Texas

Texas

NEW VOICES: Retired Judges Support Death Row Inmate's Appeal

In a brief filed with the U.S. Supreme Court, eight retired judges recently asked the Court to review the case of Texas death row inmate Rodney Reed. Reed is scheduled to be executed in January 2015. While the judges, who served on federal and state courts in many jurisdictions around the country, did not take a stance on Reed's innocence claims, they urged the Court to hear his appeal so that new evidence in the case could be examined under the light of cross-examination in a full hearing, rather than just through the review of legal papers. "That is not how our system of justice is designed to operate," the judges said. "When courts have only affidavits without witness testimony, they lack the means of testing the accuracy, reliability, competence, scientific acumen, proper training and judgment of the [person testifying]." Reed is claiming that his trial lawyers did not adequately investigate forensic evidence that experts now say might be unreliable. A three-judge panel of the U.S. Circuit Court of Appeals for the Fifth Circuit rejected Reed's appeal because they found the new testimony unpersuasive as presented in appellate briefs. The eight judges who petitioned the Supreme Court said the evidence should have been heard by a district judge in an evidentiary hearing, rather than by the appeals court. "Trial courts are the appropriate venue for developing a factual record and resolving questions of fact," they said. See list of judges below.

Texas Bar Taking Action Against Prosecutor in Innocence Case

The State Bar of Texas has found "just cause" to pursue disciplinary action against prosecutor Charles J. Sebesta, whose conduct in the trial of Anthony Graves (pictured) resulted in a wrongful conviction and death sentence. Sebesta, the District Attorney of Burleson County, did not inform Graves' attorneys that the main witness against Graves had confessed to the crime. Graves spent over 18 years in prison, 12 of them on death row, before being exonerated in 2010. Kathryn Kase, Executive Director of the Texas Defender Service and counsel to Graves, said, "A prosecutor’s duty is not simply to secure convictions, but to see that justice is done. Conviction of an innocent man like Mr. Graves through prosecutorial misconduct is abhorrent and undermines public trust and confidence in the Texas justice system. The way to restore that trust and confidence is to hold prosecutors like Charles Sebesta accountable when they violate their legal and ethical obligations."

Texas Inmate Held for Over 30 Years With No Conviction May Be Retried

A retrial date of Sept. 22 has been set for Jerry Hartfield, who has been held without a valid conviction in Texas for over 30 years. Hartfield was convicted of murder in 1977 and sentenced to death. His conviction was overturned in 1980 due to an improperly selected jury, and the appeals court ordered a new trial, but that was never held. Gov. Mark White attempted to commute his sentence in 1983, but without a conviction, the commutation was invalid. In 2013, the Texas Court of Criminal Appeals ruled that "The status of the judgment of conviction is that Petitioner is under no conviction or sentence." A federal court called Texas's defense of Hartfield's unlawful incarceration "disturbingly unprofessional." The new trial judge scheduled a July 2 hearing to consider a request from prosecutors to conduct psychological testing on Hartfield, who is described in court documents as "an illiterate fifth-grade dropout with an IQ of 51." The Matagorda County District Attorney has offered Hartfield a deal to plead guilty, accept a life prison term and avoid a potential death sentence if he waives all rights to future appeals. Hartfield's lawyers assert that his right to a speedy trial has been violated.

A Turn-Around in Texas's Use of Death Penalty

A recent op-ed by Jordan Steiker, endowed professor of law and Director of the Capital Punishment Center at the University of Texas, highlighted the declining use of the death penalty in that state. AlthoughTexas leads the nation in executions, death sentences and executions per year have dropped sharply since the 1990s. Prof. Steiker wrote, "In 1999, Texas juries returned an astounding 48 death sentences. Since 2008, however, Texas has annually sent fewer than 10 defendants to death row.  Executions in Texas have declined as well, from a high of 40 in 2000 to fewer than 20 since 2010." While describing the "perfect storm" of conditions that led to Texas's high use of capital punishment in the past, the op-ed also noted changes that have led to less death-penalty use, such as the creation of a statewide defender's office to represent death-sentenced inmates in state post-conviction and the broader disclosure of evidence to the accused. Prosecutors have increasingly accepted plea agreements to life imprisonment without possibility of parole, saving taxpayer dollars that would have been spent on expensive capital trials and appeals.

Recent Lethal Injection Developments in Texas, Missouri, and Indiana

As states continue to seek alternative drugs and drug sources for lethal injections, three significant developments occurred last week. Indiana announced recently that they would use Brevital, an anesthetic, as the first drug in its three-drug protocol. On May 27, Par Pharmaceutical, the producer of Brevital, released a statement announcing efforts to prevent the use of their product in executions. The statement said, "The state of Indiana’s proposed use is contrary to our mission. Par is working with its distribution partners to establish distribution controls on Brevital® to preclude wholesalers from accepting orders from departments of correction." On May 29, Missouri Attorney General Chris Koster gave a speech in which he suggested that the state of Missouri begin producing execution drugs. Missouri has had difficulty obtaining lethal injection drugs and faced challenges to its lethal injection secrecy law. Koster said that state production of the drugs would increase transparency, adding, "As a matter of policy, Missouri should not be reliant on merchants whose identities must be shielded from public view or who can exercise unacceptable leverage over this profound state act.” Missouri would be the first state to set up a state-operated lab for producing execution drugs. In Texas, Attorney General Greg Abbott issued an order defending secrecy for lethal injection drug sources. The statement represents a reversal for the Attorney General, who had previously rejected arguments from the Department of Criminal Justice that secrecy was necessary.

Texas Execution Stayed Over Intellectual Disability Claim

The U.S. Court of Appeals for the Fifth Circuit stayed the execution of Robert Campbell just hours before he was scheduled to be executed in Texas on May 13, granting him permission to file a new petition on his claim of mental retardation. If Campbell is intellectually disabled, he is barred from execution by the Supreme Court's 2002 ruling in Atkins v. Virginia. The unanimous three-judge panel noted that Texas authorities had withheld IQ test results from Campbell and misled his attorneys: "Throughout this litigation in the state and federal courts regarding Campbell’s ability to assert an Atkins claim on the merits, the State never disclosed that it was in possession of evidence of three intelligence tests suggesting that Campbell was intellectually disabled." State files contained the results of IQ tests including one from Campbell's childhood, with a score of 68, and one from shortly after his arrival on death row at age 19, with a score of 71. Robert Owen, an attorney for Campbell, said, "It’s very clear now that the evidence strongly supports the diagnosis of mental retardation for Mr. Campbell, and it might be best for everyone for the state to give up its pursuit of executing him and resolve this case by reducing his death sentence to life imprisonment rather than face the prospect of months or years of further litigation."

Support for Death Penalty Declines in Houston, Texas, As Population Diversifies

SUPPORT AMONG HOUSTON RESIDENTS FOR ALTERNATIVES TO DEATH PENALTY

A recent survey by the Kinder Institute of Houston, Texas, found that more than two-thirds (69%) of area residents preferred alternative sentences over the death penalty, and that number is growing as the population becomes more diverse. The survey asked whether persons convicted of first-degree murder should receive a death sentence, life in prison without parole, or life with the possibility of parole after 25 years. Only 28% of respondents chose the death penalty. Life without parole was the most popular option, receiving 39% support, while life with the possibility of parole was second with 29%. Just four years ago, combined support for alternative sentences was only 54%. The Kinder report noted that in the past three decades the Houston area has been transformed "into the most ethnically and culturally diverse large metropolitan region in the nation." Whites now constitute a minority in every age demographic except those 65 and older. This growing diversity may be a factor in changing attitudes about the death penalty, as public opinion polls consistently show lower support for the death penalty among blacks and Latinos than among whites. In the past, Harris County (Houston) had produced more executions than any other U.S. county, but in recent years there has been a dramatic decline in death sentences.

Supreme Court to Review Death Penalty Case Involving Ineffective Representation

On March 24, the U.S. Supreme Court agreed to hear arguments in Jennings v. Stephens (No. 13-7211), a Texas death penalty case involving ineffectiveness of counsel. In his request for federal relief from his death sentence, Robert Jennings cited three instances in which his trial lawyers failed to adequately represent him. A U.S. District Court granted him relief on two of those claims (including failure to present evidence of his mental problems), while denying the third (his own lawyers told the jury they agreed he was eligible for the death penalty). Texas appealed the District Court's grant of relief on the first two claims to the U.S. Court of Appeals for the Fifth Circuit, which then held they could not consider Jennings' third claim of ineffective representation because his lawyers failed to file formal appeal papers on that claim. Jennings' attorneys maintain that no such filing was required since the Fifth Circuit was already reviewing the general issue of ineffectiveness of counsel at the state's request. The case may be set for argument in the fall.

Pages