Texas

Texas

Texas District Attorney Asks State to Spare Life of Man She Prosecuted Under Controversial “Law of Parties”

The Texas prosecutor who sought and obtained the death penalty almost 20 years ago against Jeffery Wood (pictured), a man who never killed anyone, has now asked that his sentence be reduced to life in prison. In a letter to the Texas Board of Pardons and Parole, sent in August and obtained December 7 by the Texas TribuneKerr County District Attorney Lucy Wilke asked the board to recommend that Governor Greg Abbott grant Wood clemency and commute his sentence to life in prison. In 1998, Wilke—then an assistant district attorney—prosecuted Wood for the 1996 murder of Kriss Keeran, a Kerrville convenience store clerk who was shot to death by Wood's roommate, Daniel Reneau, while Reneau was robbing the store. Reneau was executed. Wood, who has denied that he had any knowledge that Reneau was going to commit a robbery or had taken a gun into the store, was sitting outside in the truck when the shooting occurred. He was prosecuted for murder and sentenced to death under Texas’s felony-murder statute, commonly known as the law of parties, which holds an accomplice liable for the actions of every other participant in the crime, even if the accomplice did not know and did not intend that a murder would occur. Wood's case drew national attention when the state scheduled his execution for August 2016. At that time, a broad range of groups, including evangelical leaders, state representatives, and editorial boards, called for Wood to be spared. More than 50 House members of both parties signed on to a letter written by conservative Rep. Jeff Leach asking Gov. Abbott and the pardons board to reduce Wood's sentence. Six days before his scheduled execution, the Texas Court of Criminal Appeals stayed Wood's execution on unrelated grounds, sending his case back to the Kerr County trial court to review Wood’s claim his death sentence was the product of false predictions of future dangerousness by a psychiatrist, Dr. James Grigson, who had been expelled from the American Psychiatric Association and Texas Society of Psychiatric Physicians for his unprofessional practices. "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 the letter. Although Wilke actively pursued the death penalty against Wood, she told the pardons board that “the penalty now appears to be excessive.” “While I am aware that requests for clemency in Death Penalty Capital Murder cases are normally considered when there is an execution date pending,” Wilke wrote, “I respectfully ask that you consider this request for commutation of sentence and act on it now, in the absence of such an execution date, in the interest of justice and judicial economy." Along with the fact that he wasn't the shooter, Wilke cited Wood's below-average IQ of 80, his history of nonviolence, and Dr. Grigson’s testimony as grounds for clemency. The letter was co-signed by Kerrville Police Chief David Knight, who was an officer at the time of the murder, and District Court Judge Keith Williams, who is presiding over Wood's challenge to the constitutionality of the prosecution's use of "false testimony and false scientific evidence" from Dr. Grigson.

No Executions in the “Capital of Capital Punishment” for First Time in 30 Years

Harris County (Houston), Texas, has executed 126 prisoners since the U.S. Supreme Court upheld Texas's capital punishment statute in 1976, more than any other county in the United States and, apart from the rest of Texas, more than any state. But in 2017, no one will be sentenced to death in Harris County and, for the first time since 1985, no one sentenced to death in the county will be executed. In 2017, the U.S. Supreme Court also overturned two controversial Harris County death-penalty cases, resulting in agreements with county prosecutors that Duane Buck and Bobby Moore should be resentenced to life. District Attorney Kim Ogg (pictured), elected in 2016 as a reform prosecutor, said she views these developments "as a positive thing." "I don't think that being the death penalty capital of America is a selling point for Harris County," she said. Death Penalty Information Center Executive Director Robert Dunham told the Houston Chronicle that, because of its prolific execution rates, "Harris County has always symbolized America's death penalty." This year's statistics, he said, are "both symbolic and emblematic of the change in capital punishment in the United States. For the first time in a generation, the nation's largest executioner has executed no one." Texas death-row exoneree Anthony Graves credited the Ogg administration "for being out front on criminal justice reform.... Because this is what it is, this is what it looks like," he said. Texas's seven executions in 2017 are still more than were carried out in any other state, but a majority of the death warrants issued during the year did not result in executions. Death-penalty proponent Dudley Sharp attributed the execution decline to the increase in time between sentencing and execution. In Texas, however, much of that increase is a result of changes in state law arising from legislative concerns about wrongful convictions: the Texas Court of Criminal Appeals granted seven stays of execution in 2017 permit prisoners to litigate claims that their convictions or death sentences were the product of defective forensic testimony, false evidence, or the suppression of exculpatory evidence by prosecutors or violated this year's Supreme Court decision in Moore v. Texas. The seven executions statewide stood in stark contrast to the 40 executions the state carried out in 2000. Declining murder rates, the availability of life without parole as a sentencing alternative, and reduced public support for the death penalty have all contributed to the reduction of new death sentences in Harris County. A 2016 report by the Kinder Institute for Urban Research at Rice University found that the number of Houston-area residents preferring the death penalty over life sentences for those convicted of first-degree murder had fallen to just 27%.

History of Lynchings of Mexican Americans Provides Context for Recent Challenges to U.S. Death Penalty

From 1846 to 1870, more than 100 men and women were hanged on the branches of the notorious "Hanging Tree" in Goliad, Texas. Many were Mexicans or Mexican Americans and many were killed by lynching. In a November 25 op-ed in the San Antonio Express-News, historian Alfredo Torres, Jr. writes that these public killings are a reminder that "the noose, [which] has been identified as emblematic of violence and oppression toward African-Americans, [is] often overlooked as a symbol of terror for Mexican-Americans." Torres says that no region experienced more lynchings of Mexican Americans than Southern Texas, and the public spectacles on the Goliad County Courthouse lawn (pictured), now an historic landmark and tourist attraction, were witnessed by Anglo families "in a carnival-like atmosphere, bringing picnic baskets and taking photos." Lynchings of more than 871 Mexican Americans are documented across 13 Western and Southwestern states after the Civil War. But Torres says "these numbers don’t compare to what was done in Texas," where historians William D. Carrigan and Clive Webb estimate that more than 5,000 Mexican Americans were murdered between 1910 to 1920. That wave of terror included numerous extra-judicial lynchings and murders of Mexican Americans by vigilantes, local law-enforcement officers, and Texas Rangers. Texas A & M-Kingsville journalism professor Manuel Flores wrote in an October 2017 column in the Corpus Cristi Caller-Times that the death and legend of Josefa “Chipita” Rodriguez—framed for the 1863 ax murder of a White cotton merchant and horse trader in what was still Confederate Texas—symbolizes the racial violence against Mexican Americans in the state and "are as pertinent to the state of Texas as that of the Alamo and Goliad stories." Rodriguez was falsely accused of murder and the theft of $600 after the dismembered body of John Savage was found on the banks of the river near her traveler's lodge. Though there was no evidence of her involvement in the murder and she insisted “No soy culpable" ("I'm not guilty"), she was quickly tried, sentenced, and hanged. In 1985, the Texas Legislature adopted a resolution absolving Rodríguez of the murder, and Gov. Mark White signed the resolution, posthumously pardoning her on June 13, 1985. Cardigan and Webb say that widespread lynchings of Mexican Americans persisted into the 1920s, "eventually declining largely because of pressure from the Mexican government." Issues of racial bias against Mexicans and others of Latino descent in the administration of the death penalty in the U.S. persist. 122 Latino prisoners have been executed in the United States since 1985. Texas has carried out 84.4% of those executions (103), including the controversial execution of Mexican national Ruben Ramírez Cárdenas on November 8, in violation of international treaty obligations to have permitted him to obtain consular assistance from his government. 373 Latino/a prisoners are on state or federal death rows across the United States, with three-quarters sentenced to death in California (188), Texas (67), or Arizona (27). A challenge to the constitutionality of Arizona's death penalty, filed by Abel Daniel Hidalgo, is currently pending in the U.S. Supreme Court. His petition presents evidence that in Arizona, "a Hispanic man accused of killing a white man is 4.6 times as likely to be sentenced to death as a white man accused of killing a Hispanic victim." The Court will consider during its December 1 conference meeting whether to accept Hidalgo's case for review.

Texas Set to Execute Mexican National Despite Treaty Violations, Innocence Claim

Texas plans to execute a Mexican national on November 8, despite claims that he is innocent and that Texas violated U.S. international treaty obligations by denying him access to legal assistance from his government. Senior Mexican diplomats called the death sentence imposed on Ruben Ramírez Cárdenas (pictured) "illegal" and a violation of due process. In a news conference in Mexico City on November 6, Carlos Sada, Mexico’s deputy foreign minister for North America, said “From the start, there has been a failure, and from our perspective, this is an illegal act.” Cárdenas was convicted and sentenced to death in Hidalgo County in 1998 for the kidnapping, rape, and murder of his 15-year-old cousin. No physical evidence links him to the crime, and his lawyers say there is no forensic evidence of sexual intercourse or any sexual assault. In a pleading filed with Texas Court of Criminal Appeals, his lawyer, Maurie Levin, has sought a stay of execution to obtain DNA testing of scrapings taken from under the victim’s fingernails, arguing that that Cárdenas’s “conviction and death sentence bear all the indicia of a wrongful conviction.” Those indicators, she writes, include “questionable eyewitness testimony, coerced, uncounseled confessions, and unreliable forensic evidence." Prosecutors have opposed permitting the DNA testing. Despite U.S. treaty obligations under the Vienna Convention on Consular Relations requiring law enforcement to notify foreign citizens of their right to assistance from their nation’s consulate, police failed to notify Mexico of Cárdenas’s arrest or Cárdenas of his right to speak with officials from his government. Levin said that Cárdenas repeatedly asked for a lawyer, but that the state did not appoint counsel for 11 days, during which time he was subject to interrogation and gave a series of inconsistent statements, including a coerced confession that was inconsistent with the physical evidence. Eyewitnesses to the abduction—including the victim’s sister, who knew Cárdenas—either did not identify Cárdenas in statements they gave to police or gave descriptions of the assailant that did not match Cárdenas. Mexico did not learn of Cárdenas’s arrest for five months, and has been attempting to assist him since that time. In 2004, the International Court of Justice ruled that the United States had violated the Vienna Convention rights of 51 Mexican nationals sentenced to death in the United States, including Cárdenas, and ordered that foreign nationals whose consular rights are violated must be provided judicial review to determine whether that violation influenced the outcome of their cases. Cárdenas has sought review of his case in the Inter-American Commission on Human Rights, which has granted "precautionary measures"—a form of injunction—against his execution until the treaty violation is adjudicated. However, in 2008, in a case in which Texas failed to provide such a hearing to Jose Ernesto Medellin, the U.S. Supreme Court ruled that although the world court decision “constitutes an international law obligation” on the United States, it is nevertheless unenforceable against the states unless and until Congress passes legislation, which Congress has yet to do. Since then, a number of foreign nationals have been executed in the U.S. in violation of international treaty obligations without judicial review of their treaty claims. Gregory Kuykendall, a lawyer who represents Mexico, said "It's a significant treaty violation. ... What separates us from anarchy is our commitment to due process and that's the processes of the laws that are in effect in both the United States as well as internationally." Cárdenas has never been granted review of his treaty claim in the U.S. courts.

Texas Prosecutors Agree Bobby Moore is Intellectually Disabled, Should Be Resentenced to Life

In a Houston death-penalty case that reached the U.S. Supreme Court and resulted in a decision overturning the Texas courts' standard for determining Intellectual Disability in capital cases, prosecutors have conceded that Bobby James Moore (pictured) is himself intellectually disabled and ineligible for the death penalty. In a brief filed November 1 in the Texas Court of Criminal Appeals, Harris County prosecutors agreed with Moore's lawyers and mental health advocacy organizations that Moore meets the medically established criteria for intellectual disability and cannot be executed. Moore had been convicted and sentenced to death for his involvement in the armed robbery of a Houston supermarket in 1980 in which a store employee was shot to death. Subsequently, the U.S. Supreme Court ruled in 2002 in the case of Atkins v. Virginia that the execution of individuals with mental retardation—now known as Intellectual Disability—violated the Eighth Amendment's proscription against cruel and unusual punishments. In 2014, a Texas trial court determined that Moore qualified as intellectually disabled under the clinical standards accepted in the medical community. However, the Texas Court of Criminal Appeals reversed that ruling, saying that to be considered intellectually disabled in Texas a death-row prisoner must meet a more stringent standard for proving impaired adaptive functioning, consisting of a set of lay stereotypes known as the “Briseño factors” (named after the Texas court decision that announced them). The U.S. Supreme Court rejected the use of the Briseño factors, calling them an unscientific "invention" of the Texas courts that was "untied to any acknowledged source" and that lacked support from "any authority, medical or judicial." The Court sent the case back to the Texas Court of Criminal Appeals in March 2017 with instructions that any judicial determination of whether a death-sentenced prisoner is intellectually disabled must be “informed by the medical community’s diagnostic framework." In their brief to the Texas appeals court, filed after the remand, Moore's lawyers wrote that "[a] review of the Supreme Court's decision and the record before this Court supports but a single conclusion: Bobby James Moore is intellectually disabled under current medical standards and ineligible for execution" and they asked that the state court "reform his death sentence to a term of life imprisonment." Harris County prosecutors agreed. District Attorney Kim Ogg said in a statement released to the media, "I'm doing what I believe the law requires.... The nation's highest court has ruled that intellectually disabled persons can't be subject to the death penalty." The Texas Court of Criminal Appeals still must rule on the case before Moore can be taken off death row.

False or Flawed Forensic Evidence Raises Questions About Two Texas Capital Convictions

Two recent appellate decisions by the Texas courts have thrust into the national spotlight the continuing controversy over the use of false or flawed forensic testimony to secure convictions in death penalty cases. On October 18, the Texas Court of Criminal Appeals ordered a Travis County (Austin) trial court to conduct a hearing to consider evidence that the Austin police crime lab had botched its analysis of DNA evidence and presented scientifically false DNA testimony leading to the conviction and death sentencing of Areli Escobar in 2011. The same day, the court reversed an order of a Harris County (Houston) trial court that had granted Arthur Brown a new trial after the lower court had found that prosecutors had presented false ballistics testimony in securing Brown's conviction and death sentence in 1993. In his petition for relief, Escobar argued that he was entitled to a “comprehensive, independent review” of the scientific evidence presented in his case because his capital conviction “rests on forensic evidence developed by incompetent scientists using bad science.” The Austin crime lab has come under fire during the past few years as a result of improper procedures and poor quality control—problems that ultimately resulted in the closure of the lab and dismissal of almost all its employees. The court of appeals directed the trial court to examine Escobar's claims that the lab staffed his case with poorly trained analysts, cross-contaminated samples, practiced questionable analytical methods, and provided false and misleading DNA testimony that tainted his prosecution for the sexual assault and murder of a neighbor. The appeals court also ruled that Escobar was entitled to review of a claim that prosecutors had presented misleading forensic testimony about his proximity to the murder scene based on false or misleading cell-tower location information. The same day that it granted Escobar further review of his claims, the appeals court overturned the decision of a Houston trial court that had granted Brown a new trial based on the prosecution's presentation of false or misleading ballistic expert testimony at his trial. In securing his conviction and death sentence for four drug-related murders that he and two accomplices allegedly committed in southwest Houston, prosecutors relied on the testimony of a firearms expert who said "absolutely" that the bullets recovered from the victims matched two guns that were linked to Brown. Brown's execution had been stayed in October 2013 to allow for additonal review of that evidence. After reviewing the new ballistic evidence, the trial court determined that the state presented forensic testimony that was "plainly wrong and false" with respect to one of the guns and that was "plainly false" with respect to the other gun. However, the appeals court ruled that, even if the forensic evidence was false, it did not entitle Brown to a new trial because the jury could have still convicted him under Texas's law of the parties, a broad rule that makes a defendant criminally liable for the actions of his accomplices. Judge Elsa Alcala dissented, rejecting the majority's conclusion that guilt was a foregone conclusion and noting that "other evidence of guilt was exceedingly weak when examined without the support of the erroneous firearms evidence." She noted that the testimony from the two witnesses at the crime scene had credibility issues, and Brown's sister recanted her testimony that Brown had told her he shot and killed six people, saying she had been coerced into testifying falsely. Given these facts, Judge Alcala concluded that knowledge that the forensic testimony painting Brown as the shooter was false and unreliable may have affected the jury's determination of guilt or the sentence it imposed in the case. 

Witnesses—Alabama Prisoner Still Moving 20 Minutes Into Execution With Controversial Drug

Alabama executed Torrey McNabb (pictured) on October 19, amid questions of state interference in the judicial process, resulting in another apparent failure by the drug midazolam to render a prisoner insensate during an execution. Alabama prison officials defended the execution—which took 35 minutes—as conforming with state protocol, most of which has been withheld from the public. Montgomery Advertiser execution witness Brian Lyman reported that at 9:17 p.m., twenty minutes into the execution and after two consciousness checks, "McNabb raised his right arm and rolled his head in a grimace" and then fell "back on the gurney." Associated Press reported that his “family members and attorneys who witnessed the execution expressed repeated concerns to each other that he was still conscious during the lethal injection.” Alabama Department of Corrections Commissioner Jeff Dunn dismissed McNabb's responses as "[i]nvoluntary movement," which he said were not unusual. "I’m confident he was more than unconscious at that point," he said. McNabb had been challenging the state's execution protocol in court for more than a year at the time Alabama issued a warrant for his execution. He had won an appeal permitting his case against the state's use of midazolam to move forward to trial, and the Alabama federal courts had issued an injunction stopping the execution so that judicial review of the state's execution process could take place. However, on October 19, the U.S. Supreme Court, over the dissents of Justices Breyer and Sotomayor, lifted the injunction, vacating the stay and permitting the execution to proceed. Two-and-a-half hours after the execution was scheduled to begin, the Supreme Court denied another last-minute stay application, without dissent, and the execution proceeded. The execution capped a dramatic 48 hours during which Texas courts halted two other executions that had been scheduled for October. On October 18, the Texas Court of Criminal Appeals had stayed Clinton Young's October 26 execution to permit an evidentiary hearing on his challenge that newly discovered gunshot residue evidence showed that the state's lead witness was the actual killer in his case, and a Texas trial court had stayed the execution of Anthony Shore to investigate allegations that he may have colluded with another death-row prisoner to falsely confess to the murder for which that prisoner had been condemned. McNabb's execution was Alabama's third and the 21st in the United States in 2017.

Supreme Court Directs Florida to Reconsider Intellectual Disability Decision in Death Penalty Case

The United States Supreme Court has ordered the Florida Supreme Court to reconsider a decision that had denied a death-row prisoner's claim that he was ineligible for the death penalty because he has Intellectual Disability. On October 16, the Court reversed and remanded the case of Tavares Wright (pictured, left), directing the Florida courts to reconsider his intellectual-disability claim in light of the constitutional standard the Court set forth in its March 2017 decision in Moore v. Texas. The decision in Wright v. Florida was the sixth time the Court has vacated a state or federal court's rejection of an intellectual-disability claim and remanded the case for reconsideration under Moore—and the third time it has done so in less than a month. Earlier in October, the Court vacated two decisions by the U.S. Court of Appeals for the 5th Circuit and remanded the cases of Texas death-row prisoners Obie Weathers and Steven Long for reconsideration in light of Moore, and on October 18, the Texas Court of Criminal Appeals cited Moore  as grounds for reconsidering its own prior rejection of intellectual-disability claims raised by Carnell Petetan, Jr. (pictured, right). Moore was expected to have broad impact in Texas, where—the Court unanimously agreed—the state courts had unconstitutionally adopted an unscientific set of lay stereotypes to determine whether a defendant facing the death penalty had impairments in functioning that qualified him or her as intellectually disabled. Five members of the Court also stressed in the majority opinion in Moore that the state had improperly rejected claims of intellectual disability by emphasizing a capital defendant's perceived adaptive strengths, instead of "focus[ing] the adaptive-functioning inquiry on adaptive deficits," as required by accepted medical practice. Lawyers in Harris County (Houston)—which has executed more prisoners than any other county—anticipate that more than a dozen prisoners sentenced to death in that county may be entitled to reconsideration of their death sentences under Moore, and one prisoner, Robert James Campbell, has already been resentenced to life. However, the Supreme Court's recent rulings indicate that its pronouncement in Moore that a state's determination of Intellectual Disability must be "informed by the medical community’s diagnostic framework" is not limited to Texas. In May, the Court vacated a decision of the Alabama Court of Criminal Appeals in the case of Taurus Carroll after his lawyer invoked Moore to argue that Alabama had unconstitutionally deviated from accepted methods of determining intellectual disability. In the Florida case, Wright's lawyers argued that the state supreme court's decision in his case was inconsistent with a line of Supreme Court cases on intellectual disability—Atkins v. Virginia (2002), which declared execution of those with intellectual disability to be unconstitutional; Hall v. Florida (2014), which struck down Florida's approach to measuring the role of IQ in determining intellectual disability; and Moore. Although its order did not set forth the reasons for its decision, the Supreme Court agreed and directed the Florida courts to reconsider the issue.

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