Texas

Texas

U.S. Supreme Court Hears Argument in Texas Intellectual Disability Case

During argument November 29 in the case of Moore v. Texas, the U.S. Supreme Court expressed skepticism about Texas' idiosyncratic method of deciding whether a capital defendant has Intellectual Disability and is therefore ineligible for the death penalty. A trial court, applying the criteria for Intellectual Disability established by the medical community, found that Bobby James Moore (pictured) was not subject to the death penalty. However, the Texas Court of Criminal Appeal reversed that ruling in 2015, saying that Moore did not qualify as intellectually disabled under Texas' “Briseño factors” (named after the Texas court decision that announced them), an unscientific seven-pronged test based in part on the character Lennie Smalls from John Steinbeck's "Of Mice and Men." Moore's attorney, Clifford Sloan, argued that "Texas is very extreme and stands alone" in rejecting clinical standards used by the medical community to determine Intellectual Disability and replacing them with “nonclinical” and “anti-scientific” criteria. Five justices seemed sympathetic to Moore's case, raising concerns about the arbitrariness of allowing states to set their own criteria for deciding who is intellectually disabled. Justice Ruth Bader Ginsburg said, "You're opening the door to inconsistent results ... something that we try to prevent from happening in capital cases." Justice Stephen Breyer said that, without nationwide uniformity, there will be "disparities and uncertainties" and "people who are alike treated differently." Justices Elena Kagan and Sonya Sotomayor questioned whether application of the Briseño factors excluded some individuals whom clinicians would regard as being intellectually disabled. Justice Anthony Kennedy asked Texas Solicitor General Scott Keller whether the purpose of Texas' system was to "really limit" the definition of intellectual disability. When Keller said that was not the intent, Kennedy asked, "But isn't that the effect?" The Court is expected to rule on the case by June 2017.

NEW VOICES: Special Olympics Chair Urges Supreme Court to Strike Down Texas' 'Horrific' Criteria for Determining Intellectual Disability

Timothy Shriver (pictured), the Chairman of the Special Olympics, has called on the U.S. Supreme Court to end Texas' "use of stigmatizing stereotypes" in determining whether a defendant has Intellectual Disability and is therefore ineligible for execution. On November 29, the Court will hear argument in Moore v. Texas, a case challenging Texas' use of the “Briseño factors”—a set of unscientific criteria based in part on the fictional character of Lennie Smalls from the novel "Of Mice and Men"—to determine whether capitally charged prisoners have significant impairments in adaptive functioning that could qualify them for an Intellectual Disability diagnosis. In a column in TIME magazine, Shriver called Texas' method of adjudicating Intellectual Disability "horrific." He wrote, "[t]he inaccurate Texas standard reinforces one of the most damaging stereotypes about people with intellectual disability—that they can’t be 'good' at anything." In Moore's case, the judge relied on the fact that Moore was able to play pool and earned money mowing lawns as evidence that he did not really have an intellectual disability. Shriver applauded the Supreme Court's 2002 decision, Atkins v. Virginia, which barred the death penalty for defendants with Intellectual Disability. His article highlights some of the reasons people with Intellectual Disability should be exempt from execution: "people with intellectual disabilities have abilities but also challenges: they are less able to advocate for themselves; more likely to be coerced into behaviors they don’t understand; less likely to understand the implications of their actions and at higher risk for unreliable trials and wrongful convictions." Shriver encouraged the Court to bolster that protection by ending Texas' practices, which he said contravene established medical and clinical criteria: "It’s time for the Supreme Court to remind our nation that the Constitution and the vision of rights it embodies have no place for ill-informed and deadly stigmas."

OUTLIER COUNTIES: Former Death Penalty Capital Shows Signs of Change

Harris County, Texas, the county that leads the nation in executions, has served as a bellwether in recent years of the nationwide decline of the death penalty. Although the 10 new death sentences imposed in Harris County since 2010 are more than were imposed in 99.5% of U.S. counties, they are significantly fewer than the 53 new death sentences that were handed down in Harris in 1998-2003 and the 16 from 2004-2009. The 2016 Kinder Institute survey of Houston residents showed that just 27% prefer the death penalty over life sentences for those convicted of first-degree murder. Though the number of death sentences has dropped, systemic problems of prosecutorial misconduct, inadequate representation, and racial bias persist. Kelly Siegler, a prosecutor who obtained 19 death sentences, was found by a Texas court to have committed 36 instances of misconduct in a single murder case. In another case, she brought the victim's bloodstained bed into the courtroom and reenacted the murder using one of the knives from the crime scene. Harris County became nationally known in the 1990s for bad defense lawyering when a capital defense attorney slept through his client's trial. A judge told the defendant, "the Constitution does not say that the lawyer has to be awake." Today, Harris County defendants still receive ineffective counsel because of a pay system that discourages defense lawyers from seeking plea bargains or hiring expert witnesses. Every new death sentence imposed in Harris County since November 2004 (not including resentences) has been imposed upon a Black or Latino defendant. Former Harris County District Attorney Chuck Rosenthal, who oversaw 40 death sentences between 2001 and 2008, resigned after a civil suit uncovered racist emails he sent using his official email account. The U.S. Supreme Court is currently deciding Buck v. Davis, a Harris County case in which a Black defendant was sentenced to death after his defense attorney introduced racially-biased testimony during sentencing. Three Harris County defendants have been exonerated from death row, most recently Alfred Brown (pictured) in 2015. Prosecutors withheld evidence that corroborated Brown's alibi, Brown's girlfriend was threatened and eventually imprisoned until she agreed to testify against him, and officials refused requests to test DNA that may implicate another suspect.

Texas Executions Drop to Lowest Level in 20 Years

Texas is poised to have the fewest number of executions in 20 years. As of October, the state has executed seven prisoners in 2016, with just one more execution scheduled this calendar year. The total would mark the fewest executions in the state in any year since 1996. In that year, three people were executed, as legal challenges to a new state law billed as speeding up appeals put most executions on hold. Fifteen execution dates for 11 people have been stayed or halted in Texas this year. Several of those, most notably the case of Jeffrey Wood, hinged on questions about "junk science" testimony. Wood's execution was stayed to permit review of claims that his death sentence was a product of false psychiatric testimony from James Grigson, who earned the nickname "Dr. Death" for his testimony in numerous capital cases claiming that defendants were certain to commit future acts of violence. Another Texas prisoner, Robert Roberson, was granted a stay to allow him to challenge now-debunked testimony that his daughter died of shaken baby syndrome, when several alternative, non-homicide explanations for her death better fit the evidence. At the same time as Texas courts have halted executions over questionable scientific testimony, the U.S. Supreme Court is hearing two Texas cases this term (Buck v. Davis and Moore v. Texas) that also involve scientifically-unsound mental health testimony that was used to obtain or defend death sentences. "Texas courts are now aware of the dangers associated with forensic sciences and are closely scrutinizing this evidence,” said Greg Gardner, an attorney for John Battaglia, who had an execution date set for December 7. Along with the drop in executions, Texas has also seen a dramatic decline in death sentences. Death sentences have declined steadily since 2005, as life without parole became available as a sentencing alternative in death penalty trials, but the past two years have seen even lower numbers. Just two people were sentenced to death in 2015, and Texas juries have handed down three death sentences so far this year. Experts say that changing public attitudes, falling murder rates, and better lawyering have also contributed to the decline. (Click to enlarge.)

U.S. Supreme Court Hears Argument in Buck v. Davis, Texas Case Dealing With Racist Testimony

The U.S. Supreme Court heard oral argument on October 5 in Buck v. Davis, a Texas case in which Duane Buck was sentenced to death after his own lawyer presented expert testimony from a psychologist who called Buck more likely to commit acts of violence in the future because he is Black. While Cecilia Marshall, widow of Thurgood Marshall, and Buck's stepsister, Phyllis Taylor—a survivor of the shooting—observed from the audience, Buck's counsel told the Court that the jury had sentenced Buck to death penalty based upon "a false and pernicious group-based stereotype" that equated being Black with being dangerous. Each of the seven justices who spoke during the hearing sharply criticized trial counsel's conduct, with Justice Samuel Alito saying "what occurred at the penalty phase of this trial is indefensible." Six other defendants whose cases had been tainted by similarly biased testimony by the same psychologist have already received new sentencing hearings, but Buck has not. Texas argued that Buck's case is unique because his defense attorney, not prosecutors, invited the biased testimony. Buck's attorneys previously sought review of his case on the grounds that his lawyer was ineffective, but the U.S. Court of Appeals for the Fifth Circuit denied Buck a "Certificate of Appealability" (COA), which allows a defendant's claims to be heard on the merits by an appeals court. During argument, the Justices raised concerns about the disparate rates at which Circuit Courts grant COAs. The Fifth Circuit denies them in about 60% of cases, while the Eleventh and Fourth Circuits deny them in only 6% and 0% of cases, respectively, meaning that defendants in the Fifth Circuit receive less review of their claims than those in the Eleventh or Fourth. Justice Elena Kagan said, "[I would assume] you think this is such an extraordinary case, and that the 5th Circuit got this so wrong, that it’s the best proof that there is that the court is approaching the COA inquiry in the wrong way." Justice Stephen Breyer agreed, saying, "It seems to me it proves the arbitrariness of what’s going on." (Pictured: Buck's lead counsel, NAACP Legal Defense Fund Litigation Director Christina Swarns, being interviewed on the steps of the Court.) 

REPORT: "Lethally Deficient" Texas Death Penalty Appeal System in "Dire Need of Reform"

A September 20 report by the Texas Defender Service says that Texas "has failed to ensure effective counsel" for appellants in capital cases and that the state's system of reviewing death penalty cases on direct appeal is "in dire need of reform." The report, titled Lethally Deficient, reviewed all 84 capital direct appeals decided by the Texas Court of Criminal Appeals (CCA) from 2009 to 2015 and identified numerous "persistent deficits in the provision of counsel on direct appeal in death penalty cases." Among those problems, the report found that the Texas capital defense system "fails to meaningfully evaluate attorney qualifications" before assigning a lawyer to handle a capital appeal; "understaffs the defense" by appointing only one lawyer—frequently a solo practitioner—to the case; improperly "subjects defense counsel to political pressures"; provides inconsistent and often inadequate resources and compensation; and fails to control attorney workload to ensure that appointed lawyers have time to provide appropriate representation. The report said that, these "fundamental flaws ... led to multiple instances" in which appeal lawyers recycled boilerplate arguments relying on outdated legal authority that had already been rejected in other cases, failed to meet or consult with their clients before filing briefs, failed to file replies to prosecutors' briefs, and failed to seek review of the case by the U.S. Supreme Court. During the period examined, the CCA upheld every capital conviction and more than 94% of all death sentences, and overturned just three death verdicts. Looking at 1,060 capital direct appeal decisions between 2005 and 2015 by courts in the other 30 death penalty states, the study found that Texas's reversal rate was 2.8 times lower than the national average. “The tragedy of direct appeals in Texas capital cases is not simply that lawyers underperform, often pasting together briefs, skipping oral argument, or declining to do other basic tasks such as filing reply briefs. It is that everyone knows that this is happening, from the Texas Court of Criminal Appeals on down. It is an embarrassment to the legal profession and a testament to the low expectations in Texas surrounding defense representation in capital cases,” said Jordan Steiker, Co-Director of the Capital Punishment Center at The University of Texas School of Law. The Texas Defender Service offers three major reform recommendations, suggesting that Texas should 1) "establish a statewide capital appellate defender office," 2) "create a statewide appointment system with effective caseload controls and uniform attorney compensation," and 3) "appoint two lawyers to represent death-sentenced defendants on direct appeal." Kathryn Kase, executive director of the Texas Defender Service, said "Texas has made enormous strides in its effort to reform indigent legal services in general, and in capital indigent representation, since 2001." These new measures, she said "are the necessary next steps in delivering a promise that the first Texas Code of Criminal Procedure laid out in 1857, promising adequate legal assistance to indigents facing the mighty powers of the state."

New Podcast: Jeffery Wood and the Texas Law of Parties, With Expert Guest Kate Black

Today, DPIC launches a new podcast series, "Discussions With DPIC," which will feature monthly, unscripted conversations with death penalty experts on a wide variety of topics. The inaugural episode features a conversation between Texas Defender Services staff attorney Kate Black (pictured) and DPIC host Anne Holsinger, who discuss the case of Jeffery Wood and Texas' unusual legal doctrine known as the "law of parties." Wood's case garnered national media attention because he was sentenced to death despite having neither killed anyone nor even intended that a killing take place. His execution, which had been scheduled for August 24, was stayed by the Texas Court of Criminal Appeals to permit him to litigate a challenge to the prosecution's use of scientifically invalid predictions of future dangerousness by a psychiatrist who had been expelled from state and national psychiatric associations for similarly improper testimony in the past. In the podcast, Black explains the law of parties and its application in Wood's case, and discusses how the national dialogue that developed around Wood's case may affect the death penalty in the future. 

FBI Documents Show States' Claims of Threats to Execution Drug Suppliers Were Exaggerated

FBI records show that state claims that execution drug suppliers have been the subject of threats by anti-death penalty activists are largely unsubstantiated and exaggerated, according to an investigation by BuzzFeed NewsBuzzFeed found that "few concrete examples" of the alleged harassment, intimidation, and physical threats states claim have been made against drug suppliers, and that "the states’ marquee example — in which the FBI allegedly investigated a serious bomb threat sent to a drug supplier — is contradicted by internal FBI documents." Instead, BuzzFeed found, "the real danger to drug suppliers appears to be legal and economic risk, not risk of violence." Texas and Ohio have claimed secrecy was necessary to protect the safety of potential drug suppliers, citing an alleged threat against a disgraced and now defunct Tulsa, Oklahoma pharmacy, The Apothecary Shoppe, that had been supplying execution drugs to Missouri. That "threat" appears to have consisted of an email sent by a retired college professor who used his own name and included his own phone number, and which the professor has characterized as a warning to the pharmacy to be cautious. An expert witness for the two states—a former Secret Service officer named Lawrence Cunningham who is now employed by a private security company—testified in litigation over their secrecy policies that the email constituted a "serious threat," as evidenced by the fact that it was investigated by the FBI. However, FBI and Tulsa Police Department records show that neither agency was aware of any threats against the pharmacy until a reporter called the FBI months later to ask about alleged threats. The pharmacy had not filed any complaint about the email and, FBI records show, did not come forward with copies of any threatening emails after having been given an opportunity to do so. Cunningham also testified in the Ohio case that the Texas Department of Public Safety had investigated the email, including interviewing the professor—a claim that is contradicted by Cunningham's own sworn testimony in the Texas case and, BuzzFeed says, by Texas DPS documents, sworn statements of the DPS department head, and FBI internal documents. Indeed, Colonel Steven McCraw of Texas DPS testified in a deposition, “I did not do any investigations. We didn’t look at any people. We didn’t do anything.” Officials in Mississippi, Ohio, and Missouri also exaggerated threats by stating suppliers were "harmed" or "threatened" by facing lawsuits or disparaging comments in the media. 

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