Texas

Texas

Supreme Court Grants Relief to Duane Buck in Texas Racial Bias Death Penalty Case

Saying that the "law punishes people for what they do, not who they are," the Supreme Court on February 22, 2017, granted relief to Duane Buck (pictured, right), a Texas death-row prisoner who was sentenced to death after his own lawyer presented testimony from a psychologist who told the jury Buck was more likely to commit future acts of violence because he is black. Writing for the six-Justice majority, Chief Justice Roberts (pictured, left) said that "[d]ispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle." Buck's case turned on the legal question of whether his lawyer had provided ineffective assistance. The Court left no doubt on the issue. Chief Justice Roberts wrote that "[n]o competent defense attorney would introduce such evidence about his own client." Despite counsel's deficient representation, the lower federal courts had refused to intervene, asserting that the references to race in the case had been brief and would have had only minimal, if any, effect on the jury's sentencing decision. The Chief Justice squarely rejected that conclusion, writing: "when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses." The Court explained that stereotyping black men as somehow more violence-prone than others is a "particularly noxious strain of racial prejudice." Buck's attorney, Christina Swarns, who had argued the case before the Court in October 2016, said “Today, the Supreme Court made clear that there is no place for racial bias in the American criminal justice system.” The decision, she said, reaffirms "the longstanding principle that criminal punishments—particularly the death penalty—cannot be based on immutable characteristics such as race.” Justice Clarence Thomas, joined by Justice Samuel Alito, dissented.

EDITORIALS: New York Times Hails Prosecutors' Changing Views on Death Penalty

In a February 6 editorial, The New York TImes hails the reform efforts of the "new generation" of state and local prosecutors who are working to change the United States' criminal justice system, and especially the use of the death penalty. The Times highlights the comments of two newly elected local prosecutors, Beth McCann, the new prosecutor in Denver, Colorado, and Kim Ogg, the new district attorney in Harris County, Texas. McCann has said her office will not seek the death penalty because she does not think "that the state should be in the business of killing people." Ogg has pledged that there will be “very few death penalty prosecutions" during her tenure as district attorney. The Times also notes the leadership of state elected officials, pointing to Washington state, where current Democratic Attorney General, Bob Ferguson, and his Rebulican predecessor, Rob McKenna, are jointly supporting a death penalty repeal bill. "Prosecutors aren’t just seeking fewer death sentences; they’re openly turning against the practice, even in places where it has traditionally been favored," the editorial states, citing the historically low number of death sentences in 2016. Emphasizing the influence of these state and local officials, it calls the role of prosecutor, "one of the most powerful yet least understood jobs in the justice system." Their role is especially critical as national leaders present a "distorted ... reality of crime in America" in support of a "law and order" agenda, the Times says. "In these circumstances, the best chance for continued reform lies with state and local prosecutors who are open to rethinking how they do their enormously influential jobs."

Federal Court Stays Texas Execution After Appeal Lawyer Abandons Prisoner

Texas federal appeals court has upheld the ruling by a U.S. district court judge to stay the execution of John Henry Ramirez, who had been scheduled to be executed in Texas on February 2. The District Court had ruled that Ramirez was entitled to a stay so new lawyers could seek clemency on his behalf after Michael Gross, the lawyer initially appointed to represent Ramirez in his state and federal habeas corpus proceedings, had failed to file a clemency petition and left Ramirez "effectively without counsel" at the time of his death warrant. The court did not rule on a second issue alleged by Ramirez's new counsel, that Gross had an inherent conflict of interest in the case because he had provided ineffective representation in state court and could not be expected to litigate his own ineffectiveness as part of the federal habeas corpus proceedings. After the federal courts denied his habeas petition, Ramirez informed Gross that he wanted to replace him as counsel, and asked him not to file a clemency petition because he wanted his new attorney to do that. The district court held that "Gross had a duty to either (1) inform the Court of his client’s wishes and seek the substitution of new counsel or (2) ensure that a clemency petition was filed on his client’s behalf. Gross did neither. Gross’ inaction prevented judicial consideration of whether the circumstances required the substitution of counsel." The court also noted that Gross had previously failed to file key motions in the death penalty case of John Battaglia, requiring the courts to issue a stay of execution in December 2016 in that case. In Battaglia's case, Gross had refused to filed a state competency petition, saying that fell "outside the scope" of his representation. The Texas Attorney General's Office appealed Ramirez's stay to the U.S. Court of Appeals for the Fifth Circuit, arguing that Gross's action constituted "gamesmanship," not abandonment. A three-judge panel of the court disagreed and dismissed the state's motion to vacate the stay. 

Texas Sought Execution Drugs from Company Raided by India for Illegal Drug Sales

A BuzzFeed News investigation reports that Texas sought to import execution drugs from a supplier in India that the Indian Narcotics Control Bureau shut down for allegedly selling psychotropic drugs and opioids illegally to customers in the United States and Europe. A Drug Enforcement Agency report from January 2015, obtained by BuzzFeed, indicates that Texas was in contact with an Indian drug supplier, Provizer Pharma, to obtain lethal injection drugs, just weeks before Indian narcotics control agents raided Provizer Pharma for the illegal sale of generic Xanax, generic Ritalin, opiods, and other drugs. Hari Om Gandhi, a regional director with the Indian Narcotics Control Bureau, said the drugs—which Indian court documents allege were being illegally sold online—are used medically "for relieving stress ... [, but] are also used as party drugs, as it stimulates senses.” Five Provizer Pharma partners were arrested and detained for nine months for violating India’s Narcotic Drugs and Psychotropic Substances Act and the company's facility was shut down after what the Narcotics Control Bureau described as "a significant sezure" of illegal drugs. The DEA investigative report states that Texas "will be importing" 500 to 1,000 grams of sodium thiopental, which it "will be importing from the following supplier: Provizer Pharma." The Texas Department of Criminal Justice has issued a statement saying that the state has never “engaged in any transaction” with Provizer Pharma. Sodium thiopental was widely used in executions before its U.S. manufacturer halted production because it objected to the use of its medicine in executions. Shortly after the deal with Provizer Pharma fell through, Texas purchased sodium thiopental from another Indian company, Harris Pharma, but the shipment was halted by the Food and Drug Administration. Texas recently filed suit against the FDA to have the drug shipment released, but the FDA is under a federal court order to block importation of sodium thiopental. 

Texas Prisoner Seeks Stay of Execution Based on Claims of Innocence, Discriminatory Jury Selection, Junk Science

Alleging wrongful prosecution, Texas death row prisoner Terry Edwards (pictured), who is scheduled for execution on January 26, is seeking a stay of execution and an opportunity to present new evidence that his case was tainted by racially-discriminatory jury selection, prosecutorial misconduct, and false and misleading forensic testimony. Edwards was prosecuted by Dallas County assistant district attorney Thomas D'Amore, who, the defense says, was lead prosecutor in at least three other cases in which defendants were exonerated after similar misconduct was disclosed. The Dallas DA's office fired D'Amore in 2006. Edwards, who had no prior history of violence, says that he was not the triggerman in a robbery-murder that prosecutors say he committed with his cousin, and that the prosecution presented false expert testimony to bolster its claim that he was the killer. The cousin—who has an extensive history of violent recidivism—was charged with both murders but then permitted to plead guilty to only robbery, and is now eligible for parole. A state forensic analyst initially testified that no gunshot residue was detected on Edwards' hands when they were tested immediately after the crime. She changed her testimony on cross-examination, stating that one of three chemical elements associated with gunshot residue was found on Edwards hands and that he could have sweated or wiped away the other two. A former FBI agent who later reviewed the case has called that explanation "scientifically unsupportable," explaining that the components of gunshot residue increase or decrease together, and that particles from gunshot residue contain at least two of the three elements that are tested, making it impossible to wipe away two of the elements without wiping away the third. D'Amore and the same state forensic analyst were involved in the 1995 trial of Richard Miles, who was exonerated in 2012 after his lawyers found similar flaws in the analyst's forensic testimony. Defense lawyers also contend that D'Amore withheld evidence that eyewitnesses saw Edwards’ cousin inside the restaurant at the time of the murders and fleeing out the front door. Citing evidence strikingly similar to that presented in the recent Supreme Court case Foster v. Chatman, Edwards' lawyers also argue that his conviction by an all-White jury was the unconstitutional product of racial discrimination.

Texas Court Orders Release of Former Death Row Prisoner Who Spent 32 Years in Prison Without a Valid Conviction

A Texas Court of Appeals ruled on January 19, 2017 that all charges against Jerry Hartfield should be dismissed with prejudice after the state had kept the intellectually disabled former death row prisoner in prison for 32 years without retrying him after his conviction had been overturned. Calling the situation a "criminal judicial nightmare," the court ruled that the three-decade delay in trying Hartfield violated his constitutional right to a speedy trial. Hartfield had been convicted and sentenced to death for a 1976 murder, but in 1983, the Texas Court of Criminal Appeals overturned his conviction and death sentence because a juror in his case had been improperly excluded. Hartfield, an illiterate man with an IQ of 51, believed he was awaiting retrial, but prosecutors were working to render the court's ruling moot under Texas law by having the governor commute his sentence to life. However, they failed to do so in the time period prescribed by law, and then-Governor Mark White's order attempting to commute Hartfield's former death sentence to life without parole was without legal effect. Hartfield's attorneys did nothing further because they believed they were done with the case. In 2006, a fellow prisoner helped Hartfield begin filing motions in his case. In 2013, the Texas Court of Criminal Appeals told him his motions were improperly filed because the provision under which he sought review applied only to people who had been convicted. At that point, he refiled his claims saying he was improperly incarcerated without a conviction, and finally got a new trial. Hartfield's new lawyers then asked for the charges to be dismissed because he had not received a speedy trial, but prosecutors successfully persuaded the trial court that Hartfield himself was partly to blame for the delay. In 2015, he was retried, convicted, and sentenced to life in prison. If his sentence were counted from his first trial, his 38 years in prison would have made him eligible for parole. He appealed his conviction, once again arguing that his constitutional right to a speedy trial had been violated, and a Texas Court of Appeals agreed, noting that there was precedent for a delay of as many as eight years, but not 32. Prosecutors may appeal the ruling to the Texas Court of Criminal Appeals. David R. Dow of the University of Houston Law Center, one of the lawyers who represented Mr. Hartfield on appeal, described Hartfield's case as, “the perfect storm of everything that could go wrong with the criminal justice system.”

Texas Set to Execute Christopher Wilkins Despite Lawyers' Conflicts of Interest

Christopher Wilkins (pictured) is scheduled to be executed in Texas on January 11, even as he has a petition pending before the U.S. Supreme Court arguing that he has been improperly denied the opportunity to develop and present evidence that he suffers from significant cognitive deficits. Wilkins' Supreme Court petition asserts that his trial lawyer, Wesley Ball, who later withdrew from the case because of a potential conflict of interest, barely conducted any investigation into the case until just before jury selection and ignored a recommendation from a defense psychologist that Wilkins' mental functioning should be evaluated because he suffered from several cognitive deficits and was exposed to LSD as as a child, in addition to having other risk factors for brain damage. Wilkins' state post-conviction lawyer, Jack Strickland—who was responsible for investigating and presenting new evidence in the case—accepted a position with the prosecutor's office while representing Wilkins before filing a habeas application for Wilkins that only presented claims that had been procedurally barred or that were not reviewable. Wilkins repeatedly tried to fire Strickland but the state court refused to appoint new counsel and dismissed Wilkins' habeas petition. The federal district court judge then refused to provide Wilkins' federal lawyer funding to investigate his case, gave him only 45 days to prepare his federal habeas petition, and then denied the petition because Wilkins had not presented the evidence he says an investigation would have developed. When Wilkins' current lawyer filed a new petition in state court, the Texas courts refused to consider it, saying the evidence should have presented in his first habeas petition. Judge Elsa Alcala of the Texas Court of Criminal Appeals dissented, writing that Strickland "appears to have wholly failed to act as counsel" for Wilkins, and that the defective petition Strickland filed should have been considered "a nullity." Wilkins' petition in the United States Supreme Court argues that federal law entitles him to investigative and expert services that are "reasonably necessary" to assist him in developing the factual basis for his habeas corpus claims, and that the Texas federal court rulings denying him that assistance are out of step with the practices of other federal circuits. If Wilkins is executed, he will be the first person executed in the United States in 2017. [UPDATE: The U.S. Supreme Court denied Wilkins' petition for writ of certiorari and motion for stay of execution on January 11 and Texas executed him that evening.]

Texas Sues Food and Drug Administration Over Seizure of Execution Drugs

The Texas Department of Criminal Justice filed suit on January 3, 2017 against the federal Food and Drug Administration (FDA) over the FDA's continued detention of drugs Texas had attempted to import for executions. In October 2015, Texas and Arizona attempted to import sodium thiopental, an anesthetic commonly used in executions prior to 2010, from Harris Pharma, a supplier in India. The FDA halted both shipments, saying that their import violated federal law. The FDA does not comment on litigation, but has previously said that sodium thiopental has no legal uses in the United States. The agency has indicated in the past that an injunction issued by a federal district court in Washington in 2013, and which later was upheld by the United States Court of Appeals for the District of Columbia Circuit, requires it to halt importation of the drug. No U.S. manufacturer currently produces sodium thiopental, and so the drug is unavailable from domestic sources. Texas argues that the drug should be allowed to be imported under a "law enforcement exemption" to usual importation rules. In a statement about the lawsuit, Texas Attorney General Ken Paxton attacked the agency, saying "[t]here are only two reasons why the FDA would take 17 months to make a final decision on Texas’ importation of thiopental sodium: gross incompetence or willful obstruction." Texas has used an alternative drug, pentobarbital, in executions since 2012. A spokesman for the Texas Department of Criminal Justice said, "We cannot speculate on the future availability [of] drugs, so the agency continues to explore all options including the continued use of pentobarbital or alternate drugs to use in the lethal injection process."

Pages