Is Texas Death Penalty Unconstitutional?

That’s the question that District Judge Kevin Fine in Houston will be deciding in the next couple of weeks.  A hearing in the case of Texas v. Green, starting Monday, Dec. 6, will put the Lone Star State’s capital punishment system on trial, and by all accounts it will be a wide-ranging affair.  Evidence of the sentencing and execution of innocent men, the use of bogus science, and other egregious mistakes and examples of general incompetence will be considered to determine if the death penalty, as currently administered in Texas, is too prone to error to be allowed to continue.  (Green’s challenge to the Texas death penalty is here.)

The constitutionality of the death penalty in principle is NOT under consideration, just the way it is practiced.  The cases of Claude Jones, Cameron Todd Willingham, and Ernest Ray Willis will among the primary examples of how deeply flawed the practice of Texas capital punishment has become.  Well-intentioned reform efforts from, for example, the Texas Forensic Science Commission, have been smothered by political pressure, so maybe the courts can be the avenue for serious investigations into the major malfunctions of the Texas death penalty.

The state’s judicial system, with judges elected all the way up to and including the highest court, has not been known for courageous critical examinations of Texas justice, but evidence of wrongful convictions, wrongful death sentences, and wrongful executions may have – at last – become impossible to ignore or sweep under the rug.

Whatever the outcome of this hearing, it will be a welcome ray of sunlight on the dismally dysfunctional Texas death penalty.

DNA Test Exposes Execution Based on Bad Evidence

Claude Jones was sentenced to death based on one hair.  That hair, prosecutors insisted, was his, and placed him at the scene of a 1989 killing at an East Texas liquor store.  Now, 10 years after his Dec. 7, 2000 execution, the Texas Observer reports that DNA tests have concluded that the hair was the victim’s, not his.  Normally, after someone is put to death, no tests are carried to determine if the execution was wrongful.  These tests were only carried out as a result of a lawsuit filed by the Observer, the Innocence Project, the Innocence Project of Texas and the Texas Innocence Network.

Jones was a career criminal who was involved in a plot to rob the store.  But to execute him, Texas needed to convict him of the murder, and for that they relied of the forensic technique of hair matching, something we now know to be a kind of junk science.    This week’s DNA results, which directly contradict the conclusions drawn by the state’s forensic hair expert,  do not CONCLUSIVELY prove Jones’ innocence in the killing (since they don’t implicate an alternative suspect), but they do mean that there is now no physical evidence tying Jones to the crime for which he was put to death.

In the hours leading up to his execution, Jones had asked for a DNA test of this lone hair, but the courts rejected that request, and then Governor George W. Bush declined to intervene.  Interestingly, it appears that Governor Bush’s lawyers neglected to mention the request for DNA testing in the memo they gave him.  Bush had previously granted a reprieve to allow DNA testing, so we are left to wonder what he might have done in this case, if he had known.

We do know now that, as in the case of Cameron Todd Willingham, Claude Jones was convicted on the basis of fundamentally flawed evidence.  And, despite the existence of appeal courts, the clemency process, real DNA science, and other supposed safeguards, his execution could not be stopped.

Scent Lineup Not Necessary as Texas Prosecutors Declare Anthony Graves Innocent

Last year, Texas prosecutors wanted to use a “scent lineup” in a desperate attempt to generate new evidence against Anthony Graves, whose death sentence had been overturned in 2006. “Scent lineups” are a ridiculous form of junk science where dogs match a scent from a crime scene with a scent from a suspect (in this case the evidence from the crime scene was 17 years old, had been stored – actually lost – for years in an old unused jail cell, and came from a house that was burned to the ground).

Fortunately this year, Bill Parham, the new DA for Washington and Burleson counties, and special prosecutor Kelly Siegler took a hard 5-month long look at the case.  This refreshingly straightforward statement from Siegler says it all:  

“After months of investigation and talking to every witness who’s ever been involved in this case, and people who’ve never been talked to before, after looking under every rock we could find, we found not one piece of credible evidence that links Anthony Graves to the commission of this capital murder.  This is not a case where the evidence went south with time or witnesses passed away or we just couldn’t make the case anymore. He is an innocent man.”

So, on Wednesday, October 27, Anthony Graves became the 139th person exonerated from US death rows since 1973 and the 12th exoneree from Texas. 

But how did he end up on death row in the first place?

Partly, it was because the prosecutor, Charles Sebesta, elicited false statements and withheld evidence that would have helped Graves’ case.  But mostly, Graves’ conviction was based on a statement from the actual killer, Robert Carter.  Carter later recanted, and continued to insist that Graves was innocent up to and including the moment he (Carter) was executed.  After being tied down in the Texas death chamber, using some of his last words, Carter said:  “Anthony Graves had nothing to do with it. … I lied on him in court.”

After the conviction was reversed, new prosecutors still attempted to re-try him.  The new judge (whose father tried the original case) allowed Carter’s statement to be used as evidence, even though Carter had retracted it multiple times and was no longer available to testify or be cross-examined (the state having killed him). Then, there was the lost evidence that was found, and the proposed “scent lineups” … But the responsible efforts of DA Parham and special prosecutor Siegler brought Anthony Graves’ legal nightmare to an end, after 16 years in prison for a crime he did not commit.