Texas

Texas

Texas Appeals Court Rules State Must Disclose Identity of 2014 Execution Drug Supplier

The Texas 3rd District Court of Appeals has rejected claims made by state corrections officials that disclosure of the identity of its supplier of the execution drug pentobarbital would expose the company to a "substantial threat of physical harm." Finding these claims to be “mere speculation,” the appeals court ruled on May 25, 2017, that Texas must disclose the identity of the compounding pharmacy that supplied execution drugs to the state in 2014. The ruling upholds a Travis County District Court order in a suit that was filed on behalf of two death-row prisoners under the state's Public Information Act. The prisoners' attempt to litigate a challenge to the state's lethal injection practices failed to halt their executions, but the district court later determined that the identity of the drug supplier was "public information" subject to disclosure under the state public records law. The Texas Department of Criminal Justice (TDCJ) had argued that information concerning the identity of the compounding pharmacy that provided execution drugs fell within a safety exemption in the act, which shields release of otherwise public information where disclosure would create a "substantial threat of physical harm." The court found that TDCJ had shown nothing more than the risk of public criticism, which it said was not enough to block the supplier's identity from disclosure. The court recognized that "[t]here are myriad reasons why a private business or professional involved in the [execution] process would not want that fact known publicly—potential adverse marketplace effects, unwanted publicity, critical written or oral communications from members of the public, or protests, to name but a few of the unpleasantries that can accompany one’s association with such a controversial public issue." But under the law, the "sole permissible focus" is the "threat of physical harm from disclosure of the pharmacy’s or pharmacist’s identity—not, in themselves, any threats of harm to privacy or economic interests, threats of media or political 'firestorms,' or even threats of harm to property short of harm to persons." In 2016, a BuzzFeed News review of FBI records found that state claims that execution drug suppliers have been the subject of threats by anti-death penalty activists were largely unsubstantiated and exaggerated. Maurie Levin, one of the defense lawyers who filed the public records lawsuit, praised the court's ruling, saying: "They stuck to the law … and the law affirms that those who are involved in government actions don’t get to be anonymous and might be subject to criticism and protest." And she added, "That’s the nature of the beast. That is how our government works. I think the affirmation of those principles is really important." The decision is limited to the source of the state's execution drugs in 2014, because the state passed a broader secrecy law after the suit was filed. TDCJ has said it will appeal the ruling to the Texas Supreme Court. Texas is also suing the federal Food and Drug Administration over its seizure of execution drugs the FDA has said Texas attempted to illegally import from India. The FDA seized the drugs in October 2015, and issued a final order in April 2017 refusing to release the drugs.

Texas Execution Stayed to Permit Challenge Alleging Prosecution Misled Jury on Cause of Death

The Texas Court of Criminal Appeals on May 12 granted a stay of Tilon Carter's May 16 execution to consider his claim that he was convicted based on "false or misleading testimony by the State Medical Examiner" concerning the cause of the victim's death. Carter (pictured) was convicted and sentenced to death based upon testimony by a local medical examiner that the 89-year-old victim, James Tomlin, had died of suffocation. His lawyers say that new scientific evidence that was unavailable at the time of trial contradicts that testimony and supports Carter's claim that he did not intentionally kill Tomlin. According to a filing by Carter's attorney, Carter was denied due process because Nizam Peerwani, the Tarrant County Medical Examiner, presented misleading testimony implying that Tomlin was intentionally smothered, though his cause of death was listed as "smothering with positional asphyxia," which could have been unintentional. In addition, three other experts who have reviewed the evidence offered opinions contradicting the finding that Tomlin was smothered. Raoul Schonemann, Carter's attorney, wrote in a court filing, “While the experts disagreed on the ultimate cause—whether Mr. Tomlin’s death was caused by positional asphyxiation or a cardiac event—they unanimously agreed that the evidence does not show that Mr. Tomlin’s death was the result of intentional smothering." Carter would not be eligible for a death sentence if he did not intentionally kill the victim. Schonemann also alleged that Carter's trial counsel provided ineffective assistance by failing to seek evidence on whether Tomlin's death was intentional.

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White Texas Judge Reprimanded for Facebook Comment Suggesting "A Tree And A Rope" For Black Murder Suspect

The Texas State Commission on Judicial Conduct has issued a formal reprimand to a sitting Burnet County judge who posted on Facebook a photo of a black murder suspect accused of killing a police officer with the comment, "Time for a tree and a rope." Judge James Oakley (pictured), who is white, denied that the comment about Otis Tyrone McKane was a race-based reference to lynching. "My comment was intended to reflect my personal feelings that this senseless murder of a police officer should qualify for the death penalty. In my mind, the race/gender of the admitted cop killer was not relevant," he told the commission. That is not how observers of the post saw it: 18 people filed written complaints to the Commission about Oakley's comment. The reprimand said, “Multiple Complainants also questioned Judge Oakley’s suitability for judicial office, and expressed doubts that he could perform his duties impartially." Oakley will be required to attend a 30-hour training for new judges and receive 4 hours of racial sensitivity training with a mentor, but will not be removed from office or excluded from presiding over any class of cases. In its reprimand, the Commission wrote, “During the appearance, Judge Oakley made certain statements that indicated to the Commission that he could benefit from racial sensitivity training with a mentoring judge." The incident was reminiscent of an incident in March in which a white Seminole County, Florida court employee posted a comment on Facebook that black State Attorney Aramis Ayala "should be tarred and feathered if not hung from a tree," for announcing that she would not seek the death penalty. After an investigation into the circumstances surrounding that posting, the clerk resigned his position.

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Former Prosecutor on Trial on Charges that His Misconduct Led to Wrongful Execution of Cameron Willingham

John Jackson, the former Navarro County, Texas prosecutor and judge, is on trial for ethics violations in the 1992 capital trial of Cameron Todd Willingham (pictured), which many believe led to the execution of an innocent man. Willingham was convicted of arson and murder and sentenced to death in connection with the house fire that killed his three young daughters. Texas executed him in 2004. Willingham's conviction and execution rested on two key pieces of testimony: arson testimony—since discredited as junk science—claiming that burn patterns in the house established that an accelerant had been used in starting the fire, and a statement by prison informant Johnny Webb claiming that Willingham had confessed to him while the two men were both in the county jail awaiting trial. In July 2014, The Innocence Project filed a complaint against Jackson with the Texas State Bar stating that the prosecutor had “violated core principles of the legal profession, and did so with terrible consequences ... the execution of an innocent man.” The Project argued that Jackson should face sanctions for falsifying official records, withholding evidence from the defense, suborning perjury and obstructing justice. Based on those allegations, the Texas State Bar brought ethics charges against Jackson, who faces a rare public trial for that misconduct. In that trial, attorneys for the Texas State Bar allege that Jackson coerced Webb to testify, offered Webb a reduced sentence on an aggravated robbery charge, did not disclose the deal to Willingham's defense, and knowingly elicited false testimony from Webb claiming that he had not been offered any benefit for his testimony. Correspondence between Jackson and Webb shows that Jackson petitioned state officials on Webb's behalf and eventually used a legal process intended for correcting clerical errors to reduce Webb's robbery sentence. Webb has described in interviews and depositions how Jackson convinced him to falsely testify against Willingham. Webb recounted one conversation with Jackson in which “He said, well, let’s go over [what] I think needs to happen. He says I’ve got this guy Willingham who did this. We know he did it. We know he’s guilty. We just can’t prove it." Of Webb's robbery charge, Jackson allegedly told Webb, "even if you’re convicted now, I can get it off of you later." The Intercept reports that, since 2013, roughly 10 prosecutors have been sanctioned in cases brought by the Texas State Bar, and only three prosecutors have opted, as Jackson has, to have their cases heard in public by a jury, rather than in private by a panel of lawyers. [UPDATE: On May 11, 2017, a Navarro County jury voted 11-1 that Jackson had not committed misconduct in the Willingham case.]

Study: Texas' 'Harsh and Inhumane' Death-Row Conditions Amount to 'Torture'

The conditions in which prisoners on Texas' death row are confined are "harsh and inhumane," violate international human rights norms, and amount to "a severe and relentless act of torture," according to a new study by the University of Texas School of Law Human Rights Clinic. The study, "Designed to Break You," collected accounts from former death-row prisoners who had been exonerated or who had received lesser sentences after their death sentences had been overturned. Their stories revealed numerous problems with death-row conditions, including, "mandatory solitary confinement, a total ban on contact visits with both attorneys and friends and family, substandard physical and psychological health care, and a lack of access to sufficient religious services." Every prisoner on death row spends about 23 hours a day in an 8-by-12 foot cell for the duration of their time on death row. "This prolonged solitary confinement has overwhelmingly negative effects on inmates’ mental health," the study reports, "exacerbating existing mental health conditions and causing many prisoners to develop mental illness for the first time." Ariel Dulitzky, director of the Human Rights Clinic, said, "Any person who is kept in solitary confinement for more than 15 days starts to suffer mental and psychological effects that cannot be reversed, and that fits the definition of torture." The report concludes that Texas death-row "conditions fall woefully behind international standards for confinement" and offers 13 recommendations to bring conditions in line with international norms. The recommendations include using solitary confinement only as a punitive measure of last resort and banning it altogether for prisoners with mental illness or intellectual disability. The report also recommends that death-row prisoners be permitted contact visits with their lawyers, family, and friends and that they "have access to natural light, fresh air and outdoor activities."

FDA Issues Final Order Refusing to Release Illegally Imported Lethal-Injection Drugs to States

The U.S. Food and Drug Administration (FDA) has issued a final order refusing to release illegally imported medicines that the states of Texas and Arizona had intended to use in executions. On April 20, 2017, the FDA notified prison officials that it would not release the two states' shipments of 1,000 vials each of sodium thiopental that the FDA had seized at U.S. airports in October 2015 when the states had attempted to import the drug from a supplier in India. Both shipments were halted at the airport by FDA officials, who said the importation of the drugs violated federal regulations. A third shipment of 1,000 vials of the drug ordered by Nebraska was halted by FedEx before it left India because the shipping company was not provided paperwork indicating FDA approval to import the drugs. Sodium thiopental, an anesthetic widely used in executions prior to 2010, is no longer produced by any U.S. pharmaceutical manufacturers, and the FDA has said that it has no legal uses in the U.S. In January 2017, the Texas Department of Criminal Justice sued the FDA, demanding a final decision on the detained imports. In a statement, the FDA announced it had "made a final decision, refusing admission of the detained drugs into the United States." FDA press officer Lyndsay Meyer said that the shipments of sodium thiopental had been confiscated because the detained drugs appeared to be unapproved new drugs and misbranded drugs. The shipments, the agency said, must be either exported or destroyed within 90 days. Texas insisted that the import was covered by a "law enforcement exemption," because the drug was intended for use in executions. The FDA said its decision was made in compliance with a 2012 court order: "The court order requires the FDA to refuse admission to the US any shipment of foreign manufactured sodium thiopental being offered for importation that appears to be an unapproved new drug or a misbranded drug." Since 2012, Texas has used another anesthetic, pentobarbital, in all executions. Arizona has used several different lethal-injection protocols since sodium thiopental became unavailable.

Texas Court Stays Execution of Paul Storey Based on False Argument About Wishes of Victim's Family

The Texas Court of Criminal Appeals has issued an order staying the scheduled April 12 execution of Paul Storey. The unpublished April 7 order sends Storey's case back to the trial court to consider whether the prosecution knowingly presented false evidence about the victim's family's views on the death penalty. Storey had been scheduled to be executed on April 12. His lawyers argued that "the State denied him his right to due process because it argued "evidence it knew to be false" when prosecutors told jurors that the family of victim Jonas Cherry supported a death sentence for Storey. During the penalty phase of Storey's trial, the prosecution argued that "[i]t should go without saying that all of Jonas [Cherry’s] family and everyone who loved him believe the death penalty was appropriate." However, Cherry's parents (pictured) say they always opposed the death penalty and had made their beliefs known to the prosecution at the time of Storey's trial. They recently released a video and statement in support of clemency, saying "Paul Storey’s execution will not bring our son back, will not atone for the loss of our son and will not bring comfort or closure." Storey presented his claim as part of a second state post-conviction challenge to his death penalty. He faces the procedural hurdle of establishing that the evidence supporting this claim could not have been discovered "with the exercise of reasonable diligence" at the time he filed his initial post-conviction petition. The stay continues a recent pattern of decisions by the Texas court permitting judicial review of claims that death sentences had been procured as a result of false or unreliable prosecutorial evidence or argument. In August 2015, the Court stayed Nicaraguan national Bernardo Tercero's execution based on allegations that he had been "denied due process because the State presented false testimony at his trial." In May 2016, the court stayed the execution of Charles Flores to permit him to challenge the use of scientifically unreliable hypnotically refreshed testimony. One month later, it stayed the execution of Robert Roberson to permit him to challenge the State's use of "false, misleading, and scientifically invalid testimony” about Shaken Baby Syndrome. And in August 2016, the Court stayed the execution of Jeffery Wood to permit him to litigate a claim that prosecutors had presented false scientific evidence and false testimony from a discredited psychiatrist to persuade the jury that Wood would pose a future danger to society.

Supreme Court Overturns Texas' "Outlier" Standard for Determining Intellectual Disability in Capital Cases

The U.S. Supreme Court has unanimously struck down Texas' standard for evaluating intellectual disability in death penalty cases, calling the state's approach an "outlier" that, "[b]y design and in operation, ... create[s] an unacceptable risk that persons with intellectual disability will be executed." In Moore v. Texas, the Court on March 28 vacated the judgment of the Texas Court of Criminal Appeals (CCA), which had applied an unscientific set of lay stereotypes known as the “Briseño factors” (named after the Texas court decision that announced them) to overturn a trial court determination that Texas death-row prisoner Bobby Moore was intellectually disabled. The Court described these seven factors—including such things as whether lay people who knew the defendant thought he was intellectually disabled and whether he could hide facts or lie effectively—as an unscientific "invention" of the CCA that was "untied to any acknowledged source" and that lacked support from "any authority, medical or judicial." The Supreme Court ruled in 2002, in Atkins v. Virginia, that the execution of individuals with intellectual disability was unconstitutional, but it left states with some discretion in determining who was intellectually disabled. However, as Justice Ruth Bader Ginsburg, writing for the five-justice majority, reiterated, "States’ discretion ... is not unfettered.” "[A] court’s intellectual disability determination," she wrote must be “informed by the medical community’s diagnostic framework." The Moore decision is the second time in recent years that the Court has addressed state deviations from clinical definitions of intellectual disability, which focus on "three core elements: (1) intellectual-functioning deficits, (2) adaptive deficits, and (3) the onset of these deficits while still a minor." The Court struck down Florida's use of a strict IQ cutoff in the 2014 case Hall v. Florida, noting that Florida's standard, "disregards established medical practice." The Hall decision addressed the first element, intellectual-functioning, while Moore addressed aspects of both the first and second, adaptive deficits. Chief Justice John Roberts and Associate Justices Samuel Alito and Clarence Thomas dissented from the portion of the Court's opinion that held that Texas had inappropriately rejected Moore's evidence of the first prong, deficits in intellectual functioning. But they joined the Court in rejecting Texas' use of the Briseño factors, calling it “an unacceptable method of enforcing the guarantee of Atkins.”

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