Texas Capital Juror Regrets Vote to Sentence Defendant to Death

In an interview with The Marshall ProjectTexas death penalty juror Sven Berger says he would not have voted to sentence capital defendant Paul Storey to death in 2008 had he known about Storey's “borderline intellectual functioning,” history of depression, and other evidence that Storey's lawyer failed to present at trial. Berger and 11 other Texas jurors unanimously voted to sentence Storey to death, but Berger says that at the time of jury deliberations he did not believe Storey would pose a continuing danger to society if incarcerated - a fact that is a prerequisite to imposing the death penalty in Texas. Berger says "I just didn't get the feeling he was dangerous.... But the other jurors seemed anxious to deliver the death penalty" and in the highly stressful circumstances of death penalty deliberations, Berger went along with the other jurors. In the interview, Berger shared his experience saying, "If I could have done anything, it would have been to deadlock the jury, but I didn’t have the personal strength to do it ... at the time, I was really uncomfortable speaking out." He said that, after the verdict, "I felt guilty about what happened. And sad. And a little helpless. ... Eventually I started saying, 'I don’t think I made the right call.'" Two years later, Berger was contacted by a lawyer working on Storey's appeal who showed him a psychologist's report explaining Storey's background and mental health issues. Berger wrote in an affidavit that had he heard this evidence, "I would not have voted for the death penalty."

Texas Prepares to Execute Richard Masterson While Autopsy Data Suggests Death Was Not Murder At All

As Texas readies itself to execute Richard Masterson (pictured), his lawyers have filed new pleadings questioning whether any murder occurred at all and are seeking a stay of execution based on what they say is "evidence of State fraud, misconduct, and his actual innocence." Masterson's filings challenge the forensic testimony presented by the prosecution in the case, the accuracy of instructions given to jurors, and the constitutionality of Texas' lethal injection secrecy law. Masterson is scheduled to be executed on January 20 for the death of Darrin Honeycutt, which medical examiner, Paul Shrode, testified had been caused by strangulation. His attorneys argue in a new federal court filing that prosecutors concealed evidence that their expert witness and attending medical examiner was unqualified to perform Mr. Honeycutt’s autopsy, botched the autopsy, falsified his credentials, and gave false testimony in this case and other capital murder trials. Two pathologists who examined autopsy data say that the Shrode was unqualified and incorrectly ruled Honeycutt's death a homicide, when it was most likely caused by a heart attack. In 2010, Ohio Governor Ted Strickland commuted the death sentence of Richard Nields based upon concerns about Dr. Shrode's assertion that the victim in that case had been strangled. Shrode was subsequently fired as chief medical examiner in El Paso County, Texas, after discrepancies were found in his resume and revelations were made about his unsupported testimony in the Ohio case.  

Death Row Exoneree Anthony Graves Seeks to Right the "Injustice of the Justice System"

Death row exoneree Anthony Graves (pictured, right, with Sen. Richard Durbin after testifying before the U.S. Senate Subcommittee on the Constitution, Civil Rights and Human Rights in 2012) has experienced what he calls the "injustice of the justice system" and is working to make the system better. Graves was exonerated from death row in Texas in 2010, 16 years after being wrongfully convicted in a multiple murder case. Using some of the $1.5 in compensation that he was awarded for his wrongful imprisonment, Graves created the Anthony Graves Foundation with a mission "to promote fairness and effect reform in the criminal justice system." Now, he is advocating for broad criminal justice reforms to redress not only problems with the death penalty, but with questionable forensic evidence, racially disparate sentencing, the imprisonment of people with mental illness or drug addictions, and laws that unnecessarily require jail time or carry harsh mandatory minimum sentences. In an interview with Voice of America, Graves said, referring to the Texas criminal justice system: "You tried to murder me and I want to stay in your face every day to remind you that we need to do better." He described his advocacy, saying, "I use my story to educate people, but more importantly, keep it on people’s minds about the injustice that is going on in our criminal justice system." 

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.