Texas

Texas

Supreme Court Denies Review in Death-Penalty Case Where Texas Judge Rubberstamped Prosecution’s Findings

The U.S. Supreme Court has declined to review a case in which the Texas courts decided a death-row prisoner’s appeal by adopting the prosecution’s fact findings and legal arguments word-for-word without providing the defendant’s lawyer any opportunity to respond. In a May 20, 2019 ruling, the Court without comment denied the petition for writ of certiorari filed by Ray Freeney (pictured), thereby permitting the Harris County prisoner’s conviction and death sentence to stand. The decision was the latest in a series of cases in which the Court has refused to take up the issue of state-court rulings that are verbatim copies of proposed orders written entirely by the prosecution. In June 2018, researchers at the University of Texas School of Law Capital Punishment Center exposed the systemic rubberstamping of prosecutors’ pleadings in Harris County capital cases. The researchers found that county judges had adopted prosecutors’ proposed findings of fact verbatim in 96% of 191 capital cases in which factual issues had been contested. Harris County has executed 129 men and women, more than double the number executed in any other county in the United States and more than have been executed in any state in the country other than Texas.

In a Washington Post op-ed, columnist Radley Balko said Freeney’s case not only raises questions about the practice of judges rubberstamping prosecutorial findings, but also “test[s] the absurd, outer limits of AEDPA’s deference to state courts.” AEDPA is the Anti-Terrorism and Effective Death Penalty Act, the habeas corpus amendments passed by Congress in 1996. Those amendments have significantly reduced federal courts’ ability to review and redress violations of a state defendant’s right to a fair trial and sentencing by requiring federal judges to give a high level of deference to state court findings. Balko explains, “to get a federal court to review a state court’s ruling, a defendant must show not only that the state court (and the state courts that upheld the ruling) were wrong, but that the prevailing ruling was either ‘contrary to, or involved an unreasonable application of, clearly established Federal law,’ or an ‘unreasonable determination of the facts in light of the evidence presented.’ Put plainly, you must convince the federal courts not only that the state courts were wrong, but also that they were unreasonably wrong.”

When Ray Freeney’s case came before Texas District Court Judge Renee Magee, his appeal lawyers sought a new sentencing hearing because his trial lawyers had failed to investigate and present to the jury evidence that Freeney suffered from mental illness and had been the victim of chronic child abuse. Judge Magee, who had spent 19 years as a prosecutor in the Harris County District Attorney’s Office, asked for briefs, and received 204 proposed findings of fact from the prosecution, based on over 800 pages of testimony. The next day, she adopted the factfinding verbatim. Freeney’s defense attorneys were never given an opportunity to respond, or to submit their own brief containing new evidence to support their claim that his trial attorneys had provided inadequate counsel. The University of Texas study has demonstrated that “rubberstamping” of prosecutors’ proposed orders is common in Harris County, particularly in cases in which the judge was a former county prosecutor. But Feeney’s case stood out even more in that Judge Magee provided his lawyers no opportunity to respond to the prosecution’s proposed disposition of the case. “When you have such egregious inattention to facts and lack of stewardship of constitutional rights as we’ve seen in Harris County,” Balko said, “the entire system begins to look like a farce.”

Under AEDPA, rubberstamped findings are routinely treated with the same level of deference as findings that judges wrote themselves. Balko explains that, “under the controlling case law for the [Texas federal courts], ‘a full and fair hearing is not a precondition to presumption of correctness to state habeas court findings of fact.’” “The message sent to state judges by the Fifth Circuit in Mr. Freeney’s case was clear,” says Richard Bourke, one of Freeney’s attorneys. “You don’t need to consider the defense’s legal arguments. You don’t need to consider the defense’s evidence. You don’t even need to wait until the defense has presented either. You can just rubber stamp the state’s brief. And you needn’t worry about the Fifth Circuit overruling you.” 

Department of Justice Asserts That Food and Drug Administration ‘Lacks Jurisdiction’ Over Lethal-Injection Drugs

The U.S. Department of Justice (DOJ) has issued an advisory memorandum declaring that the Food and Drug Administration (FDA) “lacks jurisdiction” to regulate execution drugs, including enforcing federal laws that prohibit the import of such drugs from abroad. The memorandum, authored by Assistant Attorney General Steven A. Engel (pictured) for the Department’s Office of Legal Counsel, places the administration squarely in conflict with a 2012 federal district court order requiring the FDA to enforce federal laws barring the importation of unapproved or misbranded drugs or drugs that come from unregistered facilities. The ruling, which came in a case brought by death-row prisoners to force the agency to comply with federal law, was upheld by a federal appeals court in 2013, and the FDA is still permanently enjoined by the ruling from allowing the illegal importation of execution drugs.

The DOJ legal opinion — which is binding on federal agencies — is apparently a response to the FDA’s seizure and impoundment of lethal-injection drugs that prison officials in Texas and Arizona had attempted to import in 2015 for use in executions. After the drug seizure, the Texas Department of Criminal Justice sued the FDA, and in April 2017, the agency issued a final order refusing to release the drugs. The FDA’s order stated: “The [2012] 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.” Several states have attempted to illegally import sodium thiopental, an anesthetic once commonly used in executions, after its U.S. manufacturer ceased production in 2009.

Engel’s memorandum bases the DOJ’s opinion on a U.S. Supreme Court case addressing whether the FDA can regulate tobacco products. In FDA v. Brown & Williamson Tobacco Corp. (2000), the Court found that the FDA could not regulate tobacco products because “they cannot be used safely for any therapeutic purpose,” but “they cannot be banned” because Congress had clearly intended for tobacco to be available. Engel wrote that the situations were analogous: “Congress has repeatedly authorized the death penalty on the assumption that there are lawful means to carry it out, but the regulation of such articles under the [Federal Food, Drug, and Cosmetic Act of 1938] would effectively require their prohibition because they could hardly be found ‘safe and effective’ for such an intended use.”

Fordham University Law Professor Deborah Denno said the opinion “is intended to allow departments of corrections to access drugs outside the country because they’re having so much difficulty doing so,” but, according to The Washington Post, “The Justice Department’s opinion is unlikely to have any immediate effect … because the FDA is still operating under the 2012 injunction.” The Justice Department has not taken any steps to have the injunction lifted. As long as the injunction remains in place, the opinion represents only the views of the Department of Justice, and does not have the force of law. 

Death-Penalty Opinions Expose Deep Divisions on U.S. Supreme Court

In the wake of sharp criticism of several controversial death-penalty decisions, the five conservative justices of the U.S. Supreme Court issued three opinions on May 13, 2019, explaining their votes in those earlier cases. The opinions, issued in connection with the apparently inconsistent orders in religious discrimination claims brought by two death-row prisoners and a decision declining to review the case of an Alabama death-row prisoner who had challenged the state’s execution process, highlighted growing friction and fissures within the Court.

In a pair of opinions issued five weeks after the Court halted the March 28 execution of Buddhist death-row prisoner Patrick Murphy, the Court’s three far-right justices dissented from the order granting him a stay and Justice Kavanaugh and Chief Justice Roberts issued a statement seeking to explain why they voted to spare Murphy from execution while permitting the execution of Muslim prisoner Domineque Ray to go forward. The Court’s disparate treatment of Murphy and Ray—both of whom claimed religious discrimination because their states denied their requests to have non-Christian spiritual advisors present in the execution chamber—had generated widespread condemnation across the political spectrum. In a second contentious case, Justice Clarence Thomas wrote to “set the record straight” in response to criticism from Justice Breyer and the Court’s other moderate and liberal justices regarding a 5-4 late-night ruling on April 12 to vacate a lower court stay of execution for Alabama death-row prisoner Christopher Price.

In Murphy’s case, Justice Alito, joined by Thomas and Gorsuch, accused defense lawyers of “inexcusably dilatory litigation tactics” and complained that “the great majority” of applications for stays of execution “are almost all filed on or shortly before the scheduled execution date … [with] no good reason for the late filing.” Staying Murphy’s execution, Alito wrote, “countenance[es] the dilatory litigation [and], I fear, will encourage this damaging practice.” While acknowledging that “[t]he claims raised by Murphy and Ray are important and may ultimately be held to have merit,” Alito said that “[p]risoners should bring such claims well before their scheduled executions so that the courts can adjudicate them in the way that the claims require and deserve and so that States are afforded sufficient time to make any necessary modifications to their execution protocols.”

Justice Kavanaugh and Chief Justice Roberts defended the stay, saying that Murphy had not been dilatory. Murphy had made his request to have his spiritual advisor in the execution chamber 30 days before his scheduled execution, they wrote, and the delay in filing his court appeal was attributable to “the State’s footdragging” in response to his request. Kavanaugh also disagreed that the stay encouraged additional litigation, noting that within five days of the order Texas had revised its protocol to “allow religious advisers only into the viewing room.” The stay, he wrote, “facilitated the prompt resolution of a significant religious equality problem … [and] should alleviate any future litigation delays or disruptions that otherwise might have occurred.” Kavanaugh justified granting Murphy a stay while allowing Ray’s execution to proceed by saying the two had presented different legal claims to the courts. Murphy, he wrote, had argued that Texas treated prisoners of different religions unequally, permitting Christians and Muslims to have ministers in the execution chamber, while limiting other prisoners to “hav[ing] ministers of their religions only in the adjacent viewing room.” By contrast, he said, Ray had raised a claim under the Establishment Clause of the First Amendment and the religious discrimination claim had been raised on its own by a federal appeals court.

In his statement concurring in the Court’s denial of review in the Price case, Justice Thomas—joined by Justices Alito and Gorsuch—accused death-row prisoners of attempting to manipulate the legal process by “gamesmanship” by “bring[ing] last-minute claims that will delay the execution, no matter how groundless. The proper response to this maneuvering,” he wrote, “is to deny meritless requests expeditiously.” Price had challenged the constitutionality of Alabama’s lethal injection practices, offering execution by lethal gas as an alternative. However, the state argued he had missed the statutory deadline for electing that option and that his request was untimely. As the warrant to execute Price on April 12 was expiring, Justice Breyer urged his colleagues to leave the lower court stay in place until the Court could meet in person to discuss “substantial” procedural and substantive issues presented by the case. When the Court then lifted the stay with no discussion even after the execution had been called off, Breyer wrote: “To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system. To proceed in this matter in the middle of the night without giving all members of the court the opportunity for discussion tomorrow morning is, I believe, unfortunate.”

Judge Declares Texas Death-Row Exoneree Alfred Dewayne Brown “Actually Innocent”

A Texas trial court judge has formally declared Alfred Dewayne Brown (pictured) “actually innocent” of the murder charges that led to his wrongful conviction and death sentence in 2005. The order, issued on May 3, 2019 by Harris County District Court Judge George Powell, paves the way for Brown to receive compensation from the state for the ten years he was wrongfully incarcerated on death row for the killing of a Houston police officer.

Brown was exonerated in 2015 after evidence showed that Harris County prosecutors had manipulated the grand jury system, jailed a witness until she agreed to falsely implicate Brown, and suppressed phone records showing that Brown could not have been at the crime scene when the murder occurred. At that time, then-District Attorney Devon Anderson dismissed all charges against Brown, but refused to provide a statement that he was “actually innocent,” which is a prerequisite for a wrongfully convicted person to receive compensation from the state. Anderson’s successor, Kim Ogg, appointed John Raley to serve as special prosecutor to reinvestigate the case and make a recommendation regarding compensation. Following a ten-month investigation, Raley produced an extensive report detailing the prosecutor’s manipulation of witnesses to testify against Brown and suppression of the phone records that corroborated his alibi. The report 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.’” In March 2019, Harris County District Attorney Kim Ogg signed an affidavit declaring Brown “actually innocent.”

After Ogg’s declaration, Judge Powell assessed the legal question of whether he had jurisdiction to formally declare Brown innocent. Based on the declaration, Brown could be eligible for nearly $2 million in compensation for the decade he was wrongfully confined on death row. Texas law generally requires that an actual innocence finding be issued as part of the appeals process, specifically through a writ of habeas corpus, but that process was not available to Brown, whose legal case was already closed. The court considered, but rejected, the possibility of prosecutors bringing new charges against Brown and dismissing the case anew, saying that would be an “absurd result” and a “second injustice.” Instead, Judge Powell rescinded his previous order that had formally dismissed the charges against Brown and issued a new one-page order specifically stating that “the criminal action...is DISMISSED due to Alfred Dewayne Brown’s actual innocence.”

Outside the courtroom, Ogg reiterated that Brown is innocent. "Alfred Brown was wrongfully convicted,” she said. “Given the state of the evidence today and the law as it’s applied we don’t believe that any reasonable juror would find Alfred Brown guilty under the evidence as it exists now.” Attorney Neal Manne said, “[t]he law of the state of Texas entitles [Brown] to compensation but it can never fully compensate him for spending 12 years in prison for a crime that he had no involvement in. But he’s entitled to the compensation and I hope that he can now lead a peaceful and happy life.” Despite the declaration, and the report explaining Brown’s innocence, Houston’s police union continues to assert that Brown is guilty of killing Officer Charles Clark. The union president said it plans to fight Brown’s compensation. Brian Stolarz, one of the attorneys who helped free Brown, responded, saying, “Dewayne was peaceful and graceful today. He thanks his lawyers and supporters and thanks the district attorney and special counsel for their thorough investigation. Clearing his name has been the goal since he was released almost four years ago, and to those who seek otherwise, he meets hatred with love.” 

John William King Executed in Infamous Lynching Case, Said Attorneys Had Violated His Right to Present Innocence Defense

Texas has executed John William King (pictured), one of three men convicted of the brutal lynching of James Byrd, Jr., after the U.S. Supreme Court declined to intervene in his case. King's lawyers had asked the Court to grant a stay of his scheduled April 24, 2019 execution after a divided Texas Court of Criminal Appeals voted 5-4 on April 22 to permit the execution to proceed. King, an avowed white supremacist, had maintained since the time of his arrest that he was not present at the time of King's murder and did not participate in the killing, and he had repeatedly but unsuccessfully demanded that his lawyers present an innocence defense at trial. King’s appeal lawyers had asked the Texas appeals court and the Supreme Court to halt his execution to review King’s claim that his lawyers’ actions denied King the assistance of counsel guaranteed by the Sixth Amendment.

King says he left Byrd and his co-defendants, Lawrence Russell Brewer and Shawn Berry, prior to Byrd’s murder. When King’s trial lawyers decided to concede his guilt, he tried to replace them. He wrote letters to the court and to a Dallas newspaper describing his innocence claims and complaining that his attorneys would not present them. King’s appellate attorneys argued that his trial lawyers’ concession of guilt violated the U.S. Supreme Court’s 2018 ruling in McCoy v. Louisiana, which said, “With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.” The Texas appeals court dismissed King’s application for review without addressing the merits of his claim.

Judge Michael Keasler, joined by three other judges, dissented, citing “substantial” unresolved factual and legal questions. Judge Keasler wrote: “A death-sentenced man who has asserted his innocence since his capital-murder trial has asked us to review his claim that his trial lawyer overrode his express wishes to pursue a defense consistent with his innocence. In light of … the horrible stain this Court’s reputation would suffer if King’s claims of innocence are one day vindicated (or, perhaps, if the Supreme Court eventually decides that McCoy should apply retroactively), I think we ought to take our time and decide this issue unhurriedly. I would grant the stay.” The U.S. Supreme Court denied King's stay application without comment.

Ahead of King’s execution date, the Beaumont Enterprise interviewed community members in Jasper, Texas to understand how King, who grew up in the same small town as Byrd, came to be associated with one of the nation’s most notorious hate crimes. Capt. James Carter, a black man who worked for the Jasper County Sheriff’s Office for 30 years, has known King since he was a child. “My boys liked him,” Carter said. “He came and spent the night with us often. I treated him like my own.” When Byrd was killed, Carter and his boss had to tell Byrd’s family. Ronald King, John William King’s father, struggled to understand how his son became a white supremacist, and linked the change to time his son spent in prison for a series of burglaries he committed at age 20. “Something happened to my boy in prison. Something bad,” Ronald King had told his priest, Rev. Ron Foshage. “He never had this kind of hate in his heart.” While in prison, the Reverend said, King had been sexually assaulted by an African-American prisoner.

Byrd’s family did not blame King’s family for the murder, and showed kindness to Ronald during the trial. According to Foshage, “Every day after the trial had ended for the day, Mr. Byrd and other members of the Byrd family would touch Ronald on the arm as they were leaving. He was so grateful for their kindness.” “We as parents raise our children to do the right thing and not hate,” said Louvon Harris, James Byrd Jr.’s older sister. “But once they’re not in your control anymore, we’re not sure what kids will grow up to be. ...There were no winners in this. We felt their pain, as well.” Shortly before the trial, Jasper residents gathered to tear down a fence separating racially segregated sections of the town cemetery. According to the Enterprise, if King chose to have his body returned to Jasper after the execution, “he’ll be buried next to his parents and just 100 yards from James Byrd Jr.”

Veil of Execution Secrecy Expands in Several Southern Death-Penalty States

Three southern states have taken action to limit the public’s access to information relating to executions by increasing secrecy surrounding lethal-injection drug suppliers. On April 12, 2019, the Texas Supreme Court reversed an earlier decision that would have disclosed the source of lethal-injection drugs used to carry out executions in Texas in 2014, asserting that disclosure “would create a substantial threat of physical harm to the source’s employees and others.” On April 9, Arkansas Governor Asa Hutchinson signed into law one of the most expansive and punitive execution secrecy laws in the nation, concealing the identity of lethal-injection drug suppliers from the public and criminalizing disclosure of execution-related information. Act 810 exempts lethal-injection records from the state’s Freedom of Information Act and makes the intentional or reckless disclosure of the exempted information a felony. In Louisiana, amidst partisan feuding over the reasons the state has not carried out executions, a bill that would make secret the source of execution drugs was referred to the House Committee on Administration of Criminal Justice on April 8, the first day of the 2019 Louisiana state legislative session. Democratic Governor John Bel Edwards, who voted against a similar bill five years ago while serving as a state legislator, indicated that he would likely sign the measure. Louisiana’s legislature is also considering two bills that would abolish capital punishment.

The Texas Supreme Court decision marked the culmination of several years of litigation over the state’s lethal-injection secrecy policy. A Texas district court and a state court of appeals both ordered disclosure of the drug supplier’s identity, and the Supreme Court initially upheld those lower court rulings. The state asked for a rehearing, arguing that disclosure would have “potentially devastating consequences” to public safety. The rehearing took place after BuzzFeed News revealed through investigative reporting that the state had obtained lethal-injection drugs from Greenpark Compounding Pharmacy, a Houston based compounding pharmacy with a history of safety violations. When the compounder’s identity was revealed, activists peacefully protested outside the pharmacy. Attorney Ari Cuenin, arguing for the state, said that protests, along with alleged threats, had convinced pharmacies not to provide drugs to the state. The state called the pharmacy a “soft target” in an “urban area, whose only defense is its anonymity.”

A number of states have asserted that anti-death-penalty activists have intimidated pharmacies and major pharmaceutical companies into refusing to supply drugs for executions and have argued in legislative debates and in litigation that these alleged threats justify execution secrecy. In its secrecy bill, the Arkansas legislature alleged without evidence that “there is a well-documented guerilla war being waged against the death penalty” and that “[a]nti-death penalty advocates have pressured pharmaceutical companies to refuse to supply the drugs used by states to carry out death sentences.” In fact, calling the use of their medicines in execution contrary to their medical mission, several drug companies have sued Arkansas or filed friend-of-the-court briefs alleging that the state engaged in misrepresentations and subterfuge to improperly obtain their drugs. Independent media and law enforcement investigations have concluded that the alleged threats against drug manufacturers and suppliers have been unfounded or grossly exaggerated. A 2016 BuzzFeed News investigation revealed that FBI records debunked an alleged threat that Texas and Ohio claimed established the need for secrecy. That supposed threat was an email from a university professor who provided his name and phone number and warned an Oklahoma pharmacy to take safety precautions. The email was one of three pieces of evidence, along with a blog post and comments left on the website of a previous supplier, that the Texas court relied on in its decision. “There is no evidence of a history of specific threats to that particular pharmacist or pharmacy because the source's identity has been kept confidential,” the court wrote. “Thus, the question before us in this case is whether the mere fact that the public knows that the Department is receiving lethal injection drugs from some source, whoever it might be, is enough to conclude that a substantial threat of physical harm will come to bear on the source of the drugs if the identifying information is made public.”

Texas Court Stays Execution of Prisoner Whose Lawyer Deliberately Excluded Black Jurors

The Texas Court of Criminal Appeals has stayed the execution of Mark Robertson (pictured), a Dallas death-row prisoner whom Texas had scheduled for execution on April 11, 2019. The court’s April 8 stay order did not specify the reason it halted the execution, but Robertson’s lawyers had filed an appeal seeking review of their claim that his court-appointed trial lawyer, Michael Byck, had “engaged in purposeful discrimination” by deliberately excluding African Americans from serving on his jury. In 1997, Byck testified in a hearing in the case that he had been "more than happy to violate anybody else's rights” in picking a jury and that he had intentionally struck prospective black jurors. He also testified that he had told prosecutors prior to the trial that he “didn't want to have any blacks on the jury” because he believed they would not be sympathetic to Robertson, a white defendant. The Dallas County District Attorney’s office had a long history of racially discriminatory jury selection practices, and Byck testified that he and the prosecutors had agreed to “indulge each other” in their “prejudices.”

Race discrimination in death-penalty jury selection has been an issue for decades. In 1965, the U.S. Supreme Court in Swain v. Alabama, upheld a death sentence imposed by an all-white Alabama jury on a black defendant charged with rape, imposing on the defendant the burden of proving that the prosecutor in a county had systematically removed all black jurors in “case after case … with the result that no Negroes ever serve on petit juries.” In Dallas County, a 1963 office manual instructed prosecutors not to “take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.” In 1986, the Supreme Court ruled in Batson v. Kentucky that Swain had erected an insurmountable evidentiary burden and declared that the removal of even a single prospective juror on the basis of race was unconstitutional. Dallas prosecutors nonetheless continued to discriminatorily strike black jurors, and District Attorney Henry Wade – the county D.A. from 1951 to 1987 – once threatened an assistant prosecutor, “If you ever put another n****r on a jury, you’re fired.” In 2005, in the case of death-row prisoner Thomas Joe Miller-El, the U.S. Supreme Court found that the Dallas D.A.’s office had a “culture of discrimination” that was “suffused with bias against African-Americans.” It twice reversed lower court decisions that had denied Miller-El relief for the racial discrimination in his case and granted Miller-El a new trial.

Jeremy Schepers, one of Robertson’s attorneys, unequivocally condemned Byck’s discriminatory actions. “Mr. Robertson’s trial attorney testified under oath that it was his ‘conscious desire’ to keep African Americans off the jury,” Schepers told the Houston Chronicle. “And, through a variety of methods he succeeded in doing just that. By now there should be no confusion on this matter – racial discrimination in the administration of justice is intolerable. The courts should not hesitate to denounce this unacceptable behavior.” In a motion filed in Robertson’s case, attorney Lydia Brandt urged the court to intercede, rather than allow a death sentence tainted by discrimination to stand. “In the end, Mr. Byck succeeded in his discriminatory plan – Mr. Robertson was tried by an all-white jury,” she wrote. “At best, the State turned a blind eye towards Mr. Byck's discrimination; at worst, they were a willing co-conspirator.”

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Commentators Question Why Supreme Court Stopped One Execution, But Not Another With Identical Religious Exercise Issues

Legal scholars and commentators across the political spectrum have criticized the U.S. Supreme Court for its seemingly contradictory actions, less than two months apart, in two nearly identical religious freedom claims from death-row prisoners. On February 7, 2019, the Court vacated a stay of execution and permitted Alabama to execute death-row prisoner Domineque Ray (pictured, left), who had claimed that the Alabama Department of Corrections was violating his First Amendment rights by refusing to allow his Muslim religious advisor in the execution chamber in circumstances in which the state permitted a Christian chaplain to be present for Christian prisoners. The following month, the Court issued a stay to Patrick Murphy (pictured, right), a Buddhist Texas death-row prisoner who had  challenged the state’s refusal to allow his Buddhist spiritual advisor in the execution chamber. Both states only permitted chaplains who are employed by their corrections departments to be in the execution chamber. Alabama only employed Christian chaplains and Texas employed only Christian and Muslim chaplains. The Court voted 5-4 to allow Ray’s execution to proceed, but halted Murphy’s March 28 execution with only two dissents.

The Court was widely criticized after Ray’s execution, leading some to theorize that the justices who changed their votes did so in response to concerns about the Court’s reputation. David French, writing for the conservative National Review, wrote of the Ray decision, "The state's obligation is to protect and facilitate the free exercise of a person's faith, not to seek reasons to deny him consolation at the moment of his death.” Liberal Yale Law professor Stephen Carter wrote, “In my 30 years of writing about religious freedom, I can't recall a case as outrageous.” Of the different decision made in Murphy’s case, law professor Ilya Somin wrote that the justices “belatedly realized they had made a mistake; and not just any mistake, but one that inflicted real damage on their and the court’s reputations. … Presented with a chance to ‘correct’ their error and signal that they will not tolerate religious discrimination in death penalty administration, they were willing to bend over backwards to seize the opportunity, and not let it slip away.” Attorney Deepak Gupta, who has argued before the Court, said, “This is how the Supreme Court tries to erase a very recent and obvious moral error without admitting error. Is the Alabama case materially different? They don’t say.” Spencer Hahn, who represented Ray, said he hopes his client helped draw attention to religious discrimination in the death penalty. “I’d like to think Mr. Ray’s death was not in vain,” he said.

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