Today is Constitution Day. On this day, September 17, in 1787, the US Constitution was signed by a group of men known collectively these days as the “Founding Fathers”. Yesterday, the Texas Court of Criminal Appeals (TCCA) celebrated a day early by denying relief to Charles Dean Hood despite the fact that the judge and prosecutor were sleeping together during his trial.
Charles Dean Hood received a death sentence in 1990 in Collin Country, Texas for the murders of Ronald Williamson and Tracie Lynn Wallace. The Honorable Verla Sue Holland served as the judge during his trial while Thomas O’Connel—Collin County’s District Attorney—was the leading prosecutor on the case. Last year O’Connel and Holland revealed that they had maintained a clandestine sexual affair for a long period of time. Their relationship coincided with Charles Hood’s trial.
The affair was first uncovered last June, two weeks before Hood’s scheduled execution, when a Collin County assistant district attorney revealed it in an affidavit. The affair was subsequently confirmed by O’Connel and Holland during separate official testimonies. In the meantime, Hood’s execution was postponed, as the state was not able to carry it out before the expiration of his death warrant.
Following the discovery of the affair, Mr. Hood’s case was brought in front of the TCCA for reconsideration. Although eight of the nine judges on the court had previously worked with Judge Holland, they still chose to review the case. Yesterday, in a 6-3 vote, in a dense, almost unreadably bureaucratic 3-page opinion, they dismissed the appeal on the grounds that the issue of Holland and O’Connel’s sexual relations should have been raised earlier, a curious interpretation of procedural rules given the fact that neither the judge nor the prosecutor admitted to the affair until mid-2008, when a civil court ordered them to testify under oath.
In a more detailed 9-page dissent, the three judge minority argued that the issue of the illicit affair could not have been raised earlier because of “… the principals’ longstanding efforts to keep the affair hidden.” No kidding.
But should that even matter? Did I mention that the judge and prosecutor were sleeping together? … how is that not enough to merit a new trial? Whatever its tortured logic, the TCCA ruling clearly violates basic fair trial protections established by the Constitution whose 222nd anniversary we celebrate today.
In the aftermath of the verdict, the Texas Defender Service issued a statement, noting that the TCCA decision supports “the perception that justice is skewed in Texas” and that “obvious and outrageous violations of the Constitution are acceptable in death penalty cases.” The statement also rightly points out that the Court’s ruling “rewards the judge and prosecutor for maintaining a wall of silence about their affair for nearly two decades.” The Texas Defender Service skillfully sums up the ramifications of the decision by stating “No one would want to be prosecuted for a parking violation – let alone for capital murder — by a district attorney who is sleeping with the judge.”
In Iran, in January of this year, a man being stoned to death for adultery managed to survive his ordeal by digging his way out of the pit in which he had been buried. According to an Amnesty International report, citing Iran’s penal code, “if the condemned person manages to escape from the pit, they will not be stoned again if they had been sentenced after confession.” The man who escaped in January was not stoned again that day, though it is believed he was taken back into custody.
Today, Ohio faces a similar dilemma. Romell Broom survived the Buckeye state’s attempts to execute him by lethal injection, due to the failure of his executioners to find a useful vein in which to inject the poison. Does this mean Mr. Broom will no longer face the needle, or will Ohio subject him to a second execution? It appears that the latter is the case (Ohio Governor Ted Strickland merely granted Mr. Broom a week-long reprieve), although there may be arguments in court that being executed twice would constitute cruel and unusual punishment.
Ohio has had these problems before: the execution of Christopher Newton (who “volunteered” to be executed by giving up his appeals) took 90 minutes, and the lethal injection of Joseph Clark took 40. In both cases, the delay was the result of the inability of the execution team to find suitable veins.
Given that this horrible problem keeps re-occurring, it would be wise for Ohio Governor Ted Strickland to at least declare a moratorium and halt executions in his state.
The FBI’s annual crime report – Crime in the United States, 2008 – which was released Monday reveals that, like death sentences and executions, murder rates in the U.S. declined slightly in 2008. This has been the trend for a number of years, as has been the fact that homicide rates vary from state to state, with the states of the Deep South generally having the highest murder rates.
As usual, states without capital punishment generally had lower homicide rates than the states that execute. In fact, all but one of the 14 states with no death penalty in 2008 had murder rates below the national rate of 5.4 per 100,000. The lone exception, Michigan, had a homicide rate of 5.4, equal to the national rate.
Homicide rates in the U.S. are of course still way too high. That 1 in every 20,000 Americans was murdered last year is nothing to be proud of, but by now it should be clear to all that, as the consensus of criminologists agree, the death penalty has nothing to do with solving this problem.
Kenneth Mosley is scheduled for execution on September 24. He has been on death row for the past twelve years. Mr. Mosley was convicted of killing a police officer while attempting to rob a bank in Garland, Texas on February 15, 1997.
Mr. Mosley has committed a terrible crime, and things look grim for him. He overcame many adversities in his life, but finally a combination of addiction and difficult circumstances led to this tragedy. Still he says:
I’m staying positive and have hope that something good will happen …
Kenneth Mosley grew up in an abusive home. His family was very poor, and racial tensions ran high in the community. In spite of it all, Kenneth managed to finish high school and a year of college. Unfortunately, he did not have the financial means to continue his education. He left college to work in a Coca Cola Bottling Company. Soon afterwards, he met and married his wife Carol. They had a baby girl named Amber.
Life was going well for the Mosely family, but things started to fall apart when Ken became addicted to crack cocaine. He and his wife sought treatment from many different clinics, but after losing his job, he lost his health insurance and, with it, any hope of affording treatment for his addiction. His life went into a downward spiral.
One day, with a gun in his pocket, Ken walked into a bank. A police officer, who later paid with his own life, spotted him and attempted to stop him from robbing the bank. They struggled and crashed through a window. During the struggle, the officer was shot and killed.
During Ken’s trial, the quality of the representation he received was so poor that he may as well have been deprived of his constitutional right to effective counsel. The lawyers failed to present evidence of several mitigating factors that may have influenced the jury’s decision to impose the death penalty. For example, despite the fact that Ken suffered a brain injury resulting in permanent damage, his attorneys did not even examine Ken’s medical records. Nor did they address his debilitating addiction to crack cocaine. No evidence of either impairment was presented to the jury.
Bob Barr thinks so. In his Washington Times op-ed, the former federal prosecutor, Georgia Congressman and Libertarian Presidential candidate, labels Scalia the “high court curmudgeon” for his dissent from the Supreme Court’s order giving Troy Davis to have an evidentiary hearing on his substantial evidence of innocence.
Scalia believes, simply, that the Constitution doesn’t protect the innocent from being executed. Barr believes that it does.
“The Constitution of the United States was adopted in 1787; the Bill of Rights four years later in 1791. Apparently for Justice Scalia, these past 218 years have not sufficed to “clearly establish” that federal law is based on the premise that only the guilty are to be executed.”
Bob Barr was instrumental in the passage of the Anti-terrorism and Effective Death Penalty Act (AEDPA) back in 1996, and has clearly been perturbed by the way that law has been interpreted to prevent what justice plainly requires in this case:
“… a full hearing at which the witnesses Davis believes will show his actual innocence are allowed to testify.” And at which “… the state of Georgia will have full opportunity to rebut that testimony.”
The “pinched and erroneous” interpretations of AEDPA by cantankerous old judges like Scalia ignore the fundamental basis for law and justice, which is to punish the guilty and protect the innocent.
On Monday, Amnesty International release a report on the death penalty in Iraq, pointing out that at least 1,000 people are now on death row in Iraq, and 150 of them have exhausted all appeals and could be hanged at any time. The report tells a familiar tale, of how combining a hugely flawed criminal justice system with capital punishment leads for major injustices. One of the focuses of the Amnesty report, and a focus of the CNN report above, is the case of Samar Sa’ad ‘Abdullah, who may face execution for the killing of three family members despite having been severely beaten into confessing to the crime.
When Saddam Hussein was in power, his government carried out executions “on a very large scale”, both judicially and extra-judicially. Ironically, with the 2003 U.S. invasion of Iraq and the overthrow of Saddam Hussein, Interim Coalition Provisional Authority (CPA) head Paul Bremer (remember him?) imposed a moratorium on executions, and it was only after the new Iraqi government took power that executions restarted. This included, in December 2006, the execution of Saddam Hussein himself.
Iraq has already executed many people this year (executions sometimes take place in secret, so the exact number is not known). It is known that 12 people were executed on May 3, and 19 more were executed on June 10. Although Iraqi President Jalal Talabani is personally opposed to the death penalty, he delegates decisions on Presidential pardons to his deputies who have no such qualms. With its rapidly expanding death row and the large numbers now out of legal options, the number of hangings could soon increase exponentially.
In 2004, Cameron Todd Willingham was executed in Texas for setting a fire that killed his three children. He maintained his innocence to the end, and those who looked into his case, including the Chicago Tribune, have concluded that he was in fact wrongfully executed. His was one of the 200+ executions under Rick Perry, a governor who has remained willfully oblivious to the huge flaws in his state’s death penalty.
Yet recently, to its credit, the Texas Forensic Science Commission reopened the case. A nationally known fire expert, Craig Beyler, was hired to assess how Texas authorities investigated the fire. According to the Tribune, Beyler’s report is not kind to the Texas investigators, and he determined that there was no scientific reason to believe that the fire was arson at all. If indeed that is the case, Cameron Willingham was executed for a crime that never occurred – an exceptional cruelty for a man who had already lost his three children.
Beyler ripped the fire marshal who investigated the case, saying, according to the Tribune, that the fire marshal had “limited understanding” of fire science, “seems to be wholly without any realistic understanding of fires and how fire injuries are created,” and that his findings “are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.”
The Texas Forensic Science Commission will solicit a response from the fire marshal and then publish its final report. If it reaches the same conclusion that this nationally respected fire expert has, the state of Texas may finally officially acknowledge that it has executed an innocent man.
Today, North Carolina Governor Beverly Perdue signed the Racial Justice Act into law, making North Carolina only the second state in the country to allow death row prisoners to meaningfully challenge their death sentences if racial bias is evident. (Kentucky is the only other state that has adopted similar provisions.)
As discussed in my previous post, race (particularly race of the victim) has been a major factor in who does and does not get death sentences in North Carolina, and 35 inmates on North Carolina’s death row were put there by all-white juries.
It is good to see a southern state like North Carolina take such a leadership role in directly confronting its legacy of racism and going the extra mile to ensure that its justice system (or at least its capital punishment system) is no longer infected with racial bias. The 33 other death penalty states, both northern and southern, should follow North Carolina and Kentucky’s lead; racial bias in the death penalty is a national problem.
On July 15th the North Carolina House voted 61-54 to approve the Racial Justice Act, which, if signed into law, would allow death row prisoners in the state to appeal their sentences if racial prejudice played a role in their sentencing. Last night, the North Carolina Senate approved the legislation, which now goes to Governor Bev Perdue for her signature.
The Racial Justice Act could be a very significant step towards ensuring that race does not affect the fate of capital defendants in North Carolina—a state with a history of racial prejudice, where race has been a factor in death penalty cases in the past. A 2001 study conducted by Dr. Isaac Unah and Prof. Jack Boger from the University of North Carolina showed that the probability of a defendant receiving the death penalty in North Carolina is 3.5 time higher if the murder victim was white. In some parts of the state the findings were even more disturbing. For instance, in Durham County, prosecutors were 5 times less likely to seek the death penalty if both the defendant and the murder victim were black than if the defendant was black but the murder victim was white.
A review by the Winston Salem Journal found similar racial discrepancies in the application of North Carolina’s death penalty. The Journal discovered that, although the majority of murder victims in North Carolina are black, only 18 percent of the state executions carried out between 1984 and the present were of prisoners whose victims were African-American. In contrast, four fifths of the executions were of prisoners whose victims were white.
Another way race has played a role in death penalty cases in North Carolina (as well as across the country) has been though jury selection. Although African-Americans constitute more than one fifth of North Carolina’s total population, between 1977 and the present 35 defendants in the state have received death sentences from all-white juries.
In light of these discrepancies and the unequal application of capital punishment in North Carolina, passage of the Racial Justice Act is a milestone achievement. The legislation has gained the support of clergy and civil rights leaders who have described it as “a clear signal that we are serious about removing any vestiges of racial discrimination in the administration of the death penalty.” In a joint statement published on the website of the North Carolina NAACP Chapter, the leaders went on to say that the Racial Justice Act has the potential to “make North Carolina a leader in the southeast on a matter of great importance to anyone who believes justice should be color blind.”
The Maryland Department of Public Safety and Correctional Services recently proposed new regulations for lethal injection procedures. Executions in Maryland have been at a halt since 2005, when a court of appeals ruling found that the execution protocols were illegally adopted. If the regulations are adopted, they will move the state closer to resuming use of the death penalty. These regulations have now been published in the Maryland Register, and they are open for comment for the next 30 days.
According to the regulations:
“Comments may be sent to Randy Watson, Assistant Commissioner, Division of Correction, 6776 Reisterstown Road, Baltimore, MD 21215-2342, or call 410-585-3300. Comments will be accepted through August 31, 2009. A public hearing has not been scheduled.”
Executions would continue using a drug – pancuronium bromide – that is not even permitted for use in euthanizing animals. Medical officials have consistently warned that the combination of drugs proposed here may cause the prisoner a very painful death, and indeed several such botched executions using these drugs have occurred.
A certified paramedic must be on duty in some capacity during the execution, either as a part of the execution or standing right outside of the area where the execution takes place. A licensed physician would also have to be present. These proposals could result in violations of AMA ethical guidelines.
There are currently five men on death row in Maryland. While these regulations would not mean that executions would immediately start happening, it does mean that de facto moratorium on executions would end.
Resuming executions would be a huge step backwards for the state of Maryland. Despite a long fight in recent years, the death penalty still has not been outlawed in the state, though it has been restricted. But the current moratorium on executions, coupled with the historically infrequent use of the practice in the state, gives hope that Maryland is not far from joining the other fifteen states (plus D.C.) that have outlawed capital punishment.
Amnesty International works to protect human rights worldwide. We have more than 2.2 million supporters, activists and volunteers in over 150 countries, and are completely independent from government, corporate or national interests.
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Edith Garwood is the Amnesty International USA Country Specialist for Israel, the Occupied Palestinian Territories and the Palestinian Authority. She's a long time human rights activist that acted as Country Coordinator for AIUSA on Israel and the Occupied Territories during the first intifada as well (1987-1993). She has lived, studied and traveled in the Middle East throughout the past two decades. See all »
