Arbitrariness

Texas Case Raises Questions of Fairness of Executing Accomplices

Texas plans to execute Joseph Garcia on December 4, 2018, for the murder of a police officer during a robbery in which Garcia neither killed anyone nor intended or expected that a killing would take place. His case renews questions about a Texas law called the “law of parties” that allows defendants to be sentenced to death based upon the actions and intent of others, if the defendant played even a small role in a crime that resulted in someone’s death.

Garcia was one of the “Texas 7,” a group of men who escaped from a maximum-security Texas prison on December 13, 2000. After escaping, the men robbed a sporting goods store, where some of the men were confronted by police officer Aubrey Hawkins. Garcia graphically described the robbery in a radio interview with David Martin Davies for the Texas Public Radio program, Texas Matters. Garcia admitted to participating in the escape and the robbery but insisted he never fired his gun and was still inside the store when he heard gunfire break out. He tried to stop the shooting, and during the confusion in which Officer Hawkins was killed, Garcia himself came under fire by others in the group. “I don't know what caused them to start firing at the officer. By the time I got out there on the back dock, it was over,” he said.

Under Texas’s law of parties, accomplices who participated in one felony can be held responsible for other felonies committed by other participants. Since Garcia participated in robbing the store, he was eligible to be charged with the capital murder of Officer Hawkins, whether or not he fired a gun. In the Texas Matters interview from death row, Garcia questioned the reasoning behind his death sentence. “Why am I here? Why am I on death row? You know, I don't get it,” Garcia said. “Why are you trying to kill me for the actions of somebody else?”

Texas Rep. Harold Dutton (D – Houston) has filed legislation to end the law of parties. “We shouldn’t use the law of parties to convict anybody of capital murder,” he said. “I think we ought to reserve that for the person who actually did the murder.” Garcia’s lawyers have challenged the constitutionality of executing a person who neither killed nor intended that a killing take place. Texas prosecutors have argued that the Supreme Court should not hear the issue because Garcia’s prior lawyers should have raised the issue years ago. Three of the Texas 7 have already been executed, and a fourth killed himself to avoid capture.

Prominent, Diverse Voices Call for Supreme Court to Once Again Stop Bobby James Moore’s Execution

Twenty months after the Unites States Supreme Court unanimously struck down Texas’s non-scientific standard for evaluating intellectual disability in death penalty cases, the landmark case in which it made that decision is back before the Court. On December 7, 2018, the Court will conference Moore v. Texas, to decide if it will review whether the Texas Court of Criminal Appeals (CCA) once again unconstitutionally relied on lay stereotypes and non-clinical criteria in rejecting Bobby James Moore’s claim that he is not subject to the death penalty because he is intellectually disabled. A diverse group of prominent voices, including the district attorney’s office that originally prosecuted Moore, argue that Moore clearly satisfies the clinical definitions of intellectual disability and may not be executed.

Sentenced to death more than 38 years ago, Moore has a long history of intellectual and adaptive impairments that have been documented since his childhood, including IQ scores ranging from the low 50s to the low 70s. The American Psychological Association and American Bar Association filed briefs on November 7 supporting Moore’s claim and the urging the Supreme Court to again reverse the Texas court. They were joined by a group of prominent conservatives—including former Solicitor General Kenneth Starr, Congressman Bob Barr, conservative strategist Richard Viguerie, and David A. Keene, the longtime chair of the National Conservative Union, among others—whose brief, also filed November 7, described the Texas court’s decision as a threat to the integrity of the judicial process. They wrote: “Quoting a Supreme Court decision highlighting the errors made by the CCA in its previous review of this case, but proceeding to make those same errors on remand, is inimical to the rule of law.”

Moore initially presented his claim that he is intellectually disabled and therefore ineligible for the death penalty under the 2002 U.S. Supreme Court ruling Atkins v. Virginia to a Harris County, Texas trial court. Following contemporary medical diagnostic criteria, the court agreed that Moore was intellectual disabled and ruled that his death sentence should be vacated. However, the Texas Court of Criminal Appeals reversed, applying an idiosyncratic standard based on unscientific stereotypes, including the behavior of a fictional character from the novel Of Mice and Men. After the U.S. Supreme Court reversed and remanded for a new decision “informed by the medical community’s diagnostic framework,” the Harris County District Attorney’s office conceded that Moore qualified as intellectually disabled. Nonetheless, in a ruling three dissenters criticized as an “outlier,” a sharply divided (5-3) Texas Court of Criminal Appeals in June 2018 again upheld Moore’s death sentence.

In a November 28 op-ed in The Washington Post, Starr, who served as United States Solicitor General under President George H.W. Bush from 1989-1993, urged the Supreme Court to “save[] Bobby Moore from execution … again.” Starr wrote, “The job of a judge is to follow the law … [and] carefully apply the precedent of the Supreme Court. … If the system were working as it should, Moore’s case would have been a routine matter of the Texas court applying the Supreme Court’s decision and current medical standards as directed and prohibiting Moore’s execution.” Quoting then-U.S. appeals court Judge Brett M. Kavanaugh, Starr said: “As a lower court in a system of absolute vertical stare decisis headed by one Supreme Court, it is essential that we follow both the words and the music of Supreme Court decisions.”

Special Olympics Chairman Timothy Shriver also asked the Supreme Court to block Moore’s execution. In a November 19 op-ed in the Los Angeles Times, Shriver criticized the Texas court’s reasoning as “absurd, wrong and harmful.” “But most important,” Shriver wrote, the standard the court applied was “not how the medical community diagnoses intellectual disability…. Pervasive stereotypes about intellectual disability are inaccurate and harmful. In this Texas court case, they are a matter of life or death. Let’s finally recognize the complexity of people with intellectual disability,” Shriver said. “The world will be much richer for it.”

Texas Court of Criminal Appeals Upholds Death Sentence Based on False Psychiatric Testimony

For the second time in less than six months, the Texas Court of Criminal Appeals (TCCA) has upheld a death sentence that the trial court, lawyers for the prosecution and defense, and mental health experts all agree should not be carried out. On November 21, 2018, in an unpublished and unsigned opinion that misspelled death-row prisoner Jeffery Wood's name, the court rejected a recommendation by the Kerr County District Court to overturn Wood’s death sentence and grant him a new sentencing trial. The trial court had found that Wood’s death sentence was the unconstitutional by-product of “false or misleading testimony” and “false scientific evidence” by Dr. James Grigson, a discredited psychiatrist who had been expelled from state and national professional associations for his unethical practices in predicting a defendant’s future dangerousness.

Grigson, whose testimony for the prosecution in more than 100 death penalty cases earned him the nickname “Dr. Death,” had been expelled by the American Psychiatric Association and the Texas Society of Psychiatric Physicians for providing scientifically invalid guarantees that defendants he had never personally examined would commit future acts of violence if spared the death penalty. Grigson never personally examined Wood, and the jury was not told that Grigson’s practice violated professional ethical norms and had led to his expulsion from the psychiatric associations. Nonetheless, over the dissent of two judges, the TCCA ruled that Grigson’s testimony did not materially affect the jury’s decision to sentence Wood to death.

Wood’s case received national attention before his August 24, 2016 execution date was stayed, because he was convicted under Texas’ law of parties despite his minimal involvement in the crime. Wood was the getaway driver in a gas station robbery. His co-defendant, Daniel Reneau, shot and killed the store clerk while Wood was sitting outside in the car. “I’m not aware of another case in which a person has been executed with as minimal participation and culpability as Jeff,” said Jared Tyler, Wood's attorney. “It’s a national first in that regard if the state does actually execute him.” In response to the Texas Court of Criminal Appeals’ decision to reject Wood’s appeal, Tyler said, "The decision to let stand a death sentence based on false expert testimony can only erode public confidence in Texas's criminal justice system. This is particularly so given that all the parties agree that Mr. Wood's death sentence is disproportionate."

Wood’s case is also unique because of statements made by the prosecutor who tried his case. Kerr County District Attorney Lucy Wilke asked the Texas Board of Pardons and Paroles to grant clemency for Wood, saying that his death sentence was disproportionate and that she was unaware of Dr. Grigson’s expulsion from psychiatric associations at the time of Wood’s trial. "Had I known about Dr. Grigson’s issues with said organizations, I would not have used him as the State’s expert witness in this case on the issue of future dangerousness,” Wilke wrote in a letter to the board. She later indicated that she would not seek to resentence Wood to death if his death sentence were overturned. Conservative and evangelical leaders and the editorial boards of major national and Texas newspapers also supported Wood’s plea for clemency in 2016.

Indiana Defendant Files Broad Challenge Seeking to Strike Down State's Death Penalty

Lawyers for Marcus Dansby (pictured), a defendant facing capital murder charges in Allen County, Indiana, have filed a motion asking the trial judge to declare Indiana's death penalty unconstitutional and to bar prosecutors from seeking death in his case. In pleadings submitted to the court on October 30, 2018 in support of Dansby's Motion to Declare Indiana's Capital Sentencing Statute Unconstitutional, lawyers Michelle Kraus and Robert Gevers allege that systemic defects in the administration of capital punishment from the pre-trial stage through state and federal review violate due process, the right to a jury trial, and state and federal constitutional prohibitions against cruel and unusual punishment. In a separate motion, he seeks to bar the use of the death penalty in his case based on his age at the time of the offense.

Relying on Indiana murder and execution data over a 26-year period between 1990 and 2015, Dansby's motion argues that the state's death penalty "is imposed arbitrarily and capriciously, with an inappropriately high risk of discrimination and mistake." Kraus and Gevers allege that, even with prosecutors seeking death sentences in only one out of every 129 homicides from 2006 thru 2015 and executions occurring in only one out of every 535 homicides during the 26-year study period, the state's prosecutors are not "engaging in a careful winnowing process to identify the 'worst of the worst' offenders and offenses for capital charging" and "the worst murderers and worst murders do not result in death sentences." Instead, the motion argues, "geography, quality of defense representation and race" disproportionately determine who is sentenced to death. Kraus told The (Fort Wayne) Journal Gazette that the filings were a necessary part of her client's defense, adding, "Across the nation, I think we're seeing more and more the death penalty is falling out of favor." Two state supreme courts have recently declared death penalty statutes unconstitutional: Delaware in 2016 and Washington in October 2018, and a Kentucky trial court found the death penalty unconstitutional for offenders younger than age 21 in 2017.

Florida Supreme Court Upholds Death Sentence Imposed in Violation of State and Federal Constitutions

The Florida Supreme Court has upheld the death sentence imposed on William Roger Davis, III (pictured), even though Davis's death sentence violates both the Florida and federal constitutions. In a decision issued on October 25, 2018, the court refused to redress the unconstitutionality of the death sentence—imposed by a trial court judge after a bare 7-5 majority of jurors had recommended death—ruling that during post-conviction proceedings before the trial court, Davis had waived review of all claims relating to his conviction and death sentence. The appeals court held that this waiver barred Davis from renewing his challenge to the unconstitutional sentencing process on appeal.  

Davis was convicted and sentenced to death in Seminole County (Tallahassee) for an October 2009 murder, kidnapping, and sexual battery. After hearing Davis accept responsibility for the crime and testify about his mental state when it occurred, five jurors recommended that he be spared the death penalty. However, at the time of trial, Florida was one of only three states that permitted judges to impose a death sentence based upon a less than unanimous jury vote for death, and its death-penalty statute directed the trial court to make its own independent findings of fact, independently weigh aggravating and mitigating circumstances, and impose a sentence of life without parole or death. The Florida Supreme Court upheld Davis's death sentence, and in January 2016, one year after his conviction became final, the United States Supreme Court struck down Florida's sentencing procedures. In Hurst v. Florida, the court ruled that reserving the ultimate fact-finding on aggravating circumstances for the trial judge violated Florida capital defendants' Sixth Amendment right to trial by jury. In October 2018, the Florida Supreme Court ruled in Hurst v. State that this Sixth Amendment violation was prejudicial to a capital defendant whenever the jury had not unanimously recommended a death verdict, and it further held in Perry v. State that the Florida constitution required a unanimous jury vote for death before a judge could consider imposing the death penalty. 

In his state post-conviction proceedings, Davis's lawyers challenged the constitutionality of his non-unanimous death sentence. However, while the case was pending, Davis sought to withdraw his petition. In a letter to the judge, Davis wrote that he did not want a life sentence and did not want to subject either his family or the victim's family to a new sentencing hearing. The court found him competent to waive his rights, and—notwithstanding the invalidity of the proceedings resulting in his death sentence—dismissed all of Davis's guilt- and penalty-stage claims. The Davis case is the latest case in which so-called "volunteers"—capital defendants or death-row prisoners who have been deemed competent to waive their appeals—have been permitted to seek execution in the face of unreliable or unconstitutional death sentences. Volunteers comprise ten percent of all prisoners executed in the United States since the 1970s. On October 29, 2018, Rodney Berget—a former Special Olympics participant—became the 148th volunteer to be executed, despite evidence of intellectual disability that led national experts to conclude that he was ineligible for the death penalty.

Following Washington Death Penalty Abolition, Op-eds Encourage Other States to Follow Suit

Following the Washington Supreme Court's October 11, 2018 decision declaring the state's death penalty unconstitutional, news outlets have questioned what comes next. Op-ed writers in North Carolina, Texas, and California have responded, urging their states to reconsider their capital punishment laws. The Washington court cited racial bias, "arbitrary decision-making, random imposition of the death penalty, unreliability, geographic rarity, and excessive delays" as reasons why it struck down the death penalty. In a guest column in the Sacramento Bee, University of California Berkeley School of Law Dean Erwin Chemerinsky wrote, "California’s death penalty suffers the same flaws and likewise should be struck down." Similarly, Kristin Collins, Associate Director of Public Information at the Center for Death Penalty Litigation, wrote in a commentary for the North Carolina blog, The Progressive Pulse, "[i]f those are reasons to outlaw the death penalty, then it is surely time for the North Carolina death penalty to go." Writing in the Austin American-Statesman, University of Texas sociology professor William R. Kelly observed: "In light of the ever-present potential for error and bias, the absence of a deterrent effect and the extraordinary cost to prosecute, appeal and execute someone, we are left with the basic question: Is the death penalty worth it? It’s a question more states ought to ask."

Collins and Chemerinsky pointed to systemic problems in their respective states that they say provide reasons to repeal the death penalty or declare their capital punishment statutes unconstitutional. Collins said a September 2018 study by the Center for Death Penalty Litigation revealed that "most of the people on N.C. death row are only there because they had the bad luck to be tried under outdated laws, before there were basic legal protections to ensure fairness at their trials." "Had they been tried under modern laws," she wrote, "most wouldn’t be on death row today." Chemerinsky highlighted the lengthy delays in California's death-penalty system and the large body of evidence showing that the state's death penalty is discriminatorily applied. Quoting federal Judge Cormac Carney's summary of the state of California's death row, he wrote: "Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death." These types of problems "and the fact that the death penalty is extraordinarily expensive and does not do much to deter violent crime," Professor Kelly wrote, "may help propel other states to abolish it."

Texas Court Stays Execution of Mentally Ill Prisoner with Schizophrenia

The Texas Court of Criminal Appeals on October 19, 2018 stayed the execution of Kwame Rockwell (pictured), a severely mentally ill death-row prisoner suffering from schizophrenia, who had been scheduled to die on October 24. The court found that Rockwell had raised “substantial doubt that he is not competent to be executed” and reversed a ruling by the Tarrant County District Court that had rejected Rockwell’s competency claim without an evidentiary hearing and without providing funds for him to obtain a competency evaluation. The appeals court ordered the trial court to appoint “at least two mental-health experts” to evaluate Rockwell’s competency. On October 16, Rockwell’s lawyers had appealed the Tarrant County order arguing that the trial court had abused its discretion in rejecting his competency claim The appeal argued that Rockwell “does not understand he is to be executed,” “has no understanding that he was convicted of capital murder and sentenced to death,” and “does not comprehend that he has been incarcerated on death row since 2012 or even that he is presently incarcerated in a Texas prison.”

The U.S. Supreme Court ruled in Ford v. Wainwright (1986) that the Eighth Amendment prohibits the execution of prisoners who have become “insane”—which the Court defined as being “unaware of the punishment they are about to suffer and why they are to suffer it.” In 2007, in the Texas case of Panetti v. Quarterman, the Court explained that a prisoner whose delusions prevent him from having a “rational understanding” of these circumstances is incompetent to be executed. A neuropsychologist who examined Rockwell in July reported that Rockwell said he saw snakes and demons that were inside of him, appeared to be hearing voices, and, in response to a question about his name, said “my name is God.” The doctor’s affidavit said Rockwell “does not understand or appreciate where he is, the nature of his charges, why he is in prison, or the nature of his punishment.” Rockwell’s lawyers also presented the court with evidence of his significant family history of psychotic illness, including twelve family members across three generations of his family with mental illness diagnoses, and Rockwell’s own mental illness in childhood and as an adult. Citing prison records, the appeal states: “Rockwell has consistently experienced intense hallucinations and auditory delusions, despite spending the majority of his sentence on four or more antipsychotic medications concurrently. He is haunted by snakes and demons. No medications have been able to eliminate his hallucinations or delusions.”

The U.S. Supreme Court has never categorically excluded people with serious mental illness from being sentenced to death or executed. A 2014 poll found that Americans by a two-to-one margin oppose executing people with mental illness. Several states have recently considered, but not adopted, legislation to bar the death penalty for people with severe mental illnesses. Rockwell’s trial lawyer did not present to the jury mitigating evidence of Rockwell’s schizophrenia or his family’s history of psychotic mental illness. Nonetheless, the Texas state and federal courts denied Rockwell’s claim that he had been provided ineffective representation at sentencing. In an opinion piece for Pacific Standard written before the Texas Court of Appeals granted the stay, David M. Perry compared the courts’ treatment of Rockwell’s case with the recent stay of execution granted to fellow Texas prisoner Juan Segundo. Segundo was granted a stay so the Tarrant County court could reconsider his claim of intellectual disability after the Supreme Court had ruled that the standard Texas had previously applied unconstitutionally risked that some people with intellectual disability would still be executed. “America still doesn't have clear protections for people with severe mental illness,” Perry explains. “These two cases in Texas remind us of the unfortunate diagnostic limitations that protect only some people with disabilities from the death penalty.”

ABA Panel Explores History, Morality of Death Penalty

"Has the death penalty evolved into an anachronism?" asked a panel at the August 2, 2018 American Bar Association Annual Meeting in Chicago. Moderator Ronald Tabak, chair of the ABA Death Penalty Committee, and panelists Cardinal Blase J. Cupich of the Archdiocese of Chicago; Karen Gottlieb, co-director of the Florida Center for Capital Representation; Meredith Martin Rountree, senior lecturer at the Northwestern Pritzker School of Law; and Robert Dunham, executive director of the Death Penalty Information Center sought to answer that question through a discussion of the last forty years of American death-penalty history and the evolution of the Catholic Church's moral teachings on the subject. The panelists' consensus: the death sentences imposed upon many of the death-row prisoners executed in the past would be unconstitutional today, and most of the prisoners now being executed would not be sentenced to death if they were tried today. 

The panel serendipitously took place on the same day that Pope Francis announced that the Catholic Church had formally revised its Catechism to deem the death penalty "inadmissible." Cardinal Cupich described the evolution of the Catholic Church's teachings on capital punishment, with an emerging focus on the concept of the dignity of human life. "Our assertion that the value of a human life does not depend upon an individual’s quality of life or age or moral worth must apply in all cases," he said. "For if we protect the sanctity of life for the least worthy among us, we surely witness to the need to protect the lives of those who are the most innocent, and most vulnerable." Karen Gottlieb highlighted how accidents of timing can result in unconstitutional executions, using Florida as an example of how numerous defendants with valid constitutional claims have been executed before courts issue rulings that would have barred their execution and how recent court rulings will permit the execution of more than 150 death-row prisoners who the state court acknowledges were sentenced under unconstitutional procedures. Meredith Martin Rountree discussed how American death-penalty law has evolved to exempt youthful offenders and individuals with intellectual disability and provided examples of current death-penalty practices—including the execution of offenders aged 18-21 and of people with severe mental illness—that could likely be banned in the future. Robert Dunham explained the "sea change in America’s attitudes about capital punishment" over the past twenty-five years and the reasons behind the accompanying broad nationwide decline in death-penalty usage over that period. He provided examples of more than 250 people who have been executed despite constitutional violations that would have invalidated their death sentences today and the estimated hundreds of others who were unconstitutionally sentenced to death but executed nevertheless because of procedural technicalities that prevented federal courts from enforcing constitutional protections in those cases.

A transcript of the proceedings, with updates from the panelists, was released by the ABA's Section of Civil Rights and Social Justice in late September 2018 and recently posted on the DPIC website.

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