Texas

Texas

To End Years-Long Delays, Prosecutors in Three States Drop Death Penalty

Prosecutors in separate capital cases in Indiana, Florida, and Texas have dropped pursuit of the death penalty in order to end notoriously lengthy delays and facilitate healing for the victims’ families. On March 8, 2019, St. Joseph County, Indiana prosecutors agreed to a plea deal instead of a third death-penalty trial for Wayne Kubsch (pictured) at the request of the victims’ family. Kubsch was initially sentenced to death in 2000 and received the death penalty a second time in 2005, but both times his triple-murder convictions was overturned. In announcing the plea agreement, St. Joseph County Prosecutor Kenneth Cotter said “[t[he family actually asked us to take the death penalty off. They wanted to remember their loved ones, not remember him every time he came back with another appeal.” Kubsch pled guilty and was sentenced to life without parole, agreeing to waive his right to appeal his sentence. “I'm 75 years old. I'll soon be 76. And we decided that the best thing would be life in prison, because that way we don't have all the appeals. We don't have all this to go through and the kids don't have to deal with this constantly,” said Diane Mauk, the mother of victim Beth Kubsch. Chief Deputy Prosecutor Eric Tamashasky said, "For the family, this gives them the closure that they’ve so desperately needed for 20 years.”

Prosecutors also decided to drop the death penalty to end lengthy pre-trial delays in cases in Florida and Texas. After eight years of proceedings in what news reports described as Hillsborough County’s “longest-running murder case that has yet to see trial,” Florida state attorneys announced on February 4 that they would no longer seek the death penalty against Michael Keetly. Keetly had been in pretrial detention for nearly 3,000 days. Keetly’s attorney, Lyann Goudie, said she had recently presented mitigating evidence to the prosecutors in an effort to persuade prosecutors that they were unlikely to obtain a unanimous vote for death, and had challenged the ballistic evidence and eyewitness identification the prosecution intended to present at trial. Following the prosecution’s decision, the case is now scheduled to go to trial in June.  Todric Deon McDonald was charged with two counts of capital murder in McLennan County, Texas, more than four years ago. In 2018, with the case facing additional delays to permit the defense to prepare for a potential penalty phase, the victims’ families told prosecutors they supported withdrawing the death penalty if it meant the case would proceed to trial as scheduled. The prosecutors dropped the death penalty in August 2018 and jury selection began on February 11, 2019, after McDonald had spent 1,733 days in jail. McDonald was convicted three days later and sentenced to life without parole.

A death-penalty trial requires extensive pretrial preparation, because defense attorneys have to conduct an in-depth investigation into their client’s life history and mental health to present mitigating evidence in the event their client is convicted. The longer pretrial period is one of many reasons why death-penalty trials are significantly more expensive than trials in which a death sentence is not an option. There is also a lengthy appeals process if a defendant is sentenced to death, and at that point, the most likely outcome is that the conviction or death sentence will be reversed.

Alfred Dewayne Brown Declared Actually Innocent

Death-row exoneree Alfred Dewayne Brown (pictured) was declared “actually innocent” by Harris County District Attorney Kim Ogg on March 1, 2019, making Brown eligible for state compensation for the time he spent wrongfully imprisoned on Texas’ death row. “My obligation as an advocate is not to tell people what they want to hear but to tell them the truth,” Ogg said at a press conference. “Alfred Brown was wrongfully convicted through prosecutorial misconduct.” Brown was freed in 2015, ten years after he was convicted and sentenced to death for the murders of a Houston police officer and a store clerk during a robbery. Until the declaration by Ogg, Brown was ineligible for compensation because Texas law requires that, if a prisoner is exonerated by the dismissal of charges against them, they cannot receive compensation unless the prosecutor says in an affidavit that he or she “believes that the defendant is actually innocent of the crime for which the person was sentenced.”

Brown’s exoneration gained momentum following the discovery of exculpatory phone records in the garage of a Houston police officer in 2013 that corroborated Brown’s claim that he was at his girlfriend’s apartment just minutes before the killings took place and could not possibly have been at murder scene at the time of the killings. Prosecutor Daniel Rizzo claimed that the records had been accidentally misplaced, rather than intentionally withheld. But in 2018, Ogg’s office discovered an email showing that Rizzo knew about the records well before Brown’s trial. A timeline of the case showed that Rizzo’s investigator had sought out the records in an attempt to rebut grand jury testimony by Brown’s girlfriend that he spoke to her by phone from her apartment shortly before the murders. Rizzo then threatened her with prosecution and jailed her until she changed her testimony. “It is impossible to examine the conviction of Alfred Dewayne Brown without confronting prosecutorial misconduct,” wrote special prosecutor John Raley, who conducted more than 1,000 hours of investigation into Brown’s case and produced the report that led to Ogg’s actual innocence declaration. “ADA Daniel Rizzo presided over a Grand Jury that abusively manipulated witnesses to supply evidence for a chosen narrative. He was provided notice of the existence and meaning of exculpatory evidence, failed to produce it to the defense and avoided it during trial. Further investigation of his conduct is warranted.” In his report, Raley concluded, “By clear and convincing evidence, no reasonable juror would fail to have a reasonable doubt about whether Brown is guilty of murder. Therefore his case meets the legal definition of ‘actual innocence.’”

Lawyers who had worked on Brown’s appeals lauded the announcement. Attorney Casey Kaplan said, “The consonant bell of justice rings loudly today and shares what Alfred Brown’s family, supporters and attorneys have known for over a decade — that he is actually innocent. It is a good day.” Brian Stolarz, the lead attorney who secured Brown’s exoneration, said, “We are heartened that he found what we have known all along: Dewayne Brown is actually innocent and was wrongfully convicted and imprisoned. We commend the District Attorney’s commitment to the truth and ensuring that miscarriages of justice like this never happen again in Harris County.” Houston’s police union expressed anger at the decision, holding a separate press conference immediately after Ogg’s. Union president Joe Gamaldi urged the police department to bring the case back to a grand jury.

Texas Plans to Execute Prisoner Whose Death Sentence Was Influenced by False and Unreliable Testimony

Texas is scheduled to execute Billie Wayne Coble (pictured) on February 28, 2019, despite court findings that two expert witnesses who testified for the prosecution gave “problematic” and “fabricated” testimony at his trial. Coble was sentenced to death in 1990 and resentenced in 2008 after his original sentence was overturned as a result of constitutionally deficient jury instructions. At his resentencing, the issue of future dangerousness presented a serious problem for prosecutors. Under Texas law, a capital jury is required to find that a defendant presents a continuing threat to society before it may sentence him or her to death. But in Coble’s 18 years in prison between first being sentenced to death and his resentencing trial, he “did not have a single disciplinary report,” suggesting he would not pose a future danger if sentenced to life. To persuade the jury of Coble’s future dangerousness, prosecutors retained the services of Dr. Richard Coons, a psychiatrist who testified in numerous capital cases as to the purported future dangerousness of capital defendants. Coons later admitted that his dangerousness predictions were not based on research, but that he made determinations “'his way’ with his own methodology and has never gone back to see whether his prior predictions of future dangerousness have, in fact, been accurate.” Researchers and psychiatric experts have repeatedly found that “future dangerousness” predictions are fundamentally flawed, lack scientific validity, and contribute to arbitrary death sentences.

The prosecution also presented the jury with testimony from prison investigator A.P. Merillat, as an expert on prison conditions. Merillat provided false testimony about the prevalence of prison violence and loopholes in prison rules that he claimed would allow life sentenced prisoners to commit acts of violence. Like Coons, Merillat’s testimony was later revealed to be unreliable and, as a federal appellate court wrote, “the State does not dispute that parts of Merillat’s testimony were fabricated.” The court called both Coons and Merillat “problematic witnesses,” adding “that Coons’ testimony was unreliable and should have been excluded.” The court nonetheless allowed Coble’s death sentence to stand, saying that the false and misleading expert testimony constituted harmless error.

If Coble’s execution proceeds, he will be the third person executed in the U.S. in 2019, and the second in Texas. The 70-year-old Coble would also be the oldest person executed in Texas since the reinstatement of the death penalty. He will be the eleventh person aged seventy or older to be executed in the U.S. during that period (all since 2004), and the seventh this decade.

U.S. Supreme Court Again Reverses Texas Court’s Rejection of Intellectual Disability Claim

Overturning the Texas Court of Criminal Appeals for the second time, the United States Supreme Court ruled on February 19, 2019, that Texas death-row prisoner Bobby James Moore is intellectually disabled and may not be executed. In an unsigned opinion, the Supreme Court reversed the latest Texas appeals court decision that would have allowed Moore’s execution, saying the state court had relied on many of the same improper lay stereotypes and committed many of the same errors that had led the Justices two years ago to strike down Texas’s “outlier” approach to determining intellectual disability. The Court said that the Texas ruling, “when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper.”

This decision marked the second time the Supreme Court had reversed a Court of Criminal Appeals denial of Moore’s intellectual disability claim. In 2014, a Texas trial court, applying prevailing clinical standards, found that Moore was intellectually disabled and therefore ineligible for the death penalty under the Supreme Court’s 2002 decision in Atkins v. Virginia. However, the Texas Court of Criminal Appeals (TCCA) overturned that decision, saying Moore had not satisfied a Texas-specific standard called the “Briseño factors” (named after the Texas court decision that announced them). In 2017, the U.S. Supreme Court unanimously rejected the use of these factors, calling them an unscientific “invention” of the TCCA that was “untied to any acknowledged source” and lacked support from “any authority, medical or judicial.” The Court criticized the TCCA’s reliance upon “lay stereotypes” about what people with intellectual disability can and cannot do and its misplaced focus on things Moore was able to do in a structured prison setting instead of considering his life history of impairments in daily adaptive functioning, and directed the TCCA to reconsider the issue applying appropriate diagnostic standards.

When the case returned to the state courts, numerous groups, including the American Psychological Association and the American Psychiatric Association, filed friend-of-the-court briefs asserting that Moore met the prevailing medical definitions of intellectual disability. The Harris County District Attorney’s Office agreed with Moore and conceded that his death sentence should be vacated. Nonetheless, over the sharp dissent of three judges, the TCCA again upheld Moore’s death sentence. With the backing of the mental health professional associations, Special Olympics Chairman Tim Shriver, and a group of prominent conservative leaders who described the TCCA’s flouting of the 2017 Supreme Court ruling as “inimical to the rule of law,” Moore again asked the Supreme Court to intervene. When Harris County prosecutors again agreed that Moore was entitled to relief, the Texas Attorney General’s office attempted to intervene in the case to defend the TCCA’s ruling. The Supreme Court reversed, writing: “We … agree with Moore and the prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability.” Justice Alito, joined by Justices Thomas and Gorsuch, dissented, accusing the majority of improperly engaging in factfinding and failing to provide clarity to lower courts.

Cliff Sloan, a lawyer representing Moore, praised the ruling: “We greatly appreciate today’s important ruling from the Supreme Court, and we are very pleased that justice will be done for Bobby Moore.” Harris County District Attorney Kim Ogg also released a statement: “The Harris County District Attorney’s Office disagreed with our state’s highest court and the attorney general to stand for Justice in this case. The U.S. Supreme Court agreed."

Texas Executes Robert Jennings in Nation’s First Execution of 2019

Texas executed Robert Jennings (pictured) on January 30, 2019 for the 1988 murder of Houston police officer Elston Howard, amid questions as to his eligibility for capital punishment and the constitutionality of his death sentence. Jennings was convicted under a sentencing procedure that the U.S. Supreme Court had struck down shortly before his trial in 1989 because it did not adequately allow jurors to consider evidence supporting a sentence less than death. The jury instructions given in his case to redress that error were also later declared unconstitutional, and 25 Texas death-row prisoners had their death sentences overturned as a result. However, Jennings’s court-appointed trial and appeal lawyers failed to raise the issue in Texas state court and the Texas federal courts refused to consider the issue on the grounds that the state court lawyers had procedurally defaulted the claim. The U.S. Supreme Court later changed federal habeas corpus procedures to permit review if ineffective state-court representation caused the default. But when Jennings’s federal lawyers attempted to raise the issue again, the Texas federal appeals court ruled on January 28 that its prior decision had not been based on procedural default and that it had already rejected the claim. Without comment, the Supreme Court issued an order on January 30 declining to hear Jennings’s case, and he was executed.

In challenging Jennings’s death sentence, his current lawyers also argued that both Jennings’s trial lawyer and his previous appellate attorney provided inadequate representation. Jennings’s trial attorney was defending two death-penalty cases at the same time and did not investigate significant mitigating evidence that included Jennings’s history of brain damage from a car crash and an injury with a baseball bat, an IQ of 65, and intellectual and adaptive deficits associated with his low IQ. Trial counsel also failed to present readily available evidence of Jennings’s impoverished, abusive, and neglectful upbringing: he was born as the result of a rape, and his mother frequently told him she did not want him. His original appeal lawyers also failed to raise these issues. Edward Mallett, one of Jennings’s current lawyers, said, “There has not been an adequate presentation of his circumstances including mental illness and mental limitations.”

U.S. District Judge Lynn Hughes took the unusual step earlier in January of asking the state to consider supporting clemency for Jennings, citing the 30-year delay between the crime and the scheduled execution. Jennings's attorneys argued in his clemency petition that the state had granted clemency last year to a white death-row prisoner with fewer mitigating circumstances. "Denying a commutation truly will demonstrate that race, class, and privilege matter in determining who is executed in Texas," attorney Randy Schaffer wrote. "This would send a terrible message to the world."

New Voices: Former Texas Criminal Appeals Judge Suggests “Pause” on Texas Death Penalty

Retiring Texas Court of Criminal Appeals judge and former prosecutor Elsa Alcala now believes that the death penalty is unreliably and discriminatorily applied in the nation’s most aggressive capital punishment state. In a new Houston Chronicle “Behind the Walls” podcast, Judge Alcala – who calls herself “a Republican hanging on by a thread” – told reporter Keri Blakinger, “I think we know enough right now to even call for a moratorium or just to pause all of this and to say, you know, ‘What is going on? Why does Texas have such a high percentage of people who get the death penalty and are executed as compared to the rest of the country?’”

Hired as a prosecutor by Harris County District Attorney Johnny Holmes, who gained notoriety as one of the nation’s deadliest prosecutors, Alcala spent nine years trying capital cases in the DA’s office of the country’s leading death-sentencing county. She then served as a county trial judge before being appointed by then-governor George W. Bush to serve on the state’s highest criminal court, the Texas Court of Criminal Appeals. As she was exposed to a range of problems in Texas death penalty cases, her views on the capital punishment evolved. She became a skeptic of capital punishment, often dissenting from denials of death-penalty relief and, in the case of Julius Murphy, called on the court to consider whether the state’s death penalty was constitutionally administered. When she left the bench, Judge Alcala accepted a policy role at the Texas Defender Service, where she will advocate for criminal justice reform. In an interview with the Texas Tribune, she joked, “[m]aybe I can have more success at the legislative level to get somebody to understand that there are some real true problems.”

In the podcast interview, Alcala cites a range of factors that changed her views about capital punishment. She discusses ineffective lawyers and parole laws that, at the beginning of her career, forced jurors to choose between a 15-year prison sentence and a death sentence for death-eligible defendants. “What do you do with these people who ... got there back to in the 90s when we know for a fact that the lawyers were not doing what they should have been doing in my mind?” Alcala asked. “And then the question is, as they come up to be executed, are we going to continue to execute them and tolerate the fact that things were done imperfectly? … I think, still percolating through all of that is that a lot of those [cases] are subject to that old parole law.”

When asked about the decline of the death penalty in Texas, Alcala said, “It is on the decline significantly. Whether it will ever go away and when it will go away – I don't know, I think it is imperfect. More accurately, I should say it is unreliable – I have lost faith in the reliability of the death penalty. And that is what underlies my involvement with the Texas Defender Service. It is: If you're going to have the death penalty, then do it correctly. You know, give them a good trial lawyer, give them a good appellate lawyer, give them a good habeas lawyer at the state level, give them a good federal lawyer and don't let racial prejudice at all influence anything that's going on.” The death penalty, she said, “is just not reliable. It’s not something that I can say is being done the way that it should be done to give you confidence in it as a punishment form. … I think, why is Texas so out of line with the rest of the country? It can't be that our people are worse, right? I mean, Texans are good people. Are our crimes worse than the rest of the country? I don't think so. Are our people worse than the rest of the country? I don't think so.  So somehow we are out of line.”

Texas Prisoner Seeks Stay of Execution on Claims of Junk Science, Arbitrary Sentencing

[UPDATE: The Texas Court of Criminal Appeals issued a stay of execution to Blaine Milam on January 14, 2019] As Texas prepares to execute Blaine Milam (pictured) on January 15, 2019, Milam’s lawyers say his conviction and sentence rest on discredited bite-mark testimony and have asked for the execution to be halted. Milam filed a habeas corpus petition in the Texas Court of Criminal Appeals on January 10 challenging his conviction and sentence, along with a motion to stay his execution. While the contents of those pleadings do not appear on the public docket and have not been released to the media, his lawyers issued a statement saying that “[Texas] obtained Blaine Milam’s conviction and death sentence for capital murder based on now discredited bite mark junk science” and that “Mr. Milam’s conviction is unreliable, and his death sentence is arbitrary.”

Milam – who prior court pleadings have argued is intellectually disabled – and his mentally ill girlfriend, Jessica Carson, were convicted of killing Carson’s 13-month-old daughter, Amora, during an alleged exorcism in 2008. Both defendants were 18 years old at the time. Milam’s current lawyer, Jennae Swiergula, the Post-Conviction Director of the Texas Defender Service, said in the statement that Carson “had been experiencing a psychotic illness involving delusions that her child was possessed by a demon.” Carson, whom Milam says actually killed the baby, received a sentence of life without parole, while Milam was sentenced to death. Milam was convicted under Texas’s controversial “law of parties,” which allows defendants to be convicted and 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. Swiergula said the state did not have “any meaningful evidence that Mr. Milam played any role in causing” Amora’s death, and the jury did not hear evidence of Carson’s psychotic illness. “Even under the law of parties,” she said, “the State’s evidence that Mr. Milam ‘aided’ in the offense rested on junk science.” Bite-mark evidence has long been the subject of controversy, and the National Academy of Sciences and the President’s Council of Advisors on Science and Technology have criticized it as lacking scientific validity. In 2016, the Texas Forensic Science Commission called for a moratorium on its use in court. 

Previous appeals for Milam have raised questions about his degree of culpability for the crime. His appeal before the U.S. Court of Appeals for the Fifth Circuit argued that he was under the influence of methamphetamine at the time of the crime, and therefore could not form an “intent to commit a crime.” The same appeal also presented evidence that he is intellectually disabled, rendering him ineligible for execution. The appeals court declined to hear both claims.

The Texas Court of Criminal Appeals has granted seven stays of execution since 2016 to permit review of claims that defendants were convicted or sentenced to death based on false or misleading forensic evidence or testimony. If the execution is not stayed, Milam will be the first person executed in the United States in 2019.

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Texas to Execute Prisoner Who Was a Teenager at Time of Crime

Texas is scheduled to execute Alvin Braziel, Jr. on December 11, 2018, in what would be the state’s 13th execution of the year. Braziel was 18 years old in 1993 when he killed a man and sexually assaulted a woman after a failed robbery attempt. His age places him just above the legal boundary to be eligible for a death sentence, though recent neuroscience research on brain development indicates the deficits in judgment and impulse control that led the United States Court to exempt juveniles from capital punishment persist through an individual’s early 20s. As a result of that research, the American Bar Association adopted a resolution to bar the death penalty for offenders 21 and under, and a Kentucky trial court ruled that it would be unconstitutional to seek a death sentence against defendants who were under 21 at the time of their crime.

Braziel’s appeals presented evidence that his trial attorney was ineffective and failed to present significant mitigating evidence. His appellate attorneys said Braziel suffered brain damage from head injuries as a child that rendered him intellectually disabled and therefore ineligible for the death penalty. Braziel was also exposed to drugs and alcohol in utero, experienced abuse and homelessness as a child, and has a family history of mental illness. None of that evidence was offered to his jury, which, the defense argued, might have been persuaded to impose a lesser sentence.

Braziel would be the 13th person executed in Texas this year and the 24th in the U.S. The pharmacy that has provided lethal drugs to Texas has a record of safety violations, and five of the prisoners executed in the state this year have reported pain or burning as the execution drug was injected, which doctors have indicated may be a sign that the drugs are out of date or impure.

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