Texas

Texas

New Generation of Prosecutors May Signal Shift in Death Penalty Policies

A new generation of prosecutors, elected across the country on a platform of criminal justice reform, are taking a different approach to criminal justice policies than their predecessors, including a reduction in the use of capital punishment. A Christian Science Monitor profile of these prosecutors—focusing on Mark Gonzalez (pictured), the Nueces County, Texas, district attorney—says "[f]rom Texas to Florida to Illinois, many of these young prosecutors are eschewing the death penalty, talking rehabilitation as much as punishment, and often refusing to charge people for minor offenses." Their reform measures not only create greater opportunities for rehabilitation of offenders, but also reduce costs for the county and state governments. Stanford Law Professor David Alan Sklansky said, “It does seem to be a new and significant phenomenon. It’s rare to see so many races where the district attorney is challenged, where they lose, and where they lost to candidates calling not for harsher approaches, but for more balanced and thoughtful, more restrained, more progressive approaches to punishment.” In 2016, several new prosecutors who ran on reform platforms in major death-penalty counties defeated entrenched incumbents: Kim Ogg in Harris County, Texas; Andrew Warren in Hillsborough County, Florida; and Charles Henderson in Jefferson County, Alabama all pledged to reduce the use of capital punishment. Caddo Parish, Louisiana's District Attorney James Stewart, elected in 2015, has backed away from that parish's aggressive use of the death penalty while Denver District Attorney Beth McCann and Orlando State Attorney Aramis Ayala, both elected in 2016, have said they would not pursue the death penalty. In May 2017, Larry Krasner, a death-penalty opponent, won the Democratic nomination for Philadelphia District Attorney, making him the favorite to win the general election in November. Kim Ogg described the reasons for her support of criminal-justice reform, saying, “In the last decade the American people have literally lost faith in the fairness of our justice system. If they think we’re rigging the system, or trying to force outcomes, then they’re not going to participate, and to me that is a huge threat to our democracy.” Gonzalez says he has not decided how he will approach the death penalty, and in the meantime is still filing death penalty cases. But, he says, “We’re trying to change things. ... The culture is changing.”

Federal Appeals Court Grants Texas Prisoner's Request for Evaluation of Competency to Be Executed

The U.S. Court of Appeals for the Fifth Circuit has reversed a ruling by a Texas federal district court that had denied Scott Panetti (pictured), a severely mentally ill death-row prisoner, the appointment of counsel and funding for a mental health expert and investigator to evaluate his competency to be executed. In a 2-1 ruling issued July 11, 2017, the Fifth Circuit, noting that "a decade has now passed since the last determination of whether this concededly mentally ill petitioner is competent to be executed," ordered Panetti's case returned to the lower federal court to appoint counsel, provide funds for an evaluation, and grant counsel sufficient time to prepare a petition on Panetti's competence. Under the U.S. Supreme Court's 1986 ruling in Ford v. Wainwright, prisoners who become mentally incompetent—that is, so mentally ill or cognitively impaired that they are "unaware of the punishment they're about to suffer and why they are to suffer it"—cannot be executed. Panetti has twice been granted stays of execution related to his mental health and competency to be executed. In 2007, the U.S. Supreme Court ruled that the Texas federal courts had misapplied the Ford standard when they ignored the effect of Panetti's paranoid schizophrenic delusions on whether he had a rational understanding of his pending execution. The Court wrote: "Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose." On remand, the lower courts denied Panetti's challenge to his competency without providing him a lawyer and a mental health evaluation to develop his claim. In a statement, Panetti's lawyers said, "We are grateful that the court found that Mr. Panetti’s nearly four decades of documented schizophrenia and severe mental illness provided a sufficient showing to obtain experts and resources to pursue the claim that he is currently incompetent for execution.... Mr. Panetti has not been evaluated by any mental health experts since 2007 and his severe mental illness has only worsened while in prison. We are confident that when the lower court is presented with all the evidence, it will find that Mr. Panetti, a schizophrenic man who insisted on representing himself at trial and attempted to subpoena the Pope, John F. Kennedy, and Jesus Christ, is not now competent for execution."

Journal of Psychiatrist Who Presided Over 14 Texas Executions Reveals Mental Toll That May Have Contributed to Suicide

As a psychiatrist in the Wayne Unit of Texas' Huntsville prison from 1960 to 1963, Dr. Lee Hartman presided over 14 electric-chair executions. When his grandson, Ben Hartman, a journalist, began investigating Dr. Hartman's life, he discovered journals that chronicle those executions and the psychological toll they took, possibly contributing to Dr. Hartman's suicide in 1964. Dr. Hartman's journals contain basic data on the men who were executed, including their names, race, a summary of the crime, and notes on the execution itself. More profoundly, though, they capture Dr. Hartman's reactions to his experiences and how they shaped his views on the death penalty, leaving him—in his grandson's words—"a determined opponent of capital punishment." In 1962, Dr. Hartman wrote, "The death penalty is irreparable." After the highly-publicized execution of Howard Stickney, a 24-year old who professed his innocence, Dr. Hartman wrote, "Very shook up and angry over whole cruel mess." He had been with Stickney on his scheduled November 10, 1961 execution date as they neared the door to the execution chamber. The journal reports that the phone rang at 12:32 a.m. with news that a judge had granted a 10-day stay of execution. This was "[a]pparently a complete surprise to Stickney," the journal entry says, "who broke down, prayed and wept.” In May of 1962, still professing his innocence, Stickney exhibited "[d]ignity and grace, shook hands with several guards while waiting, didn’t want to take coat off.” The journal reports: "At 12:24, warden returned–no stay, Stickney quietly sat in chair." Three separate jolts of electric current were sent through his body, "1st shock at 12:25–dead at 12:30.” Elsewhere in the journal, Dr. Hartman wrote 19 pages on arguments for and against capital punishment, clearly setting out his views. “The death penalty has a brutalizing and sadistic influence on the community that deliberately kills a member of its group,” he wrote, permitting the public “to vicariously indulge in vicious and inhumane fantasies under socially-acceptable guises.” He wrote: "The death penalty is not applied impartially. There is such surfeit of these cases that to mention them would be redundant. The poor defendant is obviously at a disadvantage and frequently receives the extreme penalty while the wealthier accused escapes a prison term. There is well known discrimination on racial or class lines." Dr. Hartman struggled with depression for many years, spending several months in a mental hospital after working in the prison. In 1964, he committed suicide by taking an overdose of pentobarbital, a drug now used to execute prisoners in Texas.

Execution Drugs Three States Attempted to Illegally Import Have Now Expired

Three thousand vials of the anesthetic sodium thiopental that three states attempted to illegally import into the United States for use in executions have now expired, according to an investigative report by BuzzFeed News. Arizona, Nebraska, and Texas each purchased 1000 vials of the drug in 2015 from a questionable supplier in India called Harris Pharma, despite warnings from the Food and Drug Administration (FDA) that importation of the drug would violate federal law. Citing documents obtained from the FDA through a public records request, BuzzFeed reports that the sodium thiopental in the shipments expired in May 2017. The FDA confiscated the sodium thiopental Arizona and Texas attempted to bring into the country after U.S. Customs and Border Protection agents seized the shipments at airports in Phoenix and Houston. Federal officials justified their action saying that a 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." FedEx halted Nebraska's shipment in India because of "improper or missing paperwork." Harris Pharma, the company that sold the drugs, claimed to have manufactured the sodium thiopental itself, but the facilities it registered with the FDA and the Drug Enforcement Administration were not equipped to produce pharmaceuticals. Harris had, in fact, purchased the drug from another Indian manufacturer and resold it to the three states at a substantially inflated price. The sole U.S. manufacturer of sodium thiopental halted production in 2011 over ethical concerns about the use of the product in executions. In January 2017, Texas sued the FDA in federal court over the agancy's continued detention of the drugs without having issued a formal decision on the disposition of the drugs. The FDA issued a final order in April 2017 refusing to release the drugs to Arizona and Texas, and Texas has challenged that ruling. A spokesperson for the Texas Department of Criminal Justice said the state's lawsuit against the FDA would continue, despite the expiration of the drugs. Last year, a Texas official whose name was redacted from official documents said in an affidavit that the state, "intends to continue importing thiopental sodium from the same foreign source, and with the same labeling, as the entry that FDA is currently detaining."

Mid-Year Review: Executions, New Death Sentences Remain Near Historic Lows in First Half of 2017

As we reach the mid-point of the year, executions and new death sentences are on pace to remain near historic lows in 2017, continuing the long-term historic decline in capital punishment across the United States. As of June 30, six states have carried out 13 executions, with 30 other executions that had been scheduled for that period halted by judicial stays or injunctions, gubernatorial reprieves or commutation, or rescheduled. By contrast, at the midpoint of 2016, five states had carried out 14 executions, and 25 other executions had been halted. 12 executions are currently scheduled for the rest of 2017, with 8 others already halted, and several more death warrants are expected to be issued. Depending on whether Ohio carries out the five executions pending between now and December, DPIC anticipates a slight increase in executions in the U.S. from 2016's 26-year low. However, even with the spate of four executions carried out in Arkansas from April 20-27—that state's first executions since 2005—there will likely be fewer executions in 2017 than in any other year since 1990. New death sentences also remain near historically low levels. DPIC has confirmed at least 16 new death sentences so far in 2017, a pace very close to the record-low 31 new death sentences imposed in 2016. Florida's abandonment of non-unanimous jury recommendations of death and Alabama's repeal of judicial override of jury recommendations for life are expected to substantially reduce the number of new death sentences in those states. The death sentences of nearly 100 Florida death-row prisoners have been overturned as a result of the state supreme court's declaration than non-unanimous death sentences are unconstitutional, and courts in Delaware and Connecticut have continued emptying those state's death rows after their death penalty statutes were declared unconstitutional. Three people have been exonerated from death row in 2017—Isaiah McCoy in Delaware, Rodricus Crawford in Louisiana, and Ralph Daniel Wright, Jr. in Florida—bringing the number of death-row exonerations in the U.S. since 1973 to 159. There have also been three grants of clemency in the first half of 2017, bringing the national total since 1976 to 283. President Barack Obama granted clemency to federal death-row prisoner Abelardo Arboleda Ortiz and military death-row prisoner Dwight Loving, and Virginia Governor Terry McAuliffe granted clemency to Ivan Teleguz. All three are now serving sentences of life without parole. The U.S. Supreme Court has issued three significant decisions in 2017 in favor of death-row prisoners. On February 22, in Buck v. Davis, the Court granted relief to Duane Buck due to racially biased testimony on the issue of future dangerousness. A month later, in Moore v. Texas, the Court unanimously struck down Texas' outlier practice for determining intellectual disability in capital cases. In McWilliams v. Dunn, the Court found on June 19 that James McWilliams' constitutional rights were violated when Alabama failed to provide him assistance of an independent mental-health expert. The Court ruled against Texas death-row prisoner Erick Davila on June 26.

New Podcast: Duane Buck's Appeal Lawyer Tells Story of His Case, Discusses Future Dangerousness and Racial Bias

In DPIC's latest podcast, NAACP Legal Defense and Educational Fund Litigation Director Christina Swarns (pictured, center, outside the U.S. Supreme Court following the argument in Buck v. Davis) discusses the issues of race, future dangerousness, and ineffective representation presented in the landmark case. She calls the case—in which a Texas trial lawyer who represented 21 clients sent to death row presented an expert witness who testified that his own client was more likely to commit future acts of violence because he is black—"astonishing" and "a complete failure, literally, of all aspects of the criminal justice system." Swarns argued in the Supreme Court on behalf of Texas death-row prisoner Duane Buck, one of seven death-row prisoners whose trials were tainted by the racist testimony of Texas psychologist Dr. Walter Quijano, who testified that Buck presented a greater risk of future dangerousness because he is black. The Texas Attorney General's office conceded the impropriety of the testimony and agreed to new sentencing hearings in the other cases, but when a new attorney general was elected, opposed relief for Buck. In Texas, a jury must find that a defendant is a future danger to society as a prerequisite to imposing the death penalty, and the prosecutor seized on Dr. Quijano's testimony as a reason to sentence Buck to die. On February 22, 2017, nearly 20 years after his trial and after all state and federal courts to have considered his case had denied relief, the Supreme Court overturned Buck’s death sentence. In a conversation with DPIC Executive Director Robert Dunham, Swarns explains how Buck's case made its way to the Supreme Court, and how racial bias and the concept of future dangerousness are inextricably linked. Texas had argued that Quijano's testimony, while improper, was harmless because his and the prosecutor's comments on race were very short. Swarns, however, explains that "[t]he race-as-dangerousness link is so pernicious and so ingrained in history and culture and the death penalty in this country, that ... the explicit introduction of that evidence by a defense expert can only be deeply prejudicial ... no matter how many lines of transcript space it occupies." Chief Justice John Roberts, writing the Court's majority opinion, agreed, stating, "When a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses." Later in the discussion, Swarns places the Buck case in the broader context of the historically racially discriminatory application of the death penalty in the U.S. "This is a story as old as the death penalty itself," she says. "There has never been a time, there has never been a place in the administration of the death penalty where there isn't a race effect. Period. Hard stop."

U.S. Supreme Court Rules Texas Death-Row Prisoner Cannot Challenge Ineffectiveness of His Appeal Lawyer

In a 5-4 decision released June 26, the United States Supreme Court upheld the decision of the U.S. Court of Appeals for the Fifth Circuit, denying review of Texas death-row prisoner Erick Daniel Davila's claim that he had been provided ineffective representation by his state appeal lawyer. The case, Davila v. Davis, raised the question of whether two earlier Supreme Court decisions (Martinez v. Ryan and Trevino v. Thaler) permitted a federal court to review a prisoner's claim that his direct appeal counsel had been ineffective, if—because of his state post-conviction lawyer's ineffectiveness—the appellate ineffectiveness claim had never been presented to the state courts. Davila's federal habeas corpus lawyer challenged an improper jury instruction to which his trial lawyer had objected at trial, but both his direct appeal and his state habeas lawyers failed to raise the issue. When his state habeas lawyer also failed to challenge the adequacy of his appellate lawyer's performance in failing to raise the issue, the federal habeas court ruled that the claim was procedurally defaulted and would not be reviewed. Justice Clarence Thomas, writing for the majority, said that Martinez is limited to claims of trial counsel's ineffectiveness and does not apply to appellate-ineffectiveness claims. "Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default," Thomas wrote. He said granting prisoners like Davila federal review of meritorious claims of constitutional error "could flood the federal courts with defaulted claims of appellate ineffectiveness," calling that "especially troublesome because those claims could serve as the gateway to federal review of a host of trial errors." Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan, arguing that the majority had interpreted Martinez too narrowly. "[E]ffective trial counsel and appellate counsel are inextricably connected elements of a fair trial," Breyer wrote. He added, “[t]he fact that ... nearly a third of convictions or sentences in capital cases are overturned at some stage of review suggests the practical importance of the appeal right, particularly in a capital case such as this one.” The dissent also said the majority’s concern was unfounded that granting review of the type of constitutional violation in Davila's case would overburden federal habeas corpus courts. He wrote, “there is no evidence before us that Martinez has produced a greater-than-expected increase in courts’ workload.”

Intellectually Disabled Ex-Death Row Prisoner Released from Texas Prison After Decades Without a Valid Conviction

Jerry Hartfield, an intellectually disabled prisoner whose conviction and death sentence was overturned in 1980, was freed from prison in Texas on June 12, 2017, having spent 35 years in jail without a valid conviction and without being retried. Hartfield, whose IQ is in the 50s or 60s, was convicted and sentenced to death in 1977 on charges that he had murdered a bus station worker. Hartfield confessed to the crime, but has long asserted his innocence and that his confession was coerced. In 1980, he was granted a new trial because a prospective juror had been improperly excluded over reservations about the death penalty. Prosecutors tried for three years to change Hartfield's sentence to life without parole, including seeking a commutation from Governor Mark White, but in 1983 the Texas Court of Criminal Appeals again directed that Hartfield be retried. Soon after, Governor White issued an order to commute Hartfield's sentence to life in prison. Prosecutors and the governor's staff assumed that ended the litigation in Hartfield's case, while the courts assumed prosecutors were moving forward to comply with the second retrial order. Hartfield's attorney decided not to push for a retrial. For 23 years, Hartfield waited, until in 2006, he tried to find out what was happening in his case. Another prisoner, Kevin Althouse, helped Hartfield write requests to state judges, but they were all summarily rejected. Finally, a federal judge granted Hartfield's request for a lawyer, who ruled that Hartfield was being held without a valid conviction, and that because there was no conviction, the governor's attempted commutation was ineffectual. The case bounced between federal and state courts until a judge ordered a retrial in 2013. By the time the retrial finally took place in 2015, two key witnesses had died, all of the physical evidence had been lost or destroyed, and most of Hartfield's family members who could have offered mitigation testimony had died. Hartfield was convicted and sentenced to life in prison. On appeal, Hartfield's lawyers argued that his constitutional right to a speedy trial had been violated. An appeals court agreed, and ordered him released. Hartfield told The Marshall Project, “I am not bitter. I am not angry. [The prosecutors] were only doing their jobs, and I respect them for that."

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