Harris County DA Seeks to Vacate Sentence for Nation’s Longest-Serving Death-Row Prisoner

The Harris County District Attorney​’s office has asked the Texas Court of Criminal Appeals to over­turn the death sen­tence imposed on Raymond Riles (pic­tured), the nation’s longest-serv­ing death-row prisoner.

Riles, who has a sig­nif­i­cant his­to­ry of men­tal ill­ness that pros­e­cu­tors and defense lawyers alike have long agreed make him incom­pe­tent to be exe­cut­ed, was con­vict­ed and sen­tenced to death 45 years ago, on February 4, 1976. When Charles Foster, who was sen­tenced to death in Florida in 1975, died on December 30, 2020, Riles gained the noto­ri­ety of hav­ing been on death row longer than any oth­er liv­ing pris­on­er in the United States. 

Riles’ men­tal ill­ness was already well-doc­u­ment­ed at the time of his tri­al but was deemed insuf­fi­cient for him to be found not guilty by rea­son of insan­i­ty. A judge stat­ed that he had com­mit­ted about a half dozen mem­bers of Riles’ fam­i­ly to men­tal health facil­i­ties over the years before Riles’ tri­al. The tri­al was marked by sev­er­al out­bursts, includ­ing Riles tear­ing off a door jamb, jump­ing on the defense table, and attack­ing the judge. Mental health experts who have exam­ined him have said is delu­sion­al and ​“gross­ly psy­chot­ic.” In 1985, he attempt­ed sui­cide by set­ting him­self on fire. He came with­in two hours of exe­cu­tion in 1986 before a stay was grant­ed to assess his mental competency.

At the time of Riles’ tri­al, how­ev­er, the Harris County District Attorney now says, his jury did not have a mech­a­nism to prop­er­ly con­sid­er evi­dence that could have spared his life. In an extra­or­di­nary brief filed February 1, 2021 in the Texas Court of Criminal Appeals, District Attorney Kim Ogg joined Riles’ defense lawyers in ask­ing the court to grant Riles a new sen­tenc­ing hear­ing. ​“Death penal­ty law has evolved and now requires jurors to be able to mean­ing­ful­ly con­sid­er and weigh mit­i­ga­tion evi­dence about an offend­er such as child­hood abuse and trau­ma,” Ogg said. ​“In 1976, Riles’ cap­i­tal mur­der jury was not giv­en this opportunity.”

In 1989, in Penry v. Lynaugh, the U.S. Supreme Court ruled that the Texas sen­tenc­ing statute — which lim­it­ed the jury’s con­sid­er­a­tion of evi­dence in the sen­tenc­ing phase to con­sid­er­ing whether the defen­dant com­mit­ted the mur­der inten­tion­al­ly and with­out provo­ca­tion and whether he posed a future dan­ger to soci­ety —uncon­sti­tu­tion­al­ly pre­vent­ed the jury from giv­ing mit­i­gat­ing effect to evi­dence such as a defendant’s upbring­ing and men­tal health. Riles’ lawyers have told the court that such evi­dence in his case includes ​“seri­ous men­tal ill­ness since child­hood.” In the brief filed by the District Attorney’s office, Ogg agreed that Riles’ death sen­tence should be over­turned because his jury was nev­er instruct­ed that it must give mit­i­gat­ing effect to his his­to­ry of men­tal ill­ness. The District Attorney’s brief also point­ed to a pre­vi­ous 1980s case in which the court had recent­ly reached that same conclusion. 

Riles’ case high­lights an unusu­al phe­nom­e­non in death-penal­ty law. Although Riles has been found incom­pe­tent to be exe­cut­ed, that rul­ing does not affect the legal­i­ty of his death sen­tence. ​“If some­one is deemed incom­pe­tent that should be the end of it, we should move them off [death] row,” said Amanda Marzullo, a death penal­ty lawyer and for­mer direc­tor of the non­prof­it legal group Texas Defender Service. ​“And some­times that hap­pens, but it’s the excep­tion not the rule.” Instead, pris­on­ers like Riles end up in lim­bo: they remain on death row, but can only be exe­cut­ed if their men­tal health is restored to the point that they under­stand their pun­ish­ment and the rea­son for it. Richard Burr, the lawyer who defend­ed Florida pris­on­er Alvin Ford in the case that cre­at­ed the stan­dard for incom­pe­tence to be exe­cut­ed, described the chal­lenge this presents for defense attor­neys. ​“You real­ize that it’s cru­el to have your client liv­ing there untreat­ed, but also cru­el to have them treat­ed and restored to com­pe­tence and pos­si­bly be exe­cut­ed,” he said.

“For many decades, there have been men marooned in pris­ons, main­ly through­out the South, with death sen­tences that both sides know, under some sort of détente, will nev­er be car­ried out,” said Joseph Perkovich, a lawyer who has rep­re­sent­ed pris­on­ers with men­tal ill­ness­es in at least five states. ​“There’s just no real legal mech­a­nism to reassess what should be done with those peo­ple,” said Thea Posel, one of Riles’ attor­neys. ​“Our sys­tem just isn’t struc­tured for that.” 

Ogg’s fil­ing may final­ly resolve that sit­u­a­tion in Riles’ case. ​“These cas­es are heart­break­ing because the process takes so long,” Ogg said. ​“It just pro­longs jus­tice and heal­ing for the fam­i­lies of the dead.” If the court grants Riles’ request for a new hear­ing, Ogg will have to deter­mine whether to con­tin­ue seek­ing the death penal­ty and, if she does, a jury will have the oppor­tu­ni­ty to con­sid­er his long his­to­ry of men­tal ill­ness. ​“Mr. Riles’ men­tal ill­ness is one of the ​‘diverse frail­ties of humankind’ that a jury must be per­mit­ted to weigh when decid­ing whether to impose the ulti­mate pun­ish­ment,” lawyer Jim Marcus, of the University of Texas at Austin School of Law, said.