The Texas judge who ruled that the Lone Star State’s death penalty violates basic constitutional rights has revised his order.  Last week,  District Judge Kevin Fine of Houston flatly declared that Texas’ capital punishment statute is unconstitutional because it risks executing the innocent.  

Today, he rescinded that ruling, but scheduled an April 27 hearing at which both prosecutors and defense lawyers will make their case for and against the Texas death penalty.

No one seems to think it will hold up on appeal, but yesterday a recently elected judge in Houston, Texas ruled that the Lone Star State’s death penalty is unconstitutional.  According to the Houston Chronicle, the Judge, Kevin Fine, stated that:

“Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed. It’s safe to assume we execute innocent people.”

And:

“Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty? I don’t think society’s mindset is that way now.”

The ruling came in response to a pre-trial motion filed by attorneys for John Edward Green, who is charged with a June 2008 murder.  Green has pleaded not guilty.

Reaction from the Texas pro-death penalty establishment was swift. Harris County District Attorney Patricia Lykos issued a statement proclaiming that: “Words are inadequate to describe the Office’s disappointment and dismay with this ruling.”

Texas Attorney General Greg Abbott responded with familiar talking points.  He condemned the ruling as “judicial activism,” and he lamented that the judge’s decision “delays justice and closure for the victim’s family,” as if an execution were right around the corner rather than at least 10 years away (assuming, of course, that Green is convicted).

Like other elected officials in the state, elected judges in Texas have traditionally been enthusiastic and active promoters of executions. Perhaps judge Fine’s ruling will encourage his fellow judges to take a more critical and independent look at the death penalty in Texas.

Back on September 16, 2009, the day before the 222nd anniversary of the US Constitution, the Texas Court of Criminal Appeals (TCCA) chose NOT to decide whether Texas death row inmate Charles Dean Hood was denied a fair trial because the judge and prosecutor in his case were sleeping together.  The court avoided taking any responsibility for this embarrassing question by ruling that Mr. Hood should have raised that particular issue earlier, even though he couldn’t – the affair wasn’t confirmed until June of 2008. 

Mr. Hood’s execution had nonetheless been postponed because of a separate issue, a claim that the jury did not properly hear mitigating evidence about his harsh childhood that might have led them to vote for a sentence other than death.  And it was on this considerably less sexy claim that the TCCA today threw out his death sentence and ruled that Charles Dean Hood should get another sentencing hearing. 

Today’s ruling contradicts a decision the TCCA made on the same issue in 2007, when they rejected a new sentencing trial.  And it once again evades the larger question:  Did the judge and prosecutor’s sexual relationship compromise Mr. Hood’s right to a fair trial?   Isn’t this affair an “obvious and outrageous constitutional violation” (as Andrea Keilen of the Texas Defender Service put it)?  A petition on THAT question is now before the US Supreme Court, supported by an impressive array of former judges and prosecutors, including a former Texas Governor.

Henry “Hank” Skinner is scheduled for execution in Texas on February 24.  A two-part review of the case was recently published by the Texas Tribune.  He is asking for DNA testing of evidence that was found at the crime scene but never tested.  He claims these tests would establish that someone else committed the crime for which he is slated to be put to death.  The state, of course, is opposing the tests. 

But, why?  The cost of allowing the testing would be a few extra months for a man who has already been on death row for almost 15 years.  The benefit would be guaranteeing that the state does not execute someone who is actually innocent.   Don’t the benefits outweigh the costs in this case?  Is it even close?

Sadly, this is the classic “Finality v. Fairness” battle that death penalty cases so often come down to.  And the importance of “finality” has been inflated out of all proportion.  While “finality” is necessary to ensure that justice is done, the state is also charged with ensuring “fairness” (and accuracy) in its pursuit of that justice.

(It should be noted that long prison sentences usually provide far more real ”finality” than death sentences, which are frequently overturned, sometimes re-instated, and mostly never carried out.)

Yet too often in death penalty cases the state (and the courts) seem to care only about “finality”.  Appeals with valid claims are rejected on technical grounds, and reasonable requests to test new evidence are aggressively resisted.  Even proof of actual innocence is no bar to the “finality” of an execution (though, depending on how the Troy Davis case turns out, that may change).  The result of all this, inevitably, is the execution, or near-execution, of the innocent and the undeserving.  The state of Texas should balance its enthusiasm for finality with a genuine commitment to fairness, and let all the evidence in Hank Skinner’s case be tested.

Last year ended with the news of a record low number of death sentences, and with the decision by the American Law Institute, described today in the New York Times, to give up trying to fix our broken capital punishment system.  The Institute, a collection of thousands of judges, lawyers and law professors, is very influential, in that it creates model penal codes which often serve as the basis for the real-life laws under which we live.  

The Institute created the “modern” death penalty system that the US Supreme Court endorsed in 1976.  But a report detailing factors we are already all too familiar with – persistent racial bias, inadequate defense, wrongful convictions, and a politicized judiciary – caused the Institute to vote to abandon capital punishment, citing “… intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”  

This doesn’t mean that the death penalty in the US will suddenly cease to exist; the deliberate and thoughtful analysis of the American Law Institute will not have an immediate impact in states where killing prisoners is routine and done without much thought at all.

Executions will continue.  Three in fact, will occur on Thursday.  While the usual suspects, Texas and Ohio, plan to execute Kenneth Mosley and Vernon Smith (aka Abdullah Sharif Kaazim Mahdi), Louisiana also has an execution scheduled on that day - its first in almost 8 years.  Gerald Bordelon has “volunteered” to be executed.  The next day, January 8, South Carolina will execute Quincy Allen.  He, too, is “volunteering,” and has asked to be put to death by electrocution.  The state will oblige him.

UPDATE: The state of South Carolina will NOT oblige Quincy Allen’s volunteering to be electrocuted.  The South Carolina Supreme Court has stayed his execution.

Source: Texas Coalition to Abolish the Death Penalty

It’s always nice to hear good news about the decline of the death penalty, and even nicer when that news is coming out of Texas. According to a recent report, while Texas officials continue to carry out executions at a high rate, the number of Texas juries that opt for the death penalty has dropped remarkably in recent years. In 1999, Texas sentenced 48 prisoners to death, but over the last decade that number has plummeted; so far in 2009, only 9 death sentences have been meted out. The drop has come about partly because a life-without-parole option has reassured juries that convicts will never be released, partly because in a troubled economy the sky-high financial costs of the death penalty are particularly daunting, and mostly because of what Texas state Senator Eddie Lucio Jr.,  calls “a growing lack of belief that our system is fair.”

Well-publicized exonerations, some based on irrefutable DNA evidence, have woken many Texans up to the reality that the legal system is often quite flawed, and more and more jurors are unwilling to risk being complicit in the execution of an innocent person. Tarrant County’s lead criminal prosecutor, Alan Levy, has said that said groups like the Innocence Project have done an excellent job of raising the profile of innocent convicts, and have made sure that the topic of wrongful conviction (and potential wrongful execution) is not forgotten.

With the year (and by some definitions the decade) drawing a close, it’s good to look back on the progress that has been made toward an end to the death penalty. While there were more executions this year than last, there were still barely half as many as there were ten years ago.  And, with death sentences continuing to fall throughout “The Aughts” (or “The 2000s” or whatever this current decade will eventually be called), there should be a corresponding decline in executions over the next decade.

There were nine exonerations from America’s death rows in 2009 (including two from Texas), and there is good reason to believe that as awareness of the problems with the death penalty increase the number of death sentences will continue to drop. There is still a lot of work to be done, but with every individual realization that the death penalty is simply unacceptable we move a bit closer to total abolition.

Bobby Woods has an IQ of around 70 and is scheduled to be executed by the state of Texas on December 3.  The crime for which he was sentenced to die was heinous (he was convicted of raping and murdering an 11-year-old girl), but executing persons with mental retardation has been forbidden by the US Supreme Court since 2002.  Those with diminished mental capacity are deemed less culpable for the crimes they commit, therefore execution, for them, is a “cruel and unusual punishment.”

Since 2002 the problem, in Texas as elsewhere, has been defining what mental retardation is – most states have settled on an IQ below 70 as the main quantifiable criterion, though IQ testing is not the most exact of sciences.   The problem, for prisoners like Woods, is that proving a sufficiently diminished mental capacity, as with most other facets of our capital punishment system, requires a good lawyer.

A good lawyer Bobby Woods did not have.  As the Texas Observer points out, in 10 years of representation both at trial and on appeals, Woods’ lawyer visited him exactly one time.  Unable to raise a mental retardation claim with the courts at this late stage, Woods’ new attorney, Maurie Levin, must rely on the good graces of the Texas Board of Pardons and Paroles, and Governor Rick Perry, to commute his sentence, or at least to grant a 60 day reprieve to allow Levin more time “to adequately present a full picture of his limitations.”

The Observer piece, with links to videos and excerpts from letters, does a pretty good job of presenting such a picture.

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.

Also this week, Danielle Simpson requested that his sentence be commuted to life in prison or that he be given a  180-day reprieve to appeal his case. Frustrated with life behind bars, Simpson had previously stated that he did not want to wait around to be executed, and so was considered a “volunteer.” Despite the alarming injustice of denying someone who has given up on appealing a death sentence a chance to reconsider, and despite claims that he suffered from “debilitating mental illness,” his requests were denied and Simpson was executed Wednesday evening. He thus became the 29th “volunteer” Texas has executed (around 6 and a half percent of all Texas executions), and the 134th “volunteer” executed in the US since the resumption of executions in 1977 (representing over 11 % of all executions).

As the week draws to a close, all eyes will be on Texas Governor Rick Perry as he decides the fate of Robert Thompson. Please contact Governor Perry and urge him to follow the advice of Texas Board of Pardons and Paroles by commuting Thompson’s sentence to life in prison.

UPDATE:  Governor Perry rejected the recommendation of the Texas Board of Pardons and Paroles, and the execution of Robert Thompson was carried out as scheduled.

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.