grace in June of 2000, and its resolution has been thwarted by four Texas Republican District Attorneys.

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

CCA Stays Hank Skinner Execution

The CCA order in Skinner v. Texas is available in Adobe .pdf format.

Rob Owen, an attorney for Hank Skinner, issued the follwoing statement in response to the CCA stay:

"The Court of Criminal Appeals with its decision today, has ensured that Mr. Skinner's request for DNA testing will receive the thorough and serious consideration it deserves. We are grateful for the Court's action and look forward to the opportunity to make Mr. Skinner's case for DNA testing in that forum."

The AP report, "Texas court puts off execution due to legal change," by Michael Graczyk is via the Fort Worth Star-Telegram.

Texas' highest criminal court gave a reprieve Monday to a convicted murderer who had been scheduled to be executed this week, saying it needs time to review changes to a state law that his attorneys contend clear the way for new DNA testing in his case.

Henry Watkins Skinner, 49, was scheduled to die on Wednesday for the New Year's Eve, 1993 slayings of his girlfriend and her two adult sons at their home in Pampa, a Texas Panhandle town about 55 miles northeast of Amarillo.

"We find that it would be prudent for this court to take the time to fully review the changes in the statute as they pertain to this case," the state's Court of Criminal Appeals said in a four-paragraph ruling.

Skinner, his legal team and capital punishment opponents had insisted prosecutors' opposition to additional DNA testing could lead to the execution of an innocent man. Skinner would have been the 13th inmate given lethal injection this year in Texas, which is the nation's busiest death penalty state.

Allan Turner posts, "Skinner execution on hold for review," at the Houston Chronicle.

In a brief ruling, court justices noted that Texas laws governing DNA testing of evidence have changed, but that the modified law never has been applied to Skinner's case.

"Because the DNA statute has changed and because some of those changes were because of this case, we find that it would be prudent for this court to take time to fully review the changes in the statute as they pertain to this case," the judges wrote.

Skinner, a one-time paralegal, was sentenced to die for the 1993 New Years Eve murder of his girlfriend and her two adult sons.

The petition for a stay was filed late last week after a state district court in Pampa denied his latest request to have items tested.

Earlier today, Skinner's lawyers petitioned Gov. Rick Perry to grant a 30-day stay so that the DNA testing could take place.

Skinner, 49, consistently has maintained that he was incapacitated by alcohol and codeine at the time of the killings. For more than a decade, he has sought DNA testing of bloody clothing found at the scene, knives, rape kit evidence and other items. Results of DNA tests on other items have been mixed.

In March 2010, the U. S. Supreme Court stayed Skinner's execution one hour before he was to be put to death in order to consider reviewing case. The high court ultimately ruled that Skinner could pursue DNA testing through a civil rights case.

"Court of Criminal Appeals Grants Hank Skinner Stay," by Brandi Grissom for the Texas Tribune.

The court in its order today said it wanted time to consider Skinner's request for DNA testing in light of the changes to post-conviction DNA testing law that legislators approved during the legislative session this year.

"Because the DNA statute has changed, and because some of those changes were because of this case, we find that it would be prudent for this Court to take time to fully review the changes in the statute as they pertain to this case," the court's order states.

Texas first adopted a post-conviction DNA testing law in 2001. The law has been changed three times since then, each time loosening restrictions on access to the tests. 

The appeals court had previously denied Skinner's requests for testing, citing provisions in the law that allowed DNA testing only in cases where analysis was not done during the original trial because the technology did not exist or for some other reason that was not the fault of the defendant. Lawmakers repealed that part of the law this year.

"Texas court stays Wednesday execution as lawyers seek DNA tests," by Ashley Hayes and Bill Mears at CNN.

Skinner, now 49, has strongly denied any involvement in the crime and claims that the DNA analysis of untested evidence will not only show him innocent but help determine the real killer. He came within 45 minutes of execution in March 2010 before the U.S. Supreme Court stepped in and handed him a legal reprieve.

As another execution date loomed, his supporters ratcheted up the pressure on Texas officials to grant his request for DNA testing.

"Executing Mr. Skinner without testing all the relevant evidence would suggest official indifference to the possibility of error in this case and needlessly undermine public confidence in Texas's criminal justice system," former Texas Gov. Mark White and 16 other current and former Texas lawmakers, prosecutors and judges wrote in an October 27 letter to Gov. Rick Perry, Texas Attorney General Greg Abbott and Gray County District Attorney Lynn Switzer.

Owen requested a 30-day reprieve from Perry's office Monday afternoon, shortly before the appeals court issued its ruling, arguing that "substantial new evidence" has come to light since his trial to support Skinner's claim of innocence.

"Physical evidence from the crime scene, witness accounts and expert testimony all demonstrate that Mr. Skinner was so severely impaired at the time of the murders as a result of his extreme intoxication from drugs and alcohol that he would have lacked the physical and mental coordination to perform even simple tasks, let alone commit these three murders," Owen wrote. DNA tests "could resolve once and for all longstanding and troubling questions about the reliability of the verdict in his case," he added.

And in a letter to the Dallas Morning News published Sunday, the foreman of the jury that sentenced Skinner to death urged his execution be stayed "until all of the uncertainty is resolved."

"Since the trial, I and many of my fellow jurors have grown increasingly concerned that key pieces of DNA evidence from the crime scene remain untested," the foreman, Danny Stewart, wrote. "Either the tests confirm Skinner's guilt or prove his innocence and prevent the state from making an irreversible mistake. There is simply no downside."

"Texas court postpones execution pending DNA appeal," by Molly Hennessy-Fiske for the Los Angeles Times.

The Texas Court of Criminal Appeals on Monday delayed the scheduled Wednesday execution of  Henry "Hank" Skinner, 49, while it examines how changes in state law concerning DNA test requests apply to his case.

And:

Prosecutors have argued against the new tests, saying courts have already ruled against Skinner and that he is stalling.

Last week, Texas Judge Steven R. Emmert was the latest to deny Skinner's request, without explaining why.

In the wake of that ruling, Skinner's supporters gathered more than 120,000 signatures on an online petition urging Gov. Rick Perry to stay the execution to allow for the DNA testing, and on Monday, Skinner's lawyers again appealed to Perry to stay the execution. Skinner also has an appeal pending in federal court.

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

The Texas Legislature's 2011 changes to post-conviction access to DNA testing were contained in House Bill 1573, authored by Rep. Pete Gallego and sponsored in the Senate by Sen. John Carona.  Governor Perry signed the measure into law.

A Roundup of the Latest Hank Skinner News & Commentary

Brandi Grissom writes, "DNA Exonerations Continue, but Not for One Man," for the Southwest edition of the Sunday New York Times and for the Texas Tribune.

Hank Skinner has been pleading with the state since 2001 — to no avail — to test DNA evidence he believes will prove his innocence. On Wednesday, he is scheduled to walk into the execution chamber in Huntsville to face the ultimate punishment for three murders that he maintains he did not commit.

“I have never had a case where we had to fight 10 years to get DNA tests,” said Nina Morrison, senior staff attorney at the Innocence Project, who has worked on hundreds of cases. “This kind of protracted litigation is extremely rare these days.”

Mr. Skinner was convicted in 1995 of murdering his live-in girlfriend, Twila Busby, and her two sons in their home in the Panhandle town of Pampa. Texas — and most other states — did not have a post-conviction DNA testing law then. But since Mr. Skinner has been in prison, Texas has developed one of the strongest post-conviction DNA laws in the nation, and 45 inmates have been exonerated in the last decade based on test results.

As the Texas Legislature has expanded access to post-conviction DNA testing — since the original law was passed in 2001, legislators have loosened restrictions to DNA testing three more times — Mr. Skinner has filed new appeals. Each time, he has been rebuffed. Now, for the fourth time, he is on the verge of execution. He is awaiting a court decision on whether the most recent law, passed earlier this year, will be applied to him.

CNN posts, "With execution clock ticking, supporters of Texas inmate press for DNA testing, by Ashley Hayes and Bill Mears.

Henry "Hank" Skinner came within 45 minutes of lethal injection in March 2010 before the U.S. Supreme Court stepped in -- and ultimately handed him a legal reprieve.

But as another execution date looms, pressure is mounting on Texas officials to grant Skinner's long-standing request to have crime-scene DNA tested before it's too late.

"Executing Mr. Skinner without testing all the relevant evidence would suggest official indifference to the possibility of error in this case and needlessly undermine public confidence in Texas's criminal justice system," said a letter from former Texas Gov. Mark White and 16 other current and former Texas lawmakers, prosecutors and judges, dated October 27 and sent to Gov. Rick Perry, Attorney General Greg Abbott and Gray County District Attorney Lynn Switzer.

Skinner, 49, was convicted of the New Year's Eve 1993 killings of his 41-year-old live-in girlfriend, Twila Busby, and her two adult sons in the Texas Panhandle town of Pampa. He is set to die Wednesday.

He has strongly denied any involvement in the crime and claims that the DNA analysis of untested evidence will prove his innocence and help determine the real killer.

"Latest Skinner appeal centers on 4-sentence DNA ruling," by Bobby Cervantes for the Amarillo Globe-News.

Hank Skinner’s attorneys have urged the Texas Court of Criminal Appeals to halt his Nov. 9 execution and consider his latest request to test DNA evidence.

For the third time since 2003, the state’s highest criminal court is expected to consider the request to test DNA from seven crime scene items, including a rape kit and a bloody knife, that Skinner has said will exonerate him.

In 1995, a Tarrant County jury convicted Skinner in the December 1993 slayings of girlfriend Twila Busby and her two sons at their Pampa home.

At the center of the 33-page appeal, released Friday, is a Gray County judge’s four-sentence ruling last week denying Skinner’s third DNA motion.

Skinner attorney Rob C. Owen said 31st District Court Judge Steven R. Emmert’s order is “insufficient to permit him (Skinner) a meaningful appeal.”

The Court of Criminal Appeals should order Emmert to explain his ruling to ensure Skinner’s appeal has a fair chance, and halt the execution in the meantime, the petition said.

“Nothing in the order gives this court any guidance as to the basis of the trial court’s decision,” the appeal said. “The court should stay Mr. Skinner’s execution and direct the trial court once again to enter an order making clear the basis for its ruling.”

The Nation carries Jordan Smith's post, "Will Texas Kill Hank Skinner Despite Untested DNA Evidence?"

Among the items found next to the body of Twila Busby in 1993 was a windbreaker, spattered with blood, stained with sweat, and with two human hairs attached. Busby had been raped and bludgeoned to death in the home she shared with her boyfriend and her two grown sons, who were also killed, in the Texas Panhandle town of Pampa. Also found in the house were two knives, one of which was a likely murder weapon, and a bloody towel.

With so much physical evidence surrounding the deaths of Busby and her sons, the potential for DNA leading conclusively to the killer was enormous. But 18 years later, none of the items has ever been tested. Neither were fingernail scrapings taken from Busby, nor swabs obtained from her rape kit.

Texas authorities long ago decided they knew who committed the crime: Busby’s boyfriend, Hank Skinner, the only other person known to be in the home that night, and who survived the brutal attack. Skinner was convicted of the murders in 1995 and sentenced to die. Last year, he came within less than an hour of execution before the US Supreme Court intervened. Now 49, he has consistently and vehemently denied any role in the grisly killings—and, he maintains, the bloody pile of evidence found at the scene should prove his innocence. Nevertheless, unless the state's highest criminal court or Gov. Rick Perry put a stop to it (or unless the US Supreme Court intervenes), Skinner may be executed on November 9, without the state ever knowing for sure if it is punishing the right man.

"Another Dubious Execution Under Rick Perry?" by James Ridgeway and Jean Casella for Mother Jones.

"Any time DNA evidence can be used in its context and be relevant as to the guilt or innocence of a person on death row, we need to use it."

This was the statement of none other than George W. Bush, Texas governor. He said it in June 2000, about granting a last-minute reprieve to death row inmate Ricky McGinn, who was seeking DNA testing of forensic evidence he claimed might exonerate him. (It didn't, as it turned out, and McGinn was executed several months later.) Bush was running for president when he made his decision to delay the execution to allow for DNA testing.

Today, Texas governor and presidential candidate Rick Perry faces an almost identical decision with the case of Hank Skinner—the main difference being a greater likelihood that Skinner might actually be innocent of the crime for which he has been sentenced to death.

"Waiting for A DNA Test, Scheduled To Die on Wednesday," by Ted Mann for the Atlantic Wire.

"Texas man on death row has 'no illusions': wife," from AFP.

Today's Daily Northwestern reports, "Texas man faces execution despite Innocence Project investigation."  It's by Tom Meyer.

A Texas inmate is scheduled for execution Wednesday despite efforts by the Medill Innocence Project to force the state court to approve DNA testing that could clear him of the charges.

In 1995, Henry "Hank" Skinner was convicted of the 1993 rape and murder of his girlfriend, Twila Busby, along with the murders of her two adult sons, but has maintained his innocence ever since. In 2000, the Medill Innocence Project, which funds

Northwestern's journalism class in investigating potential wrongful convictions, began looking into his case and advocating for further DNA testing.

David Protess, the founder and former director of the Medill Innocence Project, said unless an appeals court or Texas Gov. Rick Perry intervenes, Skinner will be executed.

"The problem is Texas is moving as fast as they can to execute," Protess said. "That's what's so friggin' outrageous here is that they're trying to put to death a man who has a reasonable claim to more testing."

David Protess has posted, "What Texas Isn't Telling You About Hank Skinner's Case," at Huffington Post.

On Wednesday, at 6 p.m. Central, Texas officials intend to strap Hank Skinner to a gurney, inject poisonous chemicals into his veins, and end his life. Only a stay by the Texas Court of Criminal Appeals, or a reprieve by Gov. Rick Perry, stand in the way of Skinner's execution.

As I reported on Oct. 4 and Nov. 3, Texas wants to kill Skinner without first doing DNA tests that could prove his innocence, determine the guilt of an alternative suspect, or confirm Skinner's guilt.

The authorities insist the tests are not necessary. Skinner is clearly responsible, they claim, for murdering Twila Busby and her two adult sons in their Panhandle home on New Year's Eve in 1993. Skinner did not request DNA testing before his trial in 1993, they say, so now it is too late. Post-conviction tests should not be done.

What they are not telling you is stunning. What they do not want you to know contradicts their public explanation for fighting the tests.

And as a measure of the the reach of the story, Gawker carries, "Texas Might Execute an Innocent Man This Week," by Lauri Apple, a former Austinite.

On Wednesday, Texas is scheduled to execute Hank Skinner for the murders of three people. For years, his lawyers have sought DNA testing of unanalyzed evidence, the results of which could prove his innocence—but the courts have rejected their requests every time. The "ultimate justice" machine stops for no one!

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

The motion for a stay filed with the Court of Criminal Appeals by Skinner's attorneys is available in Adobe .pdf format.

Skinner Jury Foreman Calls for DNA Testing

In a Letter to the Editor of the Dallas Morning News, Danny Stewart calls for DNA Testing in the Hank Skinner case.  Stewart was the foreman of the jury that convicted Skinner and sentenced him to death.

Seventeen years ago, I was the foreman of the jury that convicted Hank Skinner and sentenced him to death. Now I ask the state of Texas not to carry out Skinner's execution until all of the uncertainty is resolved.

Since the trial, I and many of my fellow jurors have grown increasingly concerned that key pieces of DNA evidence from the crime scene remain untested. Either the tests confirm Skinner's guilt or prove his innocence and prevent the state from making an irreversible mistake. There is simply no downside.

As jurors, we did the best we could with the information we had, but mistakes happen in our criminal justice system.

Just last month, Michael Morton was freed from a Texas prison after DNA testing proved he had spent 25 years behind bars for a crime he did not commit. Twelve jurors convicted Morton beyond a reasonable doubt in that case as well.

We have an opportunity for certainty in Skinner's case, but only if the district attorney provides the evidence for scientific testing. I strongly urge state officials to conduct the testing of all untested evidence. For all of our sakes, we cannot afford to do otherwise.

Hank Skinner's attorneys have file a motion for a stay with the Court of Criminal Appeals.  It's available in Adobe .pdf format.

There is much more news and commentary and that will be the topic of the next post.

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

Test All Evidence in Skinner Case

That's the title of an editorial in today's Dallas Morning News on the Hank Skinner Case.

It’s possible that death row inmate Hank Skinner is gaming the legal system to buy himself time, but the state of Texas would be mad not to know that for sure before he’s strapped to a gurney in Huntsville.

Skinner is scheduled for execution Wednesday in a triple murder, even though some physical evidence in the case has never been subject to DNA testing.

Federal and state courts are being asked by Skinner’s lawyers to stop the madness, and we hope they do.

Skinner’s case is a test of a law passed this year by the Legislature to improve a defendant’s access to forensic examinations on evidence that has never been tested or tested with the latest technology.

The bill passed unanimously in the Senate and by a 144-4 vote in the House, then was signed into law by Gov. Rick Perry. Despite the unmistakable sentiment in Austin for greater certainty through science, prosecutors in Gray County, in the Panhandle, are pressing for execution.

And:

The new law reflects an unease in the Legislature over the fallibility of the court system, as a parade of innocent men has snaked out of Texas prisons based on DNA tests. That reality could well visit Perry’s desk yet in this case, just as it did with his predecessor in a similar case.

In 2000, as Gov. George W. Bush was running for president, up popped the matter of an execution involving evidence that had never been tested. Bush granted a one-month reprieve to defendant Ricky McGinn to allow science to take a look. Tests ultimately erased doubt about McGinn’s guilt, and he was executed before Bush left office.

Candidate Perry is no doubt watching Skinner’s fate intently and could be faced with a similar decision. If he does, we trust he will remember his signature on the new law and act in the interest of certainty.

"Skinner previously rejected DNA testing," is the title of Dudley Sharp's OpEd in today's Austin American-Statesman.

Make no mistake: It was Hank Skinner's decision not to test additional DNA, pre-trial.

Had Skinner known that additional pre-trial DNA testing would have cleared him, he would have ordered it.

Look at what the cabal of "test the DNAers" want us to believe:

That Skinner refused additional pre-trial DNA testing, thereby taking the risk of receiving the death penalty, intentionally, and making that choice over taking the risk that he would be freed, instead.

Does anyone believe that nonsense?

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

The Texas Legislature's 2011 changes to post-conviction access to DNA testing were contained in House Bill 1573, authored by Rep. Pete Gallego and sponsored in the Senate by Sen. John Carona.  Governor Perry signed the measure into law.

State District Court Denies Skinner DNA Testing

The AP report is, "Judge denies DNA tests before Texas execution," by Juan Lozano.

A judge has denied a Texas death row inmate's request for testing of DNA evidence his attorneys say could prove his innocence, less than a week before the man is set to be executed.

Hank Skinner, 49, is scheduled to be executed Wednesday for the 1993 deaths of his girlfriend and her two sons. Skinner's attorneys had asked for testing of DNA evidence that was not tested before his 1995 trial.

But Judge Steven R. Emmert denied Skinner's request in a brief order issued Wednesday and made public Thursday. The order did not explain the judge's decision.

Skinner's attorneys say they plan to appeal the decision to the Texas Court of Criminal Appeals.

"The stakes in this case are too high to allow Mr. Skinner to be executed before he has a fair chance to make his case that the trial court made a grave mistake in denying his request for DNA testing," said Robert Owen, an attorney for Skinner.

A spokesman for the Texas Attorney General's Office, which is handling appeals in the case for prosecutors, said his office was reviewing whether it would have any comment on the judge's ruling.

Brandi Grissom posts, "Lower Court Denies Skinner DNA Test, Appeal Planned," at the Texas Tribune.

A Gray County District Court today denied DNA testing that death row inmate Hank Skinner has been seeking for a decade, despite a new law that reduces restrictions on such analysis. Skinner's lawyers plan to appeal the decision to the Texas Court of Criminal Appeals, the state's highest criminal court. Skinner is scheduled for execution on Wednesday.

“Unfortunately, the trial court's order offers no explanation for its conclusion that DNA testing is not called for in this case," said Rob Owen, attorney for Hank Skinner and clinical law professor at the University of Texas School of Law. "It will now be up to the Court of Criminal Appeals to give Mr. Skinner's case the deliberate consideration that is necessary to ensure a correct result."

"Pampa judge denies Skinner appeal," by Bobby Cervantes at the Amarillo Globe-News.

Six days before Texas is scheduled to execute Hank Skinner, a Gray County judge has denied the convicted killer’s third attempt to test crime scene DNA evidence he contends will exonerate him.

Judge Steven R. Emmert, of the 31st District Court in Gray County, did not explain his decision Thursday to deny Skinner’s DNA motion in his four-sentence judgment, according to records.

“Upon consideration of said motion, it is the opinion of the Court that such motion should be denied,” Emmert wrote.

And:

Skinner has identified seven items that were never tested: a blood-splattered windbreaker often worn by Busby’s uncle, hair found next to her body, two knives, a rape kit, her fingernail clippings and a bloody dish towel.

For years, state and federal appeals courts have rejected Skinner’s motions for DNA testing — in 2003 on the grounds he failed to prove the untested evidence would have kept him from being convicted and in 2009 because he failed to request the DNA tests before trial.

Skinner won a high-profile victory in May, when state lawmakers revised the state’s 2001 post-conviction DNA statue.

The change stripped the no-fault provision ­— which required defendants prove the failure to test was through no fault of their own. The law’s sponsor, state Sen. Rodney Ellis, D-Houston, cited Skinner’s case specifically in his arguments for the revision.

Skinner attorney Rob Owens' full statement, "in Response to Denial of DNA Testing Motion by Trial Court in Gray County, Texas," is below
 
“We are deeply disappointed that the trial court has denied Mr. Skinner's request for DNA testing.  Unfortunately, the trial court's order offers no explanation for its conclusion that DNA testing is not called for in this case. It will now be up to the Court of Criminal Appeals to give Mr. Skinner's case the deliberate consideration that is necessary to ensure a correct result.  We are confident that upon such careful review, the Court will conclude that DNA testing is necessary in this case to ensure the reliability of the verdict.  But for now, the Court of Criminal Appeals must stop the scheduled November 9 execution rather than allow itself to be rushed to a hasty and ill-considered decision.  The stakes in this case are too high to allow Mr. Skinner to be executed before he has a fair chance to make his case that the trial court made a grave mistake in denying his request for DNA testing.”

Earlier coverage of Hank Skinner's case begins with an earlier post, today.

Chelsea Richardson Death Sentence Overturned by CCA

The case involved prosecutorial misconduct, and the Tarrant County District Attorney's office has already agreed to a life sentence in the case.  The Court of Criminal Appeals ruling in Ex Parte Richardson is available in Adobe .pdf format.

Today's Fort Worth Star-Telegram reports, "Court overturns woman's death sentence in Mansfield case."  It's written by Dianna Hunt.

The state's highest criminal court on Wednesday overturned the death sentence for Chelsea Lee Richardson, condemned by a Tarrant County jury in 2005 for the deaths of her boyfriend's parents in Mansfield.

The Texas Court of Criminal Appeals ruled that the punishment phase of Richardson's trial was affected by misconduct by then-prosecutor Mike Parrish, who withheld evidence from the defense.

Richardson's attorney, Robert Ford, said a deal has been reached with the Tarrant County district attorney's office for Richardson, now 27, to receive a life sentence.

Because she is subject to the penal code that was in place in 2005 when she was convicted, she would be eligible for parole after serving 40 years.

"I hope it sends the message that this kind of cheating won't be tolerated," Ford said. "It probably cost Tarrant County and the state courts in the millions [of dollars] when you consider the cost of all the trials, appeals, everything."

Tarrant County District Attorney Joe Shannon, who took office after Parrish retired in 2008, said the court's ruling affirms an agreement reached by both sides in June.

"As I have often stated, this office will not be a party to the infliction of death as a punishment when there is even an appearance of impropriety on the part of a prosecutor who formerly worked in this office," Shannon said in a written statement.

"If the death penalty is to be used, it must be obtained legally, fairly and honestly and without the hint of possible injustice."

And, the reference below is to a co-defendant:

Ford has contended that Parrish's misconduct was failing to tell Richardson's attorneys, Warren St. John and Terry Barlow, about 11 pages of notes taken by a psychologist who interviewed Toledano at Parrish's request. Ford argued that some of Toledano's statements to the psychologist could have been used to lessen Richardson's culpability.

After a number of hearings over the years, the district attorney's office agreed with Ford that the notes could have been used to attack the state's theory that Richardson was the mastermind of the killings and should have been turned over.

"Woman on Texas death row to be re-sentenced; life term expected," is Molly Hennessy-Fiske's report for the Los Angeles Times.

“This office will not be a party to the infliction of death as a punishment when there is even an appearance of impropriety on the part of a prosecutor who formerly worked in this office," Tarrant County Dist. Atty. Joe Shannon said in a statement released to The Times. "If the death penalty is to be used, it must be obtained legally, fairly and honestly and without the hint of a possible injustice.”

It was not clear whether Shannon planned to ask the Texas attorney general to investigate misconduct by prosecutor Michael Parrish, who has since retired.

"It ought to be addressed so it doesn't happen again," Richardson's Fort Worth-based attorney, Robert Ford, told The Times. "This guy in my opinion is a criminal and we need a special prosecutor to look into it."

Last month, Texas Atty. Gen. Greg Abbott's office announced that it would act as special prosecutor in investigating similar allegations that prosecutors in an Austin suburb withheld evidence in the 1987 trial of Michael Morton. Morton, 57, was released Oct. 4 after serving 25 years of a life sentence in connection with his wife's 1986 slaying, a crime that DNA evidence has since linked to a male suspect wanted in connection with another killing. 

Last year, a Texas committee that was convened to prevent wrongful convictions noted that, of the state’s first 39 DNA exonerations, seven involved evidence suppression or other prosecutorial misconduct.

And:

According to the State Bar of Texas, Parrish has no public disciplinary history. But Parrish testified during the Richardson appeal that he had previously been issued a private reprimand by the State Bar of Texas in connection with withholding evidence in the death penalty case of Michael Roy Toney, Ford said.

A decade after Toney was convicted of arson and murder in connection with a 1985 mobile home bombing and sentenced to die, his conviction was overturned after it was revealed that prosecutors withheld more than a dozen documents of evidence. He was released in 2009, and died a month later in a car crash.

Parrish did not return calls Wednesday.

Ford urged the district attorney and Texas attorney general to investigate Parrish to deter other prosecutors from ignoring Brady and "open file" requirements and withholding evidence to score convictions.

"Prosecutors who want to cheat won't cheat if there's a penalty attached to it," he said.

The AP filing is, "Texas woman on death row to instead get life term," via CBS News.

One of 10 women on death row in Texas won an appeal Wednesday that will result in a life prison sentence after her lawyer argued prosecutors improperly withheld evidence about comments made by their key witness from her original punishment hearing.

Chelsea Richardson, 27, was convicted of masterminding the slayings of her boyfriend's parents so he could inherit their $1.56 million estate. She was 19 at the time of the December 2003 killings.

Her appeal focused on what her attorney, Robert Ford, said was a prosecutor's failure to give Richardson's trial lawyers notes from a psychologist that suggested another woman masterminded the plot to kill Rick and Suzanna Wamsley of Mansfield, about 20 miles southeast of Fort Worth.

According to the notes, the other woman, Susana Toledano, told the psychologist she was "more guilty than either of them," referring to Richardson and her boyfriend, Andrew Wamsley, that she "did wrong" and "probably could have prevented" the killings.

Toledano — a longtime friend of Richardson's who was the key witness in the prosecution case — took a plea deal from prosecutors to avoid a possible death sentence and testified against Richardson and Wamsley, who also was convicted at trial. Wamsley and Toledano are both serving life prison terms.

And:

Ford said he was reviewing the court transcript of Toledano's testimony at Richardson's trial and found that under prosecution questioning she talked about being interviewed by a psychologist. Notes from that interview, however, never were made available to Richardson's defense team. Ford then obtained the 11 pages of handwritten notes from the psychologist.

A judge from another county was appointed to hear the appeal and recommended a new punishment to the Texas Court of Criminal Appeals, which acted on the case Wednesday.

Earlier coverage of Chelsea Richardson's case begins at the link.  There is also coverage of the Michael Toney exoneration, also due to prosecutorial misconduct by then-ADA Parrish.

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.

Related posts are in the prosecutorial misconduct index.

Is John Bradley Trying to Close Prosecutorial Misconduct Inquiry?

Today's Austin American-Statesman reports, "DA files, retracts motion called hindrance to Morton case inquiry."  It's by Chuck Lindell.

Williamson County District Attorney John Bradley filed, but later withdrew, a motion to speed Michael Morton's appeal after Morton's lawyers objected Thursday, calling the move a cynical attempt to short-circuit an investigation into alleged misconduct by former county officials.

Morton, freed last week after serving almost 25 years in prison for a murder he did not commit, has made the investigation a priority in hopes of fleshing out charges that evidence was hidden that could have prevented his guilty verdict in 1987, his lawyers said.

Bradley denied trying to impede the investigation and said Morton's lawyers overreacted. Still, he said via email that he was "sorry for the misunderstanding."

Thursday's contretemps surrounded an agreement, negotiated two weeks ago between Bradley and defense lawyers, that allowed Morton to go free on only a signature bond. The agreement acknowledged that recent DNA tests pointed to another man as the killer of Morton's wife, Christine, in the bed of their Williamson County house in 1986.

The agreement also gave defense lawyers limited time to pursue an investigation into their allegations that then-District Attorney Ken Anderson, now a district judge in Georgetown, hid evidence that could have established Morton's innocence. Morton's lawyers also claim investigators ignored leads that could have caught the killer.

But the agreement stipulates that the investigation would end if the Texas Court of Criminal Appeals were to establish Morton's innocence, which it did Wednesday.

Morton's lawyers believe they have until Nov. 7, when the court issues its mandate and the ruling becomes official, to complete their investigation, which was to be overseen by District Judge Sid Harle.

But in a motion filed late Wednesday, Bradley asked the appeals court to "immediately" issue its mandate on the Morton case.

The motion said the request was being made for Morton's good, freeing him from the conditions of his bond and allowing him to more quickly seek state compensation for his wrongful conviction.

And:

Morton was prepared to delay his release from prison to ensure that his claims of misconduct were investigated by the courts, the brief said. He agreed to the signature bond only because he believed his lawyers would be allowed to conduct the same investigation, the brief added.

"Mr. Morton is entitled, at a minimum, to hold the State to its promise to let him make a limited inquiry as to how and why he was wrongfully convicted in the first place," the brief said.

"The State should not be permitted to use this Court's procedural rules to short-circuit that process," the brief said. "Mr. Morton did not request, and does not agree to, an expedited issuance of the mandate under these circumstances."

The objections prompted Bradley to withdraw the motion to expedite.

"Bradley Withdraws Motion to Rush Morton Case," is the Texas Tribune post by Brandi Grissom.

Williamson County District Attorney John Bradley this afternoon withdrew a motion he filed on Wednesday asking the court to quickly finalize its decision to exonerate Michael Morton.

The filing drew quick criticism from Morton's attorneys, who worried that Bradley was attempting to stymie efforts to investigate allegations of prosecutorial misconduct.

In the two-page withdrawal motion filed today, Bradley wrote that his filing to expedite the dismissal of the case "was a simple misunderstanding of the terms of the agreement" he had made last week with Morton's lawyers.

And:

In his motion, Bradley — who was not the prosecutor at the time of Morton's original trial — wrote that an expedited dismissal would benefit Morton because it would release him from the personal recognizance bond of the court and allow him to "immediately pursue any compensation" from the state for the nearly 25 years he was wrongfully imprisoned.

John Raley, a Houston pro-bono lawyer, and Nina Morrison and Barry Scheck, of the New York-based Innocence Project, however, argue in an unusual court filing opposing Bradley's request that his motives are not purely to help the newly exonerated man move on with his life. The request to hurry-up the process, they indicate, is an effort to stymie an investigation into whether prosecutors intentionally and illegally suppressed evidence that could have prevented Morton's wrongful conviction.

Morton's lawyers allege that the district attorney's office withheld a transcript of a conversation between Rita Kirkpatrick, Christine Morton's mother, and a sheriff's investigator in which she told the officer that Morton's 3-year-old son saw a "monster" who was not his father attack and kill his mother.

They also allege prosecutors withheld information about Christine Morton's credit card being used in San Antonio two days after she was killed and about a check made out to her that was cashed with her forged signature nine days after her death.

Bradley's office has denied allegations of wrongdoing. Ken Anderson, who was the prosecutor at the time of Morton's trial and is now a Williamson County district judge, has not commented publicly.

In an agreement that Morton's lawyers said they negotiated over a three-day period with Bradley, the two sides agreed that an investigation into the alleged wrongdoing would continue while the appeals court was considering the motion to overturn Morton's conviction. If the discovery process was not completed by the time the appellate court issued an order, then the two sides agreed the investigation could continue for at least 30 days. Typically, the court takes a month or longer to issue a decision, but in this case, the court took just a week.

The ABA Journal focuses on another issue, "Ex-Prosecutor, Now a Judge, Accused of Hiding Exculpatory Evidence."  It's by Mark Hansen.

A former Texas prosecutor, now a sitting judge, has been accused of withholding exculpatory evidence in the prosecution of an Austin-area man who spent 25 years in prison for a murder he didn't commit.

Lawyers for Michael Morton, whom DNA evidence has exonerated in the 1986 murder of his wife, Christine, say former Willamson County District Attorney Ken Anderson, now a sitting judge in the same county, failed to turn over evidence to the defense that cast doubt on Morton's guilt, the Associated Press reports.

The evidence includes a statement by the victim's mother, who told investigators at the time that her 3-year-old grandson—Morton's son—had described seeing a "monster" beat his mother to death. It also includes evidence that the victim's credit card was used in San Antonio two days after her murder and that a forged check in her name was cashed a week later.

"I think everybody can see how offensive this conduct is, if true," said Innocence Project co-founder Barry Scheck, one of Morton's lawyers. "I am profoundly troubled by this. Profoundly troubled, and determined to get answers."

Earlier coverage of Michael Morton's exoneration begins at the link.

The Latest News Coverage of Michael Morton's Exoneration

"Prosecutor misdeeds may have let killer kill again," is the title of Will Weissert's AP report.  It's via the Fort Worth Star-Telegram.

Caitlin Baker was 3 when her mother, Debra, was beaten to death and left naked in bed in her Austin home. Although the pain of the loss has faded in the 23 years since, her anger that her mother's killer was never caught has not.

Less than two years before that January 1988 slaying, unbeknownst to all but a few people until recently, the mother of another woman bludgeoned to death in bed during an attack at her home about 15 miles away told an investigator that her 3-year-old grandson watched a "monster" do the killing, not his father, as police suspected. She urged him to pursue other leads, but her daughter's husband, Michael Morton, was instead convicted of murder and sentenced to life.

New DNA testing linked the killings of Debra Baker and Christine Morton to another man with a prison record in several states. Police have not publicly identified the suspect, whom they are trying to locate, but his genetic links to both slayings led to Morton's release from prison last week after nearly 25 years behind bars, and his formal exoneration by an appeals court on Wednesday.

But lawyers for the Innocence Project, a New York-based group that spent years fighting for DNA testing in Morton's case and the release of his police case files, say he likely never would have been convicted if the prosecutor in charge of the case hadn't withheld key evidence from the defense, including his mother-in-law's statements. And if, as the lawyers contend, investigators disregarded and hid evidence that cast doubt on Morton's guilt, could they have more doggedly pursued leads that might have helped them prevent Baker's killing?

In filings before state District Judge Sid Harle, the Innocence Project has alleged misconduct by Ken Anderson, now a sitting judge in Williamson County just north of Austin, who was the county's district attorney at the time, and prosecuted Morton's case. The charges could lead to the state bar taking disciplinary action against Anderson, or Harle himself possibly urging state and federal prosecutors to investigate, said Barry Scheck, the Innocence Project's co-founder.

"I think everybody can see how offensive this conduct is, if true," Scheck said. "I am profoundly troubled by this. Profoundly troubled, and determined to get answers."

At Time, "In Perry’s Texas, a Well-Connected DA with a Knack for Blocking New Evidence," is the title of Mark Benjamin's post.

Michael Morton faced a throng of reporters last Tuesday just after a Texas judge freed him following 25 years in prison for a murder he did not commit. Now gray-haired and 57, Morton looked on the bright side. “I thank God that this was not a capital case,” he said.

In the final years of a legal battle spanning more than two decades, attorneys at the New York-based Innocence Project fought for DNA testing that ultimately exonerated Morton in the murder of his wife and pried loose exculpatory information from Texas government files that officials had withheld from Morton’s attorneys since before his 1987 trial.

These efforts probably would have sprung Morton from prison years ago were it not for the role of Williamson County District Attorney John Bradley, a well-connected ally of Texas Governor Rick Perry, who fought tenaciously for six years to keep Morton behind bars. Twice a Perry appointee to influential legal posts, Bradley has generated controversy in his handling of two high-profile cases: Morton’s incarceration and the forensic review of evidence against Cameron Todd Willingham, a man who was executed in 2004 despite a cloud of uncertainty around the expert testimony that led to his conviction.

In early 2005, Morton’s attorneys sought DNA testing on a blood-stained bandana found outside the Morton home on the day after the brutal murder, which took place on Aug. 13, 1986. Court records show that Bradley, who was appointed by Perry in 2001 and was not Morton’s original prosecutor, sought to prevent that testing from ever taking place and tried to limit its effect on the case.

At first, Bradley argued that testing the bandana would open the floodgates to an indeterminable amount of new evidence. “One has to wonder whether petitioner would file another motion at some future date seeking additional testing of even more items,” he wrote in October of 2005. In a 2009 filing, Bradley argued that the bandana was irrelevant because it was found “a football field’s length” from the Morton’s house, and that if any DNA testing did take place “it should not incorporate the possibility of a match of any DNA profile recovered from the bandana to a known offender.

District attorneys vary widely in their willingness to consider new evidence, but Bradley’s efforts make him an outlier. The Innocence Project says it has to fight a prosecutor’s objections to DNA testing in less than half of its cases, and most resistance dries up quickly. Death penalty opponents are particularly critical of prosecutors who resist DNA testing. Steve Hall, director of the StandDown Texas project, called Bradley’s behavior in the Morton case “abhorrent.”

"Texas man jailed 25 years for murder is exonerated," by Molly Hennessy-Fiske for the Los Angeles Times, via the Sacramento Bee.

Morton has been staying with his parents in East Texas since his release. Nina Morrison, an Innocence Project lawyer, told the Times that she called Morton on Wednesday to tell him about the ruling.

"He's thrilled and relieved and looking forward to the next chapter in his life, but also still determined to get to the bottom of how and why he was wrongfully convicted in the first place and make sure it doesn't happen to anyone else," Morrison said. "There's still a lot of unanswered questions and he very much wants answers."

Chuck Lindell, who broke the story of the tangled case in mid-August writes, "Court affirms Morton's innocence," for today's Austin American-Statesman.

Wednesday's ruling by the Texas Court of Criminal Appeals qualified Morton for compensation from Texas — $80,000 for each year he was wrongly imprisoned, or about $2 million, with another $2 million annuity that would earn 5 percent interest and pay out monthly.

But the rapid ruling may jeopardize Morton's plans to pursue evidence supporting allegations that then-prosecutor Ken Anderson, now a district judge, improperly suppressed pretrial evidence that pointed to Morton's innocence. Defense lawyers also accused sheriff's investigators of ignoring leads that could have solved Christine Morton's murder.

Under an agreement reached last week with Bradley, Morton's lawyers were given a chance to conduct a limited investigation into the allegations of misconduct — but only until the appeals court ruled on Morton's innocence claim.

Defense lawyers believe they have until Nov. 7 to complete that investigation because appellate court rulings do not become final until a mandate issued 25 days after a ruling is announced.

"I am confident we will find a way to get it done in the next (month), if not after," Morrison said, providing no details because District Judge Sid Harle placed the investigation agreement under seal in court files.

But if defense lawyers hope to force Anderson and others to answer questions under oath, they may have trouble convincing Harle to order the depositions.

The claims of official misconduct were included in the same petition that urged the appeals court to declare Morton innocent. Now that appellate judges have established Morton's innocence, the petition is disposed of and the remaining claims are considered moot.

Bradley declined to comment on the defense-led investigation, citing the sealed court records.

And:

John Raley, a Houston civil lawyer who has represented Morton for free since 2005, said Morton is considering additional schooling after earning a master's degree in literature from the University of Houston while in prison.

"He said something about Shakespeare during one of our phone calls years ago," Raley said. "So I sent him the complete works of Shakespeare, and he was thrilled."

Their letters and conversations, Raley said, are frequently sprinkled with Shakespearean quotes and references to literary works by John Milton and others.

Beyond suddenly having a future to plan, however, Morton is still adapting to life outside prison, Raley said.

"All of the everyday things people take for granted, Michael thinks are wonderful. This is a brave new world for him," Raley said.

Earlier coverage of Michael Morton's exoneration begins with the preceding post.

Court of Criminal Appeals Vacates Michael Morton's Conviction

Chuck Lindell posts, "Appeals court declares Morton innocent," at the Austin American-Statesman.

The Texas Court of Criminal Appeals agreed today to toss out Michael Morton’s 1987 conviction and life sentence for the murder of his wife, Christine, in Williamson County.

‘I just called Michael and told him the news. He was thrilled,” said Nina Morrison, a lawyer with the Innocence Project of New York. “This is the first time in almost 25 years he has not had a wrongful conviction on his record and hanging over his head, and obviously it’s a great day for him.”

Noting that recent DNA tests indicate that another man, unidentified in court documents, was the killer, the state’s highest criminal court unanimously declared: “We determine that (Morton) is entitled to relief on his actual innocence claim.”

Morton’s request to vacate his conviction was sent to the court on Oct. 3, a day before he was released from prison in an agreement between defense lawyers and Williamson County District Attorney John Bradley.

That agreement also gave Morton’s lawyers a chance to conduct a limited investigation into allegations that prosecutors and investigators improperly withheld that pointed to Morton’s innocence — but only until the Court of Criminal Appeals ruled on Morton’s innocence claim.

Morrison said defense lawyers believe they have 30 days to complete their investigation into the misconduct claims because appellate court rulings do not become final until a mandate issues 30 days after a ruling is announced.

The Court's ruling in Ex Parte Morton is available in Adobe .pdf format.

Earlier coverage of Michael Morton's case begins at the link.