Harmful Errors: Texas Approaches Its 500th Execution

A cemetery for prisoners in Huntsville, Texas. Grave markers with an "X" or the word "Executed" indicate the prisoner was put to death (Photo Credit: Chantal Valery/AFP/Getty Images).

A cemetery for prisoners in Huntsville, Texas. Grave markers with an “X” or the word “Executed” indicate the prisoner was put to death (Photo Credit: Chantal Valery/AFP/Getty Images).

On July 30, 1964, the state of Texas executed Joseph Johnson Jr. He was one of the 21 African-Americans put to death in the Lone Star State in the 1960s, out of 29 executions overall. But his was also to be the last execution in Texas for 18 years.

In the late 1960s, executions in the United States dwindled and in 1972 the U.S. Supreme Court overturned all U.S. death penalty laws. New death penalty laws were permitted in 1976 and executions resumed the next year. However, it was not until late 1982, more than 18 years after Johnson’s execution, that Texas would restart its machinery of death.

Since then, Texas has been responsible for, by far, more executions than any other state. On June 26, Texas is scheduled to put Kimberly McCarthy to death – in the process carrying out its 500th execution since reinstatement.

The continued high use of the death penalty in Texas (though at a lower rate than in the so-called “zero tolerance” (1990s), flies in the face of the overall U.S. trend, which has seen death sentences, executions, and public support for capital punishment dropping steadily. Texas itself is not immune from that trend, as death sentences in the Lone Star State are now at historic lows.

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Age 19 + No Prior Record + Sloppy Lawyers = Death Sentence

Anthony Haynes

Anthony Haynes

Anthony Haynes, a 19-year-old at the time of the crime with no prior criminal history, is scheduled to be executed in Texas on October 18.

As noted in this space previously, there were serious issues of racial bias in his case (African American defendant, 11 white jurors, judge cleaning guns during jury selection). There were also bad lawyers and a possibly coerced confession. Despite this, the state of Texas is prepared to put this man to death for a crime he committed as a teenager under the influence of crystal meth.

Two days before Haynes fatally shot Kent Kincaid, an off-duty police officer, a friend of the family had given him crystal meth. It was Haynes’ first experience with the drug. The same friend wrote in a sworn statement that during those two days Haynes began “talking crazy,” saying he had been unable to sleep for days and thought someone was following him. When Sergeant Kincaid approached Haynes’ car, Haynes’ drug-induced paranoia really kicked in – he believed he would be dragged from the car. He shot and killed Officer Kincaid.

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Mississippi to Execute Man Defended by Law Clerk

witness viewing room death penalty

Execution viewing room for witnesses © Scott Langley

There are many reasons our criminal justice (and capital punishment) system gets things wrong.  Police or prosecutor misconduct, mistaken witnesses, botched forensic science.  But one of the surest ways to get wrongly convicted, or get wrongly sentenced to death, is to have a bad lawyer.

Michael Brawner (scheduled for execution on June 12 in Mississippi) had a bad lawyer. In fact, prior to his trial, the legal representative doing most of the work on his case was not a lawyer at all, but a law clerk who had failed the bar exam (he passed just in time for the start of the trial).  SEE THE REST OF THIS POST

Ohio: Angry Lawyering And Doubts About Guilt

Ohio’s Parole Board has voted 7-0 to recommend clemency for Shawn Hawkins due to doubts about his guilt and an angry lawyer that berated his jury.  Ohio Governor John Kasich does not have to follow this recommendation, but he should.  (And you can urge him to do so.)

Hawkins’ conviction rests mainly on the testimony of an eyewitness who has changed his story several times (and was initially a suspect before being granted full immunity).  There was no murder weapon found and Hawkins had several alibi witnesses.

Upset that his client was convicted despite such a weak case, Hawkins’ lawyer lashed out at (and vaguely threatened) the jury during the sentencing phase of the trial.  He warned them (according to the Parole Board’s report) that, if they issued a sentence of death, “what comes around goes around”.  No mitigating evidence was presented, and, not surprisingly, the jury came back quickly with a sentence of death.

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Arizona Execution Stayed – For Now

The prosecutor who successfully sought a death sentence for Daniel Cook in Arizona way back in 1988 now says he “would not have sought the death penalty in this case” if he had known about Cook’s history of severe child abuse and serious mental disorders. 

Those factors were not known to the prosecutor, or anyone else, until 2010 (22 years after the trial), primarily because Cook’s appointed lawyer, according to the prosecutor, was “at the low end of the competency scale for the handling of the defense of a standard felony” and “appeared neither capable nor willing to put forth the effort necessary to represent a defendant charged with a capital offense.”  The lawyer in question was bi-polar and drinking heavily at the time of the trial.

Cook was to have been executed yesterday (April 5) but the U.S. Supreme Court issued a stay to give themselves more time to decide whether or not to take up Cook’s claim of ineffective counsel.  If the high Court does not take the case, the stay would be lifted and new death date could be set.

Last October, Jeffrey Landrigan was executed in Arizona amid a lot of hoopla about the origins and efficacy of Arizona’s batch execution drugs (which it was later learned came from a supplier operating out of a driving school in the U.K.)  But in that case, as here, the controversy over the drugs used to kill overshadowed the fact that someone closely involved in issuing the death sentence (in Landrigan’s case the trial judge) vehemently opposed the execution.  The trial judge in that case told Arizona’s Board of Executive Clemency that Landrigan’s death sentence “is not appropriate and never has been.”

Then, as now, incompetent defense lawyering kept important information about Landrigan’s severe mental impairment from being presented to the court.  The U.S. Supreme Court in that case ruled that this new information would not have made a difference, but the judge’s statements proved conclusively that they were wrong

Hopefully this time the U.S. Supreme Court will make the right decision.