The death penalty is always inhumane, and the past few days in Texas have brought to light some of its most worrisome aspects.

On Wednesday, The Texas Board of Pardons and Paroles recommended that Robert Thompson’s death sentence for his role in a 1996 robbery and shooting be commuted to life imprisonment. The shooter, Sammy Butler, was convicted and received life in prison, which raises serious questions about the arbitrary nature of how the death penalty works in real life. Why wait until the last minute to discuss the disproportionality of sentencing the accomplice to death while the man who pulled the trigger is sentenced to life in prison?

Earlier this week a federal judge in Houston granted a last-minute stay to Gerald Eldridge, allowing 90 days for a review of his mental state and capacity. Executing the mentally ill is extremely problematic, and the time to deal with such a serious issue is not during a prisoner’s last meal. Such jarring, nerve-wracking changes at the last second are traumatic for everyone involved, including the victims’ families.

(more…)

In a recent interview on NPR, former Texas Governor Mark White discussed his lack of faith in the ability of the legal system to reliably handle death penalty cases, and emphasized the seriousness of handing down an irreversible sentence to a person who may later be proven innocent. While he was Governor, he oversaw a significant number of executions, but White now believes that: ”What I see in retrospect is that our system is not as foolproof as I think it should be in order to carry out a punishment that’s irreversible.”

White also stated that he has never believed in the death penalty as a deterrent, because: “Obviously, with 400 people on death row, there’s at least 400 people up there that didn’t deter.”

As Amnesty International observed, Governor White’s evolution on this question is part of a national trend: “As advances in DNA and forensic science have revealed the extent to which our criminal justice system is prone to error, judges, jurors, the public, and even some politicians, have begun to question the wisdom of resorting to capital punishment.”

White’s statements (he’s a Democrat) also come at a particularly bad time for current Governor Rick Perry, who, in the middle of a re-election campaign, is now being scrutinized for his role in the execution of Cameron Todd Willingham, who appears to have been innocent and wrongly put to death.

In the past, you would only pay a political price if you didn’t support the death penalty strongly enough.  But in Texas, as everywhere else in the U.S., times have changed, and it would be quite something if the most prolific executing Governor in modern history wound up suffering politically because he supported the death penalty too much.

(c) Scott Langley

An important hearing was supposed to take place in Texas today, but on Wednesday, September 30, Texas Governor Rick Perry abruptly replaced three members of the Texas Forensic Science Commission that is currently reviewing the fire investigation that led to the 2004 execution of Cameron Todd Willingham.  The Governor took this action two days before the Commission was scheduled to hear live testimony from Craig Beyler, a nationally respected fire expert whose recent report criticized the original investigation of the fire that killed Willingham’s three children as having “nothing to do with science-based fire investigation.”

That hearing, scheduled for today, has now been postponed, and the chair of the Commission, a defense lawyer from Austin, Sam Bassett, has been replaced by politically-connected, tough-on-crime prosecutor John Bradley.  More than a few eyebrows have been raised by Governor Perry’s sudden move.  Barry Scheck of the Innocence Project,  which also conducted a review of Willingham’s case and determined that he was innocent of the crime for which he was executed, called Perry’s actions a “Saturday Night Massacre,” drawing an analogy with President Nixon’s famous firing of the special prosecutor who was investigating the Watergate scandal. 

For his part, Governor Perry said that his actions were simply “business as usual” … the terms of the three Commission members he removed had expired, so they were replaced.  Of course, this occurred two days before the Commission’s hearing, and there is no reason Governor Perry could not have simply reappointed those Commission members so that they could finish their important work. 

Governor Perry (and the Texas Board of Pardons and Paroles) signed off on Willingham’s execution back in 2004, despite having in hand a report challenging the fire investigations as “junk science,” and the Governor has publicly challenged Beyler’s credibility, referring to him and others who have looked at the case as “supposed experts.” What Governor Perry’s expertise is in the area of forensic fire science is unclear.

What is clear is that, whatever the Governor’s motives, if his actions lead to another white-washing of a dubious conviction and death sentence (and, in this case, execution), then that will indeed be “business as usual” in Texas.

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 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.

On May 26, the United Nations released a report by the Special Rapporteur on extrajudicial, summary or arbitrary executions, which highlights, among other things, some of the major flaws in the US judicial system related to the death penalty.  The report focuses particularly on the sates of Texas and Alabama, where the research of the Special Rapporteur was concentrated. 

The report rightfully notes that the current judicial system in those two states is significantly flawed as it leaves room for the wrongful conviction and execution of innocent people, something that was confirmed even by interviews with public officials.  In that respect, the author provides a detailed review of the judicial failings related to the death penalty.  He notes that there are legal limitations preventing inmates from access to DNA tests once they have already been convicted.  In addition, the defense attorneys appointed to death penalty cases often receive compensation far lower than what is necessary to construct an adequate defense.  Appointed counsel also frequently have continuing professional relationships with the judges before whom they appear, which can be the source of “structural disincentives for vigorous capital defense.”  The access of defendants to federal habeas corpus proceedings, the report asserts, is also too limited. 

At the same time, finality in death penalty cases is often granted undue emphasis at the expense of a careful examination of the potential evidence related to innocence claims.  The author notes that in Alabama, “officials would rather deny (the execution of innocent people) than confront criminal justice system flaws.” Unfortunately, this is true not only in Alabama, as has become evident in the case of Troy Davis, who may soon face his fourth execution date in two years, despite the fact that the case against him was build predominantly on the testimony of nine witnesses, seven of whom have recanted their statements (and have alleged that they were coerced by authorities) since the time of Troy’s conviction.  However, despite opposition from human rights activists across the world, Troy has remained on death row for 18 years and has not yet received a hearing on the details of his case that have emerged since the time of his conviction.  Moreover, the failure of the judicial system to hear the evidence in support of Troy’s innocence means that the person truly responsible for the murder of which Troy was convicted, has not yet faced any legal consequences for his action.  This danger was also highlighted in the UN report, according to which “wrongful convictions mean that true criminals remain at large.” 

The UN report also points to the drawbacks in the electoral system for appointing judges in Texas and Alabama, which highly politicizes death penalty cases.  In fact, the author cites statistics suggesting that the likelihood of a death penalty sentence is directly correlated with the imminence of judicial elections or with the lobbying efforts of groups that are supporters of capital punishment.  He also pinpoints the particular problems with judicial elections in Alabama, where jury decisions can be overruled by elected judges, and where nine out of ten cases in which a judge overrode a jury decision resulted in a death sentence.  Finally, the report uncovers the existence of racial bias behind the imposition of the death penalty across the country, something that is confirmed by the research of Amnesty International USA.

With the execution of Terry Lee Hankins last night, Texas Governor Rick Perry has reached a pretty apalling benchmark: 200 executions in his eight and a half years as governor.  As in other states, the death penalty in Texas has proven to be ineffective as a deterrent, racist in its application, and extremely costly. Not to mention that Texas does not have a strong reputation for considering all of the evidence before going forth with an executuion: there have been at least eight executions in the last twenty years where there was strong evidence of the defendant’s innocence – five of them were from Texas. This overzealous approach to justice means that Texas sometimes fails to punish the true perpetrators of some pretty horrific crimes.  Texas has been responsible for 439 executions since the death penalty was re-applied in 1976. That’s 38% of all executions in the United States since that time.

Terry Hankins was executed by lethal injection around 6:19pm for shooting his two step children and his wife. He had also confessed to killing his father and half-sister around 2000, though he was only tried for the first three deaths.

The state of Texas is likely to continue its reckless spree of executions. Hankins was the 16th execution this year, and the state still has four more executions scheduled over the next four months, the next of which is Kenneth Mosley on July 16.

The Saturday New York Times story on Texas Court of Criminal Appeals Presiding Justice Sharon Keller contains this gem: 

“We can’t give new trials to everyone who establishes, after conviction, that they might be innocent,” she later told the television news program Frontline. “We would have no finality in the criminal justice system, and finality is important.”

Judge Keller is now in big trouble in Texas, not for this callous attitude towards innocent people, but for her role in shutting her court down promptly at 5 pm despite knowing that an appeal in the death penalty case of Michael Richard was on the way, an appeal that would almost certainly have been successful.

Judge Keller is NOT getting in trouble for her preference for finality over innocence because that is in fact a very common view in legal circles throughout the United States.  Indeed this perceived need for finality has led to the rejection of countless appeals with real merit, and the question of executing someone who can establish his innocence, purely for the sake of finality, is the central question for which we are awaiting an answer in the Troy Davis case.

What Judge Keller did in the Richard case was reprehensible, but the casual disregard for the rights of people who can establish their innocence is not only equally reprehensible, but also amazingly widespread.

In Texas, Larry Swearingen has been granted permission by the US Court of Appeals for the 5th Circuit to file another writ of habeas corpus in Federal District Court.  This is similar to the permission for which Troy Davis has appealed in the 11th Circuit.  Swearingen has a pretty strong innocence claim: all the forensic evidence, including the revised testimony of the woman who conducted the victim’s autopsy, now suggests that he was in prison at the time of the murder and therefore could not possibly be guilty.

However, his new appeal has been limited to issues of whether his defense at trial was deficient or whether the prosecution knowingly presented false forensic testimony.  That is, he will not be allowed to argue that he is innocent, only that he received an unfair trial.

This led a concurring judge to lament that Federal courts are still unable to hear “actual innocence” claims.   He goes on to say:

This might be the very case for this court en banc—or the U.S. Supreme Court if we should demur—to recognize actual innocence as a ground for federal habeas relief. To me, this question is a brooding omnipresence in capital habeas jurisprudence that has been left unanswered for too long. 

If the 11th Circuit judges are paying attention, they must know that the Troy Davis case could be the perfect vehicle for finally answering this question.

Larry Swearingen has received a stay of execution.  He was one of 14 prisoners scheduled for execution in Texas between the beginning of this year and early April.  (Of those 14, three – all African American – have already been put to death, and the other ten are all either African American or Hispanic.)

For Swearingen, forensic evidence that now raises serious doubts about his guilt seem to have swayed the US Court of Appeals for the 5th Circuit to put the execution on hold and allow him to file a further appeal in Federal District Court.  Several forensic pathologists, including the woman who conducted the victim’s autopsy, are now saying that the time of death occurred when Swearingen was in jail for some traffic violations,  so that he could not have committed the crime.

The 5th Circuit found both that Swearingen’s defense was deficient and that the prosecutors provided “false and misleading forensic testimony.”