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Texas

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.

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.”

Investigation Reveals Texas Obtained Possibly Tainted Execution Drugs from Pharmacy With Tainted Safety Record

For the past three-and-a-half years, Texas has purchased execution drugs from a Houston-based compounding pharmacy that, BuzzFeed News reports, “has been cited for scores of safety violations” and whose license to operate is currently on probation. In an exclusive story by investigative reporter Chris McDaniel, BuzzFeed discovered that Texas secretly obtained execution drugs from the Greenpark Compounding Pharmacy, a pharmacy that the Texas State Board of Pharmacy has cited for 48 violations in the past eight years, including “keeping out-of-date drugs in stock, using improper procedures to prepare IV solutions, and inadequate cleaning of hands and gloves.” Greenpark’s license was put on probation in November 2016 after it botched a prescription for three children, sending one of them to the hospital for emergency care. Instead of providing the children lansoprazole, a drug to treat high levels of stomach acid, the pharmacy gave them lorazepam, an anti-anxiety drug similar to Xanax. A pharmacy technician was found to have forged quality-control documents relating to the incident. Two hundred compounding pharmacies are currently licensed in Texas, and Greenpark is one of only eight whose license is on probation or revoked.

The discovery of Greenpark’s tainted safety history comes in the wake of suggestions by medical experts that the drugs used in recent Texas executions may have been outdated or impure. The last words of five of the eleven prisoners executed in Texas so far in 2018 indicated that they experienced burning after the execution drug, pentobarbital, was injected. Pentobarbital, an anesthetic, is intended to produce a painless execution. In January, as the state executed Anthony Shore, he called out, “I can feel that it does burn. Burning!” Juan Castillo, Troy Clark, Christopher Young, and Danny Bible all said the drug burned or hurt during their executions. A sixth prisoner, William Rayford, was observed writhing and shaking on the gurney after the drug injection. Dr. David Waisel, an anesthesiologist and Harvard Medical School professor, wrote in a 2016 affidavit, “Improper compounding and testing procedures may leave fine particles undetectable by the naked eye in the solution, or larger particles that would not be detected by an untrained eye. These particles can cause great irritation to the vein, resulting in extraordinary pain.”

Both Texas and Greenpark sought to keep the pharmacy’s identity secret, but BuzzFeed obtained documents showing that Texas sent the compounding pharmacy the raw ingredients for pentobarbital in April 2015 and February 2016. In June 2018, Greenpark submitted a declaration in a lethal-injection suit, using the pseudonym “Pharmacy X,” stating that its “decision to supply the Texas Department of Criminal Justice with lethal injection chemicals was and is contingent on Pharmacy X’s identity remaining secret.” The declaration asserted that “Pharmacy X will no longer conduct business with the Texas Department of Criminal Justice” if its identity is disclosed or revealed.

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.

U.N. Human Rights Officials Say Planned Texas Execution Violates International Treaties

United Nations human rights officials have urged the government of the United States to halt the imminent execution of a Mexican national who was tried and sentenced to death in Texas in violation of U.S. treaty obligations. Texas is scheduled to execute Roberto Moreno Ramos (pictured) on November 14, in an action an international human rights court has said would violate the Vienna Convention on Consular Relations. Agnes Callamard, the U.N. Human Rights Council’s Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, and Seong-Phil Hong, the Chair-Rapporteur of the Council’s Working Group on Arbitrary Detention, cautioned that “[a]ny death sentence carried out in contravention of a Government’s international obligations amounts to an arbitrary execution.” The human rights experts called for Ramos's death sentence “to be annulled and for [him] to be re-tried in compliance with due process and international fair trial standards.”

The International Court of Justice ruled in 2004 that the United States had breached its treaty obligations under the Vienna Convention on Consular Relations by allowing states to impose death sentences on fifty-two foreign nationals—including Ramos—without permitting them to notify their governments and obtain consular assistance in preparation for trial. Under the Vienna Convention, individuals arrested outside their home country must be notified of their right to request legal assistance from their consulate. Ramos, a Mexican citizen, was not notified of this right and, his current lawyers allege, received “abysmal” legal representation as a result. Although Ramos requested a lawyer, no one was appointed to defend him until three months after his arrest. During the punishment phase of his trial, his appointed counsel did not cross-examine prosecution witnesses, presented no mitigating evidence, and did not even ask the jury to reject a death sentence. Ramos’s appellate lawyers argue that a competent attorney could have presented mitigating evidence of Ramos’s abusive childhood, brain dysfunction, bipolar disorder, and low IQ and that, if he had received the legal assistance that the Mexican government offers in capital cases, the outcome of his case would have been different. In their statement, the U.N. experts said that international human rights standards prohibit applying the death penalty to individuals like Ramos with serious mental health and intellectual impairments. Executing him, they said, would violate those international human rights norms.

In 2005, President George W. Bush declared that “the United States will discharge its international obligations under the decision of the International Court of Justice” and issued an executive order directing the state courts to review the cases. They did not. In Medellin v. Texas, a case brought by another of the prisoners whose Vienna Convention rights Texas had violated, the U.S. Supreme Court ruled that the President lacks constitutional authority to direct states courts to comply with a ruling from the International Court of Justice. It also ruled that the treaty was not binding on U.S. states absent legislation from Congress requiring state compliance. Medellin was subsequently executed. In November 2017, Texas also executed Mexican national Ruben Ramírez Cárdenas in violation of U.S. treaty obligations. If Ramos is executed, he will be the 21st person executed in the U.S. in 2018, and the 11th in Texas.

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