New Insights into Recent Texas Exoneration from Death Row

More information has emerged about the wrongful conviction of Anthony Graves (pictured), who was exonerated from Texas's death row in 2010. Prosecutor Kelly Siegler, who had tried many capital murder cases and sent 19 people to death row as a Harris County assistant district attorney, and Otto Hanak, a state trooper and Texas Ranger for 28 years, were brought into the case after an appeals court found that the original prosecutor, Charles Sebesta, had withheld statements from the defense and elicited false testimony. It was originally thought that Siegler would retry the case against Graves.  According to prosecutor Siegler, Sebesta used ethically questionable tactics to persuade a co-defendant to testify against Graves. Sebesta also violated the rules of evidence by introducing only a partial transcript of a taped interview of the co-defendant and not introducing the actual tape. During her investigations, Siegler was never able to find the tape of the interview. When the co-defendant faced execution in 2000, he admitted that he lied about Graves’s involvement in the crime. After reviewing 19 boxes of evidence and interviewing more than 50 witnesses, Siegler and Hanak independently concluded that Graves was not guilty. Siegler said, "There came a time I believed he was innocent, but I wanted Otto to arrive at that on his own.  One morning he came in and said, 'I don't think he did it.’” Hanak added, “In all these years I've been in this business, I never thought I would be party to saving someone who was on death row.”  The original prosecutor, Charles Sebesta, plans to take out full page ads explaining his side of the story.  "We've got some things on Siegler that when push comes to shove, we've got things that are going to sink her ship," he said.

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Possible Case of Innocence on California's Death Row

A recent op-ed by Pulitzer Prize-winning columnist Nicholas Kristof (pictured) of the New York Times focuses on the possible innocence of Kevin Cooper, a black defendant on California's death row. Kristof writes, “This case is a travesty. It underscores the central pitfall of capital punishment: no system is fail-safe. How can we be about to execute a man when even some of America’s leading judges believe he has been framed?”  Cooper faces execution for a 1983 quadruple-murder of a white family. According to Kristof, numerous anomalies in the case suggest that evidence used to implicate Cooper in the murders may have been corrupted. For example, a beige T-shirt was offered as evidence because it had a trace of Cooper’s blood, but the blood sample contained preservatives used by the police when they keep blood in test tubes. Later, a forensic scientist found that a sample from the test tube that contained Cooper’s blood held by the police contained blood from more than one person, suggesting that someone removed blood from the test tube and later filled the tube back to the top with another person’s blood. Police also failed to investigate other suspects. A woman reported that one of her housemates had shown up with several other people on the night of the murders wearing blood-spattered overalls and driving a vehicle similar to the one stolen from the murdered family. The witnesses said the man was no longer wearing a beige T-shirt he had on earlier in the evening and his hatchet, now missing from his tool area, resembled the one found in the crime scene. The witnesses gave the bloody overalls to the police for testing, but because of the police's focus on Cooper as the suspect, they threw the overalls in the trash. The full U.S. Court of Appeals for the Ninth Circuit refused to rehear the case, but five of its federal judges concluded, “California may be about to execute an innocent man.”  Six other judges dissented from the decision not to review the case.  Read full op-ed below.

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Tennessee Judge Declares State's Execution Process Unconstitutional; Other States Confront Same Issue

On Nov.19, a Davidson County judge ruled that Tennessee’s lethal injection procedure was unconstitutional, possibly delaying the execution of Stephen Michael West and others on death row. Chancellor Claudia Bonnyman, who issued the ruling, said that the state’s lethal injection procedure “allows for death by suffocation while conscious,” because it did not specify a sufficient dosage for sodium thiopental, the first of three drugs used in lethal injections. In Baze v. Rees, the U.S. Supreme Court decided that Kentucky’s lethal injection method was constitutional, although the decision did not specifically address the amount of sodium thiopental used in executions, provided it was administered properly. Federal public defender Stephen Kissinger presented two medical experts who testified that autopsies performed on executed inmates showed that concentrations of two of the drugs used in lethal injections were too low to cause their intended effect. Medical experts found that levels of sodium thiopental (the first drug used) in all three autopsies were too low to cause unconsciousness and levels of potassium chloride (the final drug used) were not enough to stop the heart.  UPDATE: Tennessee Supreme Court upheld the state's execution procedure, allowing West's execution date to be set for Nov. 30.

In other states: a federal court in Oklahoma approved the use of the anesthetic pentobarbital as the first of 3 drugs to be used in its executions.  It would be used in place of sodium thiopental, which is in short supply.  Oklahoma has an execution scheduled on Dec. 16.  Pentobarbital has been used in the euthanasia of animals.  In Texas, the Attorney General has ruled that the source of the state's lethal injection drugs should be made public.  Texas reportedly has sufficient quantities of sodium thiopental for 39 executions, but the supply has an expiration date in March 2011.  In California, the state has so far refused to divulge its source of sodium thiopental.  Arizona, which secured a supply of this drug around the same time as California, obtained the drug from overseas and carried out an execution.  Litigation in the United Kingdom is seeking to block the exportation of drugs used in executions after it was reported that U.S. states were acquiring sodium thiopental from a British company. (Various news stories.)

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TIME ON DEATH ROW: After 35 Years, Texas Inmate Dies of Natural Causes

The longest serving inmate on Texas's death row died of natural causes in Dallas County Jail while awaiting a new sentencing hearing.  Ronald Curtis Chambers spent 35 years on death row awaiting execution. For much of the time, he was confined to his cell for 23 hours a day. Chambers was convicted of capital murder and sentenced to death in 1975, but his sentence was overturned repeatedly.  He was again sentenced to death in 1985 and 1992.  James Volberding, who worked on Chamber's appeals from 1996 to 2008, pointed to his case as an illustration of the flaws in Texas' death penalty system.  According to Volberding, court and prosecution errors were the cause of the long delay and he argued that these delays amounted to cruel and unusual punishment.  He said that Chambers was a changed man from the person who committed murder at age 20 and was very remorseful.  The Dallas County district attorney's office spokeswoman Jamille Bradfield stated on Monday that they were "actively preparing to retry Mr. Chambers on punishment at the time of his death."

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ARBITRARINESS: Jury Deadlocks on Death Penalty for Murder of Police Officer

A capital jury in Philadelphia illustrated the divisiveness and arbitrariness of the death penalty when it could not decide on a sentence for Rasheed Scrugs, who admitted to killing Police Officer John Pawlowski.  The atmosphere in the jury room became "horrible" according to one of the jurors.  Jurors almost immediately reported no chance for a verdict, as deliberations began with seven for life in prison and five for death by lethal injection.  Some jurors reportedly refused to take part in the deliberations by "remaining silent or walking out to the lavatory."  Juror Fred Kiehm described the deliberations as: "Extremely tense... screaming, yelling, at one point I thought someone might break furniture."  Some jurors, Kiehm said, were influenced by one of Scrugs' "mitigating factors" for life in prison: he had four sons whom the jurors did not want to grow up with their father on death row. 

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Another Texas Execution Thrown in Doubt by New DNA Tests

Recent DNA tests raise serious doubts about the conviction of a man executed in Texas in 2000.  The tests revealed that a strand of hair found at the scene of a liquor-store shooting did not belong to Claude Jones, as was originally implied by the prosecution.  Instead, the hair belonged to the victim.  Jones was executed for the murder of the store's owner. The strand of hair was the only piece of physical evidence that placed Jones at the scene of the crime, and this revelation raises the question of whether Texas executed the wrong person for the murder. Before his execution in 2000, Jones’s lawyers filed petitions for a stay with both a district court and with the Texas Court of Criminal Appeals, requesting that the strand of hair be submitted for DNA testing. The necessary DNA technology had not been developed at the time the crime in 1989, but was available in 2000. Both courts, along with then-Governor George W. Bush, denied Jones a stay of execution.  Apparently, Gov. Bush was not even informed by his clemency advisors about the request for the DNA test.  Barry Scheck, co-founder of the Innocence Project, said “The DNA results prove that testimony about the hair sample on which this entire case rests was just wrong. Unreliable forensic science and a completely inadequate post-conviction review process cost Claude Jones his life.”

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EDITORIAL: "No Justification" for Recent Execution

On October 29, a New York Times editorial raised many concerns regarding the recent execution of Native American Jeffrey Landrigan in Arizona.  The Times said “the system failed him at almost every level, most disturbingly at the Supreme Court.” Landrigan’s execution garnered national attention because a nationwide shortage of sodium thiopental forced the state to seek the drug from foreign suppliers. Despite repeated orders from a federal District Court judge, Arizona refused to divulge the source of their lethal drug supply.  The judge stayed the execution based on these concerns, but the stay was overturned by the U.S. Supreme Court in a 5-4 ruling that said there was “no evidence in the record to suggest that the drug obtained from a foreign source is unsafe.” But, as the editorial pointed out, "There was no evidence — either way — because Arizona defied orders to provide it."  In addition to concerns about the drugs used in Landrigan’s execution, recent statements made by Landrigan’s sentencing judge questioned the appropriateness of a death sentence in this case. Judge Cheryl Hendrix, who presided over Landrigan's trial, recently told the Arizona Board of Executive Clemency that she would not have sentenced Landrigan to death if his trial attorney presented evidence of the defendant’s brain damage and other problems.  The Board's vote was 2-2, so clemency was denied. Read full editorial below.

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Anthony Graves Becomes 12th Death Row Inmate Exonerated in Texas

Anthony Graves (pictured) was released from a Texas prison on October 27 after Washington-Burleson County District Attorney Bill Parham filed a motion to dismiss all charges that had resulted in Graves being sent to death row 16 years ago. Graves was convicted in 1994 of assisting Robert Carter in multiple murders in 1992. There was no physical evidence linking Graves to the crime, and his conviction relied primarily on Carter’s testimony that Graves was his accomplice. Two weeks before Carter was scheduled to be executed in 2000, he provided a statement saying he lied about Graves’s involvement in the crime. He repeated that statement minutes before his execution. In 2006, the U.S. Court of Appeals for the Fifth Circuit overturned Graves’s conviction and ordered a new trial after finding that prosecutors elicited false statements and withheld testimony that could have influenced the jurors. After D.A. Parham began to reassemble the case and review the evidence, he hired former Harris County assistant district attorney Kelly Siegler as a special prosecutor. Siegler soon realized that making a case against Graves would be impossible: "After months of investigation and talking to every witness who's ever been involved in this case, and people who've never been talked to before, after looking under every rock we could find, we found not one piece of credible evidence that links Anthony Graves to the commission of this capital murder. This is not a case where the evidence went south with time or witnesses passed away or we just couldn't make the case anymore. He is an innocent man," Siegler said.

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Texas Inmate May Be Executed Despite Proof of Intellectual Disability

Michael Hall was sentenced to death in 2000 in Texas for kidnapping and murder. At the time of his trial, his IQ was measured at 67. Generally, a person with intellectual disability is defined as someone with an IQ of 70 or lower, along with limitations in adaptive skills. In 2002, the Supreme Court ruled in Atkins v. Virginia that executing someone who has an intellectual disability (mental retardation) constitutes cruel and unusual punishment, but the high court left it to each state to define and enforce the prohibition. State and federal judges in Texas have ruled that, even though Hall is mentally slow, he does not demonstrate an intellectual disability sufficient to be exempted from capital punishment in Texas.  Lawyers for Hall petitioned the high court to examine whether Texas has adopted adequate procedures to determine whether someone has an intellectual disability and whether those procedures were followed in Hall’s case in line with constitutional safeguards. The Supreme Court has declined to take up Hall's appeal.

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Sentencing Judge Second-Guesses Death Sentence In Light of New Evidence

On October 20, attorneys for Jeffrey Landrigan filed a clemency petition with the Arizona Board of Executive Clemency calling on the Board to recommend the commutation of Landrigan’s death sentence largely because of errors by his trial attorneys. Landrigan’s original attorneys failed to present mitigating evidence at the sentencing hearing, which could have included evidence of brain damage and severe abuse. Judge Cheryl Hendrix, the judge who imposed Landrigan’s death sentence, recently signed a declaration admitting that, if she knew about Landrigan’s background and brain damage, she would not have sentenced him to death. Judge Hendrix wrote, “Had the trial counsel presented any of the mitigating information I have received [since the sentencing trial] – which was available at the time of sentencing – Mr. Landrigan would not have been sentenced to death.” UPDATE: A U.S. District Court Judge has stayed Landrigan's execution, forbidding the use of sodium thiopental in the lethal injection because the state has not adequately assured the court of the drug's efficacy.  The U.S. Court of Appeals for the Ninth Circuit upheld the stay. (Oct. 26, 2010). FURTHER UPDATE: The U.S. Supreme Court (5-4) lifted the stay of execution and Landrigan was executed late on Oct. 26.

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