Texas to Execute Lester Bower After 30 Years on Death Row, Despite Errors and Doubts as to Guilt

UPDATE: Bower was executed as scheduled. EARLIER: Lester Bower is scheduled to be executed in Texas on June 3, after spending more than 30 years on death row. Judges have denied relief on several issues raised by Bower, including a claim that prosecutors had withheld evidence from the defense supporting Bower's consistent assertion that he is innocent. Bower was convicted of the 1983 murder of four men in Grayson County, Texas. He says he met with one of the men to purchase an ultralight aircraft, which the others helped him disassemble and load into his truck. The evidence against him was circumstantial: calls made to the man selling the aircraft and Bower's possession of the same type of ammunition used in the killings, which prosecutors had told the jury was extremely rare. After Bower's conviction, his lawyers obtained records from the FBI and prosecutors indicating that the ammunition was not as rare as prosecutors had said, and of an undisclosed tip that the murders may have been connected to drug trafficking. Later, a woman came forward saying that her boyfriend and his friends had committed the murders after a drug deal went wrong. The wife of one of the other men corroborated her story. In a recent filing, Bower's attorneys said, "This is a case in which there is a significant lingering doubt regarding guilt or innocence." Three Supreme Court justices have said that Bower should have a new sentencing hearing, as a result of what they called a "glaring" constitutional error that impaired the jury's consideration of mitigating evidence.

LETHAL INJECTION: Texas Switches to New Drug as Next Execution Approaches

The Texas Department of Criminal Justice (TDCJ) announced on March 16 that it will switch to pentobarbital as part of its three-drug lethal injection protocol for the upcoming execution of Cleve Foster on April 5.  The short notice has drawn concerns from Foster's defense attorneys and lethal injection experts. Maurie Levin, a professor at the University of Texas who represents Foster, said, “Prison officials are not medical professionals. They cannot be trusted to change a medical procedure in the dark of night without public scrutiny, especially when there is such a minimal track record on the use of pentobarbital in lethal injections."  Prof. Deborah Denno of Fordham Law School, one of the nation’s leading experts on the lethal injection, said that the “Texas decision was not about making executions more humane but was meant to make the process more feasible.”  She also pointed to the fact that the problems with the earlier methods of lethal injection arose because one state blindly followed another, without careful review: "This lemming-effect has created a decades-long pattern of lethal injection botches in which department of corrections try to remain one step ahead of lawsuits."

U.S. Supreme Court Allows Texas Death Row Inmate to Continue Pursuit of DNA Testing

On March 7, the U.S. Supreme Court held (6-3) that Hank Skinner, a Texas death row inmate who came within an hour of execution in 2010, can challenge the state's refusal to test crucial DNA evidence from his case in federal court.  Skinner has always maintained his innocence of the 1993 murders of his girlfriend and her two sons and requested that Texas perform DNA testing on key pieces of evidence that might point to another suspect.  At issue in Skinner v. Switzer, No. 09-9000, was whether Skinner was barred from independently raising such a challenge under the federal Civil Rights Act (§1983) because he was actually appealing his conviction.  Writing for the majority, Justice Ruth Bader Ginsburg said, "Measured against our prior holdings, Skinner has properly invoked §1983. Success in his suit for DNA testing would not 'necessarily imply' the invalidity of his conviction. While test results might prove exculpatory, that outcome is hardly inevitable . . ."  Skinner's attorney, Robert C. Owen, Clinical Professor of Law at the University of Texas at Austin, welcomed the Court's ruling, noting that the denial of DNA testing in Skinner's case is a rare occurrence: "[T]here is no reason to fear that lawsuits like Mr. Skinner's will overwhelm the federal courts. The high court’s ruling will simply make it possible for Mr. Skinner to vindicate his due process rights in federal court, a right long enjoyed by prisoners in other parts of the country.  We look forward to making our case in federal court that Texas's inexplicable refusal to grant Mr. Skinner access to evidence for DNA testing is fundamentally unfair and cannot stand."

NEW VOICES: Former Bush Official Urges Basic Review of Death Sentences Given Foreign Nationals to Protect Americans Abroad

A former State Department official in the Bush administration is urging Congress to help the U.S. comply with a ruling from the International Court of Justice (ICJ) regarding the Vienna Convention on Consular Relations as a way of protecting U.S. citizens traveling abroad.  John Bellinger, who argued before the ICJ, said in an op-ed in the Washington Post that "a key provision [of the Vienna Convention] requires parties to the treaty to promptly inform, upon arrest, nationals of other parties to the treaty that they have a right to meet with a consular official." But the U.S. failed to give such notice to foreign nationals in the U.S. who faced the death penalty.  In 2004, the ICJ at the Hague held that the U.S. was required to review the convictions and sentences of 51 Mexicans on death row in the U.S. whose rights under the treaty were not respected.  A year later, then-President George W. Bush ordered Texas courts to carry out this review for those on its death row.  Texas challenged Bush’s order, and the U.S. Supreme Court agreed with Texas, saying the president does not have the power to order state courts to review criminal convictions. The op-ed noted that the Vienna Convention is a two-way street and that U.S. compliance with its provisions is essential to ensure that Americans detained abroad receive the same treatment. Bellinger wrote, “U.S. compliance with the Vienna Convention is vital. [U.S.] lawmakers cannot expect other countries to comply with their treaty obligations to us unless the United States observes its treaty obligations to them.”  Read full editorial below.

Texas Faith Leaders Appeal to Governor for Clemency in Pending Execution

On February 16, over 90 prominent religious leaders from Texas called on the Board of Pardons and Paroles and Governor Rick Perry to grant clemency to Timothy Adams (pictured). Adams is an army veteran with no criminal history prior to the day he killed his son while planning his own suicide in 2002. Leaders from nine denominations announced their support for clemency, saying "We join the victim’s family in asking that you spare Mr. Adams from death. You have an extraordinary opportunity to show mercy to a family that has already suffered greatly and to uphold the sacredness of human life." From the beginning, Adams accepted responsibility for what his crime, and pleaded guilty in court. During his eight years on death row, he has been a model prisoner. Earlier this month, Adams's family (and hence the family of the victim) petitioned the board to spare his life. Three jurors have also come forward in support of clemency, stating that information regarding Adams's upbringing, deep devotion to religion, and mental state – which was not presented during the trial – would have led them to sentence Adams to life in prison instead of the death penalty. UPDATE: The Board of Pardons and Paroles declined to recommend clemency for Adams.  See full text of letter below.

Victim's Family and Jurors Urge Clemency for Texas Death Row Inmate

On February 7, attorneys for Tim Adams (pictured) filed a petition for clemency urging the Texas Board of Pardons and Paroles to recommend sparing Adams' life and to ask Governor Rick Perry to commute his death sentence to life in prison without parole. Adams, an army veteran with no criminal history, killed his son while planning his own suicide in 2002. He pleaded guilty and has taken responsibility for his actions.  Family members and three jurors from Adams' trial have also voiced strong support for his clemency. Columbus Adams, Adams' father and grandfather of the victim, said, "Our family lost one child. We don’t deserve to lose another. After my grandson’s death, we lived through pain worse than anyone could imagine. Nothing good will come from executing my son Tim and causing us more anguish." Additionally, Rebecca Hayes, Ngoc Duong, and Kathryn Starling, who served as jurors in Adams' trial, have said they were not presented with information about the defendant's character and religious background that would have influenced their sentencing decision. In an affidavit, Hayes said, "Those deliberations were the most emotional experience of my life, and I have carried the guilt around for years knowing that I sentenced Adams, a man who had done wrong but who was otherwise a good, religious, and hard-working person to death."