Texas

Texas

Texas Courts Rule for Two Death-Row Prisoners on Intellectual Disability, Junk-Science Claims

Two Texas prisoners took steps away from death row as state courts ruled in their favor on issues involving false or faulty scientific evidence and argument. On October 5, 2018, the Texas Court of Criminal Appeals (CCA) granted a stay of execution to Juan Segundo (pictured, left), directing a Tarrant County trial court to reconsider a claim of intellectual disability that the courts had previously rejected based on an unconstitutional, unscientific standard for measuring his functioning. Four days later, an El Paso trial judge found that prosecutors had “presented false and misleading evidence and argument” concerning the cause of death of a 19-month-old whom Rigoberto Robert Avila (pictured, right) had been convicted of killing, and recommended that the CCA grant Avila a new trial.

Texas had been set to execute Segundo on October 10. Segundo’s lawyers had long argued that he is intellectually disabled and therefore exempt from execution under the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia. However, the Texas courts had dismissed that claim, relying on a series of nonclinical factors—some based on the fictional character Lennie Smalls from Of Mice and Men—to say that Segundo was not intellectually disabled under Texas law. In 2017, in the case of Moore v. Texas, the U.S. Supreme Court ruled that intellectual disability determinations must be “informed by the medical community’s diagnostic framework.” The Court struck down Texas’s approach, calling it an “outlier” that created “an unacceptable risk that persons with intellectual disability will be executed.” In Segundo’s case, the CCA wrote, “[i]n light of the Moore decision and the facts presented in applicant’s application, we have determined that applicant’s execution should be stayed pending further order of this Court.”

The CCA stayed Avila’s January 2014 execution based on a new law giving prisoners access to the courts to litigate new evidence that their convictions had been based on false or misleading forensic evidence. His was one of the first cases sent back to a lower court for reconsideration under the 2013 junk-science law. In his 2001 trial, prosecutors argued that Avila had killed his girlfriend’s infant son. “There’s no other way the kid could have died,” they told the jury. New evidence showed, however, that the infant could have died from injuries caused by his four-year-old brother. Judge Annabell Perez wrote that this new evidence “probably would have led jurors to harbor reasonable doubt about [Avila’s] guilt” if it had been available at trial. In a prepared statement, Avila’s lawyers wrote: “The new scientific evidence creates a compelling case for Mr. Avila’s innocence, and a judge has now found that the verdict against him rests on false and misleading testimony. After spending 17 years on death rowand facing four serious execution datesfor a crime he did not commit, Mr. Avila is anxious to present the reliable scientific evidence to a jury.”

Law Review: Junk Mental Health Science and the Texas Death Penalty

Junk science is “enabling and perpetuating grave miscarriages of justice” in Texas death-penalty cases. So concludes Professor James Acker in his article, Snake Oil With A Bite: The Lethal Veneer of Science and Texas’s Death Penalty, published in the latest issue of the Albany Law Review. Acker’s article highlights the heightened risks of injustice from pseudo-science and junk science in capital cases in Texas, one of the few states that conditions death eligibility upon a finding of the defendant’s future dangerousness. Acker writes that, “at virtually every ... stage of the state’s capital punishment process,” Texas prosecutors “have alternately enlisted expert witnesses and scientists who have helped move accused and convicted offenders progressively closer to the execution chamber, and ignored or discounted scientific norms and developments inconsistent with securing and carrying out capital sentences. All too often, the determinations made in support of death sentences are of dubious reliability—including opinions and conclusions based on what many would agree to qualify as junk science—thus greatly enhancing the risk of miscarriages of justice ....”

Acker’s article discusses Texas’s long history of abusing expert testimony in support of execution, starting with the case of Estelle v. Smith, in which Dr. James Grigson — later nicknamed “Dr. Death” — evaluated Ernest Smith for his competency to stand trial, did not notify counsel of the evaluation, failed to advise Smith of his right to remain silent, and then testified in the penalty phase “that Smith was a severe sociopath, that his condition could not be treated, and that he ‘is going to go ahead and commit other similar or same criminal acts if given the opportunity to do so.’” The U.S. Supreme Court overturned Smith’s death sentence in 1981 for violations of his right to counsel and his constitutional privilege against compelled self-incrimination. Two years later, in Barefoot v. Estelle, the Court permitted the use of psychiatric predictions of future dangerousness, despite warnings by the American Psychiatric Association that such testimony was speculative and highly unreliable. Grigson went on to testify in 167 capital cases, repeatedly responding to hypothetical questions posed by prosecutors (even after he was expelled from state and national professional associations because of this practice) that defendants whose institutional records he had never reviewed and whom he had never evaluated were certain to commit future acts of violence. Texas has also misused expert mental health testimony in capital cases to falsely argue that capital defendants posed an increased threat to society because of their race or ethnicity, Acker writes. He describes the testimony of Dr. Walter Quijano, a clinical psychologist who testified in seven cases that defendants were more likely to pose a danger to society because they were black or Latino. The Texas Attorney General’s office ultimately conceded error in all but one of those cases. Duane Buck’s case, however, reached the Supreme Court, where Chief Justice Robert condemned Quijano’s testimony as “powerful racial stereotyping.”

The Texas courts also systemically disregarded scientific standards or otherwise abused expert mental health testimony in determinations of intellectual disability and competency to be executed, Acker says. In the case of Moore v. Texas, the Supreme Court declared Texas’s approach to intellectual disability to be unconstitutional and ordered a reconsideration of Bobby Moore’s intellectual disability claim. With the prosecution, the defense, and multiple mental health groups all agreeing that Moore is intellectually disabled, the Texas Court of Criminal Appeals nevertheless upheld his death sentence. Finally, Acker writes, the state’s approach to competency has been an outlier, deeming Scott Panetti — who had been “hospitalized more than a dozen times [for mental illness and] been diagnosed as suffering from schizophrenia, bipolar disorder, auditory hallucinations, and delusions of persecution and grandeur” — competent to stand trial, to represent himself, and to be executed. Texas “has alternatively coopted, disregarded, and subverted science and prevailing disciplinary norms of the mental health professions,” Acker concludes. “The death penalty in Texas, imbued with powerful symbolism and political significance, has succeeded not only in condemning offenders, but also the principled teachings of science. ... Science and politics are a deadly mixture, in the nature of snake oil with a bite.”

Federal Judge Expresses Frustration at Procedural Constraints in Possible Innocence Case

In a case highlighting congressional limitations on the federal judiciary's ability to redress miscarriages of justice, a Texas federal judge has denied relief to a death-row prisoner who the court believes was denied a fair trial and may well be innocent. U.S. District Judge Keith P. Ellison (pictured) wrote on September 26, 2018, that he “would almost certainly have granted” a new trial to Robert Will, but the “constraints” imposed by 1990’s-era amendments to federal habeas corpus law left the court “powerless to address” what he called “the troubling possibility of [Will’s] actual innocence.” Ellison’s ruling urged the U.S. Court of Appeals for the Fifth Circuit to address Will’s claims, saying that his decision was a “technical ruling” that should not “obscure the extraordinarily significant issues that the Court of Appeals – unlike this Court – can properly consider.” In a trial in a Houston courtroom packed with uniformed police officers, Will was convicted and sentenced to death for the December 1999 murder of Harris County Sheriff's Deputy Barrett Hill. Investigators found no gunshot residue on Will and a footprint at the crime scene didn’t match his; Will claims that he was handcuffed when Deputy Hill was shot. Five witnesses later came forward with information that Will’s co-defendant had confessed to the crime, and additional evidence came to light during the habeas corpus proceedings that raised questions about a prosecution witness. However, Will’s state post-conviction lawyer, whose conduct Ellison said “appears to have been severely compromised by serious health conditions,” failed to investigate and raise those issues. Will’s case is also one of numerous Harris County death-penalty cases in which state judges adopted word for word the fact-findings proposed by the prosecution. Ellison said that, but for the limits on habeas review, he “would almost certainly have granted relief” on Will’s claim that “the presence of numerous uniformed law enforcement officers at his trial created an unconstitutionally coercive environment for the jury.” Ellison added: “The Court is particularly sensitive to the absence of any direct evidence of Will’s guilt, and the number of witnesses who aver that another man confessed to the underlying murder. ... The Court very much wishes it could take up all of these issues without the constraints of habeas review. With fewer constraints, the Court of Appeals can perhaps give these issues the time and attention that they merit. Nevertheless, this Court lacks jurisdiction to explore the troubling concerns that plague Will’s capital conviction.” Patrick McCann, former president of the Harris County Criminal Lawyers Association, said that Will’s case demonstrates that “[e]verything in the state procedure is inadequate and has been inadequate for the last three decades.” He called the requirement that federal judges defer to state court decisions “an absolute joke.” Ellison’s comments echo those of retired Ninth Circuit Judge Alex Kozinski who wrote in 2015 that Congress’s amendments to the habeas corpus law “abruptly dismantled” federal judicial review as a “safety-valve” against injustice and “pretty much shut out the federal courts from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred.” Instead, he wrote, federal courts “now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”

Texas Schedules Back-to-Back Executions of Prisoners Who Claim Innocence

Texas has scheduled executions on consecutive nights of two prisoners who have long asserted their innocence. Troy Clark (pictured, left), who is scheduled to be executed on September 26, 2018, was convicted and sentenced to death based on the changing statements of a former girlfriend who could have faced the death penalty under the Texas law of parties but was tried as an accomplice and sentenced to 20 years in prison. Daniel Acker (pictured, right), scheduled to be executed September 27, was convicted and sentenced to death based upon since recanted forensic testimony that he had strangled his girlfriend. Clark was convicted of the 1998 kidnapping and murder of Christina Muse in Tyler Texas, and prosecutors have also accused him two other methamphetamine-related murders. He has no legal challenges pending and his clemency petition was turned down by the Texas Board of Pardons and Paroles on September 24. Clark alleges that he was set up by his girlfriend, who initially told police that another murder victim was responsible for Muse’s death and then later gave police a statement saying she had killed Muse out of jealousy and that Clark was not involved. Clark also argued in an unsuccessful habeas corpus petition that his court-appointed counsel at trial and in the post-conviction process failed to investigate and present mitigating evidence—including mental health evidence related to fetal alcohol syndrome—that he says could have persuaded the jury to spare his life. Acker, who also maintains his innocence, was convicted of strangling his girlfriend, Marquetta George, and dumping her body. He does not deny involvement in her death, but alleges that she jumped out of his moving car during an argument and died accidentally, likely having been struck and killed by a passing car. Acker's attorneys have filed appeals saying that his trial was tainted by the court's exclusion of evidence, and the inclusion of “false,” “misleading,” and erroneous forensic testimony. The prosecution changed its explanation for George’s death after a state medical examiner admitted in a 2011 evidentiary hearing that she had not been strangled. Instead, the prosecution argued for the first time that Acker pushed George from the truck. “He didn’t have the physical ability to strangle her while he was driving,” Acker’s attorney said, and had no motive to kill George. The Texas pardons board has also denied Acker’s application for clemency. On September 21, he filed a petition for review and a motion to stay his execution in the U.S. Supreme Court, arguing that due process is violated when “a State has repudiated a false theory of criminal liability on which it based a death sentence, but intends to carry out that sentence based on a new theory of liability” that was never presented to the jury. Texas has already executed eight people in 2018.

Associated Press Reporter Michael Graczyk, Who Witnessed More Than 400 Executions, Retires

Michael Graczyk (pictured), who witnessed more than 400 executions as an Associated Press reporter in Texas, has retired after nearly 46 years with the news service. On March 14, 1984, Texas executed James Autry—the second person put to death in Texas since the U.S. Supreme Court upheld the state's capital punishment statute in 1976. According to a non-exhaustive list of execution witnesses maintained by the Texas Department of Criminal Justice, it was the first of at least 429 executions Graczyk witnessed in the nation's most prolific death-penalty state. Graczyk is believed to have witnessed more executions in the U.S. than any other person: no other reporter or corrections official in Texas has seen as many executions, and no other state has executed even one-third as many prisoners. In his 34 years observing executions, Graczyk was committed to telling the full story behind the case, interviewing death-row prisoners if they were willing, and speaking to victims’ families, lawyers, and prison officials. He said the volume of executions in Texas was surprising: “I talked to inmates on death row at the time, and some of them had foreseen that once the ball got rolling the state would be very aggressive. But I don’t think anybody could have foreseen the numbers.” His conversations with prisoners also revealed some of their thinking, including one insight that raises questions about the death penalty’s effect as a deterrent: “Despite Texas’ notoriety as this center of capital punishment, so many inmates I talked to told me they didn’t know or weren’t aware of the death penalty in Texas,” Graczyk said. Noreen Gillespie, the Associated Press’s deputy managing editor for U.S. news, described the critical role that Graczyk played in witnessing executions, saying, “Mike’s description of what happens in an execution is how the world and most of the country knows how that happens.” Graczyk’s retirement on July 31, 2018 does not mark the end of the line for his execution coverage. He will continue to cover Texas executions for the AP as a freelance reporter.

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Texas Executes Another Defendant of Color Over Objection of Victim’s Family

Against the wishes of the victim's family and amidst charges that the rejection of his clemency application was rooted in racial bias, Texas executed Christopher Young (pictured) on July 17, 2018. Young—who had been drunk and high on drugs when he killed Hashmukh Patel during a failed robbery in 2004—had repeatedly expressed remorse for the murder and had been mentoring troubled youth in an effort to prevent them from repeating his mistakes. The victim's son, Mitesh Patel, had urged clemency for Young, saying that he didn't want Young's children to grow up without a father, and that Young could be a positive influence by continuing his mentorship activities. Mitesh Patel, who had an emotional visit with Young the day before the execution, said the meeting left him with "a sense of sadness." "I really do believe Chris Young today is not the person he was 14 years ago," Patel said. "It's really unfortunate that the [pardons] board didn't hear our request for clemency. I feel sadness for his family. They're going to be walking down the same path my family has been on the last 14 years." On July 13, the Texas Board of Pardons and Parole voted 6-0, with one abstention, to deny Young's clemency application. Young's attorneys then filed a civil-rights suit in federal court, seeking a stay of execution on the grounds that the board's decision had been racially biased. Young's lawyer, David Dow, said family members of the murder victim have asked the pardons board six times this century to commute the death sentence imposed on the person convicted of murdering their loved one. "[O]f those six," Dow said, "three are black, two are Hispanic and one is white. Only in the case of the white guy [Thomas Whitaker] did they vote to recommend commutation.” U.S. District Judge Keith Ellison denied Young's request for a stay, but expressed extreme displeasure about the constricted timeframe for judicial review and the state's lack of concern about the possibility of racial bias. The case, he said, "dramatizes much of what is most troubling about the procedures by which we execute criminal defendants." He continued, "In a rational world, the Court would be able to authorize discovery and sift through the evidence obtained thereby. ... Here, ... the time frame is designed to render impossible intelligent and dispassionate judicial review. Applicable principles of law seem nonexistent." "Those engaging in race discrimination seldom announce their motivations," Judge Ellison said, and the timeframe made it "well-nigh impossible" for Young to prove his claims. "Ideally," Ellison wrote, Texas "would be determined to show that racial considerations had not infected the clemency proceeding. ... [H]owever, the State is eager to proceed with [Young's] execution without either side having any opportunity to explore the [issue]." In his final statement, Young said "l want to make sure the Patel family knows I love them like they love me. Make sure the kids in the world know I’m being executed and those kids I’ve been mentoring keep this fight going." The execution was the eighth in Texas and the thirteenth in the U.S. in 2018. 

Television Documentary Chronicles Innocence Claims of Two Death-Row Prisoners

A new documentary airing on ABC tells the stories of Darlie Lynn Routier and Julius Jones, two death-row prisoners who have long argued they were wrongfully convicted. The Last Defense, produced by Oscar- and Emmy-winning actress Viola Davis and her husband Julius Tennon, focuses its first four episodes on Routier, a Texas woman convicted of killing her young son, then highlights Jones, a Black man who was a 19-year-old college student when he was arrested for the murder of a White businessman. Routier says an intruder broke into her home, killed her 5- and 6-year-old sons, and stabbed her while her husband and youngest son slept upstairs. Police concluded that Routier had staged the break-in and quickly named her as the suspect in her sons' murders. Her trial in the death of the younger child began only seven months after the murders and lasted only two days. Her attorneys say she did not receive adequate representation at trial, and that her trial attorney failed to counter forensic evidence against her because he had a conflict of interest, having previously represented Routier's husband in an unrelated case. Though a court has ordered DNA testing that could verify Routier's burglary story, bureaucratic delays have kept her waiting on death row. A June 19, 2017 status report on the testing said, “In May 2017, counsel in the Dallas County District Attorney (office) learned the materials that were supposed to have been transported to the Department of Public Safety for DNA testing, as the state trial court’s testing order had required, had never been transported to DPS.” Jones, who is on death row in Oklahoma, had been a high school athlete and honor student who did not fit the description of the shooter. Like Routier, he is seeking DNA testing that he believes will prove his innocence. Jones's case raises claims of ineffective counsel, and the series explores the role of race in his trial, as a young Black man accused of killing a White man in a suburban neighborhood. Jones has an appeal pending in the U.S. Supreme Court asking the Court to review the race discrimination in his case. Data from a 2017 study of race and the death penalty shows that, in Oklahoma, defendants convicted of killing White victims are more than twice as likely to be sentenced to death as those convicted of killing victims of color, and that among these White-victim cases, defendants of color were then nearly twice as likely as White defendants to be sentenced to death. The Last Defense airs Tuesdays on ABC.

“Outlier” Texas Court of Criminal Appeals Upholds Bobby James Moore's Death Sentence

In a ruling three dissenters criticized as an "outlier," and after having been rebuked by the U.S. Supreme Court in 2017 for ignoring the medical consensus defining intellectual disability, a sharply divided (5-3) Texas Court of Criminal Appeals (CCA) has upheld the death sentence imposed on Bobby James Moore (pictured) 38 years ago. On June 6, 2018, the CCA ruled that Bobby Moore is not intellectually disabled under the most recent clinical definition of the disability and may be executed, despite a finding by a trial court judge, a concession from the Harris County District Attorney's office, and briefs from numerous professional associations and disability advocates all concluding that Moore meets the diagnostic criteria for intellectual disability. Harris County prosecutors had filed a brief with the CCA, stating, "[a] review of the Supreme Court's decision and the record before this Court supports but a single conclusion: Bobby James Moore is intellectually disabled under current medical standards and ineligible for execution." In a forceful dissent, Judge Elsa Alcala, joined by Judges Bert Richardson and Scott Walker, catalogued the numerous groups that had concluded Moore satisfied the medical criteria for intellectual disability and wrote: "There is only one outlier in this group that concludes that applicant is ineligible for execution due to his intellectual disability, but unfortunately for applicant, at this juncture, it is the only one that matters. Today, in solitude, a majority of this Court holds that applicant is not intellectually disabled, and it denies his application for habeas relief." 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 trial court. After making credibility determinations about the lay and expert testimony it heard, that court agreed that Moore had intellectual disability as defined by contemporary medical diagnostic criteria. However, the CCA reversed, applying an idiosyncratic set of criteria known as "Briseño factors" (named after the Texas court decision that announced them), which were based on unscientific stereotypes, including the behavior of a fictional character from Of Mice and Men. Last year, in Moore v. Texas, the U.S. Supreme Court unanimously struck down Texas' use of that criteria, saying that a court's intellectual disability determination must be "informed by the medical community’s diagnostic framework." The Court criticized the manner in which the CCA assessed Moore's significant deficits in adaptive functioning, saying the CCA had improperly focused on the adaptive skills Moore possessed, rather than the clinically required assessment of his areas of diminished functioning. It also said the CCA had improperly based its judgment on Moore's adaptive deficits on how he was able to function in the highly regimented prison setting. The dissent emphasized that the majority again gave improper consideration to these factors in reaching its conclusion that Moore was not intellectually disabled, and said the court had misapplied current medical standards and failed to defer to the trial court's credibility rulings. As a result, the dissent said, the CCA "essentially continues to determine that mildly intellectually disabled people are subject to the death penalty in contravention of the Supreme Court’s holding in Moore."

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